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, chairman of the ACTL task force on discovery and a partner at Cravath, Swaine & Moore in New York.
From both sides
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 plaintiffs’ 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,” states 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’s pretty revolutionary to try to limit discovery without impeding the search for truth, while making it cost-effective for litigants,” Kourlis said.