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The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System released a report in March calling for radical change in the Federal Rules of Civil Procedure (FRCP) that may, according to the ACTL website, “one day underpin the transformation of civil procedure in federal and state systems throughout the United States.”
This report was created through the collaboration of seasoned (average of 38 years of experience) peer-selected trial lawyers from both sides of the bar and a well-funded, politically savvy legal institute. The report has gained wide attention and will serve as the foundation for a campaign to change, not merely amend, the FRCP. Comments and participation are invited by both groups.
Tom Allman calls it the “new wave” in his latest version of his report on the state rules and says that many groups will be discussing it in the near future, including the Sedona Conference and the Standing Committee on the Rules.
Two and a half years after the amendments to the FRCP took effect, the trial lawyers – overwhelmed by clogged courts as a result of increased litigation, discovery in general and e-discovery in particular – are calling for change to fix a “broken” system. While the starting point of their analysis was focused on discovery, the report’s recommendations ultimately upend current procedure in many significant ways.
For example, the report recommends adopting a fact-based pleading system to replace notice pleading with subsequent discovery. The Twombly case, decided by the Supreme Court in a widely cited ruling in spite of its narrow scope, foreshadowed this change to require more facts to create a viable case.
An immediate conference would be held regarding preservation, with a preservation order issued by the judge. The “safe harbor” of 37(e) would be changed from “inadvertent” to a willful and reckless standard.
The current, generally glossed-over, mandatory disclosures would be buttressed by enforcing immediate production by the plaintiff of materials supporting their case, with the defense following suit almost immediately (30 days). Additional discovery would be governed by the judge rather than by the parties, a practice more in line with international dispute resolution.
The report also takes aim at magistrate judges for their role in e-discovery, requesting instead that a single judicial officer handle a case from start to finish. This would include pre-trial and other motion practice, as well as immediate judicial oversight over preservation in absence of agreement of the parties.
The report further recommends that trial dates and discovery cutoffs be set and adhered to avoid discovery “creep.” Issues should be delineated early and narrowed. Discovery should be stayed, pending motion to dismiss, and summary judgment should be granted in more cases.
In addition, the report emphasizes that e-discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens. The report specifically states:
After the initial disclosures are made, only limited additional discovery should be permitted. Once that limited discovery is completed, no more should be allowed absent agreement or a court order, which should be made only upon a showing of good cause and proportionality.…
This Principle changes the default while still permitting a search, within reason, for the “smoking gun”. Today, the default is that there will be discovery unless it is blocked. This Principle permits limited discovery proportionately tied to the claims actually at issue, after which there will be no more. The limited discovery contemplated by this Principle would be in addition to the initial disclosures that the Principles also require. Whereas the initial disclosures would be of documents that may be used to support the producing party’s claims or defenses, the limited discovery described in this Principle would be of documents that support the requesting party’s claims or defenses.
With even more upfront work (a preservation conference for every contentious case, proportionality, burden arguments and handling trials start to finish), the report recommends augmenting the bench with more judges and educating judges and the trial bar about technology.
The report does not recommend (but I do if the rules change in this manner) that organizations with electronic data get their issue/data maps in order post-haste. The shock of the 2006 amendments to the FRCP early “meet and confer” discovery conference would be replaced by the shock of the immediate preservation conference and early production requirements. The “safe harbor” would be even less safe, since violating a court order on preservation could be considered willful.
While the current system is rife with discovery abuse, The Sedona Conference® Cooperation Proclamation and the magistrate judges’ focus on FRCP 26(g) attorney certifications, proportionality, culling protocols and reasonableness (as in reasonably accessible) are quickly moving to a more efficient use of time and money. Technology, training and process are normalizing the e-discovery process.
It is true that handling digital information and evidence in a legal setting has caused some uncomfortable changes in our profession. Yet, in the past 10 years, tens of thousands of litigators, and those who support them, have educated themselves to better understand their clients’ information practices. They are using early evidence assessment, artificial intelligence, automated coding and other tools and processes to reduce costs. Many corporate legal departments have invested in litigation readiness assessments and discovery response plans. Software applications focused on e-discovery are hot sellers in this capital-constrained period.
The call to change the legal system to be more like the European system of judicially controlled, limited discovery will not eliminate the need to carefully collect, process, review and produce electronic evidence. Nor will it eliminate the need for careful planning and education – by all involved parties. e-Discovery is a complex, evolving process.
We need to take a step back and look at our progress before considering another upheaval to the process. This revolutionary proposal needs to be engaged by a broad, cross-section of the best minds and hearts of those who are stewards of justice.
About the Author
As Corporate Technology Counsel for Fios, Mary has more than 20 years experience delivering enterprise-wide electronic discovery, managed services and software projects with legal and IT departments in publicly held companies.
Mary is one of the leading speakers and authors on electronic discovery issues, technology and the law and she hosts a very informative blog, Sound Evidence, on DiscoveryResources.org.