Trial Magazine

Judge Dow’s comments reflect his own views and not those of the Advisory Committee.

Why did the Judicial Conference decide to propose amendments to Rule 23, and what are the changes intended to accomplish?

Every so often—and in Rule 23’s case, it’s been three or four times in the 50 years since it got its major revision in 1966—the Civil Rules Committee thinks there’s a reason to give Rule 23 another look. If you ranked the rules from one to 86 and asked which are the most important, Rule 23 is certainly one of the more important because of the significant number of disputes that can be wrapped into the rule. So it gets a lot of attention both within the committee and outside the committee.

The subcommittee’s objective was to imagine all the different possibilities through which the rule could be improved. That’s something we always consider with proposed rule changes: Principle number one is that you should do no harm. We’re always looking to make sure that whatever we’re considering by way of amendment is not going to make things worse.

Another thing we evaluate: Is the issue ripe, or is the U.S. Supreme Court or Congress reviewing it—in which case we might wait for them to take action or at least consider whether to take action. And sometimes there’s an improvement that we can see, but a rule isn’t the best way to do it because it would be too difficult to administer or because the Rules Enabling Act limits what the rules committees can do by way of substantive changes in the law.

The specific objectives of the current rule amendment package are mostly about incorporating best practices into the rule—things that we often hear from the good practitioners that they already do. And judges sometimes comment, “Well, that’s something we wish ¬everybody was doing, and so it’s worthy of being enshrined in the rules so ¬everybody will at least see it and think about it.”

What is the most important proposed amendment, or are they all equally important?

I would not say they’re all equally important. For example, extending the time for the United States to take a Rule 23(f) appeal, which only affects the category of cases in which the United States is a party, would not be on the same level as the amendment that requires frontloading of information to the district judge—that will affect every case. Many lawyers already do what the proposed amendment would require with -frontloading, but some don’t.

The idea is to give the judge, absent class members, and any potential objectors more and better information. This should increase the likelihood that notice would need to be given only once and that the judge will be able to give guidance on information relevant to final approval that might be missing. Many attorneys already are providing detailed information up front, but enshrining it as a requirement in the rule will mean that everybody needs to do it, and every judge has a right to insist on it being done.
Our rules package is consistent with the amendments that went into effect in December 2015. The idea behind all of this is to get early and active judicial case management—to get the judge’s attention right away and to give the judge the tools to make sure that the case moves efficiently.

What will be the biggest changes for parties and for judges?

I think one of the biggest impacts for judges, hopefully, will be to get them more robust information about a class action so they can determine whether a particular settlement is ripe for notice to be given and to move forward with preliminary approval. If the information is not complete, and then absent class members or counsel object to the -settlement, the judge may discover something that he or she should have learned six months ago. That could cause a second notice to be issued, which is expensive, or it could cause the entire settlement to be derailed or at least postponed.

Because of the uniqueness of Rule 23, the judge is, in some sense, a fiduciary for the absent class members, and the judge’s job is to scrutinize things. In many cases, the judge is likely the only person who’s going to consider making an objection to your settlement. The better the attorneys are at explaining the benefits in a detailed way, the more likely it is that preliminary approval will lead to final approval, and the better we will respect the due process rights of the absent class members.

Another big change is that district judges will have to approve any payments made to objectors. Many of us on the subcommittee attended AAJ’s Annual Convention in Montreal in 2015 as we were developing the proposed amendment package, and we heard from plaintiff lawyers about the phenomenon of bad objectors. We certainly heard similar comments from academics and from the defense bar, but it was primarily plaintiff lawyers who were very insistent that this was a problem worthy of our attention and of a rules-based solution. Obviously, we were persuaded by that.

I think the plaintiff class action bar is really on the front line of this issue, as they are dealing directly with objectors who are seeking payments for essentially doing nothing of value to the class. I think the rule change will be significant for those lawyers because it allows them to say no and to point out that the rule requires the district judge to approve the payment.

There is also a proposed change that requires any objection to be stated with particularity. That also should be ammunition for judges and lawyers on both sides of the “v” to push back against these phantom objectors who lay low in the district court and then surface an objection on appeal. The parties can then argue that the objection is waived because the rule requires the objection to be stated with particularity.
Our hope is that federal appellate courts will back that up with opinions that basically say that you waive your right to complain about the settlement if you don’t follow the rules. An objector whose sole purpose is to hold up a settlement to extract a payment on appeal is really hurting everybody. The plaintiff lawyer is the one who faces the pressure to make the payment, but the recovery for the class members and resolution for the defendants are also being delayed. I think everybody will benefit from the change.

Can you talk about how the collaborative process for drafting the rule amendments led to support from both plaintiff and defense interests?

I think it was really a great process. This is my first real experience on the front line of a significant rules amendment package that required public comment, public hearings, and got the kind of input that we received. We’ve had many positive comments from bar groups, including many that don’t necessarily support everything that we’re doing, wish we did more, or wish we did something different. At least some portion of our subcommittee tried to meet with every organization that invited us to talk about Rule 23.

That process was terrific for us because we refined our proposals considerably based on the feedback we heard. We also had a mini-conference where we invited a lot of people—practitioners, judges, professors, public interest organizations—who we thought would be helpful, and we were tweaking the proposals constantly along the way. I think the process gave people a lot of time to react and give their views—and that included the subcommittee.

I have done several rules presentations with my colleague from Chicago, Judge Amy St. Eve (who is on the Standing Committee). When we do a PowerPoint, we stick a picture of a ¬deep-sea squid in to break up the monotony of one text slide after another. We put that in because a deep-sea squid has the longest gestation period of anything in the animal kingdom (about five years or so), and that’s about the gestation period for a rule.

Some people are frustrated by the length of the process, but the collaborative process allows ample time for the subcommittee to study how other courts or Congress are examining a problem and to get input across the board. Then we can keep going back to the drawing board until we have it just right—or as right as it can be.

I laugh with my wife and kids about how many times I’ve been away. I never realized how being a federal district judge could involve a lot of travel, but I think it’s all been worth it because I think people are generally happy with the process and generally supportive of the result.

If the Rule 23 amendments are adopted, what will be key to smooth implementation?

My two answers to this are: education and early and active judicial case management. Judges understand how important their role is in making these rules work. I’m not sure that this will require a roadshow, but it might—where we would go from district to district and circuit to circuit to try to make sure that people are armed with the materials they need when the changes, if fully approved, would go into effect on Dec. 1, 2018. They need to understand the significant amendments to Rule 23 and how to implement them. And we need to produce checklists and videos and other educational materials to aid them in that transition—that’s probably what our subcommittee will do in the next year.

The Northern District of Illinois is participating in the Mandatory Initial Discovery Pilot Project, which “seeks to measure whether court-ordered, robust, mandatory discovery that must be produced before traditional discovery will reduce the cost, burden, and delay in civil litigation.” How did the pilot come about?

For the last couple of years, there has been a pilot project subcommittee, and the Standing Committee and Civil Rules Committee chairs have been very supportive of pilot projects because you can test in some jurisdictions whether a rule change would be warranted across all jurisdictions. We have had some notable successes with pilots in the past—e-discovery comes to mind. The idea here is to find out if things that work in certain places, or things that are believed to be potential improvements in the civil rules system, would be worthy of further study and potential rule changes.

The mandatory discovery pilot comes out of what we learned already works in several western states at the state level. Arizona has had mandatory initial disclosures for about 25 years, and a few other western states have some version of it as well. Arizona plaintiff and defense lawyers swear by this, and the judges love it too. Probably the main reason is that they like how smoothly their cases run under this mandatory initial discovery rule.

Arizona and Illinois federal courts are trying it. For Arizona, it’ll be a lot easier because unless you’re solely a federal practitioner, you’ve already been doing this. It’ll be a sea change for us here in Illinois, but many of the judges in our district felt that we should participate because we wouldn’t want the rule makers to be considering changes without having the data and input from a large district like ours.

We’ve stressed to the lawyers that this is a pilot and that means that we’ll do our best to implement it, but if there are places where justice requires us to deviate, we’ll have to do just that. That will be the kind of data that the administrative office in D.C. will collect to help the rules committees decide whether this pilot is something worth proposing for a nationwide rule.

The Federal Bar Association chapter here in Illinois has appointed a committee that’s going to be actively trying to track this and getting input from the bar. And we judges in the district have declined any invitation to be members of that committee because we don’t want the bar to give varnished commentary—we want the unvarnished commentary. Several judges participating in the pilot project are, I think, not certain that this would be a good way to go with a rule change, but they’re willing to participate. Otherwise, how could we gather the data?

How has it been going?

We are just starting to get initial feedback on the first cases that are subject to the pilot in Chicago, so I do not have any real basis for making a preliminary assessment except a small sampling of anecdotes. It seems to me that the biggest adjustment is for inside counsel, who need to be more involved in the document collection process right away and need to evaluate cases with their business folks much earlier than they traditionally have done. We will be carefully monitoring the program, so as it moves forward, we will have a better ¬snapshot of what is working and what might need some tweaking.

What are some significant issues you think the Judicial Conference will need to address in the future?
One issue that the Civil Rules Committee is currently studying involves the use of Rule 30(b)(6) depositions and whether that rule could benefit from some revision. A subcommittee chaired by Judge Joan Erickson from Minnesota is looking into some proposals. There also is a second pilot project—the Expedited Procedures Pilot—designed to advance cases from cradle to grave more quickly. My sense is that the goal for both the rules committees and the Judicial Conference is continuing to find ways to resolve cases more efficiently, consistent with the principles of Rule 1: “the just, speedy, and inexpensive determination of every action.”