A hallmark of the U.S. legal system is the notion that the parties can present their evidence to a judge and jury and get a just decision based on the merits of their case. In a significant subset of cases, most involving corporate defendants, the results increasingly are driven by the costs of litigation, not the merits of the case.
Much of this is due to the escalating cost of discovery, especially electronic discovery. The sheer volume of electronic information to be preserved, processed and potentially produced for litigation has far outpaced the ability of current discovery rules to manage discovery effectively.
As a result, a tool that was intended to help the parties reach a just outcome can too often become the primary focus of the lawsuit and create injustice and perverse incentives. Corporate defendants facing expensive collateral litigation (or worse, discovery sanctions despite having acted in good faith) may choose to settle even the strongest of cases when facing millions of documents to process, extremely broad interpretations of relevance, discovery on discovery and the lack of a uniform standard on preservation obligations.
The Federal Judicial Conference’s Civil Rules Advisory Committee has proposed amendments to the federal civil discovery rules to better align the rules with the needs of modern litigation, and to help litigants get the information they need to resolve claims without getting caught up in lengthy side disputes over the discovery process. Corporate legal community support for these proposals, where appropriate—plus examples of the problems under the existing rules—can help establish the need for change.
The public comment period is open until February 15, 2014, and information is available on the United States Courts website.
With a few modifications, the committee’s proposed amendments to Rules 26(b) and 37(e) should help reduce the costs and burdens of civil discovery while ensuring litigants can fully and fairly adjudicate their disputes.
Rule 26(b): Scope of Discovery
The exceedingly broad scope of discovery allowed under current Rule 26(b)(1) creates an overwhelming burden for corporate litigants while providing little evidentiary benefit to any party at trial. This is illustrated by a 2010 Fortune 200 company survey that found an average of 1,000 pages was produced in discovery in major cases for every one page used at trial, or one-tenth of 1 percent. More recent figures provided by individual companies in their filings with the committee put the ratio in the hundredths of 1 percent range.
The committee’s proposed amendments are modest, but they refocus the scope of discovery on information that is relevant to any party’s claim or defense rather than the amorphous standard of “relevant to the subject matter of the action.” They also bring in the concept of proportionality from Rule 26(c), moving it front and center to emphasize its importance as a consideration in the discovery process.
Adding a materiality requirement to the proposed rule to ensure discovery is allowed into non-privileged matters that are “relevant and material to any party’s claim or defense” will provide a meaningful basis for discovery decisions and prompt parties to focus discovery on information they need to make or defend their cases. Without language this direct, the proposed rule risks being undermined by historically broad views of discovery and relevance that have made previous scope of discovery reforms ineffective.
Properly limiting the scope of discovery, and consequently the scope of the preservation obligation, will significantly improve the operation of the U.S. civil litigation system by reducing costs and abuses, and making it easier for all of the parties to get the important information they need to resolve their disputes more quickly.
