Commercial Litigation and Arbitration

Proposed F.R.Civ.P. 56(c) and Mandatory Statements of Undisputed Fact

Download associated files: PRACTITIONERS' COMMENT ON RULE 56(c).pdfN D California Comment. December 11, 2008.pdf 

History teaches that, once the Advisory Committee on the Federal Rules of Civil Procedure puts a proposed amendment out for public comment, there is an overwhelming likelihood that the proposal will be promulgated because so much effort has been expended on it. Major revisions, however, are possible, if rare. For example, when the proposed amendments to Rule 23 were circulated for public comment some years ago, the proposal contemplated continuing the existing rule that all putative class actions required court approval for any settlement or dismissal; the final version provided just the opposite.

With any luck, the same fate will be accorded the pending proposed amendment to Rule 56(c). The proposal mandates the use of statements of undisputed fact (“SUF”) as the default rule in connection with all summary judgment motions. For reasons I've elsewhere explained (e.g., post of July 28, 2008), I consider this wasteful -- another reflection of the Bentley mentality driving the Federal Rules: Spare no expense. There is some hope that the Advisory Committee will reverse course and make the default rule that no SUF is required, permitting the judge, in any particular case, to require an SUF if he or she deems it appropriate. The judges of the United States District Court for the Northern District of California have unanimously opposed the proposed mandate, noting that they had promulgated and later abrogated the same rule locally. Their December 11, 2008 memo to the Advisory Committee is attached. Several dozen prominent federal litigators had filed a letter to the same effect ten days earlier (that letter, too, is attached).

I encourage anyone who has a view on this issue to send an email to the Advisory Committee at Silence implies consent, even though in reality it usually signifies disinterest, indolence or an inescapable sense of futility.

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