Twenty-five years ago, in 1982, state and federal litigation cost about the same. Plaintiffs chose federal court sometimes for expansive discovery or to get a good judge, even though state court was available and additur impermissible. Today, plaintiffs with non-federal causes of action flee federal court. What happened? Highlights:
1983: Rule 11
1986: Summary Judgment Trilogy
Sometime in the 1980s/early 90s: Federal judges adopt unique individual rules; extensive pretrial orders and procedures mandated
1991: Chambers v. NASCO
1993: Daubert; Rules 26(a)(2) and 37(c)(1); Rule 26(a)(1) with opt-outs
1995: Private Securities Litigation Reform Act
1998: Securities Litigation Uniform Standards Act
2000: Rule 26(a)(1), (3) imposed nationally; 37(c)(1) extended to discovery.
2003: Rule 23(f)
2006: Electronic Discovery Rules; Class Action Fairness Act
2007: Bell Atlantic v. Twombly
Result: Federal court has become procedurally defen$e-oriented.
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