INSIDECOUNSEL.COM ● January 2016
5 litigation trends for 2016
1. Decreasing cost of litigation?
Changes to the Federal Rules of Civil Procedure are
designed to control, and possibly reduce, the increasing
costs. The effective date of these rules was dec. 1 but
we should not expect to see an immediate decrease of
costs. of paramount importance to in-house counsel
are the changes to Rule 37, governing preservation of
electronically stored information or eSi. The new
Rule 37 provides insight for determining which eSi to
preserve, and it resolves the current circuit split on
when failure-to-preserve sanctions are appropriate.
2. Active judicial case management
The Federal Judicial Center is also encouraging early
and active judicial case management. The FJC’s
first step was developing a new Benchbook for U. S.
district court judges, adding a new chapter on civil case
management. it advises that judges should be “active
case managers” and explains that “many parties will not
manage, or will manage in ways that are disproportionate to
the needs of the case, or will otherwise frustrate the just,
speedy, and inexpensive determination of the action.
3. More efficient and collaborative discovery
Cooperation in discovery has been heavily emphasized
by courts, bar associations and at conferences on
civil litigation. But a proposed change to Rule 1, and
a commitment by the FJC to encourage cooperation
among practitioners, ensure that this will continue to
be an area of concern and discussion in 2016.
4. Continued re-evaluation of mandatory
Curbing the use of mandatory arbitration clauses
5 More cases in federal court?
in consumer contracts is expected to see heated
debate, rule-making and possibly even legislation.
Prominently discussing these issues are the Consumer
Financial Protection Bureau (the CFPB) and Senator al
Franken, among others. The CFPB announced in early
october that it is considering rules to reform mandatory
arbitration provisions for certain consumer disputes.
Under the current law, if a plaintiff sues in state court and names
an in-state defendant, then an out-of-state defendant bears a
heavy burden to remove that case to federal court. Proposed
legislation would replace common-law removal with a statutory
one. Under the proposed statutory test, the burden would be on
the plaintiff to prove that it has plausible and good faith claims
against the in-state defendant and should stay in state court.
Chances, though, seem slim for this bill at press time.