May 12, 2010

Civil Defense Bar Releases Joint Recommendations on Civil Justice Reform

CONCORD, NH — R. Matthew Cairns, a litigation attorney with Gallagher Callahan & Gartrell and president-elect of DRI – The Voice of the Defense Bar announces the release of a white paper: Reshaping the Rules of Civil Procedure for the 21st Century, presented at the 2010 Duke Law School Conference on Civil Litigation, May 10-11, 2010.

The paper is a joint effort of the Lawyers for Civil Justice (, DRI – The Voice of the Defense Bar (, the Federation of Defense & Corporate Counsel (, and the International Association of Defense Counsel (, and provides new impetus for a fundamental review and revision of the Federal Rules of Civil Procedure. It summarizes the consensus of the defense bar and the more than 35 drafters of the white paper regarding problems presented by litigation in the federal courts and proposes meaningful amendments that would fundamentally alter the Federal civil litigation system.

The submission of the paper follows on the heels of two significant U.S. Supreme Court decisions (Twombly and Iqbal), which underscore the failure of notice pleading in the federal courts. It also builds upon the findings of the American College of Trial Lawyers and the University of Denver IAALS Discovery Task Force Report conclusion that “although the civil justice system is not broken, it is in serious need of repair.”

The whitepaper is bold in its recommendations in four areas:

1. Pleadings - It recommends implementation of the realistic pleading standard in Twombly and Iqbal to include more than merely notice pleading.

2. Limited Discovery - The Paper proposes a rule that focuses the scope of discovery to where it should be focused – on the claims and defenses in the action.

3. Preservation - Rules should be amended to permit spoliation sanctions only where willful conduct was carried out for the purpose of depriving another party of the use of the destroyed evidence and the destruction results in actual prejudice to the other party;

4. Cost Allocation - It advocates that Rules should be amended to require that each party pay the costs of the discovery it seeks

You many download the paper here: Civil Procedure Reform.

Persons with questions about the white paper should feel free to contact Matt Cairns.

Gallagher, Callahan & Gartrell is a multidisciplinary law firm located in Concord, New Hampshire.

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