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Trial Lawyer Group and Legal Think Tank Call for Sweeping Overhaul of Civil Discovery Rules
The National Law Journal
March 12, 2009
The American College of Trial Lawyers and a legal think tank have called for a sweeping overhaul of civil discovery rules to curtail expensive, time-consuming battles for documents, in a study released on March 11.
The most radical of the changes would impose strict limits on discovery after initial up-front disclosure by both sides.
"If you want to talk about a system that is affordable and efficient and not used as a weapon to force settlement, as it is today in many cases, then you have to have limitations," said Paul C. Saunders, chair of the ACTL task force on discovery and a partner at Cravath, Swaine & Moore in New York.
The 30-page report contains more than two dozen proposals and general principles for overhauling the discovery rules used in both federal and state courts. It was an 18-month joint project of the ACTL and the Institute for the Advancement of the American Legal System at the University of Denver.
Saunders said the task force, drawn from the experienced trial lawyers of the ACTL, came from both the plaintiffs' and defense bar. The proposals fall no harder on the plantiffs' bar than on the defense, he said.
"One of the most significant aspects of this is that a group of lawyers with as much experience as the College came together in one voice and said, 'We have problems and we need to fix them,' " said Rebecca Love Kourlis, executive director of the institute and former Colorado Supreme Court Justice.
The most significant proposal would change the current default position of permitting the broadest discovery to limiting it within a very short period.
The proposal calls for strict enforcement of current initial disclosure requirements. That includes disclosure of supporting documents by the plaintiff at the outset of the case and disclosure by defendants of evidence in support of counterclaims up front, as well as support for any defenses. After initial disclosure, only limited discovery should be permitted, the report states.
"This is a radical proposal," according to the report. "It challenges the current practice of broad open-ended and ever expanding discovery that was a hallmark of the federal rules as adopted in 1938 and that has become an integral part of our civil justice system," it states.
"It's pretty revolutionary to try to limit discovery without impeding the search for truth, while making it cost-effective for litigants," Kourlis said.
The task force did not define when discovery should be cut off, but outlined nine areas of possible limitation:
-- Redefine "relevance", the threshold for discovery.
-- Limit who may be subject to discovery requests.
-- Limit types of discovery.
-- Impose numerical limits, such as 50 hours of deposition time.
-- Eliminate deposition of experts.
-- Limit time for discovery.
-- Shift costs, or co-pay rules.
-- Impose financial limits.
-- Set client-approved discovery budgets.
"If you want to have a system of civil justice that will always be permitted to do what is necessary to find the smoking gun, then discovery reform is hopeless," he said. "But if you are willing to have a civil justice system that is not always, in 100 percent of the cases, going to find the smoking gun, then we can talk about reform," he said.
In addition, the proposal wants to move away from the "notion that one size fits all" in discovery, according to Saunders. He said the panel proposed asking the specialty bars, such as patent and employment lawyers, to come up with discovery rules suited to their specific types of cases.
The concern to find a "smoking gun" is legitimate "but it must be balanced somehow with the concern that discovery costs are not used to bludgeon one side into settlement," said Kourlis. She said the current system "has become more about forcing a plaintiff or defendant to their knees economically."
The granddaddy of discovery challenges comes in electronic discovery, which has been called a "nightmare and a morass" that continues to grow as cases grow, according to Saunders.
The report called for the training of judges and lawyers so they understand how electronic data are maintained as well as the cost of recovering and preserving the material.
Saunders said attempts to fashion limits specific to electronic documents were unsuccessful. "We thought a lot about it but could not make a principled distinction between electronic discovery and other information," he said.
The hope is that if the broader proposals are adopted, they will curb excesses in electronic discovery.
Both Saunders and Kourlis said the next step would be for the federal standing committee on rules to take up the issue and come up with potential specific changes. The task force report was presented to the committee in February.
In addition, they both would like to see courts begin pilot projects that could be used as laboratories for new limits on discovery to test whether the changes reduce costs and improve the outcomes.
