The Four Most Significant Developments in Federal Practice in 2007

1. Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). No one can possibly know what Rule 8(a)(2) means any more. Before Twombly, courts would occasionally find complaints too long and detailed to satisfy the “short and plain statement of the case” requirement of Rule 8(a)(2). Twombly then proceeded to read Rule 8(a)(2) as requiring fact pleading. Or at least “plausibility.” The decision was cited approximately 2,800 times in its first seven months (5/21/07 to 12/30/07), according to Shepard’s.

2. The Blossoming of Spoliation. The number of spoliation decisions reported on LEXIS has doubled since 2002 and more than tripled since 1997. This goes hand in glove with the explosion of electronic discovery. The figures (combined federal and state spoliation decisions):

2007 — 538

2006 — 480

2005 — 374

2004 — 295

2003 — 295

2002 — 258

2001 — 212

2000 — 201

1999 — 178

1998 — 174

1997 — 149

3. The Restyled Federal Rules of Civil Procedure. Restyling the Federal Rules of Civil Procedure is like wrapping drapes around nude statutes. Nothing really changes but someone prefers the look. Effective December 1, 2007, every Federal Rule of Civil Procedure was rewritten, and innumerable internal numbering changes were made. Now, much, if not most, research relating to the Rules must be done twice — once using the old numbering, once using the new, or once using the new words and once using the old. Substantial transaction costs for years to come.

4. Congressional Focus on Privilege. In the Senate, Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) was introduced on December 11, 2007, as The Leahy-Specter Bill, S. 2450. In the House, the Attorney-Client Privilege Protection Act of 2007, H.R. 3013, was passed on Tuesday, November 13, 2007, to reverse the Holder/Thompson/McNulty Memo.

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