Comments by the Committee on Federal Courts on Proposed Rule Changes

by Michael L. Huggins and Elaine Zhong

A central mission of the California Lawyers Association’s Committee on Federal Courts is to monitor activity across the California federal courts in an effort to keep members of the Litigation Section informed about federal issues that may have an impact on their California practices.  In connection with this mission, the Committee reviews and submits recommendations on issues that affect California federal-court practice.

For example, this year, the Committee has reviewed and submitted comments regarding proposed changes to the Federal Rules of Criminal and Civil Procedure and the Civil Local Rules for the U.S. District Court for the Northern District of California.  This article discusses those comments and invites anyone interested in participating in similar future comments to contact the Committee.

1. Possible Changes to Rule 26 Regarding Privilege Log Practice

After receiving a suggestion that rule changes be adopted to address difficulties some practitioners have experienced when preparing and exchanging privilege logs , the Discovery Subcommittee of the Judicial Conference Advisory Committee on Civil Rules (“the Judicial Conference”) began considering possible changes to the Federal Rules of Civil Procedure Rule 26(b)(5)(A).  The Judicial Conference invited comments from the bench and bar on the topic.  The Judicial Conference noted that no decision has been made about whether any rule change should be formally considered, and cautioned that the eventual conclusion may be that no rule change is needed.

In response to the Judicial Conference’s invitation for comment, our Committee circulated a survey to the members of the Litigation Section regarding their privilege log practice.  Of those who responded to the survey, approximately 22% are solo practitioners, 32% practice in small firms (with 15 attorneys or fewer), 16% practice at mid-sized firms (16-350 attorneys), and 26% practice at large firms (over 350 attorneys).  The remainder practice as in-house counsel or with governmental organizations.  Their law practices involve a number of subject matters, including complex business litigation, labor and employment, intellectual property, insurance, class actions, and civil rights cases, among others.  Approximately 66% of the total respondents stated that they typically represent defendants, and approximately 87% of the total respondents stated they typically represent corporate entities.

The survey asked members about their current experience with privilege logging under Rule 26(b)(5)(A).  When asked to rate how effective the current rules and practice of document-by-document privilege logs are at providing opposing counsel with the information they need to evaluate privilege claims, 7.9% responded “wholly ineffective,” 39.5% responded “ineffective,” 21.1% responded “neutral,” 28.9% responded “effective,” and 2.6% responded “very effective.”

When asked to rate how burdensome the current rules and practice of document-by-document privilege logs are, 26.3% responded “unreasonably burdensome,” 44.7% responded “burdensome,” 13.2% responded “some burden,” 13.2% responded “neutral,” and 2.6% responded “no undue burden.”

The survey also asked members to describe any issues they have had complying with Rule 26(b)(5)(A). A sample of the written comments we received includes the following:

• “In every complex case, [privilege logging] is a time-consuming and expensive process that is mostly governed by paralegals and litigation IT support professionals.”
• “[Privilege logs] are fairly useless, and a very expensive, burdensome exercise;” this delays document production.
• Privilege logs are “inefficient and expensive” but “are almost always too vague to meaningfully allow challenge.” Privilege logs are “not detailed enough.”
• “Opposing counsel has withheld documents as privileged while providing little information as to the purportedly privileged information.  This requires a litigant to ‘trust’ the opponent to hold a proper understanding of the scope of any purported privileges and to be forthright in providing non-privileged documents, which does not provide sufficient safeguards.”
• Even when the process is run through a document review database, it is “still time-consuming and expensive to cross check, format[,] etc.”
• “Opposing counsel [have insisted] on a privilege log for any and all communications between client and counsel, even though counsel was only retained after all events in dispute had already occurred.”

When asked whether amendments to Rule 26(b)(5)(A) would streamline discovery in their cases, 62.2% responded “yes,” 21.6% responded “maybe,” and 16.2% responded “no.”

Several respondents also provided written suggestions and comments on the possibility of rules changes, which include the following:

• Multiple respondents suggested that a beneficial rule change would be to state that parties need not provide privilege logs for any post-dispute communications between attorneys and their clients. One respondent noted, “Once a business dispute reaches the retention of litigation counsel, the communications with counsel will be self-evidently privileged.  There is no point in creating a log.”
• Some respondents also cautioned that rule revisions should be considered carefully to avoid creating other unforeseen issues. For example, the relative benefits and burdens on parties requesting and producing documents will need to be evaluated with any proposed rule revision.
• “There is an ongoing debate as to whether a log is required, and my view is that the rule should be the burden should be on the demanding party to establish a document by document log is truly necessary, versus being simply a tactic to drive up costs and create undue burden.”
• “The field of privilege logs and the lack of clarity as to what is required versus what is subject to negotiation . . . [have] wasted time and money for years.  Procedural amendments would be very helpful.”
• “I think it is important that there be some method to require document-by-document review, if not logging, for any relevant documents that are not found in categories that have not been excluded for legitimate reasons, such as consent of the opposing party.  Concerns about waiver tend to encourage attorneys to take extensive steps to avoid accidental production of privileged material, and a removal of the need for document-by-document review could encourage practices that lead to over-withholding of relevant evidence.”
• “I think changes to the rules would help in getting the Judges to understand how incredibly expensive and burdensome it is to prepare privilege logs.  Rulings sometimes do not comprehend the reality we face in big document cases where it’s not unusual for privilege reviews to cost $1 million.”

On July 30, 2021, our Committee submitted these and other comments to the Judicial Comments based on the survey.  The Judicial Conference has scheduled a virtual meeting on October 5, 2021, which will be open to the public, to consider whether to move forward with any changes to Rule 26 regarding privilege-log practice.

2. Proposed Revisions to the Civil Local Rules for the Northern District of California

On August 2, 2021, the U.S. District Court for the Northern District of California invited comments or suggestions to proposed modifications to its Civil Local Rules.  Our Committee reviewed the proposed modifications and identified three such changes that it believed warranted comment.  The Committee submitted its comments to those changes on September 3, 2021, as follows.

First, the proposed modifications to Local Rule 11-3 (Pro Hac Vice) would require “an attorney seeking to appear pro hac vice” to submit their application “at the time of filing of a complaint or other first appearance in the case.”  The Committee submitted that the phrase “at the time of filing of a complaint or other first appearance,” as worded, is vague as to whether it refers to the attorney, party, or law firm.  For example, the phrase might be construed to mean that attorneys who appear later in a pending matter, i.e., after the filing of a complaint or answer or other responsive pleading, and seek pro hac vice admission could be denied that status if their law firm or the party they represent has already appeared.  To the extent that is the meaning intended, the requirement may pose logistical challenges to staffing large, complex litigation matters, in which attorneys are routinely added subsequent to the initial pleadings.  Therefore, the Committee requested clarification in the requirement that an attorney’s application for pro hac vice admission must be made at the time of the individual attorney’s first appearance, rather than at the time of the party’s first appearance, such as by amending the phrase as follows: “at the time of filing of a complaint or the attorney’s other first appearance.”

Second, the proposed revisions to Local Rule 79-5 (Filing Documents Under Seal in Civil Cases) would require a party to “explore all alternatives to filing documents under seal.”  In this regard, the Committee recommended revising the rule to state that a party must “explore all reasonable alternatives to filing documents under seal.”

And third, the proposed revisions to Local Rule 83-2 (Procedure for Public Comment on Local Rules) would allow persons to submit written suggestions for amendments to the local rules “at any time.”  The Committee commented that it supports that revision.

3. Proposed Changes to Rule 16 of the Federal Rules of Criminal Procedure

On August 14, 2020, the Judicial Conference Committee on Rules of Practice and Procedure solicited public comment on proposed changes to Rule 16 of the Federal Rules of Criminal Procedure.  The proposed changes clarify the scope and timing of expert discovery.

Our Committee reviewed the proposed modifications and identified changes that it believed warranted comment.  The Committee submitted its comments to those changes on February 16, 2021, as follows:

First, proposed Rule 16 would impose reciprocity in the disclosure requirements placed on the government and defendants. We supported this approach.

Second, the proposed amendments to Rule 16 require that deadlines for expert disclosures be made “sufficiently before trial.”  The Committee also voiced support for this requirement.

Third, the proposed amendments to Rule 16 would incorporate some language and requirements from Rule 26 of the Federal Rules of Civil Procedure.   We emphasized that the Committee Notes explaining that the proposed amendments are not meant to replicate the Civil Rules are critical and proposed that the phrase “complete” be removed from “a complete statement” in the proposed amendments to Rules 16(a)(1)(G)(iii) and 16(b)(1)(C)(iii) Contents of the Disclosures.  

Finally, the Committee proposed technical amendments to the way in which subparagraphs are referenced in Rule 16.

4. Future Commentary on Proposed Rule Changes

The Committee continues to monitor any proposed rule changes to the federal rules and the local rules of California federal courts. 

On June 22, 2021, the Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee) approved publication of proposed amendments to the following:

• Appellate Rules 2 and 4;
• Bankruptcy Restyled Rules for the 3000 to 6000 Series; Rules 3002.1, 3011, and 8003; and new Rule 9038;
• Civil Rules 15, 72, and new Rule 87;
• New Criminal Rule 62; and
• Evidence Rules 106, 615, and 702.

The comment period is open from August 6, 2021 to February 16, 2022.

All who may be interested in submitting comments to the Committee to any such rule changes, or who may be interested in participating in the Committee’s efforts in this regard, are welcome to contact the Committee’s Chair, Christian Andrew-von Euw at christian@tech.law, or the Committee’s Vice Chair, Michael Huggins at michael.huggins@lw.com.

About the Authors:

Michael Huggins is an associate at Latham & Watkins LLP in the San Diego office.  He focuses his practice on litigating and advising on complex and high-value matters concerning commercial lines of insurance.

Elaine Zhong is a deputy city attorney for the City of Los Angeles and focuses on housing law.