Law Professors Opposed to Amendments to FRCP; Defense Counsel In Favor

I need to digest this further, but I think I agree with the law profs.  Among the change are, as you know, to eliminate the use of the simple forms (including patent infringement), to eliminate the discretion of a judge to allow discovery into matters that are relevant to the subject matter, but not to a claim or defense (which has huge repercussions given the CAFC’s holding (wrong, imho) that FRCP 9(b) applies to inequitable conduct claims, narrow the scope of discovery generally and with respect to specific forms, and more.

The law profs’ letter is here.

I’ve not been heavily involved in discovery in a long time, but apart from ESI issues, troll issues, and a few odd things, haven’t heard a whole lot of carping…

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

16 thoughts on “Law Professors Opposed to Amendments to FRCP; Defense Counsel In Favor

  1. 2

    David, you may want to check my response in your AIPLA brief post. There is a big ethics problem that we should discuss. Just how far can a lawyer go in misrepresenting the holding of a case to a court before what he says becomes sanctionable?

    1. 2.1

      LOL – why limit the ethical question to a court, Ned?

      After all, isn’t the stage of the blog that we dance upon just another avenue of legal reasoning, and do we not, as advocates, owe a duty of purity to the law, no matter where we advocate?

      It sounds hollow to say that only before a judge, should we be truthful.

      1. 2.1.1

        anon, the Supreme Court is very sensitive to citing dicta as a holding. If one cites dicta and states it as a holding, what is it that one is trying to do? I think it is clear what one is trying to do.

        Does the Supreme Court let attorney get away with it? Probably, but I would hope they make a mental note and not pay attention to anything such an attorney might say in the future as it is completely unreliable.

        But more than that, the organization that allows such a brief to be filed, in this case, the AIPLA, should also be disregarded as unreliable until such time as it proves itself capable of honest argument.


          “If one cites dicta and states it as a holding”, then one is confusing plural with singular.


            HJ, thanks. Check this from US v. Bell, 534 F.2d 202 (2d. Cir. 1975)

            “The Government’s first response is that Mr. Justice Marshall’s comments in Part III can be disregarded as “pure dicta.” We agree that they are dicta since the only question before the Court was whether or not any interstate nexus was necessary for a conviction of receipt and possession of a firearm. No evidence of any such nexus had been offered by the Government in Bass and therefore the question of the quantum of such nexus was not before the Court.[2] 206*206 Furthermore, the Government points out that in addition to the two dissenters, Mr. Justice Brennan expressly refrained from joining Part III of the opinion and Justices Rehnquist and Powell did not participate in the case. We thus have the added fillip that no majority of the present Court supports the Bass dictum. While we can agree that what Mr. Justice Marshall volunteered in Part III of his opinion is dictum, it does not at all follow that we can cavalierly disregard it. There is authority for the proposition that a distinction should be drawn between “obiter dictum,” which constitutes an aside or an unnecessary extension of comments, and considered or “judicial dictum” where the Court, as in this case, is providing a construction of a statute to guide the future conduct of inferior courts.[3] While such dictum is not binding upon us,[4] it must be given considerable weight and can not be ignored in the resolution of the close question we have to decide.”

            The point here has been extensively cited.


              While such dictum is not binding upon us

              Given weight…

              or not.

              That is, after all, the meaning of not binding, right?

              Hmm, sort of like the guy who helped write the law gave the appropriate weight to that dicta in the Benson case, which ended up in a sub nom to the “Anything under teh sun” case…

              (hint: Bergy, sub nom Chakrabarty)

              The story lines converge…


              Given weight… or not. That is, after all, the meaning of not binding, right?

              Uh, no, it’s not.



              You are technically correct (although you only pick on a nit).

              Change my statement from “weight” to “due weight.”

              Thanks pal. Have you read the Professors’ FRCP memo yet?


              (Yet) another thread in which the smarmy Leopold is shamed and disappears (without adding anything of merit).

              Happens a lot. In fact, nearly every time he charges at the red ape of ‘anon says.’



          As the person that finally brought you around to the realization that you were attempting to read ‘dicta’ from Bilski as some sort of anti-business method patent holding (and even that was a beyond incredible stretch), how would you have me treat your subsequent arguments? As harshly as you seem to want to treat the AIPLA?


            anon, I hardly think Bilski has a holding. It has a result. But what they held is anything but clear.



              Funny that you are “all about” recognizing a proper holding, and yet, cannot bring yourself to recognize the holdings in Bilski.

              Misrepresenting a case holding does include representing that a case does not have a holding when it does.

              For shame Ned.


              anon, other than that the MOT is not an exclusive test – which was the issue on appeal and the issue that had to be decided,

              what else was a holding in the case? Tell us that we may learn.


              Tell us that we may learn.

              Asked and answered Ned – many many many many times now.

              Pay attention.

      2. 2.1.2

        also recall anon that you once correctly pointed out that I cited to the vacated Tafas brief in an argument. (I had not known at the time it was vacated.) But you made a big deal about it at the time and rightly so.

        I think we both agree that we should be careful in our cites to authority. Do I read you correctly?

  2. 1

    /bigcorplawyer on/

    We need to learn from the English, who have centuries of experience in insulating the established from suits by the commons. Increasing the cost of filing suit is critical. Posting bonds that would cover the litigation costs of the defense is to be advocated. Increasing pleading requirements that we may exhaust plaintiffs in demurrers would be nice.

    But ultimately, denying the plaintiff discovery is what we really need.

    So, let’s get behind the rule change and the Goodlatte bill. Let us learn from our brethren across the sea.

    /bigcorplawyer off/

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