Trial Magazine

Changes to civil procedure can either make it easier or more difficult to represent clients—and AAJ Public Affairs is follow-­ing two such potential changes. A bill introduced in the U.S. Senate in July, the “Federal Courts Access Act,” would deny your clients access to state courts for state court claims, while a proposed change to the Federal Rules of Civil Procedure could be helpful in preparing for Rule 30(b)(6) depositions.

‘Federal Courts Access Act.’ S. 3249 is a civil procedure reform bill, but its main feature is to eliminate the complete diversity requirement. Sponsored by Sen. Mike Lee (R-Utah), the bill is trying to rewrite the Judiciary Act of 1789, which granted the federal courts some of the U.S. Constitution’s Article III diversity jurisdiction, limiting it with an amount in controversy requirement.

In a landmark 1806 case, Strawbridge v. Curtiss, the U.S. Supreme Court established the concept of complete diversity for federal court: Plaintiffs in a lawsuit must be citizens of different states than all defendants. This holding has been affirmed repeatedly for more than two centuries.

At the end of 2016, the U.S. House of Representatives held a hearing on eliminating complete diversity, which would result in a significant number of tort cases being removed from state to federal court. S. 3249 would provide for this removal, but it also would raise the amount in controversy from $75,000 to $125,000. While this increase would eliminate removal of a few cases, the bill also decreases the removal amount for class actions from $5 million to $125,000, potentially increasing the number of class actions in federal court.

S. 3249 also would repeal Class Action Fairness Act provisions that keep certain state class actions out of federal court. This includes a provision that instructs district courts to decline to exercise jurisdiction over a class action in which more than two-thirds of the proposed class members and at least one defendant from whom significant relief is sought are citizens of the state where the case is filed.

More important, the bill also repeals the provision that prohibits removal of both individual cases and class actions more than a year after commencement of an action. Allowing removal at any time could completely disrupt a plaintiff’s case, and defendants could use this strategically to end state court consideration of claims that are not going well for them. The provision allows defendants to forum shop. AAJ Public Affairs is monitoring this legislation carefully.

Proposed rulemaking on corporate depositions. The proposed amendment to Rule 30(b)(6) on corporate depositions is currently going through a formal notice and comment period that ends Feb. 15, 2019. The proposed rule focuses on the requirement to meet and confer, adding a provision requiring parties to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.” Find the complete rule text and instructions for filing comments at https://tinyurl.com/y8memw8y.

AAJ urges members to consider filing comments. Many members support including text on the “identity of each person the organization will designate to testify” in the rule. This will provide for discussion about whether the designated witness can answer the serving party’s questions. AAJ opposes including numerical limits on the number of topics in 30(b)(6) depositions, a suggestion advocated by several tort “reform” organizations. We are monitoring filed comments for pushback on the proposed rule that would result in a process that is unfair to plaintiffs.

For more information, please contact me (susan.steinman@justice.org) or Staff Attorney Amy Brogioli (amy.brogioli@justice.org).

Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.