rethinking the rules-begin with the end in...
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Rethinking the Rules—Begin with the End in Mind
Marc E. Williams
Nelson Mullins Riley & Scarborough LLP
949 Third Avenue, Suite 200 Huntington, WV 25701 (304) 526-3501 (304) 526-3541 [fax]
The Honorable Paul W. Grimm
U.S. District Court of Maryland
Baltimore Division 101 W. Lombard Street Baltimore, MD 21201 (410) 962-4560
The Honorable Rebecca Love Kourlis
Institute for the Advancement of the American Legal System
2044 E. Evans Avenue, Suite 307 Denver, CO 80208 (303) 871-6600 (303) 871-6610 [fax]
Paul C. Saunders
Cravath, Swaine & Moore LLP
825 Eighth Avenue New York, NY 10019 (212) 474-1404 (212) 474-3700 [fax]
Return to course materials table of contents
Marc E. Williams is the Office Managing Partner for the West Virginia office of Nelson Mul-lins Riley & Scarborough, LLP. His practice focuses on the trial and appellate defense of com-mercial litigation, toxic tort and class actions. He has had primary responsibility for over 100 jury trials and appeals during his career. Williams is a graduate of Marshall University and the West Virginia University College of Law. He is listed in the Best Lawyers in America in eight categories, is a West Virginia SuperLawyer and received Chambers USA’s highest designa-tion for Commercial Litigation. Williams is a past president of DRI–The Voice of the Defense Bar—the 23,000-member international organization of lawyers who defend the interests of businesses and individuals in civil litigation. Williams serves on the boards of the National Foundation for Judicial Excellence and Lawyers for Civil Justice.
The Honorable Paul W. Grimm has served as a full-time Magistrate Judge for the United States District Court for the District of Maryland since February 1997. He was appointed as Chief Magistrate Judge in May 2006. In September, 2009 Judge Grimm was appointed by the Chief Justice of the United States to serve as a member of the Advisory Committee for the Fed-eral Rules of Civil Procedure. Judge Grimm is an adjunct professor of law at the University of Maryland School of Law where, in 2002 and 2006, he was awarded the Outstanding Adjunct Professor of the Year Award. Before becoming a Magistrate Judge, Judge Grimm was in pri-vate practice in Baltimore for thirteen years, during which time he handled commercial litiga-tion. He also served as an Assistant Attorney General for the State of Maryland, an Assistant State’s Attorney for Baltimore County, Maryland, and a Captain in the United States Army Judge Advocate General’s Corps. In 2001, Judge Grimm retired as a Lieutenant Colonel from the United States Army Reserve. He is a graduate of the University of California (summa cum laude), and the University of New Mexico School of Law (magna cum laude, Order of the Coif).
The Honorable Rebecca Love Kourlis served Colorado’s courts for nearly two decades—first as a trial court judge and then as a Justice of the Colorado Supreme Court. In January 2006, she established the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver, where she is executive director. IAALS is a national, non-partisan organization dedicated to improving the process and culture of the American civil justice sys-tem. The Institute conducts research and develops policy recommendations in the areas of civil justice reform, civil case management, judicial selection and judicial performance evaluation. Most recently, the Institute announced the formation of the O’Connor Judicial Selection Ini-tiative, in order to provide states with an interest in moving from direct election of judges to a commission-based system, with the tools to achieve this goal. Justice Kourlis holds B.A. and J.D. degrees from Stanford University.
Paul C. Saunders is a lawyer in the Litigation Department in Cravath, Swaine & Moore LLP. His practice includes jury trials and international arbitration, primarily in the areas of anti-trust, securities, intellectual property, and public and private international law. Saunders is a Fellow of the American College of Trial Lawyers, was chair of its National Moot Court Com-petition Committee and its Downstate New York Committee, vice chair of its Committee on Special Problems in the Administration of Justice and is currently Chair of its Task Force on Discovery and Civil Justice. In 2003, Saunders was appointed Distinguished Visitor from Prac-tice at Georgetown University Law Center, where he is currently on the faculty. He received an A.B. egregia cum laude from Fordham College in 1963, where he was elected to Phi Beta Kappa, and a J.D. from Georgetown University Law Center in 1966. Saunders also attended the Institut d’Études Politiques in Paris, France. From 1967 to 1971, he was on active duty as a Captain in the U.S. Army Judge Advocate General’s Corps and was awarded the Meritorious Service Medal in 1971.
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Captain in the U.S. Army Judge Advocate General’s Corps and was awarded the Meritorious Service Medal in 1971. B. Content We are in the midst of a national conversation about possible changes to the civil justice system. The conversation accelerated with the publication of two reports by the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS). These reports suggested that the system is in need of serious repair in order to achieve the goals of a ―just, speedy, and inexpensive‖ resolution of cases as set forth in Federal Rule of Civil Procedure 1. There is widespread concern that the system costs too much and takes too long. Survey findings show that attorneys will not take cases where the amount in controversy is under $100,000. The impact is also felt in the larger, more complex cases, where cost and delay can be an important factor in the decision to settle a claim that might otherwise be pursued or defended at trial. Disproportionate cost and delay, by decreasing access to the civil justice system for both smaller and larger cases, is contributing to the disappearance of the civil jury trial. Work is being undertaken around the nation to make the civil justice system more effective and less costly. Pilot projects are being implemented that are designed to test approaches for decreasing costs and enhancing access, and in May 2010, the federal Civil Rules Advisory Committee held a Conference on Civil Litigation specifically addressing these issues. This panel will focus on the problems and proposed solutions, and the next steps in the conversation.
Final Report
ON THE JOINT PROJECT OF
THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY
AND
THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM
March 11, 2009
Revised April 15, 2009
i
AMERICAN COLLEGE OF TRIAL LAWYERS
The American College of Trial Lawyers, founded in 1950, is composed of the best of the trial bar
from the United States and Canada. Fellowship in the College is extended by invitation only,
after careful investigation, to those experienced trial lawyers who have mastered the art of
advocacy and those whose professional careers have been marked by the highest standards of
ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15
years’ experience before they can be considered for Fellowship. Membership in the College
cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully
selected from among those who represent plaintiffs and those who represent defendants in civil
cases; those who prosecute and those who defend persons accused of crime. The College is thus
able to speak with a balanced voice on important issues affecting the administration of justice.
The College strives to improve and elevate the standards of trial practice, the administration of
justice and the ethics of the trial profession.
American College of Trial Lawyers
19900 MacArthur Boulevard, Suite 610
Irvine, California 92612
www.actl.com
ii
AMERICAN COLLEGE OF TRIAL LAWYERS
TASK FORCE ON DISCOVERY
CHAIRPERSON
Paul C. Saunders, New York, New York
VICE-CHAIRPERSON
Ann B. Frick, Denver Colorado
PARTICIPATING MEMBERS
Robert L. Byman, Chicago, Illinois
The Hon. Colin L. Campbell, Toronto, Ontario
The Hon. Phillip R. Garrison, Springfield, Missouri
William T. Hangley, Philadelphia, Pennsylvania
Chris Kitchel, Portland, Oregon
Lynette Labinger, Providence, Rhode Island
Chuck Meadows, Dallas, Texas
Craig T. Merritt, Richmond, Virginia
Edward W. Mullinix, Philadelphia, Pennsylvania
Gordon W. Netzorg, Denver, Colorado
William Usher Norwood, III, Atlanta, Georgia
R. Joseph Parker, Cincinnati, Ohio
Colins J. Seitz, Jr., Wilmington, Delaware
Francis M. Wikstrom, Salt Lake City, Utah
W. Foster Wollen, San Francisco, California
iii
INSTITUTE FOR THE ADVANCEMENT OF THE
AMERICAN LEGAL SYSTEM
The Institute for the Advancement of the American Legal System (IAALS) at the University of
Denver was the brainchild of the University’s Chancellor Emeritus Daniel Ritchie, Denver
attorney and Bar leader John Moye and United States District Court Judge Richard Matsch.
IAALS Executive Director Rebecca Love Kourlis is also a founding member and previously
served for almost twenty years as a Colorado Supreme Court Justice and trial court judge.
IAALS staff is comprised of an experienced and dedicated group of men and women who have
achieved recognition in their former roles as judges, lawyers, academics and journalists. It is a
national non-partisan organization dedicated to improving the process and culture of the civil
justice system. IAALS provides principled leadership, conducts comprehensive and objective
research, and develops innovative and practical solutions. IAALS’ mission is to participate in
the achievement of a transparent, fair and cost-effective civil justice system that is accountable to
and trusted by those it serves.
In the civil justice reform area, IAALS is studying the relationship between existing Rules of
Civil Procedure and cost and delay in the civil justice system. To this end, it has examined
alternative approaches in place in other countries and even in the United States in certain
jurisdictions.
The Institute benefits from gifts donated to the University for the use of IAALS. None of those
gifts have conditions or requirements, other than accounting and fiduciary responsibility.
Institute for the Advancement of the American Legal System
University of Denver
2044 E. Evans Avenue
HRTM Building 307
Denver, CO 80208
Phone: 303.871.6600
Fax: 303.871.6610
iv
INSTITUTE FOR THE ADVANCEMENT OF THE
AMERICAN LEGAL SYSTEM
Rebecca Love Kourlis, Executive Director
Pamela Gagel, Assistant Director
Jordan Singer, Director of Research
Michael Buchanan, Research Analyst
Natalie Knowlton, Research Clerk
Dallas Jamison, Director of Marketing and Communications
Erin Harvey, Manager of Marketing and Communications
Abigail McLane, Executive Assistant
Stephen Ehrlich, Consultant
E. Osborne Ayscue, Jr., Charlotte, North Carolina, a member of the Institute’s Board of Advisors
and a Fellow of the American College of Trial Lawyers, participated as the Institute’s liaison to
the project.
1
JOINT PROJECT
OF THE
THE AMERICAN COLLEGE OF TRIAL LAWYERS
TASK FORCE ON DISCOVERY
AND
THE INSTITUTE FOR THE ADVANCEMENT OF THE
AMERICAN LEGAL SYSTEM
FINAL REPORT1
The American College of Trial Lawyers Task Force on Discovery (“Task Force”) and the
Institute for the Advancement of the American Legal System (“IAALS”) at the University of
Denver have, beginning in mid-2007, engaged in a joint project to examine the role of discovery
in perceived problems in the United States civil justice system and to make recommendations for
reform, if appropriate. The project was conceived as an outgrowth of increasing concerns that
problems in the civil justice system, especially those relating to discovery, have resulted in
unacceptable delays and prohibitive expense. Although originally intended to focus primarily on
discovery, the mandate of the project was broadened to examine other parts of the civil justice
system that relate to and have a potential impact on discovery. The goal of the project is to
provide Proposed Principles that will ultimately result in a civil justice system that better serves
the needs of its users.
THE PROCESS
The participants have held seven two-day meetings and participated in additional lengthy
conference calls over the past 18 months. They began by studying the history of the Federal
Rules of Civil Procedure, past attempts at reforms, prior cost studies, academic literature
commenting on and proposing changes to the rules and media coverage about the cost of
litigation.
The first goal of the project was to determine whether a problem really exists and, if so, to
determine its dimensions. As a starting point, therefore, the Task Force and IAALS worked with
an outside consultant to design and conduct a survey of the Fellows of the American College of
Trial Lawyers (“ACTL”) to create a database from which to work. IAALS contracted with
Mathematica Policy Research, Inc. to manage the survey and bore its full cost. Mathematica
then compiled the results of the survey and issued an 87-page report.
1 Accepted and approved by the Board of Regents of the American College of Trial Lawyers on February 25,
2009.
2
The survey was administered over a four-week period beginning April 23, 2008. It was sent to
the 3,812 Fellows of the ACTL, excluding judicial, emeritus and Canadian Fellows, who could
be reached electronically. Of those, 1,494 responded. Responses of 112 not currently engaged
in civil litigation were not considered. The response rate was a remarkably high 42 percent.
On average, the respondents had practiced law for 38 years. Twenty-four percent represent
plaintiffs exclusively, 31 percent represent defendants exclusively and 44 percent represent both,
but primarily defendants. About 40 percent of the respondents litigate complex commercial
disputes, but fewer than 20 percent litigate primarily in federal court (although nearly a third split
their time equally between federal and state courts). Although there were some exceptions, such
as with respect to summary judgment, for the most part there was no substantial difference
between the responses of those who represent primarily plaintiffs and those who represent
primarily defendants, at least with respect to differences relating to the action recommended in
this report.
SURVEY RESULTS
Three major themes emerged from the Survey:
1. Although the civil justice system is not broken, it is in serious need of repair. In many
jurisdictions, today‟s system takes too long and costs too much. Some deserving cases are not
brought because the cost of pursuing them fails a rational cost-benefit test while some other
cases of questionable merit and smaller cases are settled rather than tried because it costs too
much to litigate them.
2. The existing rules structure does not always lead to early identification of the contested issues
to be litigated, which often leads to a lack of focus in discovery. As a result, discovery can cost
far too much and can become an end in itself. As one respondent noted: “The discovery rules in
particular are impractical in that they promote full discovery as a value above almost everything
else.” Electronic discovery, in particular, needs a serious overhaul. It was described by one
respondent as a “morass.” Another respondent stated: “The new rules are a nightmare. The
bigger the case the more the abuse and the bigger the nightmare.”
3. Judges should have a more active role at the beginning of a case in designing the scope of
discovery and the direction and timing of the case all the way to trial. Where abuses occur,
judges are perceived not to enforce the rules effectively. According to one Fellow, “Judges need
to actively manage each case from the outset to contain costs; nothing else will work.”
In short, the survey revealed widely-held opinions that there are serious problems in the civil
justice system generally. Judges increasingly must serve as referees in acrimonious discovery
disputes, rather than deciding cases on their merits. From the outside, the system is often
perceived as cumbersome and inefficient. The emergence of various forms of alternative dispute
resolution emphasizes the point.
3
On September 8, 2008, the Task Force and IAALS published a joint Interim Report, describing
the results of the survey in much greater detail. It can be found on the websites of both the
American College of Trial Lawyers, www.actl.com, and IAALS, www.du.edu/legalinstitute.
That report has since attracted wide attention in the media, the bar and the judiciary.
The results of the survey reflect the fact that circumstances under which civil litigation is
conducted have changed dramatically over the past seventy years since the currently prevailing
civil procedures were adopted.
The objective of the civil justice system is described in Rule 1 of the Federal Rules of Civil
Procedure as “the just, speedy, and inexpensive determination of every action and proceeding.”
Too often that objective is now not being met. Trials, especially jury trials, are vital to fostering
the respect of the public in the civil justice system. Trials do not represent a failure of the
system. They are the cornerstone of the civil justice system. Unfortunately, because of expense
and delay, both civil bench trials and civil jury trials are disappearing.
PROPOSED PRINCIPLES
Recognizing the need for serious consideration of change in light of the survey results, the Task
Force and IAALS continued to study ways of addressing the problems they highlighted. They
have had the benefit of participants who practice under various civil procedure systems in the
United States and Canada, including both notice pleading and code pleading systems. They have
examined in detail civil justice systems in Canada, Australia, New Zealand and Europe, as well
as arbitration procedures and criminal procedure and have compared them to our existing civil
justice system.2
After careful study and many days of deliberation, the Task Force and IAALS have agreed on a
proposed set of Principles that would shape solutions to the problems they have identified. The
Principles are being released for the purpose of promoting nationwide discussion. These
Principles were developed to work in tandem with one another and should be evaluated in their
entirety.
RECOMMENDED ACTION
The Task Force and IAALS unanimously recommend that the Proposed Principles set forth in
this report, which can be applied to both state and federal civil justice systems, be made the
subject of public comment, discussion, debate and refinement. That process should include all
the stakeholders with an interest in a viable civil justice system, including state and federal
judiciaries, the academy, practitioners, bar organizations, clients and the public at large.
2 IAALS‟s review of civil procedural reforms in certain foreign jurisdictions and States in the United States is
attached as Appendix A.
4
Some of the Principles may be controversial in some respects. We encourage lively and
informed debate among interested parties to achieve the common goal of a fair and, we hope,
more efficient, system of justice. We are optimistic that the ensuing dialogue will lead to their
future implementation by those responsible for drafting and revising rules of civil practice and
procedure in jurisdictions throughout the United States.
PRINCIPLES
The Purpose of Procedural Rules: Procedural rules should be designed to
achieve the just resolution of every civil action. The concept of just resolution should include
procedures proportionate to the nature, scope and magnitude of the case that will produce a
reasonably prompt, reasonably efficient, reasonably affordable resolution.
1. GENERAL
The “one size fits all” approach of the current federal and most state
rules is useful in many cases but rulemakers should have the
flexibility to create different sets of rules for certain types of cases so
that they can be resolved more expeditiously and efficiently.
When the Federal Rules of Civil Procedure became effective in 1938 they
replaced the common law forms of actions at law and the differing sets of
procedures for those actions required by the Conformity Act of 1872 (each district
court used the procedures of the state in which it was located) as well as the
Equity Rules of 1912, which had governed suits in equity in all of the district
courts. The intent was to adopt a single, uniform set of rules that would apply to
all cases. Uniform rules made it possible for lawyers to appear in any federal
jurisdiction knowing that the same rules would apply in each.
It is time that the rules generally reflect the reality of practice. This Principle
supports a single system of civil procedure rules designed for the majority of
cases while recognizing that this “one size fits all” approach is not the most
effective approach for all types of cases. Over the years, courts have realized this
and have informally developed special rules and procedures for certain types of
cases. Examples include specific procedures to process patent and medical
malpractice cases. Congress also perceived the need for different rules by
enacting the Private Securities Litigation Reform Act for securities cases.3
3 Another example is specific rules that have been developed to process cases of a lower dollar amount, for
example Rule 16.1 in Colorado which requires the setting of an early trial date, early, full and detailed disclosure,
and presumptively prohibits depositions, interrogatories, document requests or requests for admission in civil actions
where the amount in controversy is $100,000 or less.
5
The concern that the development of different rules will preclude lawyers from
practicing across districts is no longer a reality of present-day practice, as
advances in technology allow for almost instant access to local rules and
procedures.
We are not suggesting a return to the chaotic and overly-complicated pre-1938
litigation environment, nor are we suggesting differential treatment across
districts. This Principle is based on a recognition that the rules should reflect the
reality that there are case types that may require different treatment and provide
for exceptions where appropriate. Specialized rules should be the exception but
they should be permitted.
2. PLEADINGS
The Purpose of Pleadings: Pleadings should notify the opposing party and the
court of the factual and legal basis of the pleader’s claims or defenses in order to define the
issues of fact and law to be adjudicated. They should give the opposing party and the court
sufficient information to determine whether the claim or defense is sufficient in law to merit
continued litigation. Pleadings should set practical limits on the scope of discovery and trial
and should give the court sufficient information to control and supervise the progress of the case
to trial or other resolution.
Notice pleading should be replaced by fact-based pleading. Pleadings
should set forth with particularity all of the material facts that are
known to the pleading party to establish the pleading party’s claims
or affirmative defenses.
One of the principal reforms made in the Federal Rules of Civil Procedure was to
permit notice pleading. For many years after the federal rules were adopted, there
were efforts to require specific, fact-based pleading in certain cases. Some of
those efforts were led by certain federal judges, who attempted to make those
changes by local rules; however, the Supreme Court resolved the issue in 1957 by
holding, in Conley v. Gibson, 355 U.S. 45 (1957), that a complaint should not be
dismissed unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to relief. States that adopted
the federal-type rules have generally followed suit.
One of the primary criticisms of notice pleading is that it leads to more discovery
than is necessary to identify and prepare for a valid legal dispute. In our survey,
61 percent of the respondents said that notice pleading led to more discovery in
order to narrow the claims and 64 percent said that fact pleading can narrow the
scope of discovery. Forty-eight percent of our respondents said that frivolous
claims and defenses are more prevalent than they were five years ago.
Some pleading rules make an exception for pleading fraud and mistake, as to
which the pleading party must state “with particularity” the circumstances
6
constituting fraud or mistake. We believe that a rule with similar specificity
requirements should be applied to all cases and throughout all pleadings.
This Principle replaces notice pleading with fact-based pleading. We would
require the parties to plead, at least in complaints, counterclaims and affirmative
defenses, all material facts that are known to the pleading party to support the
elements of a claim for relief or an affirmative defense.
Fact-based pleading must be accompanied by rules for responsive pleading that
require a party defending a claim to admit that which should be admitted.
Although it is not always possible to understand complex fact situations in detail
at an early stage, an answer that generally denies all facts in the complaint simply
puts everything at issue and does nothing to identify and eliminate uncontested
matters from further litigation. Discovery cannot be framed to address the facts in
controversy if the system of pleading fails to identify them.4
A new summary procedure should be developed by which parties can
submit applications for determination of enumerated matters (such as
rights that are dependent on the interpretation of a contract) on
pleadings and affidavits or other evidentiary materials without
triggering an automatic right to discovery or trial or any of the other
provisions of the current procedural rules.
The Task Force recommends that consideration be given the development of
alternate procedures for resolution of some disputes where full discovery and a
full trial are not required. Contract interpretations, declaratory orders and
statutory remedies are examples of matters that can be dealt with efficiently in
such a proceeding. In a number of Canadian Provinces, the use of a similar
procedure, called an Application, serves this purpose. In Canada, the Notice of
Application must set out the precise grounds of relief, the grounds to be argued
including reference to rules and statutes and the documentary evidence to be
relied on. The contextual facts and documents are contained in an affidavit. The
respondents serve and file their responsive pleadings. Depositions may be taken
but are limited to what is contained in the affidavits. At or before the oral
hearing, the presiding judge can direct a trial of all or part of the application on
terms that he or she may direct if satisfied that live testimony is necessary. The
time from commencement to completion is most often substantially shorter and
less costly than a normal action.
Such an action is similar to but sufficiently different from a declaratory judgment
action that it deserves consideration. It is similar to state statutes such as
Delaware Corporation Law § 220 (permitting a stockholder to sue to examine the
books and records of a corporation). The purpose, obviously, is to streamline the
4 Some members of the Task Force believe that the fact-based pleading requirement should be extended to
denials that are contained in answers but a majority of the Task Force disagrees.
7
civil justice system for disputes that do not require the full panoply of procedural
devices now found in most systems.
3. DISCOVERY
The Purpose of Discovery: Discovery should enable a party to procure in
admissible form through the most efficient, nonredundant, cost-effective method reasonably
available, evidence directly relevant to the claims and defenses asserted in the pleadings.
Discovery should not be an end in itself; it should be merely a means of facilitating a just,
efficient and inexpensive resolution of disputes.
Proportionality should be the most important principle applied to all
discovery.
Discovery is not the purpose of litigation. It is merely a means to an end. If
discovery does not promote the just, speedy and inexpensive determination of
actions, then it is not fulfilling its purpose.
Unfortunately, many lawyers believe that they should─or must─take advantage of
the full range of discovery options offered by the rules. They believe that zealous
advocacy (or fear of malpractice claims) demands no less and the current rules
certainly do not dissuade them from that view. Such a view, however, is at best a
symptom of the problems caused by the current discovery rules and at worst a
cause of the problems we face. In either case, we must eliminate that view. It is
crippling our civil justice system.
The parties and counsel should attempt in good faith to agree on proportional
discovery at the outset of a case but failing agreement, courts should become
involved. There simply is no justification for the parties to spend more on
discovery than a case requires. Courts should be encouraged, with the help of the
parties, to specify what forms of discovery will be permitted in a particular case.
Courts should be encouraged to stage discovery to insure that discovery related to
potentially dispositive issues is taken first so that those issues can be isolated and
timely adjudicated.
Shortly after the commencement of litigation, each party should
produce all reasonably available nonprivileged, non-work product
documents and things that may be used to support that party’s
claims, counterclaims or defenses.
Only 34 percent of the respondents said that the current initial disclosure rules
reduce discovery and only 28 percent said they save the clients money. The
initial-disclosure rules need to be revised.
This Principle is similar to Rule 26(a)(1)(ii) of the Federal Rules of Civil
Procedure‟s requirement for initial disclosures but it is slightly broader. Whereas
the current Rule permits description of documents by category and location, we
8
would require production. This Principle is intended to achieve a more
meaningful and effective exchange of documents in the early stages of the
litigation.
The rationale for this Principle is simple: each party should produce, without
delay and without a formal request, documents that are readily available and may
be used to support that party‟s claims, counterclaims or defenses. This Principle,
together with fact-based pleadings, ought to facilitate narrowing of the issues and,
where appropriate, settlement.
To those charged with applying such a Principle, we suggest that the plaintiff
could be required to produce such documents very shortly after the complaint is
served and that the defendant, who, unlike the plaintiff, may not be presumed to
have prepared for the litigation beforehand, be required to produce such
documents within a somewhat longer period of time, say 30 days after the answer
is served.
There should be an ongoing duty to supplement this disclosure. A sanction for
failure to comply, absent cause or excusable neglect, could be an order precluding
use of such evidence at trial.
We also urge specialty bars to develop specific disclosure rules for certain types
of cases that could supplement or even replace this Principle.
Discovery in general and document discovery in particular should be
limited to documents or information that would enable a party to
prove or disprove a claim or defense or enable a party to impeach a
witness.
The current rules permit discovery of all documents and information relevant to a
claim or defense of any party. As a result, it is not uncommon to see discovery
requests that begin with the words “all documents relating or referring to . . .”. Such requests are far too broad and are subject to abuse. They should not be
permitted.
Especially when combined with notice pleading, discovery is very expensive and
time consuming and easily permits substantial abuse. We recommend changing
the scope of discovery so as to allow only such limited discovery as will enable a
party to prove or disprove a claim or defense or to impeach a witness.
Until 1946, document discovery in the federal system was limited to things
“which constitute or contain evidence material to any matter involved in the
action” and then only upon motion showing good cause. The scope of discovery
was changed for depositions in 1946 to the “subject matter of the action”. It was
not until 1970 that the requirement for a motion showing good cause was
eliminated for document discovery. According to the Advisory Committee Notes,
the “good cause” requirement was eliminated “because it has furnished an
9
uncertain and erratic protection to the parties from whom production [of
documents] is sought . . .” The change also was intended to allow the system to
operate extrajudicially but the result was to afford virtually no protection at all to
those parties. Ironically, the change occurred just as copying machines were
becoming widely used and just before the advent of the personal computer.
The “extrajudicial” system has proved to be flawed. Discovery has become broad
to the point of being limitless. This Principle would require courts and parties to
focus on what is important to fair, expeditious and inexpensive resolution of civil
litigation.
There should be early disclosure of prospective trial witnesses.
Identification of prospective witnesses should come early enough to be useful
within the designated time limits. We do not take a position on when this
disclosure should be made but it should certainly come before discovery is closed
and it should be subject to the continuing duty to update. The current federal rule
that requires the identification of persons who have information that may be used
at trial (Rule 26(a)(1)(A)(i)) probably comes too early in most cases and often
leads to responses that are useless.
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 is a radical proposal. It is our most significant proposal. 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. This Principle changes the default. Up to now,
the default is that each party may take virtually unlimited discovery unless a court
says otherwise. We would reverse the default.
Our discovery system is broken. Fewer than half of the respondents thought that
our discovery system works well and 71 percent thought that discovery is used as
a tool to force settlement.
The history of discovery-reform efforts further demonstrates the need for radical
change. Serious reform efforts began under the mandate of the 1976 National
Conference on the Causes of Popular Dissatisfaction with the Administration of
Justice, commonly referred to as the Pound Conference. Acting under the
conference‟s mandate, the American Bar Association‟s Section of Litigation
created a Special Committee for the Study of Discovery Abuse, which published a
report in 1977 recommending numerous specific changes in the rules to correct
the abuse identified by the Pound Conference. The recommendations, which
included narrowing the subject-matter-of-the-action scope, resulted in substantial
10
controversy and extensive consideration by the Advisory Committee on Civil
Rules and numerous professional groups. In a long process lasting about a quarter
of a century, many of the recommendations were eventually adopted in one form
or another.
There is substantial opinion that all of those efforts have accomplished little or
nothing. Our survey included a request for expressions of agreement or
disagreement with a statement that the cumulative effect of the 1976-2007
changes in the discovery rules significantly reduced discovery abuse. Only about
one third of the respondents agreed; 44 percent disagreed and an additional 12
percent strongly disagreed.
Efforts to limit discovery must begin with definition of the type of discovery that
is permissible, but it is difficult, if not impossible, to write that definition in a way
that will satisfy everyone or that will work in all cases. Relevance surely is
required and some rules, such as the International Bar Association Rules of
Evidence, also require materiality. Whatever the definition, broad, unlimited
discovery is now the default notwithstanding that various bar and other groups
have complained for years about the burden, expense and abuse of discovery.
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. This Principle also applies to
electronic discovery.
We suggest the following possible areas of limitation for further consideration:
(1) limitations on scope of discovery (i.e., changes in the definition of
relevance);
(2) limitations on persons from whom discovery can be sought;
(3) limitations on the types of discovery (e.g., only document discovery, not
interrogatories);
(4) numerical limitations (e.g., only 20 interrogatories or requests for
admissions; only 50 hours of deposition time);
(5) elimination of depositions of experts where their testimony is strictly
limited to the contents of their written report;
(6) limitations on the time available for discovery;
11
(7) cost shifting/co-pay rules;
(8) financial limitations (i.e., limits on the amount of money that can be
spent─or that one party can require its opponent to spend─on discovery);
and
(9) discovery budgets that are approved by the clients and the court.
For this Principle to work, the contours of the limited discovery we contemplate
must be clearly defined. For certain types of cases, it will be possible to develop
standards for the discovery defaults. For example, in employment cases, the
standard practice is that personnel files are produced and the immediate
decisionmaker is deposed. In patent cases, disclosure of the inventor‟s notebooks
and the prosecution history documents might be the norm. The plaintiff and
defense bars for certain types of specialized cases should be able to develop
appropriate discovery protocols for those cases.
We emphasize that the primary goal is to change the default from unlimited
discovery to limited discovery. No matter how the limitations are defined, there
should be limitations. Additional discovery beyond the default limits would be
allowed only on a showing of good cause and proportionality.
We hasten to note again that this Principle should be read together with the
Principles requiring fact-based pleading and that each party forthwith should
produce at the beginning of litigation documents that may be used to support that
party‟s claims or defenses. We expect that the limited discovery contemplated by
this Principle and the initial-disclosure Principle would be swift, useful and
virtually automatic.
We reiterate that there should be a continuing duty to supplement disclosures and
discovery responses.
All facts are not necessarily subject to discovery.
This is a corollary of the preceding Principle. We now have a system of
discovery in which parties are entitled to discover all facts, without limit, unless
and until courts call a halt, which they rarely do. As a result, in the words of one
respondent, discovery has become an end in itself and we routinely have
“discovery about discovery”. Recall that our current rules were created in an era
before copying machines, computers and e-mail. Advances in technology are
overtaking our rules, to the point that the Advisory Committee Notes to Rule
26(b)(2)(B) of the Federal Rules of Civil Procedure state that “It is not possible to
define in a rule the different types of technological features that may affect the
burdens and costs of accessing electronically stored information.”
There is, of course, a balance to be established between the burdens of discovery
on the one hand and the search for evidence necessary for a just result on the other
hand. This Principle is meant to remind courts and litigants that discovery is to be
12
limited and that the goal of our civil justice system is the “just, speedy, and
inexpensive determination of every action and proceeding”.
Discovery planning creates an expectation in the client about the time and the
expense required to resolve the case. Additional discovery issues, which may
have been avoidable, and their consequent expense may impair the ability of the
client to afford or be represented by a lawyer at trial.
Courts should consider staying discovery in appropriate cases until
after a motion to dismiss is decided.
Discovery should be a mechanism by which a party discovers evidence to support
or defeat a valid claim or defense.5 It should not be used for the purpose of
enabling a party to see whether or not a valid claim exists. If, as we recommend,
the complaint must comply with fact-based pleading standards, courts should
have the ability to test the legal sufficiency of that complaint in appropriate cases
before the parties are allowed to embark on expensive discovery that may never
be used.
Discovery relating to damages should be treated differently.
Damages discovery is significantly different from discovery relating to other
issues and may call for different discovery procedures relating to timing and
content. The party with the burden of proof should, at some point, specifically
and separately identify its damage claims and the calculations supporting those
claims. Accordingly, the other party‟s discovery with respect to damages should
be more targeted. Because damages discovery often comes very late in the
process, the rules should reflect the reality of the timing of damages discovery.
Promptly after litigation is commenced, the parties should discuss the
preservation of electronic documents and attempt to reach agreement
about preservation. The parties should discuss the manner in which
electronic documents are stored and preserved. If the parties cannot
agree, the court should make an order governing electronic discovery
as soon as possible. That order should specify which electronic
information should be preserved and should address the scope of
allowable proportional electronic discovery and the allocation of its
cost among the parties.
Electronic information is fundamentally different from other types of discovery in
the following respects: it is everywhere, it is often hard to gain access to and it is
typically and routinely erased. Under judicial interpretations, once a complaint is
served, or perhaps even earlier, the parties have an obligation to preserve all
5 We recognize that discovery need not be limited to admissible evidence, but if the discovery does not
ultimately lead to evidence that can be used at trial, it serves very little purpose.
13
material that may prove relevant during a civil action, including electronic
information. That is very difficult, if not impossible, to accomplish in an
environment in which litigants maintain enormous stores of electronic records.
Electronic recordkeeping has led to the retention of information on a scale not
contemplated by the framers of the procedural rules, a circumstance complicated
by legitimate business practices that involve the periodic erasure of many
electronic records.
Often the cost of preservation in response to a “litigation hold” can be enormous,
especially for a large business entity.
Under Federal Rule of Civil Procedure 16(b), which was amended in 2006 to
include planning for the discovery of electronic information, the initial pretrial
conference, if held at all, does not occur until months after service of the
complaint. By that time, the obligation to preserve all relevant documents has
already been triggered and the cost of preserving electronic documents has
already been incurred. This is a problem.
It is desirable for counsel to agree at the outset about electronic-information
preservation and many local rules require such cooperation. Absent agreement of
counsel, this Principle requires prompt judicial involvement in the identification
and preservation of electronic evidence. We call on courts to hold an initial
conference promptly after a complaint is served, for the purpose of making an
order with respect to the preservation of electronic information. In this regard, we
refer to Principle 5 of the Sedona United States Principles for Electronic
Document Production.6
We are aware of cases in which, shortly after a complaint is filed, a motion is
made for the preservation of certain electronic documents that otherwise would be
destroyed in the ordinary course. See, e.g., Keir v. Unumprovident Corp., No. 02
Civ. 8781, 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003) (counsel told court that
simply preserving all backup tapes from 881 corporate servers “would cost
millions of dollars” and court fashioned a very limited preservation order after
requiring counsel to confer).
This Principle would mandate electronic-information conferences, both with
counsel and the court, absent agreement. Before such a conference, there should
6 The Sedona Conference is a nonprofit law and policy think tank based in Sedona, Arizona. It has published
principles relating to electronic document production. Sedona Canada was formed in 2006 out of a recognition that
electronic discovery was “quickly becoming a factor in all Canadian civil litigation, large and small.” An overview
of the Principles developed by Working Group 1 and Working Group 7 (“Sedona Canada”) are in Appendix B. The
complete publications of both Working Groups are The Sedona Principles, Second Edition: Best Practices,
Recommendations & Principles for Addressing Electronic Document Production (The Sedona Conference®
Working
Group Series, 2007) and The Sedona Canada Principles Addressing Electronic Discovery (A Project of The Sedona
Conference®
Working Group 7, Sedona Canada, January 2008), and the full text of each document may be
downloaded free of charge for personal use from www.thesedonaconference.org.
14
be a safe harbor for routine, benign destruction, so long as it is not done
deliberately in order to destroy evidence.
The issue here is not the scope of electronic discovery; rather the issue is what
must be preserved before the scope of permissible electronic discovery can be
determined. It is the preservation of electronic materials at the outset of litigation
that engenders expensive retention efforts, made largely to avoid collateral
litigation about evidence spoliation. Litigating electronic evidence spoliation
issues that bloom after discovery is well underway can impose enormous expense
on the parties and can be used tactically to derail a case, drawing the court‟s
attention away from the merits of the underlying dispute. Current rules do not
adequately address this issue.
Electronic 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.
Our respondents told us that electronic discovery is a nightmare and a morass.
These Principles require early judicial involvement so that the burden of
electronic discovery is limited by principles of proportionality. Although the
Advisory Committee on Civil Rules attempted to deal with the issues in new Rule
26(b)(2), many of our respondents thought that the Rule was inadequate. The
Rule, in conjunction with the potential for sanctions under rule 37(e), exposes
litigants to a series of legal tests that are not self-explanatory and are difficult to
execute in the world of modern information technology. The interplay among
“undue cost and burden,” “reasonably accessible,” “routine good faith operation,”
and “good cause,” all of which concepts are found in that rule, presents traps for
even the most well-intentioned litigant.
We understand that more than 50 district courts have detailed local rules for
electronic discovery. The best of those provisions should be adopted nationwide.
We are well aware that this area of civil procedure continues to develop and we
applaud efforts such as new Federal Rule of Evidence 502 seeking to address the
critical issue of attorney-client privilege waiver in the production of documents,
including electronic records. It remains to be seen, however, whether a
nonwaiver rule will reduce expenses or limit the pre-production expense of
discovery of electronic information.
The obligation to preserve electronically-stored information requires
reasonable and good faith efforts to retain information that may be
relevant to pending or threatened litigation; however, it is
unreasonable to expect parties to take every conceivable step to
preserve all potentially relevant electronically stored information.
15
Absent a showing of need and relevance, a party should not be
required to restore deleted or residual electronically-stored
information, including backup tapes.
Sanctions should be imposed for failure to make electronic discovery
only upon a showing of intent to destroy evidence or recklessness.
The cost of preserving, collecting and reviewing electronically-stored
material should generally be borne by the party producing it but
courts should not hesitate to arrive at a different allocation of
expenses in appropriate cases.
The above Principles are taken from the Sedona Principles for Addressing
Electronic Document Production (June 2007) and the Sedona Canada Principles
Addressing Electronic Discovery, January 2008. They are meant to provide a
framework for developing rules of reasonableness and proportionality. They do
not replace or modify the other Principles relating to the limitation of discovery.
They are merely supplemental.
By way of explanation, we can do no better than to quote from two Canadian
practitioners who have studied the subject extensively and who bring a refreshing
viewpoint to the subject:
The proliferation in recent years of guidelines, formal and informal
rules, articles, conferences and expert service providers all dealing
with e-discovery may, at times, have obscured the reality that e-
discovery must be merely a means to an end and not an end unto
itself. E-discovery is a tool which, used properly, can assist with
the just resolution of many disputes; however, used improperly,
e-discovery can frustrate the cost-effective, speedy and just
determination of almost every dispute.
E-discovery has had, and it will continue to have, a growing
importance in litigation just as technology has a growing
importance in society and commerce. It is up to counsel and the
judiciary to ensure that e-discovery does not place the courtroom
out of the reach of parties seeking a fair adjudication of their
disputes.
B. Sells & TJ Adhihetty, E-discovery, you can’t always get what
you want, International Litigation News, Sept. 2008, pp. 35-36.
16
In order to contain the expense of electronic discovery and to carry
out the Principle of Proportionality, judges should have access to, and
attorneys practicing civil litigation should be encouraged to attend,
technical workshops where they can obtain a full understanding of the
complexity of the electronic storage and retrieval of documents.
Although electronic discovery is becoming extraordinarily important in civil
litigation, it is proving to be enormously expensive and burdensome. The vast
majority (75 percent) of our respondents confirmed the fact that electronic
discovery has resulted in a disproportionate increase in the expense of discovery
and thus an increase in total litigation expense. Electronic discovery, however, is
a fact of life that is here to stay. We favor an intensive study to determine how
best to cope with discovery of this information in an efficient, cost-effective way
to ensure expenses that are proportional to the value of the case.
Unfortunately, the rules as now written do not give courts any guidance about
how to deal with electronic discovery. Moreover, 76 percent of the respondents
said that courts do not understand the difficulties parties face in providing
electronic discovery. Likewise, trial counsel are often uninformed about the
technical facets of electronic discovery and are ill-equipped to assist trial courts in
dealing with the issues that arise. Some courts have imposed obligations on
counsel to ensure that their clients fully comply with electronic discovery
requests; litigation about compliance with electronic discovery requests has
become commonplace. We express no opinion about the legitimacy or
desirability of such orders.
It does appear, however, that some courts do not fully understand the complexity
of the technical issues involved and that the enormous scope and practical
unworkability of the obligations they impose on trial counsel are often impossible
to meet despite extensive (and expensive) good-faith efforts.
At a minimum, courts making decisions about electronic discovery should fully
understand the technical aspects of the issues they must decide, including the
feasibility and expense involved in complying with orders relating to such
discovery. Accordingly, we recommend workshops for judges to provide them
with technical knowledge about the issues involved in electronic discovery. We
also recommend that trial counsel become educated in such matters. An informed
bench and bar will be better prepared to understand and make informed decisions
about the relative difficulties and expense involved in electronic discovery. Such
education is essential because without it, counsel increasingly will be constrained
to rely on third-party providers of electronic-discovery services who include
judgments about responsiveness and privilege among the services they provide, a
trend we view with alarm.
17
Requests for admissions and contention interrogatories should be
limited by the Principle of proportionality. They should be used
sparingly, if at all.
Requests for admission can be abused, particularly when they are used in large
numbers to elicit admissions about immaterial or trivial matters. Used properly,
they can focus the scope of discovery by eliminating matters that are not at issue,
presumably shortening depositions, eliminating substantial searches for
documentary proof and shortening the trial. We recommend meaningful limits on
the use of this discovery tool to ensure that it is used for its intended purposes.
For example, it could be limited to authentication of documents or numerical and
statistical calculations.
Even greater abuse seems to arise with the use of contention interrogatories. They
often seek to compel an adversary to summarize its legal theories and then itemize
evidence in support of those theories. Just as frequently, they draw lengthy
objections that they are premature, seek the revelation of work-product and invite
attorney-crafted answers so opaque that they do little to advance the efficient
resolution of the litigation. This device should be used rarely and narrowly.
4. EXPERTS
Experts should be required to furnish a written report setting forth
their opinions, and the reasons for them, and their trial testimony
should be strictly limited to the contents of their report. Except in
extraordinary cases, only one expert witness per party should be
permitted for any given issue.
The federal rules and many state rules require written expert reports and we urge
that the requirement should be followed by all courts. The requirement of an
expert report from an expert should obviate the need for a deposition in most
cases. In fact, some Task Force members believe that it should obviate altogether
the need for a deposition of experts.
We also endorse the proposed amendment to Federal Rule of Civil Procedure
26(b)(4)(B) and (C) and recommend comparable state rules that would prohibit
discovery of draft expert reports and some communications between experts and
counsel.
18
5. DISPOSITIVE MOTIONS
The Purpose of Dispositive Motions: Dispositive motions before trial identify and
dispose of any issues that can be disposed of without unreasonable delay or expense before, or in
lieu of, trial.
Although we do not recommend any Principle relating to summary judgment
motions, we report that there was a disparity of views in the Task Force, just as
there was a disparity of views among the respondents. For example, nearly 64
percent of respondents who represent primarily plaintiffs said that summary
judgment motions were used as a tactical tool rather than in a good-faith effort to
narrow issues. By contrast, nearly 69 percent of respondents who represent
primarily defendants said that judges decline to grant summary judgment motions
even when they are warranted. This subject deserves further careful consideration
and discussion.
6. JUDICIAL MANAGEMENT
A single judicial officer should be assigned to each case at the
beginning of a lawsuit and should stay with the case through its
termination.
The survey respondents agreed overwhelmingly (89 percent) that a single judicial
officer should oversee the case from beginning to end. Respondents also agreed
overwhelmingly (74 percent) that the judge who is going to try the case should
handle all pretrial matters.
In many federal districts, the normal practice is to assign each new case to a single
judge and that judge is expected to stay with the case from the beginning to the
end. Assignment to a single judge is the most efficient method of judicial
management. We believe that the principal role of the judge should be to try the
case. Judges who are going to try cases are in the best position to make pretrial
rulings on evidentiary and discovery matters and dispositive motions.
We are aware that in some state courts, judges are rotated from one docket to
another and that in some federal districts, magistrate judges handle discovery
matters. We are concerned that such practices deprive the litigants of the
consistency and clarity that assignment to a single docket, without rotation, brings
to the system of justice.
We are also cognizant of the fact that in some courts, the scarcity of judicial
resources will not allow for the assignment of every case to a single judge, but in
those cases, we recommend an increase in judicial resources so that this Principle
can be consistently followed.
19
Initial pretrial conferences should be held as soon as possible in all
cases and subsequent status conferences should be held when
necessary, either on the request of a party or on the court’s own
initiative.
In most systems, initial pretrial conferences are permissible but not mandatory.
This Principle would require such conferences in all cases. Sixty-seven percent of
our respondents thought that such conferences inform the court about the issues in
the case and 53 percent thought that such conferences identified and, more
important, narrowed the issues. More than 20 percent of the respondents reported
that such conferences are not regularly held.
Pretrial conferences are a useful vehicle for involving the court at the earliest
possible time in the management of the case. They are useful for keeping the
judge informed about the progress of the case and allowing the court to guide the
work of counsel. We are aware that there are those who believe that judges
should not become involved in litigation too early and should allow the parties to
control the litigation without judicial supervision. However, we believe that,
especially in complex cases, the better procedure is to involve judges early and
often.
Early judicial involvement is important because not all cases are the same and
because different types of cases require different case management. Some, such
as complex cases, require more; some, such as relatively routine or smaller cases,
require less. The goal is the just, cost-effective and expeditious resolution of
disputes.
Seventy-four percent of the Fellows in the survey said that early intervention by
judges helped to narrow the issues and 66 percent said that it helped to limit
discovery. Seventy-one percent said that early and frequent involvement of a
judicial officer leads to results that are more satisfactory to the client.
We believe that pretrial conferences should be held early and that in those
conferences courts should identify pleading and discovery issues, specify when
they should be addressed and resolved, describe the types of limited discovery
that will be permitted and set a timetable for completion. We also believe the
conferences are important for a speedy and efficient resolution of the litigation
because they allow the court to set directions and guidelines early in the case.
At the first pretrial conference, the court should set a realistic date for
completion of discovery and a realistic trial date and should stick to
them, absent extraordinary circumstances.
There has been a good deal of debate about the benefits of the early setting of a
trial date.
20
In 1990, the Federal Judicial Center asked the Advisory Committee on Civil
Rules to consider amending Rule 16 to require the court to set a trial date at the
Rule 16 conference. The Advisory Committee chose not to do so “because the
docket conditions in some districts would make setting a realistic trial date early
in the case unrealistic”. R. Marcus, Retooling American Discovery for the
Twenty-First Century: Toward a New World Order?, 7 Tulane J. of Int‟l & Comp.
Law 153, 179 (1999).
A majority of our respondents (60 percent) thought that the trial date should be set
early in the case.
There can be significant benefits to setting a trial date early in the case. For
example, the sooner a case gets to trial, the more the claims tend to narrow, the
more the evidence is streamlined and the more efficient the process becomes.
Without a firm trial date, cases tend to drift and discovery takes on a life of its
own. In addition, we believe that setting realistic but firm trial dates facilitates the
settlement of cases that should be settled, so long as the court is vigilant to ensure
that the parties are behaving responsibly. In addition, it will facilitate the trials of
cases that should be tried.
In Delaware Chancery Court, for example, where complex, expedited cases such
as those relating to hostile takeovers are heard frequently, the parties know that in
such cases they will have only a limited time within which to take discovery and
get ready for trial. The parties become more efficient and the process can be more
focused.
A new IAALS study provides strong empirical support for early setting of trial
dates. Based on an examination of nearly 8,000 closed federal civil cases, the
IAALS study found that there is a strong positive statistical correlation between
the overall time to resolution of the case and the elapsed time between the filing
of the case and the court‟s setting of a trial date. See Institute for the
Advancement of the American Legal System, Civil Case Processing in the
Federal Courts: A Twenty-First Century Analysis (forthcoming January 2009).
We also believe that the trial date should not be adjourned except under
extraordinary circumstances. The IAALS study found that trial dates are
routinely adjourned. Over 92 percent of motions to adjourn the trial date were
granted and less than 45 percent of cases that actually went to trial did so on the
trial date that was first set. The parties have a right to get their case to trial
expeditiously and if they know that the trial date will be adjourned, there is no
point in setting a trial date in the first place. It is noteworthy that the IAALS
study also found that in courts where trial dates are expected to be held firm, the
parties seek trial adjournments at a much lower rate and only under truly
extraordinary circumstances.
21
Parties should be required to confer early and often about discovery
and, especially in complex cases, to make periodic reports of those
conferences to the court.
Discovery conferences work well and should be continued. Over half
(59 percent) of our respondents thought that conferences are helpful in managing
the discovery process; just over 40 percent of the respondents said that discovery
conferences ─ although they are mandatory in most cases ─ frequently do not
occur.
Cooperation of counsel is critical to the speedy, effective and inexpensive
resolution of disputes in our civil justice system. Ninety-seven percent of our
respondents said that when all counsel are collaborative and professional, the case
costs the client less. Unfortunately, cooperation does not often occur. In fact, it is
argued that cooperation is inconsistent with the adversary system. Professor
Stephen Landsman has written that the “sharp clash of proofs presented by
adversaries in a highly structured forensic setting” is key to the resolution of
disputes in a manner that is acceptable to both the parties and society.
S. Landsman, ABA Section of Litigation, Readings on Adversarial Justice: The
American Approach to Adjudication, 2 (1988).
However, Chief Magistrate Judge Paul W. Grimm of the United States District
Court for the District of Maryland, referring specifically to Professor Landsman‟s
comment, responded that
However central the adversary system is to our way of formal
dispute resolution, there is nothing inherent in it that precludes
cooperation between the parties and their attorneys during the
litigation process to achieve orderly and cost effective discovery of
the competing facts on which the system depends. Mancia v.
Mayflower Textile Servs. Co. et al., Civ. No. 1:08-CV-00273-CCB,
Oct. 15, 2008, p. 20.
Involvement of the court is key to effective cooperation and to a productive
discovery conference. Even where the parties agree, the court should review the
results of the agreement carefully in order to ensure that the results are conducive
to a just, speedy and inexpensive resolution of the dispute. Unlike earlier studies
and literature, the survey revealed that experienced trial lawyers increasingly see
the role of the judge as a “monitor” whose involvement can critically impact the
cost and time to resolution of disputes.
Courts are encouraged to raise the possibility of mediation or other
form of alternative dispute resolution early in appropriate cases.
Courts should have the power to order it in appropriate cases at the
appropriate time, unless all parties agree otherwise. Mediation of
issues (as opposed to the entire case) may also be appropriate.
22
This is a controversial principle; however, it recognizes reality.
Over half (55 percent) of the respondents said that alternative dispute resolution
was a positive development. A surprisingly high 82 percent said that court-
ordered alternative dispute resolution was a positive development and 72 percent
said that it led to settlements without trial.
As far as expense was concerned, 52 percent said that alternative dispute
resolution decreased the expense for their clients and 66 percent said that it
shortened the time to disposition.
Three conclusions could be drawn. First, this could be a reflection of the extent to
which alternative dispute resolution has become efficient and effective. Second,
it could be a reflection of how slow and inefficient the normal judicial process has
become. Third, it could be a reflection of the fact that ADR may afford the
parties a mechanism for avoiding costly discovery.
Whatever the reason, we acknowledge the results and therefore recommend that
courts be encouraged to raise mediation as a possibility and that they order it in
appropriate cases. We note, however, that if these Principles are effective in
reducing the cost of discovery, parties may opt more often for judicial trials, as
opposed to ADR. That is, at least, our hope.
We also note that under the Alternative Dispute Resolution Act of 1998 (28 USC
§ 651, et seq.), federal courts have the power to require parties to “consider”
alternative dispute resolution or mediation and are required to make at least one
such process available to litigants. We are aware that many federal district courts
require alternative dispute resolution and that some state courts require mediation
or other alternative dispute resolution in all cases. Some courts will not allow
discovery or set a trial date until after the parties mediate. While we believe that
mediation or some other form of mediation is desirable in many cases, we believe
that the parties should have the ability to say “no” in appropriate cases where they
all agree. This is already the practice in many courts.
The parties and the courts should give greater priority to the
resolution of motions that will advance the case more quickly to trial
or resolution.
Judicial delay in deciding motions is a cause ─ perhaps a major cause ─ of delay
in our civil justice system.7 We recognize that our judges often are overworked
and without adequate resources. Judicial delay in deciding certain motions that
would materially advance the litigation has a materially adverse impact on the
7 One of our respondents described a case in which it took the court two years to decide a summary judgment
motion. Such a delay is unacceptable and greatly increases the cost of litigation.
23
ultimate resolution of litigation.8 In this respect, we endorse Section 11.34 of the
Manual For Complex Litigation (Fourth) 2004:
It is important to decide [summary judgment] motions promptly;
deferring rulings on summary judgment motions until the final
pretrial conference defeats their purpose of expediting the
disposition of issues.
It would be appropriate to discuss such motions at a Rule 16 conference so that
the court could be alerted to the importance of a prompt resolution of such
motions, since delay in deciding such motions almost certainly adds to the
expense of litigation.
All issues to be tried should be identified early.
There is often a difference between issues set forth in pleadings and issues to be
tried. Some courts require early identification of the issues to be tried and in
international arbitrations, terms of reference at the beginning of a case often
require that all issues to be arbitrated be specifically identified. Under the Manual
For Complex Litigation (Fourth), Section 11.3, “The process of identifying,
defining, and resolving issues begins at the initial pretrial conference.” We
applaud such practices and this Principle would require early identification of the
issues in all cases. Such early identification will materially advance the case and
limit discovery to what is truly important. It should be carefully done and should
not be merely a recapitulation of the pleadings. We leave to others the description
of the form that such statement of issues should take.9
These Principles call for greater involvement by judges. Where
judicial resources are in short supply, they should be increased.
This Principle recognizes the position long favored by the College. Judicial
resources are limited and need to be increased.
Trial judges should be familiar with trial practice by experience,
judicial education or training and more training programs should be
made available to judges.
8 At present, the Civil Justice Reform Act and current Judicial Conference policy require each federal district
court to report on (1) motions and certain other matters pending for over six months and (2) cases pending for over
three years, broken out by judicial officer. These reports are available for a fee only on the PACER Service Center
web site. We strongly encourage that CJRA reports be made available at no cost on the United States Courts official
web site (www.uscourts.gov), as well as on each district court‟s individual web site within a reasonable time period
after the reports are completed. We also encourage state court systems to provide similar information if they are not
already doing so.
9 Section 11.33 of the Manual For Complex Litigation (Fourth) 2004, identifies six possible actions that can
help identify, define and resolve issues.
24
Knowledge of the trial process is critical for judges responsible for conducting the
trial process. We urge that consideration of trial experience should be an
important part of the judicial selection process. Judges who have trial or at least
significant case management experience are better able to manage their dockets
and to move cases efficiently and expeditiously. Nearly 85 percent of our
respondents said that only individuals with substantial trial experience should be
chosen as judges and 57 percent thought that judges did not like taking cases to
trial. Accordingly, we believe that more training programs should be made
available so that judges will be able more efficiently to manage cases so that they
can be tried effectively and expeditiously.
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NEXT STEPS
There is much more work to be done. We hope that this joint report will inspire substantive
discussion among practicing lawyers, the judiciary, the academy, legislators and, most
importantly, clients and the public. In the words of Task Force member The Honourable
Mr. Justice Colin L. Campbell of the Superior Court of Justice, Toronto, Ontario:
Discovery reform . . . will not be complete until there is a cultural change in the
legal profession and its clients. The system simply cannot continue on the basis
that every piece of information is relevant in every case, or that the „one size fits
all‟ approach of Rules can accommodate the needs of the variety of cases that
come before the Courts.
With financial support provided by IAALS, the members of the Task Force and the IAALS staff
have applied their experience to a year-and-a-half-long process in which they collectively
invested hundreds of hours in analyzing the apparent problems, studying the history of previous
reform attempts and in debating and developing a set of Proposed Principles. The participants
believe that these Principles may one day form the bedrock of a reinvigorated civil justice
process; a process that may spawn a renewal of public faith in America‟s system of justice.
These men and women whose collective knowledge of these issues may be critical to future
reform efforts and the organizations they represent, are committed to participating in discussion
and activities engendered by the release of this Report.
Our civil justice system is critical to our way of life. In good times or bad, we must all believe
that the courts are available to us to enforce rights and resolve disputes – and to do so in a fair
and cost-effective way. At present, the system is captive to cost, delay, and in many instances,
gamesmanship. As a profession, we must apply our experience, our differing perspectives and
our commitment to justice in order to devise meaningful reforms that will reinstate a trustworthy
civil justice system in America.
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APPENDIX A
IAALS REVIEW OF PROCEDURAL REFORMS
IN FOREIGN JURISDICTIONS AND IN SOME STATES IN THE UNITED STATES
The Principles set forth in this report were not developed in a vacuum. Many are part of routine
civil practice and procedure in a wide variety of civil law and common law jurisdictions around
the world. While some have recently been developed in foreign jurisdictions in response to
concerns about cost and delay, others have had a long and successful history of minimizing those
concerns. The Principles have been developed in recognition of these practices and procedures.
We summarize below the application of both the Principles and the march toward comprehensive
reform in several foreign and state jurisdictions.
The Nature of Reform in Foreign Jurisdictions
There is a growing trend in foreign jurisdictions toward fact pleading, limited discovery and
active case management. Where recent reforms have been adopted, they have been systemic and
sweeping─not nibbles around the edges. Some of the jurisdictions have measured their reforms,
and our Principles build on that information as well.
In 1997, England and Wales undertook a complete overhaul of the civil justice system, resulting
in a rewrite of the rules of civil procedure. The new rules instituted a number of pre-action
protocols, a more detailed pleading requirement, defined limits on disclosure and discovery,
strict limits on expert witnesses and a track system in which cases are treated with different
procedures depending on complexity and amount in controversy. To ensure the success of the
new rules in practice, the English reforms granted courts broad case management powers and
encouraged judges to play an active role in the progression of a case.
In 2007, a review of the Scottish civil justice system began with a commitment to considering
widespread reform proposals, however radical. In the area of judicial management, Scotland has
already been experimenting with the use of a single judicial officer to handle a case from filing
to disposition─a practice that users have hailed as increasing consistency and facilitating
agreement.
More recently, Spain has made significant reforms to its code of civil procedure that established
greater judicial control and limits on the parties’ use and presentation of evidence. Germany is
presently engaged in a second round of procedural reforms, also employing increased case
management powers and a focus on simplifying procedure.
Canada, too, is taking a new look at its civil justice system. Drafts of revised civil procedure
rules are currently under consideration in the Canadian provinces of Alberta, British Columbia
and Ontario. Alberta’s standard of relevance in the context of discovery has already been
narrowed and the draft rules in Ontario and British Columbia would do the same. A
comprehensive reform proposal was recently released in New Zealand, part of which also
proposes to narrow the standard of relevance.
2
Practices and Procedures in Foreign Jurisdictions
Specialized Rules. In recognition of the fact that trans-substantive rules are not necessarily the
most effective approach, many foreign jurisdictions have developed specialized rules and
procedures to deal with specific types of cases. Special procedures and case management
practices for commercial cases have been developed in England and Wales, Scotland, New
Zealand, and Toronto, Canada. In Scotland, practices and procedures have also been developed
in the area of personal injury litigation.
Fact-Based Pleading. Outside of the United States, fact pleading is largely the standard practice.
Foreign jurisdictions differ in the level of detail required by the pleadings; however, even in
common law countries like Canada, Australia and the United Kingdom, pleadings must at the
very least give a summary of the material facts. Many civil law countries have more stringent
pleading requirements. For example, Spain requires a complete narrative of the claim’s factual
background and German complaints must contain a definite statement of the factual subject
matter of the claim. French and Dutch pleadings must contain all the relevant facts and Dutch
rules further require that plaintiffs articulate anticipated defenses. The Transnational Principles
and Rules of Civil Procedure─drafted in part by the American Law Institute─specifically reject
notice pleading, opting instead for a fact-based pleading standard that applies to the claim,
denials, affirmative defenses, counterclaims and third-party claims.
Initial Disclosures. In most foreign countries, the initial disclosure requirements are closely
related to the pleading standard. The jurisdictions with the strictest pleading standards also
usually require parties to supplement the pleadings with documents or evidence that propose an
appropriate means of proof for the factual assertions made in the pleadings. This is the practice
in The Netherlands, Spain, Germany, France and Scotland and under the Transnational
Principles. In the jurisdictions with more lax fact-pleading standards─generally common law
countries─parties are usually not required to supplement the pleadings with documentary
evidence; however, initial disclosures must be made at a specified time shortly after the close of
the pleadings.
Discovery. Unbridled discovery is almost solely a hallmark of the United States civil justice
system. Many civil law countries do not have discovery at all as we understand it in the United
States, and even foreign common law jurisdictions have defined limits on the practice and tools
of discovery. In Australia, New Zealand, England, Wales and Scotland and under the
Transnational Principles, depositions are allowed only in limited circumstances or with court
approval. Scotland similarly limits interrogatories to specific circumstances, as does Australia
with the further restriction that interrogatories must relate to a matter in question. Recent rule
changes in Nova Scotia place presumptive limits on depositions where the amount in controversy
is under $100,000 and a draft proposal in Ontario would allow the court to develop a discovery
plan in accordance with the principle of proportionality.
The scope of permissible discovery in many jurisdictions is directly tied to the issues set forth in
the pleadings. “Relevant documents” in England and Wales are those that obviously support or
undermine a case; specifically excluded are documents that may be relevant as background
information or serve as “train of enquiry”. Courts in New South Wales, Australia, and the
Transnational Principles similarly reject the “train of enquiry” approach. Courts in Queensland
3
and South Australia employ a “directly relevant” standard under which the fact proved by the
document must establish the existence or nonexistence of facts alleged in the pleading. In
Queensland, this approach has been recognized as having substantially reduced the expense of
discovery.
Related Civil Justice Reforms in the United States. Some state jurisdictions in the United States
have also moved, or are moving, in a similar direction. State rules of civil procedure in Oregon,
Texas and Arizona─the last of which traditionally modeled state rules on their federal
counterparts─show that practices like fact pleading, early initial disclosures and presumptive
limits on discovery are not inconsistent with the style of civil justice in the United States. At the
federal level, the Private Securities Litigation Reform Act and recent Supreme Court decisions
also illustrate the perceived shortcomings of notice pleading in today’s complex litigation
environment.
Specialized rules and procedures have also been developed in United States courts for certain
case types, including commercial, patent and medical malpractice cases. Some state jurisdictions
have simplified procedures for claims under a certain amount in controversy or in which the
parties elect a more streamlined process─e.g., Rule 16.1 in Colorado.
APPENDIX B
The Sedona Principles for Electronic Document ProductionSecond Edition
1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizationsmust properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply theproportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration ofthe technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically storedinformation, as well as the nature of the litigation and the amount in controversy.
3. Parties should confer early in discovery regarding the preservation and production of electronically stored informationwhen these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections todiscovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain informationthat may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take everyconceivable step to preserve all potentially relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate forpreserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve andproduce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information for production should be active data and information. Resort todisaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessiblerequires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving andprocessing the electronically stored information from such sources, including the disruption of business and informationmanagement activities.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, orproduce deleted, shadowed, fragmented, or residual electronically stored information.
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with theproduction of electronically stored information.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored informationby using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify datareasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, production should be made in the formor forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need toproduce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, anddisplay the information as the producing party where appropriate or necessary in light of the nature of the informationand the needs of the case.
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronicallystored information should be borne by the responding party, unless the information sought is not reasonably available tothe responding party in the ordinary course of business. If the information sought is not reasonably available to theresponding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving andreviewing such electronic information may be shared by or shifted to the requesting party.
14. Sanctions, including spoliation findings, should be considered by the court only if it finds that there was a clear duty topreserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonableprobability that the loss of the evidence has materially prejudiced the adverse party.
Copyright © 2007 The Sedona Conference®. All Rights Reserved. Reprinted courtesy of The Sedona Conference®.Go to www.thesedonaconference.org to download a free copy of the complete document for your personal use only.
The Sedona Principles, Second Edition June 2007 Version
The Sedona Canada Principles Addressing Electronic Discovery
Principle 1: Electronically stored information is discoverable. Principle 2: In any proceeding, the parties should ensure that steps taken in the discovery process are
proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.
Principle 3: As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.
Principle 4: Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information.
Principle 5: The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.
Principle 6: A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to search for or collect deleted or residual electronically stored information.
Principle 7: A party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching or by using selection criteria to collect potentially relevant electronically stored information.
Principle 8: Parties should agree as early as possible in the litigation process on the format in which electronically stored information will be produced. Parties should also agree on the format, content and organization of information to be exchanged in any required list of documents as part of the discovery process.
Principle 9: During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect privileges, privacy, trade secrets and other confidential information relating to the production of electronic documents and data.
Principle 10: During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation takes place, while appreciating the impact any decisions may have in related actions in other forums.
Principle 11: Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless.
Principle 12: The reasonable costs of preserving, collecting and reviewing electronically stored information will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order.
Copyright © 2008, The Sedona Conference®. Reprinted courtesy of The Sedona Conference®. Go to www.thesedonaconference.org to download a free copy of the complete document for your personal use. wgsSM
Attorney Satisfaction with the Federal Rules of Civil Procedure
Report to the Judicial Conference Advisory Committee on Civil Rules
Emery G. Lee III &
Thomas E. Willging
Federal Judicial Center
March 2010 This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to conduct and stimulate research and development for the improvement of judicial ad-ministration. While the Center regards the content as responsible and valuable, it does not reflect policy or recommendations of the Board of the Federal Judicial Center.
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Contents Executive Summary, 1
Background, 3 Survey Respondents Compared, 4 The Rules, 5 Discovery and Litigation Costs, 8 Twombly/Iqbal Questions, 11
Figures, 13
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Executive Summary This report provides a brief comparison of the results of three surveys on the cur-rent operation of the Federal Rules of Civil Procedure (“Rules”). These surveys asked attorneys in the American College of Trial Lawyers (“ACTL”), the American Bar Association Section of Litigation (“ABA Section”), and the National Employ-ment Lawyers Association (“NELA”) to respond to a series of statements regard-ing the Rules. The Federal Judicial Center (“FJC”) did not administer the ACTL survey, but it did administer the ABA Section and NELA surveys. Respondents in the ACTL survey had many more years of practice, on average, than respondents in the other surveys. The following findings are discussed in this report:
• Members of the ABA Section tended to agree that the Rules are conducive to the goals stated in Rule 1 (“to secure the just, speedy, and inexpensive determination of every action and proceeding”), but ACTL fellows and NELA members tended to disagree.
• The statement, “The Rules must be reviewed in their entirety and rewritten to address the needs of today’s litigants,” elicited more disagreement than agreement in each of the surveys and among all groups (plaintiff attorneys, defendant attorneys, and attorneys representing both plaintiffs and defen-dants about equally).
• The statement, “One set of Rules cannot accommodate every type of case,” elicited more disagreement than agreement from ABA Section and NELA members, and more agreement than disagreement from the ACTL fellows.
• The statement, “Trial dates should be set early in the case,” elicited more agreement than disagreement with every group except ABA Section defen-dant attorneys.
• The statement, “Discovery is abused in almost every case,” elicited more disagreement than agreement from the ACTL fellows and ABA Section plaintiff attorneys, and more agreement than disagreement from NELA members and other ABA Section members.
• The statement, “Economic models in many law firms result in more dis-covery and thus more expense than is necessary,” elicited more agreement than disagreement in each of the surveys and among all groups.
• The statement, “The cumulative effect of the changes [enacted since the Pound Conference in 1976] has significantly reduced discovery abuse,” elicited more disagreement than agreement in every survey and among every group except ABA Section plaintiff attorneys.
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• The statement, “Intervention by judges or magistrate judges early in the case helps to limit discovery,” elicited more agreement than disagreement in each of the surveys and among every group.
• The statement, “Judges do not enforce Rule 26(b)(2)(C) to limit discov-ery,” elicited more agreement than disagreement in each of the surveys and among every group, although ABA Section plaintiff attorneys were almost evenly divided.
• The statement, “Summary judgment practice increases cost and delay without proportionate benefit,” elicited more agreement than disagree-ment from plaintiff attorneys in each of the surveys and more disagree-ment than agreement from defendant attorneys and those representing both plaintiffs and defendants about equally.
• Attorneys in all three surveys reported that costs were disproportionate to the value of some cases, although respondents in the ABA Section and NELA surveys tended to answer that costs are not disproportionate to the value of large cases.
• In all three surveys, the most common response to the question asking about “the primary cause of delay in the litigation process” was “time to complete discovery.”
Respondents to the NELA survey were also asked a series of questions about the impact of the Supreme Court’s recent pleadings decisions on employment dis-crimination cases. The most commonly reported impact was the inclusion of ad-ditional facts in the complaint, followed by an increase in the number of motions to dismiss filed by defendants. Few respondents, however, reported that any of their employment discrimination cases had been dismissed under the new stan-dard.
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Background1
The Advisory Committee on Civil Rules (“Committee”) requested that the Federal Judicial Center study, among other things, whether attorneys are generally satis-fied with the present operation of the Federal Rules of Civil Procedure. This re-quest followed a joint report issued by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System (“IAALS”), based on a survey of ACTL fellows. In summarizing the survey results, the ACTL-IAALS joint report stated: “In short, the survey revealed widely-held opinions that there are serious problems in the civil justice system generally.” Most of the re-port, however, focused specifically on the ACTL fellows’ views on the operation of the federal Rules.
The FJC made a preliminary report to the Committee in October 2009, based on a national, case-based survey of attorneys of record in federal civil cases termi-nating in the last quarter of 2008. That report included analysis of respondents’ views both on potential reforms (fact pleading and simplified procedures) and on the operation of the Rules more generally. In addition to the case-based survey, in 2009 the FJC (at the request of the Committee’s chair, the Honorable Mark R. Kravitz) administered two additional surveys. Using a modified form of the ACTL-IAALS survey instrument, the FJC surveyed members of the Section of Litigation of the American Bar Association and members of the National Em-ployment Lawyers Association to provide the Committee with a wider range of views than that provided by the ACTL survey. This report will focus on the origi-
1. We acknowledge the valuable assistance of a number of FJC staff members in various stages of preparing this report, especially Meghan Dunn and Jill Gloekler. The staff of the organiza-tions involved in the surveys provided invaluable assistance in the preparation and distribution of the surveys. 2. See Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (Mar. 11, 2009) [hereinafter Joint Report], available to Committee members at http://civilconference.uscourts.gov/. 3. Id. at 2. 4. Emery G. Lee III & Thomas E. Willging, Federal Judicial Center National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules (Fed-eral Judicial Center, Oct. 2009). 5. The IAALS and ACTL agreed to permit reuse of the survey instrument by the FJC. The IAALS also generously shared the raw data from the ACTL survey with the FJC; the percentages from the ACTL survey reported in this report are unweighted and thus may be slightly different from percentages reported by the IAALS. 6. ABA Section and NELA expressed to the Committee an interest in participating and coop-erated in administration of the surveys. Moreover, the FJC has shared the underlying data with both organizations for their own use.
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nal ACTL survey and the ABA Section and NELA surveys administered by the FJC, making reference to the FJC national, case-based survey where appropriate.
Because of the length of the survey instrument itself, a question-by-question comparison of the responses given by respondents to all three surveys would do little more than exhaust the Committee’s patience. For this reason, we have se-lected about a dozen questions to provide a sense of the range of views elicited by the surveys. For interested members of the Committee, a more complete set of responses to the ABA Section survey is available on the website for the 2010 Con-ference on Civil Litigation. It is unclear at the time of this writing when NELA will provide a similar report.
Despite the efforts of the Committee, the FJC, and the organizations involved, the response rates for the ABA Section and NELA surveys were relatively low. Moreover, based on their internal policies, neither organization was willing to share its membership emails with the FJC. This meant, in turn, that the FJC could not construct its own sampling design for either organization. Instead, an email invitation to respond to the survey was sent by the organizations to every member with an email address on file. Taken together, these factors make it difficult to ex-trapolate from the responses received the underlying views of either organization’s members as a whole. In short, the survey responses summarized in this report should only be taken as the views of the members who voluntarily took the time to respond.
This report is divided into four sections. The first section very briefly com-pares the survey respondents in the ACTL, ABA Section, NELA, and FJC case-based surveys. The second section examines attorney views on the operation of the Rules in general. The third section examines attorney views on discovery and the cost of litigation. The fourth section examines responses to a set of questions (asked only of the NELA respondents) on the impact of the Supreme Court’s re-cent decisions on pleadings. Figures are included at the end of this report.
Survey Respondents Compared
Fellowship in the ACTL is limited to experienced litigators invited to join; moreo-ver, the number of fellows in any given state cannot exceed 1% of the attorney population. Thus, one would expect that its respondents would differ from the other attorneys surveyed. And they do. The ACTL fellows had, on average, been practicing law for 37.9 years (n = 1,474). The respondents in the other surveys were much less seasoned, on average. ABA Section respondents had, on average,
7. See ABA Section of Litigation, Member Survey on Civil Practice: Detailed Report (2009), available to Committee members at http://civilconference.uscourts.gov/. 8. See Joint Report, supra note 2, at i.
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22.9 years of practice (n = 3,261), and the NELA respondents had, on average, 21.4 years of practice (n = 294). Respondents in the FJC case-based survey had, on average, 20.9 years of practice (n = 2,621). For purposes of comparison, in 2000 the median age of an American attorney was 45 years old. The average age would likely be slightly higher. The respondents in the ABA Section, NELA, and FJC case-based surveys are much closer to the median (or mean) age than are the ACTL fellows.
Overall, ABA Section respondents were much more likely than ACTL or NELA respondents to prefer federal court over state court, when given a choice. Fully 60.4% of ABA Section respondents preferred federal court, 21.7% preferred state court, and 13% had no preference (n = 3,294). The other two organizations were more evenly divided. On the same question, 42.9% of all ACTL respondents pre-ferred state court versus 39.8% preferring federal court (n = 1,472). Similarly, 41.6% of all NELA respondents preferred state court versus 43.9% preferring fed-eral court (n = 295). But ABA Section plaintiff attorneys closely resembled NELA respondents, splitting 42% for federal court and 41.5% for state court (n = 834). ACTL plaintiff attorneys overwhelmingly preferred state court, with 66.5% prefer-ring state court, compared to 19.4% preferring federal court (n = 361).
The Rules
The ACTL, ABA Section, and NELA surveys asked respondents whether the Rules are conducive to meeting the three goals stated in Rule 1—“to secure the just, speedy, and inexpensive determination of every action and proceeding.” Figure 1 displays the percentage of respondents in each survey responding “yes” to this question, grouped into party groupings: plaintiff attorneys, defendant attorneys, and attorneys representing both plaintiffs and defendants about equally. The ACTL survey did not permit respondents to identify themselves as a member of the third group. In addition, because NELA is primarily a plaintiff attorneys’ or-ganization, we grouped all respondents in that survey accordingly.
ACTL plaintiff and defendant attorneys answered “yes” only 35 and 35.5% of the time, respectively. ABA Section plaintiff attorneys answered “yes” 61%; ABA Section defendant attorneys answered “yes” 64.2%; and ABA Section attorneys representing plaintiffs and defendants about equally answered “yes” 62.3%. NELA respondents answered “yes” 40.1%.
It is obvious in Figure 1 that the differences between the organizations seem greater than the differences within organizations. ACTL plaintiff and defendant
9. Clara N. Carson, The Lawyer Statistical Report: The U.S. Legal Profession in 2000, at 3 (American Bar Foundation, 2004). 10. Fed. R. Civ. P. 1.
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attorney respondents were very similar in answering about 35% of the time that the Rules are conducive to the goals stated in Rule 1. Although this percentage is roughly similar to the percentage of NELA plaintiff attorneys giving the same re-sponse, the ABA Section respondents cluster at a much higher level—agreeing more than 60% of the time, despite party grouping. The members of the Section who responded to the survey, in short, appear much more satisfied with the op-eration of the Rules in general than do the members of the ACTL and NELA who responded to the surveys. This is true even among the Section plaintiff attorneys.
Starting with Figure 2, responses to questions asking whether respondents strongly agree, agree, disagree, or strongly disagree with a given statement are ana-lyzed. Because each of these questions generates as many as five response catego-ries (including “no opinion”) for each party grouping, and there are six groupings across the three surveys, there is a great deal of information for every question. To simplify the presentation, we have summarized the data for the Committee by de-riving the “net agreement” for each party grouping in each survey by subtracting the percentage of respondents disagreeing or strongly disagreeing with each state-ment from the percentage of respondents agreeing or strongly agreeing. A positive net agreement score indicates that more respondents in a given party grouping agreed (or strongly agreed) than disagreed (or strongly disagreed). A negative net agreement score indicates that more respondents in a given party grouping disagreed than agreed with the given statement.
The net agreement score ranges, at least theoretically, from 100% (all respon-dents agreeing or strongly agreeing) to -100% (all respondents disagreeing or strongly disagreeing). A score of zero indicates that the same percentage of re-spondents agreed (or strongly agreed) as disagreed (or strongly disagreed). The vertical axis in Figures 2–11 range from 100 to -100 so that the figures will be di-rectly comparable to one another. (The percentages used were calculated with “no opinion” answers included; i.e., the sum of the percentages of respondents agree-ing and disagreeing will rarely equal 100.)
Figure 2 summarizes respondents’ net agreement with the statement “The Rules must be reviewed in their entirety and rewritten to address the needs of to-day’s litigants.” This question arguably provides respondents’ views on whether a complete overhaul of the Rules is needed at the present time. No party group in any of the three surveys had a positive net agreement score on this question. In other words, the percentage of respondents in every party group in each of the three surveys disagreeing was greater than the percentage of respondents agreeing. ACTL plaintiff attorneys tended to disagree, -15.1%, as did ACTL defendant at-
11. From this point forward, unless otherwise stated, “agree” includes the response category “strongly agree” and “disagree” includes “strongly disagree.”
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torneys, -22.5%. ABA Section respondents, as in Figure 1, appear even more sup-portive of the current Rules. Section plaintiff attorneys registered a net agreement score of -41.3%, Section defendant attorneys -45.6%, and Section respondents representing both about equally -36.5%. NELA respondents also tended to dis-agree, -23.6.
Figure 3 summarizes respondents’ net agreement with the statement, “One set of Rules cannot accommodate every type of case.” This question arguably provides a measure of the attorneys’ attitudes toward trans-substantive rules of civil proce-dure. ACTL plaintiff attorneys tended to agree, 6.1%. ACTL defendant attorneys also tended to agree, 6.6%. ABA Section respondents tended to disagree, across party groupings. Thus, ABA Section plaintiffs registered a net agreement score of -18.2%, Section defendants a net agreement score of -12.2%, and Section respon-dents representing both about equally a net agreement score of -14%. NELA re-spondents also registered a negative net agreement score, -7.9%. In short, mem-bers of the ABA Section and NELA who responded to the survey were more sup-portive of trans-substantive Rules than were the ACTL fellows.
Survey respondents’ reactions to the first three statements are something of a mixed bag. Clearly, the NELA and ACTL respondents are expressing dissatisfac-tion with the Rules in general, to the extent that they think that the Rules are not conducive to the three goals stated in Rule 1. It is likely, however, that the dissatis-faction of the two groups stems from differing sets of concerns. ABA Section re-spondents, on the other hand, generally think that the Rules are conducive to Rule 1’s goals. No group from the surveys supports, in the broadest sense, a complete overhaul of the Rules, however, and only the ACTL fellows tended to reject the general idea of trans-substantive Rules.
Although the issue of trial dates is more a matter of case management than the Rules, in selecting questions for inclusion in this report, we thought it might be useful to address what respondents thought about the practice of setting trial dates early in the case. Figure 4 summarizes respondents’ net agreement with the state-ment, “Trial dates should be set early in the case.” This question tended to elicit agreement, except among ABA Section defendant attorneys. The ACTL plaintiff attorneys tended to agree, 69.9%, and ACTL defendant attorneys tended to agree, 39.8%. The ABA Section plaintiff attorneys, at 17.1%, and attorneys representing both plaintiffs and defendants, 17.4%, also tended to agree. Section defendant at-torneys tended to disagree, -13.7%. NELA respondents tended to agree, 14.4%. In short, the practice of setting an early trial date appears to have support among most groups, with the exception of some defendant attorneys.
Attorney Satisfaction with the Federal Rules of Civil Procedure • Report to the Judicial Conference Advisory Committee on Civil Rules • Federal Judicial Center • March 2010
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Discovery and Litigation Costs
This section compares responses to questions on discovery and the cost of litiga-tion, beginning with discovery abuse. Figure 5 summarizes respondents’ net agreement with the statement, “Discovery is abused in almost every case.” ACTL fellows tended to disagree: plaintiff attorneys, -9.2%; and defendant attorneys, -13.2%. ABA Section respondents differed depending on party grouping. Section plaintiff attorneys tended to disagree, -6.6%. But Section defendant attorneys and attorneys representing both plaintiffs and defendants about equally tended to agree, 7.2 and 10.9%, respectively. NELA respondents tended to agree, 31.5%.
This question was almost certainly interpreted in multiple ways by respon-dents. There are many possible meanings of discovery abuse, and thus the ques-tion will mean different things to different groups of attorneys. NELA respon-dents, primarily representing plaintiffs in employment cases, are probably com-plaining that defendants in their cases are “refusing to supply information.” But that is probably not how ABA Section defendant attorneys—who also agreed, but at a lower net level—tended to read the question.
The FJC national, case-based survey asked respondents to respond to a similar statement: “Discovery is abused in almost every case in federal court.” (The italics indicate the difference in wording.) The FJC respondents in all three groups regis-tered disagreement: plaintiff attorneys, -33.6%; defendant attorneys, -44.3%; and respondents representing both about equally, -27%.
Figure 6 summarizes respondents’ net agreement with the statement, “Eco-nomic models in many law firms result in more discovery and thus more expense than is necessary.” As we read it, this question gets at another sense of the term “discovery abuse,” namely, lawyers may pursue or resist discovery “because it in-creases the number of billable hours.” This question elicited agreement among
12. See Jack B. Weinstein, What Discovery Abuse? A Comment on John Setear’s The Barrister and the Bomb, 69 B.U. L. Rev. 649, 654–55 (1989) (cataloguing five forms of discovery abuse). 13. Id. at 655. One NELA respondent, for example, commented, “Discovery abuse is ram-pant—parties (usually defendants) stonewall routinely and then negotiate over how many of their legal obligations they can avoid.” Another commented that costs would be reduced if judges would “[e]nforce sanctions for discovery abuses. Much of the costs we deal with relate to trying to get sufficient discovery—the delay and the costs of filing motions to compel, etc., increase costs sig-nificantly.” 14. One ABA Section defendant attorney commented, for example, “Demands for e-discovery are being used as a lever to force settlement in cases that have little merit. Most e-discovery is useless and should not be requested in the first instance. Requiring plaintiffs to bear the cost of producing what they request would help curb the abuse.” 15. See Lee & Willging, Preliminary Report, supra note 4, at 70–71, Fig. 45. 16. Weinstein, supra note 12, at 654.
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all the party groupings, but especially among plaintiff attorneys. ACTL plaintiff attorneys tended to agree, 69.9%, and ACTL defendant attorneys also tended to agree, 39.8%. Among ABA Section respondents, plaintiff attorneys, 42.3%, and attorneys representing both plaintiffs and defendants about equally, 41.7%, tended to agree at similar levels, and defendant attorneys tended to agree, 14.8%. NELA respondents also tended to agree, 62.6%. In short, respondents tended to view business models in many law firms as one source of unnecessary expense in discovery.
Figure 7 summarizes respondents’ net agreement with the statement, “The cumulative effect of the changes [enacted since the Pound Conference in 1976] has significantly reduced discovery abuse.” This statement tended to elicit dis-agreement, with the exception of the ABA Section plaintiff attorneys. ACTL plain-tiff attorneys registered a net agreement score of -12.4%, and ACTL defendant at-torneys -22%. ABA Section plaintiff attorneys agreed slightly more than they dis-agreed—by 0.4%, i.e., they were almost evenly divided—but Section defendant attorneys, -17.9%, and attorneys representing both plaintiffs and defendants about equally, -11.6%, tended to disagree. NELA respondents disagreed most strongly, -39.5%. No matter how respondents interpret “discovery abuse,” in other words, they tend to think that it has not been reduced by Rules amendments, considered as a whole, since 1976.
Figure 8 summarizes respondents’ net agreement with the statement, “Inter-vention by judges or magistrate judges early in the case helps to limit discovery.” This statement tended to elicit agreement in all three surveys among all party groupings, the highest levels of support coming from ABA Section defendant at-torneys and attorneys representing both plaintiffs and defendants about equally. ACTL plaintiff attorneys registered a net agreement score of 35.3%, and ACTL defendant attorneys 36.7%. ABA Section plaintiff attorneys agreed 29.5% more than they disagreed; the ABA Section defendant attorneys’ net agreement score was 56.6%; and for attorneys representing both plaintiffs and defendants about equally, 57.9%. NELA respondents registered a 26.2% net agreement score. The responses to this question suggest that many attorneys think that active manage-ment of discovery by district and magistrate judges serves a useful purpose.
The surveys asked questions about the proportionality of discovery and Rule 26(b)(2)(C). Figure 9 summarizes respondents’ agreement with the statement, “Judges do not enforce Rule 26(b)(2)(C) to limit discovery.” This statement
17. There is an ambiguity in the question, namely, that “limit[ing] discovery” can be inter-preted either as limiting abusive, frivolous, and/or unnecessary discovery, or as arbitrarily limiting necessary or useful discovery. The same point holds for the next question to be discussed. Given the distribution of responses, it appears that many, if not most, respondents read the questions in the former rather than the latter sense.
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tended to elicit agreement, with the exception of the ABA Section plaintiff attor-neys. ACTL plaintiff attorneys registered a net agreement of 24.6%; ACTL defen-dant attorneys, 39.3%. ABA Section plaintiff attorneys agreed 1.1% more often than they disagreed (i.e., respondents were almost evenly split between agreement and disagreement), but Section defendant attorneys and attorneys representing both plaintiffs and defendants about equally expressed much greater levels of agreement: 51.1% and 41.6%, respectively. NELA respondents agreed 19.8% more than they disagreed.
A more controversial statement about costs addressed the net benefits of summary judgment practice. Figure 10 summarizes respondents’ net agreement with the statement, “Summary judgment practice increases cost and delay without proportionate benefit.” As one might expect, this statement tended to elicit agreement from plaintiff attorneys—plaintiff attorneys agreed with the statement in all three surveys, most strongly in the NELA survey—and disagreement from defendant attorneys. ACTL plaintiff attorneys tended to agree, 26.2%, and ACTL defendant attorneys tended to disagree, -59.6%. ABA Section plaintiff attorneys agreed more than they disagreed, 26.9%, while Section defendant attorneys, -77.2%, and attorneys representing both plaintiffs and defendants about equally, -45.1%, tended to disagree. NELA respondents agreed 76.9% more than they dis-agreed.
Figure 11 is a little more complex than the previous figures. The ACTL survey asked respondents to agree or disagree with the statement, “Litigation costs are not proportional to the value of a case.” In the ABA Section and NELA surveys, this question was split into two questions: The first question asked respondents whether litigation costs were proportional to the value of a large case, and the sec-ond asked the same for small value cases. The terms “large” and “small” were not defined. Figure 11 summarizes respondents’ net agreement with these statements.
In general, ACTL respondents agreed that litigation costs are not proportional to the value of a case—ACTL plaintiff attorneys agreed 36.5% more than they dis-agreed, and defendant attorneys agreed 45.5% more than they disagreed.
With respect to small cases, both ABA Section and NELA respondents also tended to agree. ABA Section plaintiff attorneys’ net agreement with the statement that litigation costs are not proportional to the value of a small case was 63.2%; defendant attorneys’ net agreement was 85.3%, a number that was eclipsed by ABA Section respondents representing both plaintiffs and defendants about equally—89% net agreement. NELA respondents agreed at a level slightly higher than the ABA Section plaintiff attorneys, 69.8%.
With respect to large cases, however, both ABA Section and NELA respon-dents tended to disagree with the statement—in other words, to reject that litiga-tion costs are not proportional to the value of a large case. ABA Section plaintiff
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attorneys registered net agreement of -25.1%; defendant attorneys, -6.4%; and at-torneys representing both plaintiffs and defendants about equally, -11.2%. NELA respondents registered a net agreement score of -5.9%. Given the similarity to the “small case” responses in the other surveys, it appears likely that many ACTL re-spondents were reading “small case” into the wording of the question.
Figure 12 summarizes the percentage of respondents in each survey selecting “time to complete discovery” as the “primary cause of delay in the litigation proc-ess.” (The other response options were delayed rulings on pending motions, court continuances of scheduled events, attorney requests for extensions of time and continuances, and other/fill in the blank.) In each survey, among all party groupings, “time to complete discovery” was the most common response. In the ACTL survey, 50.5% of plaintiff attorneys and 56.2% of defendant attorneys se-lected “time to complete discovery.” In the ABA Section survey, 37.9% of plaintiff attorneys, 54.9% of defendant attorneys, and 45.5% of attorneys representing both plaintiffs and defendants about equally selected “time to complete discovery.” In the NELA survey, 35.1% of respondents gave that answer.
Twombly/Iqbal Questions
In the NELA survey, the pleadings questions in the other surveys were replaced with questions specifically about the impact of Bell Atlantic v. Twombly and Ash-croft v. Iqbal on the practice of employment lawyers. This substitution was made for a number of reasons, not the least of which was the substance of the comments received in response to the notice pleading questions in the ABA Section survey. Plaintiff attorney respondents to that survey wrote, for example, “We haven’t used notice pleadings since Twombly!” and “What notice pleading? The Supreme Court’s recent Iqbal decision wipes out notice pleading.” Given such responses, as well as the Committee’s interest in the subject, we thought it would be better to focus on the impact of Twombly and Iqbal in the NELA survey than to ask ques-tions that some respondents perceived as out of date.
NELA respondents were first asked whether they had “filed an employment discrimination case in federal court since the Supreme Court issued its decision in Bell Atlantic v. Twombly in 2007.” Fully 67.1% of respondents answered “yes.” Those respondents were then asked, “Has Twombly—or the more recent Supreme
18. Just to be clear: This question posits that “time to complete discovery” is a form of “de-lay,” clearly implying that cases take longer to reach their conclusions than they should take. To the extent that completion of discovery is necessary for the resolution of the “litigation process,” however, it arguably cannot be considered as delay in this sense. In short, we would have worded the question differently. 19. 550 U.S. 544 (2007). 20. 556 U.S. __, 129 S. Ct. 1937 (2009).
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Court decision in Ashcroft v. Iqbal (2009)—affected how you structure complaints in employment discrimination cases?” Fully 70.1% of respondents indicated that Twombly and/or Iqbal had affected their practices (29.9% answered “no”).
Respondents indicating that their practices had been affected by Twombly/ Iqbal were then asked about the nature of those effects. The most common re-sponse was, “I include more factual allegations in the complaint than I did prior to Twombly/Iqbal,” which was selected by 94.2% of the respondents. The second most common response was, “I have to respond to motions to dismiss that might not have been filed prior to Twombly/Iqbal,” selected by 74.6%. Fewer than 15% of respondents selected any one of the following: “I conduct more factual investi-gation prior to filing the complaint than I would have prior to Twombly/Iqbal”; “I screen cases more carefully for a claim that will survive a motion to dismiss than I did prior to Twombly/Iqbal”; or “I raise different claims than I did prior to Twombly/Iqbal.”
Finally, respondents were asked whether “any of your employment discrimi-nation cases have been dismissed for failure to state a claim under the standard announced in Twombly/Iqbal.” This question was asked of respondents who had filed an employment discrimination case post-Twombly. Only 7.2% of those re-spondents answered in the affirmative (14 total respondents). Although the survey asked a series of questions about such dismissals, the small number of respondents answering those questions precludes meaningful analysis.
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Figures
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THE STATE OF DISCOVERY PRACTICE IN CIVIL CASES: MUST THE RULES BE CHANGED TO REDUCE COSTS
AND BURDENS, OR CAN SIGNIFICANT IMPROVEMENTS BE ACHIEVED WITHIN THE EXISTING RULES?1
2009 was a busy year for those who contend that the excessive cost of the American civil
justice system discourages litigation and undermines the courts’ public function. Perhaps the
biggest contributing factor is the excessive cost of discovery in many cases in relation to the
stakes at issue. Three important surveys of lawyers
2
1 Paul W. Grimm, Chief United States Magistrate Judge, United States District Court, District of Maryland, and Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP (San Francisco/New York). Principal author Paul W. Grimm especially thanks and acknowledges the participation and assistance of 2010 Civil Litigation Conference co-panelists Honorable David G. Campbell, United States District Court, District of Arizona; Jason R. Baron, Director of Litigation, National Archives and Records Administration; Patrick Stueve, Stueve Siegel Hanson (Kansas City, MO); Professor Catherine Struve, University of Pennsylvania Law School; and Stephen D. Susman, Susman Godfrey, LLP (Houston/New York), whose discussions and debates in preparation for the panel, “Issues Within the Current State of Discovery: Is There Really Excessive Discovery, and if so, What are the Possible Solutions?” and whose range of views on this challenging subject generated many of the insights, experiences, and suggestions discussed in this article.
emerged in 2009 that lend credence to these
concerns: the American College of Trial Lawyers/Institute for Advancement of the American
Legal System survey of the Fellows of the American College of Trial Lawyers (“ACTL/IAALS
2 Interestingly, there do not appear to have been any recent surveys of judges to learn their perceptions regarding any shortcomings in the civil litigation system; their views with respect to suggested changes that should be adopted; or their opinions regarding how well they fulfill their obligations to manage the pretrial process, including prompt resolution of discovery disputes. The most recent judicial survey conducted by the Federal Judicial Center containing questions regarding discovery in general was conducted in 1992 and published in 1994. See Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States Judges (1994). A 2002 Federal Judicial Center study surveyed magistrate judges, but it was limited to their experience with computer-based discovery issues. See Molly Treadway Johnson, Kenneth J. Withers & Meghan A. Dunn, A Qualitative Study of Issues Raised by the Discovery of Computer-Based Information in Civil Litigation (Sept. 13, 2002), http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/ inavgeneral?openpage&url_r=/public/home.nsf/pages/196 (submitted to the Judicial Conference Advisory Committee on Civil Rules for its October 2002 meeting). Given the central importance that all the lawyer surveys and the advisory notes to the Rules of Civil Procedure place on active involvement of judges in and management of the pretrial process, it would be highly instructive to see what the judges are thinking on these issues. It certainly would assist in determining whether there are widespread judicial attitudes that conflict with those of the bar.
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Survey”);3 the Federal Judicial Center survey of lawyers involved in all cases that were closed
during the fourth quarter of 2008 (“FJC Survey”);4 and the American Bar Association Section of
Litigation survey of its members (“ABA Survey”).5
The ACTL/IAALS Survey resulted in various recommendations for reforms to the civil
justice system, and the IAALS has followed up with recommended changes, including
significant changes to the Rules of Civil Procedure,
6 as well as suggested case management
strategies to be used by courts to improve the functionality (or at least reduce the cost) of the
system.7
3 See FINAL REPORT ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM 1-3 (2009), http://www.actl.com/AM/Template.cfm?Section=Home&template= /CM/ContentDisplay.cfm&ContentID=4053 (“Final Report”) (outlining survey and proposing solutions to problems identified in survey); INTERIM REPORT ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM (2008), http://www.actl.com/AM/Template.cfm?Section=All_Publications&Template=/CM/ContentDisplay.cfm&ContentID=3650 (detailing survey results).
For example, the ACTL/IAALS Survey took the position that “[a]fter 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.” The Survey
4 EMERY G. LEE, III & THOMAS E. WILLGING, FEDERAL JUDICIAL CENTER NATIONAL, CASE-BASED CIVIL RULES SURVEY: PRELIMINARY REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES (2009), http://www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf. 5 ABA SECTION OF LITIGATION MEMBER SURVEY ON CIVIL PRACTICE: DETAILED REPORT (2009), http://www.abanet.org/litigation/survey/docs/report-aba-report.pdf. 6 For expediency, reference to the “Rules of Civil Procedure,” a “Rule,” or “Rules” will be to the Federal Rules of Civil Procedure. 7 INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM, 21ST CENTURY CIVIL JUSTICE SYSTEM: A ROADMAP FOR REFORM: PILOT PROJECT RULES (2009), http://www.du.edu/legalinstitute/pubs/pilot_project_ rules.pdf (“IAALS Pilot Project Rules”); INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM, 21ST CENTURY CIVIL JUSTICE SYSTEM: A ROADMAP FOR REFORM: CIVIL CASEFLOW MANAGEMENT GUIDELINES 5 (2009), http://www.du.edu/legalinstitute/pubs/civil_caseflow_management_guidelines.pdf (“IAALS Guidelines”).
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acknowledged that this was “a radical proposal.” 8 As possible areas for further consideration,
the ACTL/IAALS Survey also suggested revisions to the Rules to include, inter alia, limiting the
scope of discovery by changing the definition of relevance; limiting persons from whom
discovery can be sought; limiting the types of discovery (e.g., eliminating interrogatories);
increasing numerical limitations on discovery; eliminating depositions of experts whose
testimony is limited to the contents of their written reports; limiting the time available for
discovery; and imposing financial limits on the amount of money that can be spent—or that a
party can require its opponent to spend—on discovery.9
Similarly, the IAALS Pilot Project Rules aim to “reverse the default” position of the
existing Rules on the scope of discovery, by limiting the facts that are subject to discovery;
10
changing the rules of pleading to require the party bearing the burden of proof on a claim or
affirmative defense to “plead with particularity all material facts that are known to that party that
support that claim or affirmative defense and each remedy sought, including any known
monetary damages;”11 and limiting expert discovery to the contents of a written report stating the
opinions and supporting reasons.12
The ABA Survey reported that 25% of the lawyers who responded believed that the
8 Final Report, supra note 3, at 9. 9 Id. at 10-11. 10 IAALS Pilot Project Rules, supra note 7, at Rules 1.2 cmt., 10.2 (“Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and must comport with the factors of proportionality . . . including the importance of the proposed discovery in resolving the issues, total costs and burdens of discovery compared to the amount in controversy, and the total costs and burdens of discovery compared to the resources of each party.”). 11 Id. at Rule 2.1 (defining a “material fact” as “one that is essential to the claim or defense and without which it could not be supported”). 12 The expert’s testimony at trial would also be “strictly limited” to those opinions and reasons, with no additional expert discovery allowed, unless permitted in the initial pretrial order. Id. at Rule 11.1.
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Rules “should be reviewed in their entirety and rewritten to address today’s needs.” More than
38% of the respondents believed that “one set of rules cannot accommodate every type of
case.”13
While all of these studies increase awareness of deficiencies in the civil litigation system,
it does not follow that a new round of comprehensive changes is the best or quickest way to
achieve desired change. The old saying “[t]hose who cannot remember the past are condemned
to repeat it”
14
After all, there are three players in this drama whose actions cause the litigation system to
succeed or fail: the parties themselves, the lawyers who represent them, and the judges who
preside over their cases. Each is responsible for the status quo, and each must change if the
system’s shortcomings are to be improved. While it may be true that ours is a litigious society,
in our litigation system the parties have choices, each of which bears a price tag. Moreover,
where, as in the United States, the general rule is that each side bears the cost for its own
comes to mind regarding today’s criticisms of the state of discovery practice in
civil cases. One need only read the Advisory Committee Notes for Rules changes decades ago to
see that the same criticisms were raised then. While it is possible to envision some changes to
the Rules of Civil Procedure, it is worth asking whether that is the best route to improvement, or
whether the real problem is the failure to adhere to the Rules in their current form. In fact, the
existing Rules provide all of the necessary tools to achieve the changes in practice that have
eluded us for decades. Without behavioral change in the key participants in the civil justice
system, however, even sweeping modifications to the Rules will not foster achievement of the
desired goal. We might wish first to change the Rulers (judges) and the Ruled (lawyers) before
reverting to yet another effort to change the Rules.
13 ABA Survey, supra note 5, at 2. 14 George Santayana, Reason in Common Sense, in THE LIFE OF REASON (1905).
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litigation expenses (including counsel fees), absent any cost shifting statute, contractual
agreement, or egregious conduct of an adversary that warrants shifting the costs as a sanction,
the parties have the power to increase or decrease the cost of litigation.
Parties that seek discovery from an adversary because, not in spite, of the cost or burden
it will impose, as well as parties who willingly pay their attorneys handsomely for filing motions
designed to delay or prolong the discovery process as a tactic to exhaust their opponent, all
contribute to the cost of the process without increasing its quality or value. If the credo is “win
at any cost,” the costs are likely to be substantial.
Parties who select the most expensive options, and courts who give them carte blanche to
do so without imposing limitations, should not complain about the resulting cost. And the most
costly process may actually violate due process if the cost is disproportional to the value of the
case or beyond the means of the opposing party.
Similarly, lawyers who profit from actions that increase the cost of civil litigation—
notably, adopting a gratuitously confrontational approach to discovery—also contribute to the
problem. Indeed, the most self-righteous critics of the discovery practices of plaintiffs’ lawyers
often are the defense counsel who are rewarded handsomely for their time and effort spent to
obstruct, delay, or minimize that discovery.
Finally, if a recurrent theme can be divined from all of the studies and the commentary to
the myriad rule changes in the last thirty years, it is that the most effective way to control
litigation costs is for a judge to take charge of the case from its inception and to manage it
aggressively through the pretrial process by helping shape, limit, and enforce a reasonable
discovery plan, resolve disputes that the parties cannot settle on their own, and keep the case on a
tight schedule to ensure the most expeditious disposition of the case by motion, settlement, or
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trial.15
All of this makes sense in the abstract, but in practice the problem is nuanced and
complicated. There are judges who, disliking the acrimony of discovery disputes, avoid taking
control of the process.
16
15 ABA Survey, supra note 5, at 3 (“78% of respondents believe that early intervention by judges helps to narrow the issues, and 72% believe that early intervention helps to limit discovery . . . . 73% of all respondents believe that when a judicial officer gets involved early and stays involved, the results are more satisfactory to their clients.”); Final Report, supra note 3, at 2 (“Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively. According to one Fellow, ‘Judges need to actively manage each case from the outset to contain costs; nothing else will work.’”); IAALS Pilot Project Rules, supra note 7, at Rule 4.1 (“As soon as a complaint is filed, a judge will be assigned to the case for all purposes, and, absent unavoidable or extraordinary circumstances, that judge will remain assigned to the case through trial and post-trial proceedings.”); IAALS Guidelines, supra note 7, at Guideline Two (“Judicial involvement in the management of litigation should begin at an early state of the litigation and should be ongoing. A single judge should be assigned to each case at the beginning of litigation and should stay with the case through its disposition.”); Fed. R. Civ. P. 26(g) Advisory Committee Note to the 1983 Amendment (“Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied) (Powell, J., dissenting). Sanctions to deter discovery abuse would be more effective if they were diligently applied ‘not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.’ National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). . . . Thus the premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule's standards will significantly reduce abuse by imposing disadvantages therefor. Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980); Ellington, A Study of Sanctions for Discovery Abuse, Department of Justice (1979), Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. § 1927, and the court's inherent power. See Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980); Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62 (D. Col. 1980) . . . . The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g). The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circumstances.”).
Likewise, many judges recognize the need to take control, but cannot
16 The results of the ABA Survey showed that 59% of the lawyers believed that district judges are not available to resolve discovery disputes on a timely basis (although 66% of plaintiffs’ lawyers, 66.8% of lawyers representing both plaintiffs and defendants, and 72% of defense lawyers believed that magistrate judges were available to resolve discovery disputes on a timely basis); 62.6% of plaintiffs’ lawyers, 79.1% of lawyers representing both plaintiffs and defendants, and 81.2% of defense lawyers believed that judges do not invoke Rule 26(b)(2)(C) to limit discovery on their own initiative; and 67.3% of defense lawyers and 62.6% of lawyers representing both plaintiffs and defendants (but 38.2% of plaintiffs’ lawyers) believed that judges do not enforce Rule 26(b)(2)(C) to limit discovery, even when asked to do so by a party.
Footnote continued on next page
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do so, given the time constraints imposed by heavy caseloads. Similarly, without providing
specific tools to ameliorate the situation, it is unhelpful to admonish lawyers that the rules of
professional responsibility, the adversary system, and the Rules of Civil Procedure all support
the proposition that cooperation in discovery is the most effective way to represent a client well
and achieve a good result. Finally, because the parties themselves so seldom are involved
directly with the court during the pretrial stages, it is not surprising that their perceptions are
affected by their self-interest, the quantum of resources they are prepared to spend on the
litigation, and what their lawyers advise them will be allowed. Litigation by attrition, for those
who can afford it, is endorsed if not actively encouraged. The inevitable result is
disproportionality. While some judges involve the parties in developing a pretrial schedule and
discovery plan to control costs and ensure proportionality, this practice is not sufficiently
commonplace, for understandable reasons: Active and informed case management takes time,
and time is the most precious and scarce judicial resource. Often, however, the investment of a
few hours can avoid hundreds of hours, and thousands or millions of dollars, of the litigants’—
and the courts’—time and money.
The remainder of this paper makes two points. First, the tools already exist to ensure that
the civil litigation process is cost-effective, is proportional to what is at issue in the litigation, and
affords both sides fair discovery to ensure that essential facts needed to adjudicate or resolve the
case are discovered. Second, the real change that is needed is a change in existing, inappropriate
attitudes and behaviors that have stymied efforts to reach the goal of widespread cost-effective,
proportional pretrial proceedings, including discovery. The starting place for this discussion is
the Rules themselves.
Footnote continued from previous page ABA Survey, supra note 5, at 63-64, 77-78.
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Rule 26(d)(1) prohibits a party from seeking discovery before the parties have conferred
as required by Rule 26(f), which requires that the parties meet “as soon as practicable” to
consider “the nature and basis of their claims and defenses and the possibilities for promptly
settling or resolving the case . . . [and] discuss any issues about preserving discoverable
information; and develop a proposed discovery plan.”17
The provisions of Rule 26 allow a defendant, for example, to observe that given the
A failure to participate in good faith in
developing such a plan is sanctionable under Rule 37(f). The discovery plan that the parties
must develop and submit to the court for approval must be comprehensive and include the
parties’ “views and proposals” with regard to: Rule 26(a) required disclosures (e.g., what
disclosures have been or will be made, whether other disclosures are necessary, and whether the
timing and form of disclosures is appropriate), Rule 26(f)(3)(A); the subjects of and timeline for
discovery, as well as any limitations that should be imposed, Rule 26(f)(3)(B); electronic
discovery (e.g., form of production), Rule 26(f)(3)(C); privilege or protection of trial-preparation
materials, and whether the court should incorporate any agreement that the parties may have
reached regarding post-production assertion of privileges, Rule 26(f)(3)(D); discovery limitations
that should be lifted or imposed, Rule 26(f)(3)(E); and any relevant orders that the court may
have issued, Rule 26(f)(3)(F). Though easy to overlook in this list, Rule 26(f)(3)(E) is especially
instructive, as it allows the parties to discuss and provide the court with their views on any
changes that should be made in the limitations on discovery imposed under the Rules, or any
local rule of court, and what, if any, limitations should be imposed.
17 Rule 26(d)(1) provides some exceptions to this prohibition, namely when Rule 26(a)(1)(B) exempts a proceeding from initial disclosure or when the Rules, a court order, or a stipulation authorizes earlier discovery.
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likelihood that the plaintiff will recover only a modest sum of money if he wins, discovery
should be limited to no more than two depositions of not more than two hours each,
interrogatories should be foregone, document production should be limited to a few key
documents, and written expert reports should suffice, with no expert depositions allowed. The
plaintiff would be free to agree or not, and the issue would be framed for a Rule 16(a) conference
with the court. Rule 16(f) permits the court to sanction a party or attorney who is substantially
unprepared to participate, or who fails to participate in good faith, in the conference. Rules 16
and 26 enable—indeed, require—the court to determine and enforce a proportional discovery
plan even if one or both sides seems bent on unreasonable or excessive discovery.
Critics of the status quo who lament the Rules’ apparent “one-size-fits-all” approach to
discovery, and who argue that certain types of cases warrant special rules, overlook the utility of
Rules 26(f) and 16(a). Why are special rules needed if an experienced judge can sit down with
counsel to tailor a discovery plan for a particular case, unless it is because: (a) the parties or
lawyers are not acting in good faith; (b) the parties or lawyers are taking generalized and
doctrinaire positions unsupported by specific facts; (c) the court is not taking seriously its
obligation to manage the case, or is unable to do so because of the crush of other business;
(d) those involved are unfamiliar with or unappreciative of the flexibility and alternatives
available under the existing Rules; or (e) a combination of the above?
Anecdotal evidence from the judges’ perspective indicates that courts seldom receive
proposed discovery plans from the parties that reflect meaningful efforts to drill down on the
issues they are supposed to discuss at the Rule 26(f) conference. Why then adopt a slew of new
discovery rules that make a priori determinations about the amount of discovery that should be
allowed in particular classes of cases, when for each generalized assumption there may be valid
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reasons for allowing different discovery than permitted by the Rules? It is inconceivable that
any new rule limiting discovery for particular classes of cases or limiting particular types of
discovery will not have “unless otherwise ordered by the court for good cause shown” or similar
language tacked on. In that event, all that will be accomplished when the parties disagree is that
there will be a new round of motions practice that, if not promptly resolved by the court, will
delay the proceedings and add to the costs. Would it not be easier before adopting new rules, to
address the reasons why parties, lawyers, and judges do not employ the existing Rules to achieve
the same result on a case-by-case basis?
Rules 16(a) and 26(f) are not the only case management tools ignored or honored in the
breach. Rule 16(c) prescribes the ground rules and provides a menu of procedures and
innovations for consideration at one or a series of pretrial conferences. Rule 16(c)(2)(A)-(P)
offers an array of discovery, case management, and trial alternatives that enable the cost and
complexity of the procedures of every case to be custom-tailored to the nature and scope of the
issues, and to the amount at stake. This is far from a “one-size-fits-all” system, and its manifest
goal, as stated in Rule 16(c)(2)(P), is to facilitate “the just, speedy, and inexpensive
determination of the action.” This is not a vague bromide. The Rule 16(c)(2) toolkit includes
suggestions for limits on discovery, cumulative evidence, deposition and trial time, and pretrial
motions, by using admissions, stipulations, amendments, periodic formal or informal status
conferences, and creative uses of severance and consolidation under Rule 42, as well as summary
adjudication under Rule 56. If a lawyer, party, or the court offers a good idea to streamline
discovery or trial, or to advance the determination of a threshold or dispositive issue, the Rule
16(c)(2)(A)-(P) menu includes, allows, and encourages it.
Further, Rules 26(b)(2)(C) and 26(g) contain powerful language intended to ensure that
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discovery in each case is tailored to that which is proportional to what is at issue in the case,
taking into consideration a wide range of cost-benefit factors. Rule 26(g) provides that the
signature of a lawyer or unrepresented party on a discovery request, response, or objection
certifies that, inter alia, it is “neither unreasonable nor unduly burdensome or expensive,
considering the needs of the case, prior discovery in the case, the amount in controversy, and the
importance of the issues at stake.” Similarly, Rule 26(b)(2)(C) states that the court, on its own or
in response to a motion, must limit the frequency or extent of discovery otherwise allowed by
these rules or by local rules if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.18
Any truth behind the “disproportionality” point made at the outset of this article is thus
not expressive of a failure in the Rules themselves, but rather, must be viewed as an indictment
of the parties, lawyers, and judges for allowing this to occur in the face of constraints that the
Rules already provide. The problem is an absence of will.
Consider the following hypothetical, which exemplifies what is considered wrong in
discovery today. The plaintiff, a woman, sues a large corporation alleging discriminatory
employment practices that prevented her selection for a senior management position that went to
an allegedly less-qualified man. Contemporaneously with filing suit, her lawyer sends a demand
to the defendant to preserve electronic and hard-copy documents and data on the desktop 18 FED. R. CIV. P. 26(b)(2)(C) (emphasis added).
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computers, laptops, PDAs, backup tapes, voicemail, and text messages of a long list of “key
players” in the litigation. She threatens spoliation sanctions if these demands are not met. At the
Rule 26(f) “meet and confer,” she says she intends to request production of voluminous
documents going back fifteen years; depose more than ten fact witnesses; take a Rule 30(b)(6)
deposition covering twenty-four subjects; and engage in expert witness discovery involving
multiple experts.
The defendant objects, in generalized and non-specific terms, that the discovery sought is
excessively burdensome and costly; that plaintiff seeks discovery from sources that are not
reasonably accessible and would involve undue expense; that the assembly of the electronic data
responsive to the discovery demand would involve countless hours to screen it for relevance and
to withhold privileged or work-product protected information; and that all this is patently
excessive because the plaintiff has little chance of prevailing, and that even if she did, her likely
recovery would be paltry compared to the discovery cost that the defendant would bear.
What can be done to address the plaintiff’s legitimate discovery needs while ensuring that
the cost of the pretrial process is not disproportionately expensive or burdensome? Must we
change the discovery rules to prohibit interrogatories in this case, limit the number of depositions
beyond the ten that are already allowed by the Rules, or prohibit discovery of electronically
stored information (“ESI”), as some have proposed? Or can any “disproportionality” problem be
solved simply by adherence to the present Rules? The answer is obvious. If the plaintiff’s
attorney abides by the requirements of Rule 26(g), she cannot in good faith make the broad
discovery demands that she has made until she makes a “reasonable inquiry” and concludes that
her demands are “neither unreasonable nor unduly burdensome or expensive, considering the
needs of the case, prior discovery in the case, the amount in controversy, and the importance of
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the issues at stake in the action.”19
Similarly, the defense attorney is obligated to ask the same questions before objecting to
the requested discovery (and considerable case law requires that objections based on burden or
expense must be made with factual particularity, or else they are waived).
20
In doing so, they are limited only by their own imagination and their willingness to
cooperate in the process to obtain outcomes favorable to their clients, without sacrificing
legitimate areas of disagreement. They surely are not limited by the Rules. The options
available to them are staggering. They can agree to forego interrogatories, or limit them, or
phase them, saving, for example, the more burdensome “contention interrogatories” until the end
of discovery. They can phase the discovery to focus first on a limited sub-set of witnesses and
documents that are most likely to yield the most evidentiary “bang-for-the-buck,” while
reserving the right to seek additional discovery in the future if warranted by what the initial
discovery has disclosed. If worried about the cost of reviewing limitless ESI for privilege or
work product, they can agree to use electronic search and information retrieval techniques and
If both counsel
comply with Rule 26(g), they are well prepared, at their Rule 26(f) discovery planning
conference, to evaluate the factors in Rule 26(f)(3)(A)-(F) to reach an accommodation to the
extent possible, and to agree to disagree on those issues that require judicial resolution.
19 FED. R. CIV. P. 26(g)(1)(B)(iii). 20 See, e.g., Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358-59 (D. Md. 2008); A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006); Hall v. Sullivan, 231 F.R.D. 468, 473-74 (D. Md. 2005); Wagner v. Dryvit Sys. Inc., 208 F.R.D. 606, 610 (D. Neb. 2001) (citing Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980)); Thompson v. Dep’t of Hous. & Urban Dev., 199 F.R.D. 168, 173 (D. Md. 2001); Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35, 38 (D. Md. 2000) (citing Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 498 (D. Md. 2000); Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D. Kan. 1994); Eureka Fin. Corp. v. Hartford Accident & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Cal. 1991); Willemijn Houdstermaatschaapij BV v. Apollo Computer, Inc., 707 F. Supp. 1429, 1439-40 (D. Del. 1989)); Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa. 1996); Obiajulu v. City of Rochester, Dep’t of Law, 166 F.R.D. 293, 295 (W.D.N.Y. 1996); Harding v. Dana Transp., Inc., 914 F. Supp. 1084, 1102 (D.N.J. 1996).
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sampling,21 combined with a Fed. R. Evid. 502(e) non-waiver agreement, and ask the court to
approve it under Fed. R. Evid. 502(d) so that it is binding on non-parties. They can agree to
postpone expert discovery until after fact discovery is over, or simply to exchange expert reports
that comply with Rule 26(a)(2)(B) and forego expert depositions. As for the issues on which
they disagree, despite good faith efforts to reach an accord, parties can file a motion with the
court requesting a prompt ruling.22
The existing Rules cannot work to deliver fair and proportional discovery unless the
parties and their lawyers approach the process with genuine cooperation, instead of
gamesmanship. While the word “cooperation” does not appear in the discovery rules
themselves, the Rules cannot work without it, and trial and appellate courts long have held that
cooperation during discovery is both essential and expected.
They can do all this and more to tailor the discovery to the
legitimate needs of the parties while keeping it proportional, and yet they do not, in so many
cases.
23
21 See Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260-61 (D. Md. 2008) (discussing search and information retrieval techniques (such as individual key words, Boolean searches, identifying a “core” search, and “cluster” searching) and non-waiver agreements).
Moreover, the recent surveys
22 And, pursuant to Rule 26(b)(2)(C), the court has an obligation to resolve the dispute in a way that achieves the goals of fair and proportional discovery. In this process, the court also is limited only by its imagination and interest, and failure of will should be no excuse. 23 See, e.g., Kemp v. Harris, No. WDQ-08-0793, 2009 WL 3030738, at *3-4 (D. Md. Sept. 22, 2009) (observing that “this entire dispute could, and should, have been avoided had counsel cooperated in the conduct of discovery, as they are obligated to do” and directing parties to “meet and confer regarding Harris’s contention”) (citing Mancia, 253 F.R.D. at 358; Rule 26(g)); Oracle USA, Inc. v. SAP AG, No. C-07-01658 PJH (EDL), 2009 WL 3009059, at *2 (N.D. Cal. Sept. 17, 2009) (noting that “the Court has repeatedly emphasized that the scope of this case required cooperation in prioritizing discovery and in being mindful of the proportionality requirement of Federal Rule of Civil Procedure 26” and that the “lack of prompt disclosure . . . and the failure to cooperate on defining the contours of appropriate discovery . . . threatens the fair and cost-effective exchange of relevant discovery”) (citing The Sedona Conference, The Sedona Conference Cooperation Proclamation (2008) (“SCCP”), available at http://www. thesedonaconference.org/content/tsc_cooperation_proclamation, as “promoting ‘open and forthright information sharing . . . to facilitate cooperative, collaborative, transparent discovery’”); Gipson v. Sw. Bell Tel. Co., No. 08-2017-EFM-DJW, 2009 WL 790203, at *21 (D. Kan. March 24, 2009) (advising counsel “to communicate and cooperate in the discovery
Footnote continued on next page
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Footnote continued from previous page process in an attempt to resolve their discovery disputes without judicial involvement” and remarking that “[a]ll parties will benefit if they can avoid the further costs of filing additional motions and voluminous briefs”), aff’d in part, denied in part on other grounds, No. 08-2017-EFM, 2009 WL 4157948 (D. Kan. Nov. 23, 2009); Viacom Int’l, Inc. v. YouTube, Inc., No. C-08-80211 MISC. JF(PVT), 2009 WL 102808, at *7 (N.D. Cal. Jan. 14, 2009) (directing the parties to “meet and confer on the format of production” and stating that it “‘is in the interests of each of the parties to engage in this process cooperatively’”) (quoting Mancia, 253 F.R.D. at 365), aff’d, No. C-08-80211 MISC. JF(PVT), 2009 WL 1110818 (N.D. Cal. Apr. 24, 2009); S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 414-15 (S.D.N.Y. 2009) (bringing to the parties’ attention the SCCP, and stating that it “urges parties to work in a cooperative rather than an adversarial manner to resolve discovery issues in order to stem the ‘rising monetary costs’ of discovery disputes” and the SCCP “notes that courts see the discovery rules ‘as a mandate for counsel to act cooperatively’”; directing counsel “to meet and confer forthwith and develop a workable search protocol that would reveal at least some of the information defendant seeks”); Mancia, 253 F.R.D. at 357-58 (“It cannot seriously be disputed that compliance with the ‘spirit and purposes’ of these discovery rules [i.e., Rules 26-37] requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot ‘behave responsively’ during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.”); Bd. of Regents of the Univ. of Neb. v. BASF Corp., No. 4:04CV3356, 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (“The overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”); Network Computing Servs. Corp. v. CISCO Sys., Inc., 223 F.R.D. 392, 395-96 (D.S.C. 2004) (discussing problems caused by failures of counsel and parties to approach discovery more cooperatively and professionally); see also Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 44-45 (1st Cir. 2007) (sustaining certain sanctions imposed by district court for discovery violations and noting with disapproval the lack of cooperation and responsiveness of defendants to plaintiff's attempts to comply with the discovery schedule); Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir. 1996) (“This Court cannot determine where the fault in this latest breakdown of attempted discovery lies. The Court is therefore assuming that both attorneys have failed in this regard. This Court is not happy with the progress, or should say lack of progress, relating to getting this case ready for trial. It is apparent that the attorneys involved in this case do not like each other, do not get along, and will not cooperate in the discovery process. The people who suffer when this happens are the parties.”); Buss v. W. Airlines, Inc., 738 F.2d 1053, 1053-54 (9th Cir. 1984) (“The voluminous file in this case reveals that a vast amount of lawyer time on both sides was expended in largely unnecessary paper shuffling as the parties battled over discovery and preliminary matters. . . . It is not the purpose of this decision to assess fault. The trial judge, however, was not at fault. A judge with a caseload to manage must depend upon counsel meeting each other and the court halfway in moving a case toward trial.”); Flanagan v. Benicia Unified Sch. Dist., No. CIV S-07-0333, 2008 WL 2073952, at *10 (E.D. Cal. May 14, 2008) (“The abusiveness of plaintiff's discovery responses indicate a lack of cooperative spirit. . . . [P]laintiff’s wilful disregard of the Federal Rules, and her lack of communication and cooperation with defense counsel in regard to all discovery, undermine the judicial process plaintiff herself has invoked.”); Marion v. State Farm Fire & Cas. Co., No. 1:06cv969-LTS-RHW, 2008 WL 723976, at *3-4 (S.D. Miss. Mar. 17, 2008) (“[T]he gravest ‘error’ committed by the Magistrate [Judge] was thinking that ‘the parties [could] meet and confer to discuss any outstanding discovery requests,’ because after this ‘meet and confer’ it was ‘clear that the parties had done little to resolve their perceived differences on document production.’ . . . This Court demands the mutual cooperation of the parties. It hopes that some agreement can be reached. . . .
Footnote continued on next page
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reveal that lawyers themselves recognize that discovery costs are reduced, the case proceeds
more smoothly, and advocacy is not adversely affected when the parties cooperate in
discovery.24
The answer is not simple. At the outset, it is hard to measure the degree to which
litigants cooperate because in those cases, judicial intervention is less likely to be required.
Additionally, the notion that cooperation is required during discovery runs counter to imagined
requirements of the adversary system persistently held by many lawyers. This perception,
however, ignores the fundamental requirements of the adversary system itself.
Why then, is such cooperation so often lacking in the discovery process?
25 The hallmarks
of the adversary system were best stated by one of its most ardent proponents, Professor Lon L.
Fuller,26
Footnote continued from previous page Neither [the Magistrate Judge] nor this Court will hesitate to impose sanctions on any one—party or counsel or both—who engages in any conduct that causes unnecessary delay or needless increase in the costs of litigation.”) (citing Rule 26(g)); In re Spoonemore, 370 B.R. 833, 844 (Bankr. D. Kan. 2007) (“Discovery should not be a sporting contest or a test of wills, particularly in a bankruptcy case where the parties’ resources are limited and the dollar value of the stakes is often low. When a party and its counsel are as intransigent and uncooperative in discovery as [the parties] have been in this matter, the Court has no choice but to impose sanctions that, hopefully, emphasize that the conduct sanctioned is both unprofessional and unacceptable.”); Azalea Garden Bd. & Care, Inc. v. Vanhoy, No. 06 CVS 0948, 2009 WL 795287, at *6 (N.C. Super. Ct. Mar. 6, 2009) (“Judges and lawyers should resurrect the original intention of the discovery rules, which was to make discovery a more cooperative and less adversarial system designed to reduce, not increase, the cost of litigation. . . . Our system of civil justice cannot function effectively and economically unless lawyers and judges return to the original intention of the discovery rules and make cooperation, communication, and transparency the cornerstones of the discovery process.”).
as follows:
24 FJC Survey, supra note 4, at 63 (reporting that, with regard to the statement “Attorneys can cooperate in discovery while still being zealous advocates for their clients,” 63.7% of plaintiffs’ lawyers “agreed or strongly agreed,” 61.8% of lawyers representing both plaintiffs and defendants “agreed or strongly agreed,” and those primarily representing defendants “agreed or strongly agreed” 55.9% of the time); ABA Survey, supra note 5, at 3, 11 (“95% [of respondents] believe that collaboration and professionalism by attorneys can reduce client costs”). 25 Mancia, 253 F.R.D. at 361 (“The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society.”). 26 Professor Fuller “was a celebrated professor at Harvard Law School who wrote extensively on jurisprudence, including the importance of the adversary system.” Mancia, 253 F.R.D. at 361
Footnote continued on next page
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Thus, partisan advocacy is a form of public service so long as it aids the process of adjudication; it ceases to be when it hinders that process, when it misleads, distorts and obfuscates, when it renders the task of the deciding tribunal not easier, but more difficult.
. . . .
The lawyer’s highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures and institutions. The lawyer’s role imposes on him a trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends.
. . . A lawyer recreant to his responsibilities can so disrupt the hearing of a cause as to undermine those rational foundations without which an adversary proceeding loses its meaning and its justification. Everywhere democratic and constitutional government is tragically dependant on voluntary and understanding co-operation in the maintenance of its fundamental processes and forms.
It is the lawyer’s duty to preserve and advance this indispensable co-operation by keeping alive the willingness to engage in it and by imparting the understanding necessary to give it direction and effectiveness. . . .
. . . It is chiefly for the lawyer that the term “due process” takes on tangible meaning, for whom it indicates what is allowable and what is not, who realizes what a ruinous cost is incurred when its demands are disregarded. For the lawyer the insidious dangers contained in the notion that “the end justifies the means” [are] not a matter of abstract philosophic conviction, but of direct professional experience.27
The adversary system can be justified as our society’s preferred method for resolving
disputes only to the extent it promotes efficient and reasonable procedures leading to the
identification of the competing facts that support the “sharp clash of proofs” presented to the
fact-finder for resolution. As Professor Fuller aptly noted, “partisan advocacy” is not a public
service when it hinders, rather than aids, the process of adjudication, or makes the job of the
Footnote continued from previous page n.4. One of his most influential publications was The Forms and Limitations of Adjudication, 92 HARV. L. REV. 353 (1978). 27 Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1162, 1216 (1958).
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“deciding tribunal” more difficult.28 While a lawyer owes a duty of advocacy to the client, this
duty must co-exist with, not undermine, a concomitant duty to the court to ensure that the
process of adjudication is fair, efficient, and cost-effective. As noted in Mancia29
A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve. Thus, rules of procedure, ethics and even statutes make clear that there are limits to how the adversary system may operate during discovery.
:
Most lawyers will agree in theory with the above discussion. Applying it in a specific
case, however—where a client is hell-bent to crush its adversary and has the resources to find
another, more aggressive and less scrupulous lawyer to do so, should its present lawyer be
perceived as too timid—is another matter. The challenge is to convince clients that it is in their
economic interest to cooperate with the adverse party to reduce costs so as to focus on what
really matters. As long as skeptics dismiss the call to a cooperative approach to discovery as the
unachievable, unrealistic, and idealistic aspiration of those who observe the process from afar,
reform efforts are likely to fail. The difficult work is showing the skeptics why they are wrong.30
28 Id. (quoted in Mancia, 253 F.R.D. at 361-62).
29 253 F.R.D. 362-63 (footnotes omitted that cite, e.g., Fed. R. Civ. P. 26(c)(1), (f), (g), 37(a)(1); Model Rules of Prof’l Conduct R. 3.4(d) & cmt. [1] (2007); 28 U.S.C. § 1927 (2006)). 30 Here is an especially thoughtful observation on this problem:
Cooperation, however, is in the interest of even an aggressive client, and an attorney who persuasively explains this to the client serves both the client and his or her own professional obligations. Such a client must first understand what cooperation is and is not. Cooperation in the discovery context does not mean giving up vigorous advocacy; it does not mean volunteering legal theories or suggesting paths along which discovery might take place; and it does not mean
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That work has begun in earnest, and it deserves and requires widespread and enthusiastic
support. In 2008, The Sedona Conference (the “Conference”), long respected for its pioneering
work in developing best practices in the area of discovery of ESI, published its “Cooperation
Proclamation,” which launched “a national drive to promote open and forthright information
sharing, dialogue (internal and external), training, and the development of practical tools to
facilitate cooperative, collaborative, transparent discovery.”31
Footnote continued from previous page
forgoing meritorious procedural or substantive issues. Cooperation does mean working with the opposing party and counsel in defining and focusing discovery requests and in selecting and implementing electronic searching protocols. It includes facilitating rather than obstructing the production and review of information being exchanged, interpreting and responding to discovery requests reasonably and in good faith, and being responsive to communications from the opposing party and counsel regarding discovery issues. It is characterized by communication rather than stonewalling, reciprocal candor rather than “hiding the ball,” and responsiveness rather than obscuration and delay.
The Conference then went further,
. . . Moreover, both counsel and clients should recognize that an
obstructionist, overreaching, or simply non-cooperative approach to discovery invites adverse consequences for the non-cooperative party itself. This can take the form of non-cooperative conduct in return from the other side, leading the parties to conduct discovery “the hard way,” with each party incurring unnecessary expense as a result of the other side’s non-cooperative approach, but neither gaining a strategic or tactical upper hand. It can also take the form of an adverse decision or even sanctions on the discovery dispute in question. Non-cooperative conduct early in the discovery process can lead a court to view that party’s position less favorably when discovery disputes ripen and come before the court.
The Sedona Conference, The Case for Cooperation, 10 SEDONA CONF. J. 339, 359-60 (Supp. 2009), available at http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/ caseforcooperation.pdf. A further way to overcome client skepticism regarding the need for and benefits of cooperation during discovery would be to involve the client or client representatives in the pretrial conference with the court. Anecdotal evidence from judges who have done so suggests that when the client hears directly from the court the advantages of cooperation and disadvantages of failing to cooperate, especially if expressed in economic terms, even clients who are hostile to their adversary can come to understand why it is to their own advantage to cooperate. 31 The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 SEDONA CONF. J. 331, 331 (Supp. 2009) (“Cooperation Proclamation”), available at http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/proclamation_article.pdf (reprinting the Cooperation Proclamation).
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proposing to develop “a detailed understanding and full articulation of the issues and changes
needed to obtain cooperative fact-finding,” including developing “toolkits” to train and support
judges, professionals, and students in the techniques of cooperative and collaborative
discovery.32 The Conference has published an article titled The Case For Cooperation, which
comprehensively discusses the problems that exist due to the failures of cooperation during
discovery; the requirement of cooperation that is implied in the Rules of Civil Procedure; the fact
that the ethical and professional obligations of lawyers are consonant with cooperation; and
perhaps most importantly, the fact that cooperation produces economic and strategic benefits to
the client.33
In an article titled The Bulls-Eye View of Cooperation in Discovery, Professor Stephen S.
Gensler
34 described in pragmatic and clear terms a model that “identifies and justifies the
different types of cooperation in a way that reinforces—rather than diminishes—the overall
campaign” to achieve cooperation during discovery.35
32 Mancia, 252 F.R.D. at 363 (citing the Cooperation Proclamation).
The Conference has now begun to draft
the “toolkits” to be made available to lawyers, judges, court-appointed experts, volunteer
mediators, law students, and alternative dispute resolution programs, which can be used to teach
33 The Case for Cooperation, supra note 30, at 339. Justice Stephen G. Breyer of the United States Supreme Court authored the preface to the Volume 10 Supplement to The Sedona Conference Journal, in which he stated:
The Sedona Conference Cooperation Proclamation, and supporting document, The Case for Cooperation, suggest that if participants in the legal system act cooperatively in the fact-finding process, more cases will be able to be resolved on their merits more efficiently, and this will help ensure that the courts are not open only to the wealthy. I believe this to be a laudable goal, and hope that readers of this Journal will consider the articles carefully in connection with their efforts to try cases.
Stephen G. Breyer, Preface, 10 SEDONA CONF. J. i, i (Supp. 2009). 34 Welcome D. & W. DeVier Pierson Professor, University of Oklahoma College of Law. 35 Stephen S. Gensler, A Bulls-Eye View of Cooperation in Discovery, 10 SEDONA CONF. J. 363, 363 (Supp. 2009).
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and facilitate cooperation during discovery.
While inaugurated by the Conference, the effort to achieve cooperation in discovery
cannot succeed unless joined by others who want to change the way that discovery is practiced.
The organizations and lawyer associations calling for change, educators who will produce the
future litigators, and the courts themselves36
Logically, if a change in attitudes is to take hold, it should start in the law schools.
Unfortunately, law schools generally do not focus on discovery practice, providing no more than
a cursory examination of how discovery relates to the Rules of Civil Procedure. Rarely do
curricula address the real-life challenges and demands of litigation practice in our stressful
economic environment. At most, these issues are relegated to seminars taught by adjunct
professors. Law school faculty should be enlisted to teach students the problems that discovery
presents, and the procedural tools to solve them. The ethics and principles to which lawyers
should adhere must be integrated with traditional civil procedure and litigation courses.
must participate in this effort. This does not mean
that the call for rule changes that might promote cost-effective, fair, and proportional discovery
need be abandoned. But Rule changes are not enough. Attitudes and behaviors must change as
well.
The remainder of this paper illustrates the kinds of steps that the key players in litigation
can take to tailor discovery to the needs of specific cases, such that the discovery process is
proportional to the claim. The list is intended to prompt imaginative counsel and judges to use
the existing rules in a manner that achieves these goals, and is by no means exhaustive.
1.
As suggested in Mancia, 253 F.R.D. at 364, when the parties meet and confer to develop
Develop a Discovery Budget, and Involve the Parties in the Process.
36 As of October 2009, ninety-five federal and state trial and appellate judges, the author of this article included, have endorsed the Cooperation Proclamation. Cooperation Proclamation, supra note 31, at 334-38.
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a discovery plan, they should attempt to develop a “discovery budget.” This should start with an
exchange of estimates regarding the range of recovery that might be expected if the plaintiff
prevails in the litigation. While this works best in cases where the primary goal is to recover
money, it also can be used in cases for equitable relief. If counsel agree that the plaintiff, if
successful, is likely to recover between $750,000 and $1,000,000 (and that, if the plaintiff does
not prevail, recovery will be $0), then they next attempt to agree on what percentage of that
figure is reasonable to expend on the discovery process. Stated differently, they attempt to
answer this question: “In a rational dispute resolution process, how much money should be
expended to discover the facts needed to resolve a dispute worth at most $1,000,000?” Lawyers
know what discovery costs, whether it is per page, per hour, per expert, or per deposition. Even
if the lawyers cannot fully agree, they usually are able to estimate a range, and generally, their
estimates overlap considerably.37
While lawyers know the cost of fact discovery and expert witnesses, many judges do not,
which handicaps them in managing the process. How much do expert witnesses charge? How
many hours are involved in preparing an expert report, and in preparing for, and taking and
defending, an expert deposition? What do lawyers charge per hour, and how many lawyers, for
Reasonable minds can differ, but no one would say that the
cost of resolving a dispute should equal the amount of the largest probable recovery. If the
plaintiff says that the “transaction cost” for discovery should be up to 30% of the possible
recovery, or $300,000, and the defense attorney says only 15%, or $150,000, an average of the
two can produce a useful measure to use to try to develop a budget.
37 The experience of most judges that have been involved in settlement negotiations with counsel is that even when the parties disagree on which side is likely to prevail, they usually agree substantially about the probable range of damages that may be recovered. Even if they do not, a useful range can be obtained for planning purposes by simply averaging the projections of counsel to come up with a useful yardstick.
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how many hours, will be engaged in the discovery process? Judges who are charged by the
Federal Rules to ensure proportionality need that information in order to do their jobs. Absent
disclosure of those estimated costs, often an unbalanced equation exists in which plaintiffs’
counsel, often prosecuting on a contingency basis, endeavor to limit the costs they advance and
the time they spend, while defense counsel, working on an hourly basis, do the reverse. Judges
can restore the balance, so that the only burden imposed is the burden of proof, not the burden to
match the time and costs of the side that is prepared to spend more.
Under a budget system, counsel (with the assistance of their clients) discuss the discovery
required to develop the facts reasonably needed to evaluate the case for settlement, dispositive
motions, or trial. This entails estimating actual costs of document production, including ESI, and
all its attendant costs (such as privilege review). Necessarily, rough estimates are assigned, but
that exercise alone tends to open the eyes of both client and attorney as to what the real costs
may be. If it becomes apparent, for example, that the documents that the plaintiff intends to
request would impose excessive costs on the defendant to assemble, review, and produce, then
the parties should discuss the plaintiff’s priorities, focusing on the most important documents,
and reserving for another day the right to demand more, if necessary.
Judges who have ordered phased discovery, focusing first on that which is most likely to
reveal the most relevant information, permitting the parties to seek additional discovery later
(albeit with the possibility of cost-shifting), have found that they seldom return for more. Rather,
they cooperate in identifying key inquiries and information and the most efficient means to
discover it. If the parties then find that they must seek additional discovery, that request is
generally based on a far more accurate showing of need.
It is important to involve the principals in discussing the discovery budget, especially
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when the discussion addresses the cost-benefit proportionality factors of Rule 26(b)(2)(C), and
the procedural options of Rule 16(c)(2). When the costs are taken into account and subtracted
from gross recovery, it is amazing how quickly attitudes can be reformed. The common
experience of magistrate judges, who frequently supervise the discovery process, has been that
when asking plaintiffs’ counsel how much the plaintiff is willing to pay to cover the cost of the
additional discovery that the plaintiff wants beyond what was allowed in the first phase of
discovery, few have responded that their clients were willing to absorb, or even share, the
additional expense.38
Significantly, if cooperation is insufficient, or the parties simply cannot agree on a
budget, that does not doom the effort to develop a realistic budget. The judge assigned to the
case can resolve any disagreements to set the budget, or appoint a third party with the experience
and knowledge to act as a mediator to recommend an initial budget.
Some argue that setting a discovery budget is more difficult in cases in which money
damages are not the primary objective, or when the case is unique (e.g., a case of first
impression, or one brought to establish important rights or obligations). Though this may be
true, two observations are in order. First, the vast majority of cases in both state and federal
court are filed exclusively, or at least primarily, to obtain money damages. Second, even for
those that are not, it is still useful to develop a discovery budget by cooperatively discussing the
amount and nature of discovery each party will require, and by evaluating the importance of the
subject matter of the litigation and the resources of the parties.
A final note in this regard. As suggested above, if a judge must resolve greatly divergent 38 This assumes, of course, that the first phase of discovery was indeed focused on the plaintiff’s most important discovery needs, the amount of initial discovery was reasonable, and the defendant has responded diligently and in good faith to make a complete and responsive production. If not, then cost-shifting is unfair and inappropriate.
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positions regarding the development of a discovery budget, a meeting with counsel and the
parties may be in order. Each lawyer can be asked to state the discovery sought and to estimate
the amount of time and cost that his or her client will have to bear to obtain it. When required to
make such an estimate in the client’s presence, a lawyer is less likely to give an artificially low
estimate for fear that the client will be upset if the prediction is low, and the final bill is
substantially larger. The judge can facilitate this candor by asking the lawyer: “Will you put that
estimate in writing and agree that if you are wrong, you will not charge more?” A hesitant
response will speak volumes regarding the bona fides of the estimate. Similarly, if a lawyer is on
a contingency, the judge can ask, in the client’s presence: “If the court orders this additional
discovery that you say you must have, and which your adversary objects to as excessively
burdensome and expensive, how much of it is your client willing to pay to require the defendant
to produce it?” Few plaintiffs in contingency cases are prepared for this contingency.
Suggesting it can help a great deal in readjusting unrealistic expectations or demands.
The purpose of a discovery budget will be thwarted if either side believes—or fears—that
its opponent will run the meter, or run out the clock, consuming time and money budgeted for
discovery with the production of non-essential or marginally relevant documents, while
withholding “the good stuff.” Often, the most important information is produced last, after all
delaying or obfuscatory tactics have been exhausted and invocations of privilege have been
challenged and denied. When the quantity of discovery is limited, its quality must be assured, or
limitations will only benefit discovery resisters. Lawyers will abandon costly and time-
consuming “bargaining” behavior (asking for more in discovery than they need, because they
expect to obtain only a fraction of their request) only when they are confident that courts will
enforce the prioritized production of essential and relevant information.
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2.
When the parties and lawyers know at the outset what the court expects, and that if they
fail to behave accordingly, they will suffer meaningful adverse consequences, they are far more
likely to fall into line. While this paper has noted the plethora of court decisions that insist that
cooperation in discovery is essential,
Courts Should Adopt Local Rules or Guidelines that Stress the Need for Cooperation in the Discovery Process as an Expectation of the Court, and the Willingness of the Court to Resolve Discovery Disputes Promptly When They Occur.
39
Fed. R. Civ. P. 26 requires that discovery be relevant to any party’s claim or defense; proportional to what is at issue in a case; and not excessively burdensome or expensive as compared to the likely benefit of obtaining the discovery being sought.
actually memorializing this requirement in a Local Rule
or guideline reinforces the uniformity of the requirement imposed by all the judges of that court.
An example of a recently published guideline is Guideline 1 of the Discovery Guidelines for the
United States District Court for the District of Maryland, which provides:
The parties and counsel have an obligation to cooperate in planning and conducting discovery to tailor the discovery to ensure that it meets these objectives. Counsel have a duty to confer early and throughout the case as needed to ensure that discovery is planned and conducted consistent with these requirements and, where necessary, make adjustments and modifications in discovery as needed.
During the course of their consultation, counsel are encouraged to think creatively and to make proposals to one another about alternatives or modifications to the discovery otherwise permitted that would permit discovery to be completed in a more just, speedy, inexpensive way. By way of illustration only, such alternatives could include different or additional deadlines for the filing of motions or the completion of all or part of discovery; accelerated exchanges of disclosures, additional data or descriptions of the parties’ claims and defenses; sampling techniques; and substantial limitations on, or even the elimination of, depositions, coupled with alternative methods of exchanging or obtaining factual information or the equivalent of deposition testimony.
. . . .
39 See supra note 23.
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Attorneys are expected to behave professionally and with courtesy towards all involved in the discovery process, including but not limited to opposing counsel, parties and nonparties. This includes cooperation and civil conduct in an adversary system. Cooperation and civility include, at a minimum, being open to, and reasonably available for, discussion of legitimate differences in order to achieve the just, speedy, and inexpensive resolution of the action and every proceeding. Cooperation and communication can reduce the costs of discovery, and they are an obligation of counsel.40
As noted above, a substantial number of the lawyers surveyed in the ABA Survey
expressed the belief that judges were not willing enough to address and resolve discovery
disputes promptly.
41
The parties and their counsel are encouraged to submit to the Court for approval their agreements to expand or limit discovery. If, however, counsel are unable to reach agreement on a discovery plan that substantially modifies the normal course of discovery, and either side believes that the Court’s assistance would be helpful in framing or implementing such a plan, then the Court will make itself available with reasonable promptness, in response to a brief, written request for a discovery management conference that identifies the issues for consideration.
That is a serious problem. Local Rules that impose a burden of cooperation
on counsel and the parties should likewise express clearly the court’s obligation to act promptly
to resolve disputes, including imposition of innovative measures. There is an old lawyer’s
saying that makes this point: “I can live with a ruling that goes in favor of me, I can live with a
ruling that goes against me, but I can’t live with no ruling at all.” Here is an example of
language in one federal court’s Discovery Guidelines that addresses this issue:
. . . .
Upon being notified by the parties of the unresolved discovery dispute, the Court will promptly schedule a conference call with counsel, or initiate other expedited procedures, to consider and resolve the discovery dispute. If the Court determines that the issue is too complicated to resolve informally, it may set an
40 D. Md. Loc. R. App. A, Discovery Guidelines for the United States District Court for the District of Maryland, Guideline 1.a, c (Dec. 1, 2009), http://www.mdd.uscourts.gov/localrules/ localrulesAugust09v3.pdf (“Discovery Guidelines”). 41 See supra note 16.
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expedited briefing schedule to ensure that the dispute can be resolved promptly.42
3.
Veteran litigators know how to streamline discovery and pre-trial procedures by reaching
agreements and accommodations with opposing counsel on many matters that otherwise would
become the subject of discovery disputes and would consume judicial and financial resources.
Within the context of active case management involvement (including ongoing access) by the
judges, experienced lawyers will work things out among themselves, especially if they are
encouraged and rewarded for doing so, and are given concrete templates to follow.
Seasoned Practitioners Have Developed Common-Sense Systems That Can Be Adapted and Adopted by Courts for Wider Use.
One system, which has proved workable in a wide array of cases, has been developed
over time by prominent litigator Stephen D. Susman. The following list is adapted from an
internal memo which Mr. Susman distributes to the lawyers in his firm, and which he presents to
opposing counsel in his cases. It includes agreements for the conduct of depositions, service of
papers, e-discovery protocols, protective orders, cost sharing, and trial logistics.
“Susman’s Checklist
Here is a list of pretrial agreements to try to reach with the other side before discovery
begins. These agreements will make life easier for both sides and do not advantage one side over
the other. Waiting until you are in the heat of battle to try to reach these agreements, one side or
the other will feel disadvantaged. Place a check mark next to all the agreements that are reached.
Any modifications or additions should be noted.
”
1. As to any discovery dispute, the lead lawyers will try to resolve by phone and no one will write letters to the other: just e-mail and phone calls.
2. Depositions will be taken by agreement, with both sides alternating and trying in advance to agree upon the dates for depositions, even before the
42 Discovery Guidelines, supra note 40, at Guideline 1.a, f.
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deponents are identified. In jurisdictions where there is no limit to the length or number of depositions, each side gets 10 lasting for 6 hours each.
3. The parties will use the same court reporter/videographer, who agrees to provide specified services at discounted prices for the right to transcribe all depositions.
4. All papers will be served on the opposing party by e-mail.
5. Documents will be produced on a rolling basis as soon as they have been located and numbered; if copies are produced, the originals will be made available for inspection upon request.
6. Each side must initially produce electronically stored information from the files of 5 custodians selected by the other side during an agreed period of time. Only documents which have a lawyer's name on them can be withheld from production and only if they are in fact privileged. Production does not waive any privilege and documents can be snapped back whenever the producing party recognizes they are privileged. After analyzing the initial production, each side can request electronic files from 5 other custodians. Beyond that, good cause must be demonstrated.
We will produce ESI in the native format kept by the producing party, or in a common interchange format, such as Outlook/PST, Concordance or Summation, so it can be searched by the other side. If any special software is required to conduct a search in native format and is regularly used by the producing party, it must be made available to the other side. We will produce a Bates numbered file listing of the file names and directory structure of what is on any CDs or DVDs exchanged. Either side may use an e-mail or an attachment to an e-mail that came from one of these previously produced disks by printing out the entire e-mail (and the attachment if they are using a file that came with an e-mail) and marking it at the deposition or trial, and either side may use application data (which was not an attachment to e-mail–so its standalone on a CD or DVD) as long as the footer on the pages or a cover sheet indicates (1) the CD or DVD from whence it came, (2) the directory or subdirectory where the file was located on the CD or DVD, and (3) the name of the file itself including the file extension.
7. If agreement cannot be reached on the form of a protective order within 48 hours of the time they are exchanged, both sides will write a letter to the Court including each other’s preferred version and, without argument, ask Court to select one or the other ASAP.
8. All deposition exhibits will be numbered sequentially X-1, X-2, etc., regardless of the identity of the deponent or the side introducing the exhibit and the same numbers will be used in pretrial motions and at trial.
9. The parties will share the expense of imaging all deposition exhibits.
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10. Neither side will be entitled to discovery of communications between counsel and expert witnesses or to drafts of experts’ reports.
11. The production of a privileged document does not waive the privilege as to other privileged documents. Documents that the other side claims are privileged can be snapped back as soon as it is discovered they were produced without any need to show the production was inadvertent [note: this non-waiver principle is now embodied in Fed. R. Evid. 502].
12. Each side has the right to select 20 documents off the other’s privilege list for submission to the court for in camera inspection.
13. Demonstrative exhibits need only be shown to the other side before shown to the jury and need not be listed in any pretrial order.
14. An agreed upon jury questionnaire.
15. An agreed upon juror notebook possibly containing a cast of characters, list of witnesses (and their photos), time-line, glossary, dispositive documents, etc.
Judge David Campbell, of the District of Arizona, has used the Susman Checklist in cases
in his court, providing it to lawyers as a suggestion to foster practical case management
agreements. He has also noted the barriers to the practice of common sense litigation that arise
from lawyers’ inexperience and mistrust. Judge Campbell observes:
Steve’s list definitely should be discussed at the Conference. It also, however, is a “good lawyers’” list. My discovery difficulties arise from the large majority of lawyers who would never think of or agree to the items on the list. The civil rules must apply to the weakest of lawyers as well as the best, and I hope we’ll be able to think of some system-wide changes that would reduce the cost of litigation in all cases, not just good-lawyer cases.
Something that Steve’s list alludes to is very true in my court. There is a disconnect between what happens in discovery and what happens at trial. Of the 5% of civil cases that actually go to trial, I would guess that 95% of the discovery is never seen or heard by the jury. A few examples: lawyers often mark hundreds of trial exhibits, and yet rarely are more than a few dozen used in front of the jury; depositions are sometimes read or played, but they are rarely dispositive evidence in the case (lawyers manage to get the key witnesses to trial), and even when used for impeachment, depos rarely affect the outcome of the case; interrogatory answers and requests for admission have never been used in 32 civil trials over which I’ve presided.
Part of the problem is that most lawyers don’t try cases. They cannot tell
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what will truly be relevant. They also are insecure—they feel compelled to turn over every stone for fear of missing some important fact. Experienced trial lawyers – especially criminal lawyers, in my experience—can see up front what will matter to the jury and they go get it.
Judge Campbell has additional suggestions, borne of his case management experience,
and his familiarity with reforms introduced in the Arizona courts:
There are several system-wide changes that could be considered. We could consider requiring more affirmative disclosures. Andy Hurwitz’s paper on the Arizona experience [to be made available on the 2010 Conference website] addresses this possibility. Although I think it has helped in Arizona, I did not see it significantly reduce discovery here when I was practicing – most lawyers still felt compelled to turn over every stone.
Given the general aversion of lawyers to turning over unfavorable evidence, and given the fact that many lawyers have little trial experience and therefore an insecurity about what they should seek in discovery, I suspect the only changes that will really reduce discovery—other than a fundamental revamping of the system to become more pleading-based and less discovery-based—are hard limits. For an example, what if the Rules (or a court tailoring discovery to a particular case) said (a) depositions may be taken only of parties and three other witnesses per side, (b) experts cannot be deposed (but neither can they testify unless they produce a sufficiently detailed report, and their testimony will be strictly limited to their report), (c) depositions shall not last more than 4 hours, (d) interrogatories are abolished, (e) requests for admissions and document production requests are sharply limited—say 20 per side, and (f) these limits can only be changed with the approval of the judge and upon a showing that manifest injustice will result if they were not changed (i.e., more than good cause). Granted, such an approach would not work in all cases, but that would be the point of allowing judge-approved increases when truly required. When combined with strict time limits for trial (I set significant time limits in all my civil trials, and they work fine), I suspect these limitations would work in the vast majority of cases.
Judge Campbell concludes:
I’m not sure these are good ideas for every case, but I think they are worth considering. I also recognize that it would be very hard to get such limits through the Civil Rules process. But the point of the 2010 Conference is to think about possible solutions to what everyone seems to agree is too much and too expensive discovery, and so I throw it out for consideration.
On the topic of discovery limits, experienced litigators tend to agree more often than
judges might suppose. Steve Susman, for example, “agrees totally with limiting the length of
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depositions to 4 hours.” As he notes, “[t]hat would cut discovery expenses by a third.”
Mr. Susman also supports limits on the number of depositions:
I would limit the number of depositions to 6 per side, but not distinguish between parties and non-parties. I also favor Judge Campbell’s rule on expert reports, but would allow expert depositions to be among the 6 a party chooses to take: if someone wants to waste their shots, fine.
On the topic of written discovery, Mr. Susman opines:
I find most interrogatories useless, but I also find it doesn’t cost a lot to answer them. The best discovery device is document production. What makes it so expensive is for the producing party to have to review first for relevance and privilege. If you could just turn over all files of 5 identified employees, without having to make that review, it wouldn’t cost much at all. The Rules could encourage that, by providing a no-fault, unlimited clawback.
With respect to “clawback,” recently-enacted Fed. R. Evid. 502 indeed now provides a
non-waiver rule and a clawback system. As lawyers and judges become familiar and
comfortable with Rule 502, it should reduce the volume of documents withheld on privilege
grounds, and the frequency and scope of privilege disputes. The Rule should be deployed to
foster disclosure of key documents within a safe harbor of confidentiality. That was certainly the
intent of the drafters.
The existing Rules of Civil Procedure, augmented by Fed. R. Evid. 502, and illuminated
by “best practices,” such as those mentioned in this article, the Manual For Complex Litigation,
Fourth (Federal Judicial Center 2004), innovative Local Rules, and the ongoing work of The
Sedona Conference, are a rich source of principled and cost-effective guidelines for improved
case management, which have yet to be fully explored, appreciated, and utilized in civil
litigation.
CONCLUSION
A renewed commitment by the legal profession, the judiciary, and the academy to teach,
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learn, internalize, practice, and enforce the existing Rules can take us a long way toward true
civil litigation reform. Without such a commitment, manifest in actual conduct, new Rules and
Rule changes will flounder.
1
Preserving Access and Identifying Excess: Areas of Convergence and Consensus in the 2010 Conference Materials
EXECUTIVE SUMMARY
In the months leading up to the 2010 Duke Conference on Civil Litigation, participants have
submitted an extensive and impressive collection of surveys, empirical studies, papers and proposals
concerning the American civil justice system. This paper is an attempt to collate the most salient
information from these materials in one place, and identify the broad areas of agreement and
disagreement among the survey respondents and conference participants.
And there are significant areas of agreement – both with respect to the current status of the
civil justice system, and with respect to a vision of the system’s future. The conference materials reflect
a general consensus, particularly (though not exclusively) with respect to complex cases, that the
current system is too expensive and takes too long to bring cases to resolution. Discovery and summary
judgment are identified as the primary culprits. In addition, the conference materials in large part
support early and more extensive judicial management of civil cases.
On occasion the findings of one study or survey cut against findings of the other studies, and no
single conclusion received unanimous concurrence. However, the conference materials generally reflect
that:
Certain types of civil cases are more prone to discovery disputes, dispositive motion practice, and general procedural complexity than others;
For many cases, litigation costs may be disproportionate to the value of the case;
When opposing attorneys act cooperatively, litigation costs tends to be lower;
The civil justice system is seen as taking too long, and discovery is viewed as a primary contributor to delay;
The longer a case goes on, the more it costs;
The current tools of federal pleading practice (including answers and Rule 12 motions) do not usually narrow the issues in dispute;
The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have generated significant concern about the future of pleading practice in the federal courts;
2
The current federal initial disclosure regime under Rule 26(a)(1) does not reduce the total volume of discovery or the total cost of discovery in civil cases;
Electronic discovery increases the cost of litigation for both plaintiffs and defendants;
The costs associated with expert witnesses can often be an important factor in the decision to settle a case;
Parties prefer a system in which a single judicial officer is assigned to a case from start to finish;
Initial pretrial conferences are valuable to the parties and the court;
Mediation (but not arbitration) currently carries several advantages over litigation with respect to time, cost, and perceived fairness of outcome; and
Summary judgment motions add considerable costs to the litigation and are commonly seen as taking too long to resolve.
Other aspects of the conference materials reveal honest disagreements between plaintiffs’
attorneys and defense attorneys, attorneys and their clients, and attorneys and judges about the best
visions for the future of the civil justice system. Among the most significant areas where a divide was
prominent:
Whether notice pleading invites extensive discovery in order to narrow the issues, and whether fact-based pleading would focus discovery;
Whether (further) limitations on the use of discovery devices should be adopted;
Whether discovery should be stayed in certain cases when a motion to dismiss is pending;
Whether electronic discovery is generally unduly burdensome and a disproportionate contributor to litigation cost—and whether the problem is likely to get better or worse;
Whether routine cost-shifting should be introduced where the burden of producing electronically stored information is not equal;
Whether a trial date should be set early in the litigation; and
Whether summary judgment is used properly and with appropriate frequency.
While these are real disagreements, they nevertheless appear to stem from a common concern
that the current process invites too much gamesmanship, with detrimental consequences. From the
perspective of plaintiffs and their counsel, the system too often encourages obstructionist motion
practice and obstructionist discovery, hampering the search for truth. From the perspective of
defendants and their counsel, the system invites discovery that is unnecessary, unduly burdensome and
expensive. Both plaintiffs and defendants worry that opposing parties will bleed them financially until
they are forced to settle.
3
Viewed cumulatively, the conference materials provide a strong platform for constructive next
steps as we all work together toward a civil justice system that is truly just, speedy and inexpensive. A
detailed examination of these cumulative viewpoints follows.
4
I. INTRODUCTION
This paper represents an effort to synthesize in one place the remarkable amount of research
and commentary submitted in recent months by the participants in the 2010 conference. It would, of
course, be impossible to reflect every dimension and nuance of the materials provided, and our purpose
here is much more limited. We aim simply to capture the broad areas of consensus and disagreement,
as reflected in the many surveys, empirical studies, and conference papers. It is our hope that by
collating opinions and positions in one document, it will be easier to identify and discuss trends and
currents that run throughout the conference materials.
This paper attempts to account for materials submitted through the 2010 conference website as
of April 29, 2010. We focus primarily on the following surveys and empirical studies:
1. The 2008 survey of the Fellows of the American College of Trial Lawyers (ACTL survey);
2. The 2009 survey of the American Bar Association Section of Litigation (ABA survey);
3. The 2009 survey of the National Employment Lawyers Association (NELA survey);
4. The 2009 National, Case-Based Civil Rules Survey administered by the Federal Judicial
Center, including a companion multivariate analysis of litigation costs (FJC closed case
survey);
5. The 2009 survey of the Arizona Bench and Bar on the Arizona Rules of Civil Procedure
(Arizona survey);
6. The 2009 Survey of the Oregon Bench and Bar on the Oregon Rules of Civil Procedure
(Oregon survey);
7. The 2009 Civil Litigation Survey of Chief Legal Officers and General Counsel Belonging to the
Association of Corporate Counsel (General Counsel survey);
8. The 2009 IAALS study of Civil Case Processing in the Federal District Courts (Federal Case
Processing Study);
9. The 2010 IAALS study of Civil Case Processing in the Circuit Court of Multnomah County,
Oregon (Oregon Case Processing Study); and
10. The 2010 Report on Phase One of the Seventh Circuit Electronic Discovery Pilot Program
(Seventh Circuit Report).
The diversity of practice and experience among the various survey groups is noteworthy. For
example, the closed cases that were the subject of the FJC survey included a substantial number of civil
rights cases, whereas the most common case type handled by NELA respondents was employment
discrimination suits and the most common case type for ACTL and ABA respondents was complex
5
commercial litigation. Respondents to the NELA survey almost exclusively represent individual plaintiffs;
respondents to the General Counsel survey reported that their companies acted as defendants in 70% of
their cases over the past five years. The average respondent had many more years of practice and trial
experience in the ACTL survey than in the FJC survey. Other variations are also evident; a full and more
detailed breakdown of these surveys and studies is attached as Appendix 1.1
Because the users of the civil justice system represented in the surveys and conference
materials are diverse and deeply engaged in the subject matter, general agreement among the groups
on a topic of interest may be seen as a fair indication that the civil justice system is seen as working – or
not working – particularly well in a specific area. Where consensus is less evident, it is all the more
important to identify and understand the differences in order to arrive at accurate conclusions.
Disagreement in one area may herald a systemic imbalance; in other areas, it may simply be
representative of the workings of an adversary system.
Not every survey, study or paper submitted for the conference addressed every issue discussed
here. To synthesize findings as fairly and concisely as possible, we have grouped similar topics together,
noting places in which survey questions are somewhat differently phrased. Where possible, as we
digest these materials, we endeavor to add context to the statistical data by including representative
comments from the surveys and conference papers. The next two sections attempt to consolidate the
key findings of the conference materials within two broad areas: (1) perceptions and empirical findings
on the current operation of the American civil justice system; and (2) perceptions and empirical findings
concerning proposed changes to the system.
II. COLLECTIVE POSITIONS ON THE STATUS OF THE CIVIL JUSTICE SYSTEM
Cost
The collected survey research indicates a very strong consensus among nearly all respondent
groups that broadly speaking, the civil justice system is too expensive. More than three-quarters of the
respondents in each of the ACTL, ABA, NELA, Arizona, Oregon, and General Counsel surveys agreed with
the statement (or a close variation of the statement) that “litigation is too expensive.” In the ACTL, ABA
and NELA surveys, respondents were also asked about the cost of discovery, and at least 70% of
respondents in each survey agreed that “discovery is too expensive.”
There was also strong consensus as to some of the consequences of high litigation cost. More
than 80% of respondents in each of the ACTL, ABA and NELA surveys indicated that their law firms turn
down some cases because it is not cost-effective to take them. In all three surveys, the most commonly
cited monetary threshold for not taking a case was $100,000. These figures were lower in the Arizona
and Oregon surveys, in which one-third and one-quarter of the respondents, respectively, indicated that
their firms turn down civil cases because it is not cost-effective to handle them. 1 On April 17, 2008, the American Association for Justice (AAJ) was invited to administer to its own membership a
version of the survey that was distributed to the ACTL Fellows, and later to the ABA and NELA membership. The AAJ leadership expressly declined to administer the survey to its members.
6
In most surveys, the majority of respondents indicated that litigation costs drove cases to settle
for reasons unrelated to the substantive merits of the claims or defenses. More than 80% of the
respondents to the ACTL, ABA, and General Counsel surveys felt this way. While this sentiment was
most strongly held by attorneys who self-identified as primarily representing defendants, those who
primarily represent plaintiffs or who represent plaintiffs and defendants equally also agreed that some
settlements are driven by litigation cost. Sixty percent of NELA respondents2 so indicated, as did 53% of
self-identified plaintiffs’ attorneys in the ABA survey.
In the FJC survey, the numbers were a bit lower: about 58% of defense lawyers and those
representing plaintiffs and defendants equally agreed that cases settle specifically for cost reasons,
while those representing primarily plaintiffs were split, with 39% agreeing and 38% disagreeing. More
than half of all respondents to the FJC survey also reported that the cost of discovery had no effect on
the likelihood of settlement in their specific closed case. Among those cases in the FJC survey that
actually settled, however, almost 36% of plaintiffs’ attorneys and 40% of defense attorneys reported
that the costs of discovery increased or greatly increased the likelihood of settlement, or caused the
case the settle.
On a more positive note, the survey respondents almost universally concurred that when
opposing counsel cooperate throughout the litigation process, the results are less costly to the client.
Ninety-five percent of respondents to the ABA survey believe that collaboration and professionalism by
attorneys can reduce client costs, as do 97% of ACTL Fellows and 98% of NELA members. In the FJC
survey, over 60% of respondents reported that they were able to reduce the cost and burden of
discovery through cooperation.
Delay
The majority of respondents in each of the ABA, ACTL, NELA, Arizona, Oregon, and General
Counsel surveys agreed that the civil justice system takes too long. Ninety percent of respondents in the
General Counsel survey felt this way. In Arizona and Oregon, where the survey question was directed to
the respondents’ particular state court system, the agreement level was somewhat lower but still
substantial – 70% in Arizona and 52% in Oregon.3 Respondents to the ACTL, ABA and NELA surveys
further indicated that the discovery process was the primary contributor to delay in civil litigation. The
IAALS Federal Case Processing Study provides some empirical support for this perception, finding that
the single most strongly correlated variable with overall time to disposition in civil cases was the elapsed
time from the Rule 16(a) conference to the filing of a motion for leave to conduct additional or
2 NELA describes itself as “the country’s largest professional organization that is exclusively comprised of lawyers
who represent individual employees in cases involving employment discrimination and other employment-related matters.” REBECCA M. HAMBURG & MATTHEW C. KOSKI, SUMMARY OF RESULTS OF FEDERAL JUDICIAL CENTER SURVEY OF NELA
MEMBERS, FALL 2009, at 3 (2010) 3 As explained in greater detail throughout this paper, the Rules of Civil Procedure in Arizona and Oregon differ in
some substantial ways from the Federal Rules. The levels of concern about system delay in those states may reflect that their respective civil justice systems are less prone to delay than the federal system or other state systems, but that, in the eyes of practitioners, there is still considerable room for improvement.
7
extraordinary discovery. In other words, cases in which a party sought the court’s permission to conduct
discovery late in the litigation were more likely to see longer overall case times.
There was a very strong consensus among survey respondents that delays in civil litigation cost
clients money. More than 90% of ACTL Fellows, 82% of ABA respondents, 79% of general counsel, and
73% of NELA respondents agreed that the longer a case goes on, the more it costs. A multivariate
analysis of data collected through the FJC closed case survey supports these observations, finding that a
1% increase in case duration is associated with a 0.32% increase in costs to plaintiffs and a 0.26%
increase in costs for defendants, all else being equal.
Complexity
Most survey respondents were highly dissatisfied with the implementation and execution of
Local Rules in federal district courts. In the NELA, ACTL, and ABA surveys, 20% or less of each
respondent base agreed that “Local Rules are always consistent with the FRCP.” Moreover, less than
half of respondents in each of the three surveys agreed that “Local Rules are uniformly applied within
the district to which they pertain.” As one respondent to the NELA survey noted in an open-ended
comment:
Individual practices may vary from the local rules or the Civil Rules. Local rules may not cover all of the local customs to which judges want litigants to conform. For people who handle cases across the country, this is a serious problem. Indeed, not all local lawyers are familiar with all the local customs with which counsel are expected to comply.
III. COLLECTIVE POSITIONS ON PROPOSED PRINCIPLES REGARDING CHANGES TO THE CIVIL JUSTICE SYSTEM
This section considers the level of agreement or disagreement in the conference materials as to
proposed solutions or improvements to the civil justice system. In order to maintain a parallel structure
to other papers submitted for the conference,4 the discussion here is organized to correspond broadly
to the Principles contained in the 2009 Final Report of the American College of Trial Lawyers Task Force
on Discovery and Civil Justice and the Institute for the Advancement of the American Legal System.5 For
ease of synthesis and discussion, the principles are grouped here into six broad categories: (1) the
transsubstantive nature of the rules; (2) pleading; (3) discovery; (4) electronic discovery; (5) expert
witnesses; and (6) judicial case management. This is followed by a discussion of two additional
categories not explored in detail in the Final Report but which have generated considerable commentary
in the conference materials: summary judgment and sanctions. Each sub-section that follows sets forth
4 E.g., AMERICAN BAR ASSOCIATION SECTION OF LITIGATION, SUMMARY COMPARISON OF BAR ASSOCIATION SUBMISSIONS TO THE DUKE
CONFERENCE REGARDING THE FEDERAL RULES OF CIVIL PROCEDURE (April 2010); CENTER FOR CONSTITUTIONAL LITIGATION, NINETEENTH CENTURY RULES FOR TWENTY-FIRST CENTURY COURTS? (March 2010). 5 See generally FINAL REPORT ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND
THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM (rev. Apr. 15, 2009).
8
the applicable ACTL/IAALS proposed principle(s), followed by data and commentary relevant to each
principle.6
Transsubstantivity
Proposed Principle
The “one size fits all” approach of the current federal and most state rules is useful in many cases but rulemakers should have the flexibility to create different sets of rules for certain types of cases so that they can be resolved more expeditiously and efficiently.
Data and commentary from the conference materials
As an empirical matter, under the current system certain types of cases are clearly more prone
to motion practice and discovery than others. The IAALS Federal Case Processing Study concluded that
antitrust, environmental, patent, securities, stockholder suits, torts to land and several categories of civil
rights actions tended to far outpace the mean for all civil cases with respect to two or more of the
following categories: filing rates for disputed discovery motions,7 filing rates for summary judgment
motions, continuances of the discovery deadline, continuances of the dispositive motion deadline, and
overall time to disposition. In three case types – antitrust, patent, and torts to land – the rate of
disputed discovery motions and summary judgment motions was more than twice the average for all
cases in the study. Employment discrimination cases, which are the subject of much discussion in the
conference materials, were more likely than other cases in the IAALS study to engender discovery
disputes, summary judgment motions, and trials – but less likely than the average case to engender Rule
12 motions to dismiss.
The surveys did not explore transsubstantivity as extensively as they did other areas, but there
was general openness among survey respondents to developing different sets of rules, tracks, or even
courts for different types of cases. The ACTL survey directly asked respondents whether they believed
that the civil justice system works for some case types but not others, and 63% of respondents agreed.
In the ABA survey, about 39% of respondents agreed that “one set of rules cannot accommodate every
case type,” and a slight majority disagreed. Although the question of trans-substantive rules was not
posed directly in the Arizona and General Counsel surveys, the open-ended comments to those surveys
suggested a preference for assigning cases to differentiated tracks in Arizona, and a preference for
specialized business courts among general counsel.
There was also some support for testing simplified procedures that differ from the current
Federal Rules. The FJC survey found general agreement with the statement, “The federal courts should
test simplified procedures, with all parties’ consent, in a few select districts to determine whether such
6 For some of the ACTL/IAALS principles, there is a considerable relevant commentary from other conference
participants; for other principles, the underlying substance of the principle was not the subject of survey, studies, or discussion. Accordingly, some principles are stated at the beginning of each section but not have their own breakout section for applicable data and commentary. 7 I.e., motions to compel, quash, strike discovery responses, or for discovery sanctions.
9
an idea is feasible.” Sixty-six percent of attorneys who self-identified as primarily representing
defendants agreed with the statement, along with 64% of attorneys who self-identified as representing
both plaintiffs and defendants equally, and 49% of attorneys who self-identified as primarily
representing plaintiffs. In response to questions about whether they would recommend simplified
procedures to their clients over the existing rules, all three groups in the FJC survey most commonly
responded “probably, depending on circumstances.”
Professor Steven Gensler notes that it is “undeniably true that there is an inverse relationship
between substance-specific rules and case management.”8 In other words, the more a judge can
customize the procedure for an individual case, the less the need for customized rules – or, stated in the
converse, the more particularized the rules to the case type, the less a judge needs to manage the case.
Pleading
Proposed Principles
Notice pleading should be replaced by fact-based pleading. Pleadings should set forth with particularity all of the material facts that are known to the pleading party to establish the pleading party’s claims or affirmative defenses.
A new summary procedure should be developed by which parties can submit applications for determination of enumerated matters (such as rights that are dependent on the interpretation of a contract) on pleadings and affidavits or other evidentiary materials without triggering an automatic right to discovery or trial or any of the other provisions of the current procedural rules.
Data and commentary from the conference materials
Pleading regimes
1. Notice pleading
There are some areas of general agreement with respect to perceptions about pleading in civil
cases, although there is a noticeable plaintiff/defendant divide in other areas. One area of widespread
consensus is that current pleading tools do not sufficiently narrow issues for litigation. Only 21% of
ACTL Fellows and 24% of ABA survey respondents believe that the answer in notice pleading shapes and
narrows the issues in the litigation. Furthermore, 71% of ACTL Fellows and 56% of ABA respondents
believe that motions to dismiss for failure to state a claim are not effective tools to narrow litigation. In
addition, in the FJC survey both plaintiffs’ and defense attorneys most commonly indicated that issues
are not adequately framed in a typical civil case until after fact discovery. As one plaintiffs’ attorney
responding to the FJC survey noted, “I routinely get back answers with laughable responses, disputing
everything, even the indisputable, and including 15-30 affirmative defenses, all boilerplate legal
conclusions without any factual link to the case.”
8 Steven S. Gensler, Judicial Case Management: Caught in the Cross-Fire 19 (March 2010).
10
There was no clear consensus, however, as to the effect of notice pleading on discovery and
overall litigation efficiency. In the ABA and ACTL surveys, those who self-identified as primarily
representing defendants or as representing both plaintiffs and defendants largely agreed that notice
pleading needs extensive discovery to narrow the issues, and that fact-based pleading could narrow the
scope of discovery. By contrast, those who self-identified as primarily representing plaintiffs generally
disagreed with these statements – more so in the ABA survey than in the ACTL survey.
2. Fact-based pleading
The State of Oregon has a fact-based pleading regime, and the Oregon survey was the only one
submitted for this conference that asked directly about respondents’ experience with an explicit fact-
based pleading requirement. The majority of respondents to the Oregon survey indicated their belief
that fact-based pleading reveals facts early, narrows issues early, increases the ability to prepare for
trial, increases efficiency, decreases or has no effect on the overall time to disposition, and increases or
has no effect on fairness. The IAALS Oregon Case Processing Study supported the perceptions expressed
in the Oregon survey, finding that motions to dismiss and motions on disputed discovery were filed at
much lower rates and granted at lower rates in Oregon state court than in the corresponding federal
court.9
3. Twombly and Iqbal
The recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal set
forth a gloss on the Rule 8 pleading standard that commonly has been referred to as “plausibility”
pleading. This form of pleading is not the same as the fact-based pleading in use in Oregon or discussed
in the ACTL/IAALS Principles,10 and was not the subject of direct questions in the ACTL or ABA surveys.
However, many commentators and practicing attorneys have expressed particular concern with the
Twombly and Iqbal holdings, especially as they relate to cases in which there may be an imbalance of
information at the pleading stage. As one respondent to the NELA survey noted in the comments:
I do not feel that [the Twombly/Iqbal] decisions should apply in the employment arena.
Liberal pleading requirements should stay in effect. Plaintiffs are generally at a
disadvantage when it comes to having specific information/documents when compared
9 In the contract and tort cases (including discrimination cases) studied, Rule 12 motions were filed in the U.S.
District Court for the District of Oregon at a rate of 21.64 motions per 100 cases and were granted nearly 63% of the time, while corresponding motions under Oregon Rule of Civil Procedure 21 were filed for the same case types in state court at a rate of 11.31 motions per 100 cases and were granted less than 47% of the time. The filing rate for motions on disputed discovery was even more stark – 4.16 such motions per 100 contract and tort cases in Oregon state court, as compared to 30.74 such motions per 100 contract and tort cases in Oregon’s federal court. 10
For more on the distinction between fact-based pleading and the Twombly/Iqbal pleading standard, see REPORT
FROM THE TASK FORCE ON DISCOVERY AND CIVIL JUSTICE OF THE AMERICAN COLLEGE OF TRIAL LAWYERS AND THE INSTITUTE FOR THE
ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM 4-7 (March 2010). For a more in-depth treatment of a new fact-based pleading standard proposed by IAALS to narrow issues earlier in litigation, see Rebecca Love Kourlis, Jordan M. Singer, and Natalie Knowlton, Reinvigorating Pleadings, 87 DENV. U. L. REV. 245 (2010).
11
to the employer who has free access to that information. Thus, sometimes, facts must
be pled upon information and belief and/or without specifics until some minimal
discovery can be had.
In his conference paper, Professor Arthur Miller offers the same perspective, asserting that “*i+f left
unconstrained, demands for plausibility pleading may shut ‘the doors of discovery’ on the very litigants
who most need the procedural resources the federal rules have made available in the past.”11
The NELA survey attempted to probe some of these concerns more fully, and found that more
detailed pleadings are now commonplace, but Rule 12 dismissals under the Twombly/Iqbal standard are
not. In that survey, 70% of respondents agreed that the Twombly/Iqbal rule has affected how they
plead employment discrimination cases (with 94% of these respondents saying that they include more
factual allegations than before). However, only 7% of NELA respondents indicated that one or more of
their employment discrimination complaints has been dismissed under the Twombly/Iqbal framework.
One NELA survey respondent described his/her approach: “For strategic reasons, I typically file detailed
complaints that undeniably go above and beyond the minimum requirements of ‘notice pleading’ set
forth in the rules. Thus, the Twombly/Iqbal decisions have not impacted my practice significantly.”
Similarly, a “typical” response to the FJC survey from an attorney specializing in employment
discrimination claims noted:
No effect [from Twombly/Iqbal]. I fact plead and [the state where I practice] is a fact
pleading state. I have never faced a serious challenge to a complaint in 20 years of
practice and only have had 2-3 motions to dismiss for failure to state a claim filed (but
always face summary judgment motions).
As an empirical matter, the IAALS Federal Case Processing Study concluded that employment
discrimination cases are in fact not especially prone to motions to dismiss: looking at cases that closed in
2005 and 2006 (shortly before Twombly was decided), the study found that about 22 motions under
Rule 12 were filed for every 100 employment discrimination cases, slightly lower than the overall
average of 23.3 motions per 100 cases for all civil cases in the study.
Still, the conference materials reflected generalized concern over the perceived impact of
“heightened pleading” standards. The FJC survey found that 61% of attorneys who self-identified as
representing primarily plaintiffs and 40% of attorneys who self-identified as representing primarily
defendants believe that a generic heightened pleading standard would discourage some claims from
being filed. The same survey found a significant split between the two sets of attorneys as to whether
they believe that a generic heightened pleading standard would help narrow the issues early (72% of
defense attorneys say yes, 71% of plaintiffs’ attorneys say no) or add disproportionate burden (65% of
plaintiffs’ attorneys say yes, 62% of defense attorneys say no). Comments from FJC survey respondents
11
Arthur R. Miller, Pleading and Pretrial Motions – What Would Judge Clark Do? 20 (2010).
12
reflect the different viewpoints. One respondent stated, “I do believe that the pleading requirements
should be much less liberal as there are many meritless cases that proceed through the costly discovery
and motions phase before the plaintiff is willing to settle or agree to a reasonable settlement.”
Conversely, another respondent argued that “*a+ny steps to increase pleading requirements and
decrease plaintiff’s access to relevant discovery would preclude many plaintiffs from pursuing
meritorious claims.”
Summary procedure
Other than the ACTL and IAALS, only one organization has directly addressed the possibility of a
summary procedure at the pleading stage. The Federal Courts Committee of the Association of the Bar
of the City of New York (Federal Courts Committee) has proposed a Summary Adjudication Motion.12
Under this proposal, if and to the extent that a party prevails on such a motion, further discovery in the
adjudicated issue(s) or claim(s) would be prohibited and the court’s resolution on that matter would be
the law of the case.13 Likewise, Professor Miller suggests the possibility of a “Motion to Particularize of a
Claim for Relief,” which “would operate as something akin to the pre-Federal Rule discovery device
known as a bill of particulars.”14 Without specifically addressing the possibility of a summary
adjudication, other conference commentators also seem to have endorsed the sensibility of such a
process. Judge Higgenbotham posited in his conference paper that “*p+erhaps we could move toward
an initial opening to limited discovery followed by a look at likely merit for greater or full access.”15
Likewise, Gregory Joseph noted in his conference paper that “The Court should freely permit, and direct,
discovery to address perceived weaknesses in the case. It may be time to accept that the trial should
not occur only at the end of the case, but also, in a miniaturized version, at the beginning.”16
Discovery
Proposed principles
Proportionality should be the most important principle applied to all discovery.
Shortly after the commencement of litigation, each party should produce all reasonably available nonprivileged, non-work product documents and things that may be used to support that party’s claims, counterclaims or defenses.
Discovery in general and document discovery in particular should be limited to documents or information that would enable a party to prove or disprove a claim or defense or enable a party to impeach a witness.
12
SUMMARY COMPARISON OF BAR ASSOCIATION SUBMISSIONS TO THE DUKE CONFERENCE REGARDING THE FEDERAL RULES OF CIVIL
PROCEDURE (Apr. 26, 2010) at 5-6 [hereinafter SUMMARY COMPARISON]. 13
See id. 14
Miller, supra note 11, at 64. 15
Patrick E. Higgenbotham, The Present Plight of the United States District Courts: Is the Managerial Judge Part of the Problem or of the Solution? 7 (2010). 16
Gregory P. Joseph, Electronic Discovery and Other Problems (2010)
13
There should be early disclosure of prospective trial witnesses.
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.
All facts are not necessarily subject to discovery.
Courts should consider staying discovery in appropriate cases until after a motion to dismiss is decided.
Discovery relating to damages should be treated differently.
Requests for admission and contention interrogatories should be limited by the Principle of Proportionality. They should be used sparingly, if at all.
Data and commentary from the conference materials
Proportionality
Respondents to the ACTL, ABA, NELA and General Counsel surveys were generally in agreement
that costs in civil cases are disproportionate to the amount at stake, especially for small cases. In the
ACTL survey, 69% of Fellows agreed that litigation costs are not proportionate the value of the case. The
ABA and NELA surveys asked respondents to consider both small and large cases: 89% of ABA
respondents and 83% of NELA members agreed that costs were disproportionate as to small cases, and
40% of respondents in both surveys agreed that costs were disproportionate as to large cases. Three-
quarters of respondents in the ABA and ACTL surveys also agreed that discovery costs have increased
disproportionately because of electronic discovery. And in each of the ACTL, ABA, and NELA surveys, the
estimated median percentage of litigation costs attributable to discovery in cases that do not go to trial
was estimated at 70%.
The FJC survey revealed a different conclusion. That survey asked about the costs of discovery
(as opposed to all litigation costs) relative to the stakes in the litigation, and found that the median
estimated discovery cost was only 1.6% of estimated stakes in the case for plaintiffs and 3.3% of
estimated stakes for defendants. Only about one-quarter of respondents in that survey said that
discovery costs too much relative to the stakes in their specific closed case. The FJC survey also
concluded that only 20-27% of total litigation costs are attributable to discovery, a figure much lower
than in the other surveys. Notwithstanding these small percentages, several respondents to the FJC
survey still reported that discovery was the main factor contributing to litigation cost. As one FJC
respondent put it, “Discovery is the number one cost driver and there isn’t a close second.”
14
Limitations on discovery
Among the ABA, ACTL and NELA survey respondents, there was strong agreement that courts
and parties are not limiting discovery on their own, and that the failure to do so has costly
consequences. At least 70% of respondents to each of those three surveys agreed that discovery in
general is too expensive. In those same surveys, between 54% and 74% of respondents agreed that
counsel typically do not request discovery limits, and between 61% and 76% of respondents agreed that
judges do not enforce proportionality limitations on their own. Between 51% and 71% of respondents
in all three surveys agreed that “discovery is used as a tool to force settlement.”
Opinions were mixed as to discovery abuse. Only about 20% of the FJC survey respondents
agreed that “discovery is abused in almost every case in federal court,” but the same basic question
elicited agreement from 45% of ACTL Fellows, 51% of ABA respondents, and 65% of NELA members. As
one NELA survey respondent stated in an open-ended comment, “Discovery abuse is rampant—parties
(usually defendants) stonewall routinely and then negotiate over how many of their legal obligations
they can avoid.”
Attorney reactions were similarly mixed with respect to implementing concrete limitations on
discovery. Some conference papers have expressed concern that (as Daniel Girard and Todd Espinosa
put it) “*w+hile the simplest and most effective way to control litigation costs would be to restrict or
eliminate discovery, any savings would come at a high price” for truth-seeking.17 Other conference
submissions strongly supported discovery limits. Based on two decades of experience in the Southern
District of New York, for example, the Federal Courts Committee recommends strict limits on
interrogatories at the outset of a case.18
In the FJC survey, 71% of respondents who primarily represent plaintiffs and 44% of attorneys
who primarily represent defendants disagreed with revising the rules to limit discovery generally,
although there was more support for rules to limit electronic discovery (especially among attorneys who
primarily represent defendants or who represent both defendants and plaintiffs). Respondents to the
Arizona survey generally indicated that they would not modify the state’s existing presumptive limits on
deposition discovery (four-hour time limit, with depositions limited to parties, experts, and document
custodians) and interrogatories (40 per party), although respondents were split on whether to keep or
raise the state’s limit of ten requests for production. In Oregon, where interrogatories are not
permitted, most survey respondents indicated that the lack of this discovery tool had no effect on their
ability to prepare for trial or the fairness of the process or outcome, and decreased the cost to litigants.
17
Daniel C. Girard & Todd I. Espinosa, Limiting Evasive Discovery: A Proposal for Three Cost-Saving Amendments to the Federal Rules, 87 DENV. U. L. REV. 473, 473 (2010). See also Elizabeth J. Cabraser, Uncovering Discovery 57 (2010) (“Plaintiffs’ lawyers dread that all discovery limitations will incentivize the concealment of crucial information – potential evidence – and will serve not to save costs and reduce delay, but which will subvert the process by fostering injustice when such tactics are successfully concealed, and by exponentially increasing costs and delay in the effort to expose them.”). 18
See SUMMARY COMPARISON, supra note 12, at 26.
15
Quite a few open-ended comments to the Oregon survey, however, expressed the desire to allow fact
interrogatories to obtain basic information in the absence of disclosure requirements.
There was a reasonably strong consensus among survey respondents that requests for
admission and contention interrogatories are generally not as helpful as other discovery tools, and that
(like e-discovery) limits on those tools are more acceptable. More than 60% of respondents to the
Arizona survey indicated that they would not raise that state’s presumptive limit of 25 requests for
admission. In the Oregon survey, the majority of respondents reported that the state’s limit of 30
requests for admission has no effect on their ability to prepare for trial, the efficiency of the litigation,
time to resolution, or fairness of the process or outcome. Oregon survey respondents also were careful
to distinguish between fact interrogatories (which they generally supported) and contention
interrogatories (which they did not). In the ACTL and ABA surveys, requests for admission were the
least likely discovery tool to be deemed “important” and “cost-effective,” although they still received
those designations from more than 70% of respondents.
Early production of documents to support claims and defenses
Respondents to the ACTL, ABA and NELA surveys were not keen on the current federal initial
disclosure regime: no more than 35% of respondents in any of the three surveys agreed that the current
Rule 26(a)(1) initial disclosures reduce the total amount of discovery or save the client money. In
addition, respondents to the FJC survey, especially defense attorneys, were cool to the idea of revising
rules to require additional mandatory disclosures, with 55% of self-identified plaintiffs’ lawyers and 33%
of self-identified defense lawyers supporting the idea.
Arizona has adopted a somewhat different approach for its state courts. The applicable rule
“basically states that at the outset of a case the parties must make a full, mutual and simultaneous
disclosure of all relevant information known by or available to them and their lawyers,”19 and 70% of
survey respondents agreed that such disclosures help narrow the issues in dispute early in a case.
Furthermore, a plurality of respondents indicated a preference for the state’s 40-day mandatory
disclosure period. Arizona practitioners were more evenly divided as to whether that state’s mandatory
disclosure rule reduces the total amount of discovery.
Staying discovery in appropriate cases
Only one survey directly posed a question about stays of discovery, and that question posited a
more extreme use of discovery stays than is proposed under the ACTL/IAALS Principles. The ABA survey
asked, “Should there be an automatic stay of discovery in all cases, pending determination of a
threshold motion to dismiss?” In response, 17% of self-identified plaintiffs’ attorneys, and 77% of self-
identified defense attorneys indicated “yes.”
19
Thomas A. Zlaket, Encouraging Litigators to Be Lawyers: Arizona’s New Civil Rules, 75 ARIZ. ST. L. REV. 1, 1 (1993).
16
Notwithstanding this divide, the Federal Courts Committee has recommended that a motion to
dismiss or for summary adjudication operate to stay discovery “absent a court order based on a showing
of good cause.”20 The Committee notes further, however, that “protections need to be built in to
ensure that those motions are not abused and that they are decided promptly.”21
E-discovery
Proposed Principles
Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional discovery and the allocation of its cost among the parties.
Electronic 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 obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation; however, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically stored information, including backup tapes.
Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness.
The cost of preserving, collecting and reviewing electronically stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases.
In order to contain the expense of electronic discovery and to carry out the Principle of Proportionality, judges should have access to, and attorneys practicing civil litigation should be encouraged to attend, technical workshops where they can obtain a full understanding of the complexity of the electronic storage and retrieval of documents.
20
SUMMARY COMPARISON, supra note 12, at 12. 21
Id.
17
Data and commentary from the conference materials
Proportionality limitations on e-discovery
There was a very strong consensus in the conference materials that the introduction of
electronic discovery into a case increases the cost of litigation. More than 85% of the ABA and ACTL
respondents, and more than 60% of the NELA respondents, agreed with this proposition. Respondents
to the General Counsel survey who reported an increase in litigation costs over the last five years most
commonly cited discovery in general, and e-discovery in particular, as the basis for that trend.
The FJC closed case study supports these shared perceptions. That study found that the median
litigation costs for plaintiffs rose from about $8000 in cases with no e-discovery to $30,000 in cases with
any e-discovery. Median litigation costs for defendants rose from $15,000 in cases with no e-discovery
to $40,000 in cases with any e-discovery. The FJC study also found that, all else equal, if a case involves
requests for electronically stored information (ESI) from both sides, costs increase for both plaintiffs (by
48%) and for defendants (by 17%). For both plaintiffs and defendants, each dispute involving ESI caused
a 10% increase in overall litigation costs, all else being equal.
There was also strong evidence in the studies that the amount of ESI actually produced in
response to discovery requests is far less than the amount collected by the responding party, and that
the amount of ESI actually used at trial is much less than the amount produced. The FJC closed case
study found that, on average, slightly over 50% of the ESI collected by a responding party is actually
produced as responsive and not privileged. Furthermore, fewer than 10% of the FJC study respondents
reported that the ESI produced in their case was used at trial, and almost 20% reported that the
produced ESI was not used at all.
Most surveys reflected a concern that electronic discovery contributes disproportionately to
litigation costs. At least 75% of respondents in both the ACTL and ABA surveys agreed that the advent of
e-discovery has disproportionately increased costs, and 70% of ABA respondents indicated that e-
discovery is generally overly burdensome. In the General Counsel survey, one-third of respondent
companies stated that they have forgone relevance and privilege review of produced ESI in at least 10%
of their cases in the last five years, in order to reduce the burden of discovery, and more than one
respondent to that survey indicated in open-ended comments that the costs of e-discovery can rapidly
exceed the value of any given case.22 The NELA membership, however, did not feel the same way on the
proportionality issue: only 35% of respondents to that survey agreed that e-discovery has
disproportionately increased costs, and less than 20% agreed that e-discovery is generally overly
burdensome.
The Seventh Circuit e-discovery pilot program attempted to address the proportionality issue
head on, by incorporating a pilot principle directing application of the Rule 26(b)(2)(C) standard in the 22
These findings are consistent with a recent government-sponsored cost study conducted in the United Kingdom, which identified e-discovery and its treatment as one of the general causes of excessive litigation costs. See generally THE RT. HON. LORD JUSTICE JACKSON, REVIEW OF CIVIL LITIGATION COSTS: FINAL REPORT (2010).
18
formulation of discovery plans. Surveys designed to gauge the effectiveness of the first stage of the
pilot were supportive of the principle and “frequently identified the most useful aspects of the Principles
as the encouragement of early focus on electronic discovery issues and the focus on proportionality.”
Two-thirds of judge respondents indicated that the Rule 26(b)(2)(C) proportionality standard was
considered in developing discovery plans for their pilot project cases.
All of the studies indicated broad dissatisfaction with the costs associated with e-discovery
vendors. About 70% of the ABA and ACTL survey respondents, and a plurality (43%) of the NELA
respondents, agreed that outside vendors increase e-discovery costs without commensurate value to
the client.23 General counsel felt the same way about outside counsel, with a majority of respondents to
the General Counsel survey disagreeing with the premise that outside counsel embrace measures to
make e-discovery more efficient.
Cost-shifting
While the surveys and studies did not directly address discretionary cost-shifting in the e-
discovery context, they did explore perceptions about the value of routine cost-shifting when the
burden of production between the parties is not equal. In the FJC survey, nearly 65% of respondents
who self-identified as primarily representing defendants and 50% of respondents who represent both
parties supported routine cost-sharing of ESI production when there is an unequal burden of
production. However, only about 30% of respondents who self-identified as primarily representing
plaintiffs agreed.
The Federal Courts Committee has recommended the wider use of cost-shifting in e-discovery,
arguing that it “has the potential to encourage parties to engage in more reasonable discovery
conduct.”24 Similarly, many respondents to the General Counsel survey advocated for cost-shifting
when the burden of an ESI request is disproportionate, either to the importance of the information or to
the amount in controversy. Several respondents to that same survey indicated that cost-shifting is also
warranted when a request seeks ESI not used in the ordinary course of business.
Technical workshops on ESI
A healthy majority of respondents to the ACTL, ABA, and General Counsel surveys expressed
concern about judicial familiarity with the technical issues that pervade electronic discovery. At least
75% of respondents to both the ABA and ACTL surveys believe that courts do not understand the
difficulties in providing e-discovery, and 70% of general counsel indicated that they do not believe that
judges have sufficient familiarity with e-discovery technologies to rule appropriately in discovery
disputes. Seven out of ten general counsel further indicated that they do not believe that attorneys
have sufficient familiarity with e-discovery technologies to know how to obtain necessary information
without undue cost and delay, and 65% of general counsel admitted that their own company does not
23
Nearly 27% of the NELA respondents expressed no opinion on the issue. 24
SUMMARY COMPARISON, supra note 12, at 16.
19
have sufficient expertise and infrastructure (either in-house or outside) to conduct an e-discovery search
without undue cost and delay.
Attorneys who primarily represent plaintiffs were more optimistic about the ability of e-
discovery to produce cost-effective results than attorneys who self-identified as primarily representing
defendants. Over 65% of NELA respondents indicated that when properly managed, discovery of
electronic records can reduce the costs of discovery, and only about one-third of NELA respondents
agreed that courts do not understand the difficulties in providing e-discovery.
The Seventh Circuit pilot program developed principles directing judges and counsel to become
more familiar with the fundamentals of electronic discovery. Over 90% of judges surveyed as part of the
pilot said that these principles increased counsel’s level of attention to the technologies affecting the
discovery process, and nearly 70% of judges said that the principles increased their own level of
attention to the relevant technologies.
Expert witnesses
Proposed Principle
Experts should be required to furnish a written report setting forth their opinions, and the
reasons for them, and their trial testimony should be strictly limited to the contents of their
report. Except in extraordinary circumstances, only one expert witness per party should be
permitted for any given issue.
Data and commentary from the conference materials
There was very strong consensus among respondents to the ACTL, ABA and NELA surveys as to
the impact of expert costs on the decision to settle civil suits, with 85%, 82%, and 88% of respondents,
respectively, agreeing that such costs are a factor in the decision to settle. The FJC’s multivariate
analysis of its closed case study data concluded that for plaintiffs, each additional expert deposition was
associated with approximately 11% higher costs, all else being equal. (Defendants experienced
approximately 5% higher costs with each additional reported type of discovery, although expert
depositions did not independently impact defendant costs once other factors were accounted for.)
The ACTL, ABA and NELA surveys also asked respondents about the importance and cost-
effectiveness of expert depositions – both when such depositions are limited to the content of the
expert report and when the depositions are not so limited. Strong majorities in all three surveys agreed
that expert reports were important under either circumstance, with slightly stronger majorities agreeing
as to the importance where the deposition was not limited to the content of the expert report. There
was less agreement as to the cost-effectiveness of expert depositions, especially when they were limited
to the content of the expert report: only 62% of ACTL Fellows, 68% of ABA respondents, and 46% of
NELA members agreed that such depositions were cost-effective. These figures suggest that the cost-
20
effectiveness and importance of expert depositions diminishes when the information available through
a deposition is already presented in an expert report.
The state rule in Arizona entitles each side to only one independent expert witness per issue. If
there are multiple parties on a side, they must agree on the expert, or the court will designate the
expert for them. Additional experts require a court order. Respondents to the Arizona survey strongly
agreed with this approach, with 77% indicating that they would not modify the rule, and only 12%
indicating that they would raise the presumptive limit on expert witnesses.
The State of Oregon does not provide for any disclosure or discovery concerning independent
expert witnesses. Oregon practitioners had mixed reviews on the complete absence of expert discovery
in that state. The majority of respondents to the Oregon survey (58%) agreed that the absence of expert
discovery decreases cost to litigants, and 69% of respondents indicated that such absence either
decreases or has no effect on time to resolution. However, the majority of respondents (66%) also
believed that the lack of expert discovery decreases the ability to prepare for trial, and a plurality of
respondents indicated that the absence of expert discovery decreases the efficiency of the litigation, as
well as the fairness of the process and outcome. In the open-ended comments, many Oregon
respondents called for some form of expert discovery or disclosure, but among those comments were
many suggestions to allow only a limited form of expert discovery – for example, including disclosures
but not depositions, limiting expert depositions, or limiting testimony to the scope of an expert report.
Even where survey respondents expressed a belief that some form of expert discovery is
important, the cost of experts was a recurring theme. As one respondent to the FJC survey put it, “[t]he
biggest expense in civil cases is experts. Requiring reports by experts and then producing them for
depositions causes the client to incur more than double the expense.” Another FJC survey respondent
stated, “Electronic discovery is not the problem with expenses—detailed expert reports are the
problem.” Perhaps due in part to these concerns about expense, fewer than one in seven respondents
to the FJC survey reported any deposition of an expert in their closed cases.
Judicial management
Proposed Principles
A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.
Initial pretrial conferences should be held as soon as possible in all cases and subsequent status conferences should be held when necessary, either on the request of a party or on the court’s own initiative.
At the first pretrial conference, the court should set a realistic date for completion of discovery and a realistic trial date and should stick to them, absent extraordinary circumstances.
21
Parties should be required to confer early and often about discovery and, especially in complex cases, to make periodic reports of those conferences to the court.
Courts are encouraged to raise the possibility of mediation or other form of alternative dispute resolution early in appropriate cases. Courts should have the power to order it in appropriate cases at the appropriate time, unless all parties agree otherwise. Mediation of issues (as opposed to the entire case) may also be appropriate.
The parties and the courts should give greater priority to the resolution of motions that will advance the case more quickly to trial or resolution.
All issues to be tried should be identified early.
These Principles call for greater involvement by judges. Where judicial resources are in short supply, they should be increased.
Trial judges should be familiar with trial practice by experience, judicial education or training and more training programs should be made available to judges.
Data and commentary from the conference materials
Only one survey – by the FJC – directly asked respondents about their general perceptions about
the proper degree of case management in the federal courts. On that high level, there appears to be
general support for the current amount of judicial case management. The FJC survey found that
respondents were mixed in their support for increased judicial management, but also neutral on or
unsupportive of the idea of less judicial management.
Many other surveys and conference materials addressed more specific roles of the judge,
including roles that would typically fall into the realm of case management such as holding hearings and
conferences, setting and maintaining deadlines, and raising issues with the parties at the court’s own
insistence. As discussed below, many of these more specific roles were encouraged by various segments
of the bar. Professor Gensler has noted the importance of this development, explaining that “support
from the bar is important, and perhaps critically so. The case management model probably could not
work, and certainly could not very well, if lawyers and litigants overwhelmingly disliked or distrusted
it.”25
Single judicial officer
Among the areas of greatest consensus anywhere in the conference materials was support for
early and continued involvement in the case by a single judicial officer. In the ACTL, ABA, and NELA
surveys, between 80% and 90% of respondents favored having one judicial officer assigned to the case
from start to finish. Similarly, at least 64% of respondents in each of the three surveys agreed that early
judicial involvement produces more satisfactory results for the client. Although the Oregon survey did
25
Gensler, supra note 8, at 8 (emphasis in original).
22
not ask directly about the assignment of a single judicial officer, a very common suggestion to improve
that state’s system in the open-ended comments was to assign a single judge to the case.
The respondents to the ACTL, ABA and NELA surveys were less likely to agree that a judge who
will preside at trial should be required to handle all pre-trial matters (75% of ACTL Fellows, 65% of ABA
respondents, and 56% of NELA members agreed). Of those who did agree, a primary reason offered in
survey comments was the importance of having the trial judge educated about the key issues in the case
throughout the pretrial process. One NELA survey respondent noted, “Having magistrates or special
masters handle discovery disputes keeps the judge from learning important background and the case
dynamics that may be essential where issues are raised in dispositive motions or at trial.”
One area in which the use of a single judicial officer may have less of an impact is a case’s overall
time to disposition. The IAALS Federal Case Processing Study found no clear connection between the
trial judge (as opposed to a magistrate judge) presiding over discovery disputes and the overall length of
the case.
Initial pretrial conferences
There was considerable agreement in the conference materials that early initial pretrial
conferences are valuable to the parties and the court. In the ACTL, ABA and NELA surveys, at least 61%
of each respondent base agreed that a Rule 16(a) pretrial conference helps to inform the court of the
issues in the case. (About half of each respondent base agreed that the Rule 16(a) conference also helps
to narrow issues.) In the Arizona survey, 71% of respondents agreed that the state version of Rule 16
conferences establish early judicial management of cases, 59% agreed that such conferences improve
trial preparation, 62% agreed that the conferences are cost-effective, and 52% agreed that the
conferences expedite case dispositions.
Realistic dates for completion of discovery and start of trial
Respondents to several of the surveys identified the time required to complete discovery as the
most significant contributor to delay in civil cases. Fifty-six percent of the ACTL Fellows so indicated, as
did a plurality of ABA survey respondents (48%) and the NELA respondents (35%). In fact, extensions to
the discovery deadline were commonplace. The IAALS Federal Case Processing Study found that across
the eight district courts studied, on average 47 motions to continue the deadline to complete discovery
were filed per 100 civil cases. The filing rate varied considerably by district, with one district seeing
fewer than three such motions per 100 cases, and another district seeing almost 145 motions per 100
cases. Regardless of the filing rate, every district in the study granted at least 80% of motions to
continue the discovery deadline, with a mean extension of over 100 days.
There is robust debate with respect to when a trial should be scheduled, and the effect of the
scheduling on the overall efficiency of the case. Judge Baylson opines that setting a trial date at the Rule
16 conference “requires the lawyers and their clients to focus on this date from the start. Although an
initially-scheduled trial date can be and often is postponed, a trial date always on the calendar conveys a
23
message that trial is the goal.”26 Judge Higgenbotham does not directly disagree, but focuses instead on
the firmness of the trial setting (whenever it occurs), arguing that “*h+istorically firm trial settings with
pretrial access to the judge who tries the case produces a 90% settlement rate with shorter time from
trial to disposition.”27
The IAALS Federal Case Processing Study supports Judge Baylson’s position, concluding that one
of the variables most strongly correlated with overall time to disposition is the elapsed time from the
filing of the case to the day when the trial date is set.28 In other words, cases in which a trial date was
set earlier tended to have shorter overall disposition times. However, survey respondents were less
sure about the advantages of an early setting of a trial date. Between 50% and 60% of respondents to
the ACTL, ABA and NELA surveys agreed that the court should set a firm trial date early, and fewer than
half the respondents in each group agreed that the trial date should be continued only under
exceptional circumstances. In Oregon, where the state rules require that trial normally take place within
one year from the filing date,29 78% of respondents agreed that they had adequate preparation time
before trial.
Greater priority to certain motions
Commentary and reaction related to this principle is discussed in the summary judgment section
below.
Alternative dispute resolution
The surveys indicated a strong consensus about the advantages of mediation, but there was no
such consensus for arbitration. The ABA, NELA and General Counsel surveys asked respondents about
cost, time, and fairness of outcomes for mediation and arbitration as compared to traditional litigation.
In each survey, respondents indicated a strong belief that mediation lowered cost and time to
resolution, and either increased the likelihood of a fair outcome or made no difference as to fairness.
Respondents were generally much less supportive of arbitration, with less than 15% of respondents in
any survey agreeing that arbitration increased the fairness of the outcome. In Arizona and Oregon,
which have mandatory arbitration for many cases under $50,000 at issue, a majority of respondents in
both states indicated that arbitration decreases cost and time to resolution. However, in both states
only 8% of respondents agreed that arbitration creates a fairer result.
26
Michael M. Baylson, Are Civil Jury Trials Going the Way of the Dodo? Has Excessive Discovery Led to Settlement as an Economic and Cultural Imperative: A Response to Judge Higgenbotham 13 (2010) 27
Higgenbotham, supra note 15, at 16. 28
For all cases in the study, r = 0.69215, p<.0001. For cases in the study that actually went to trial, r=0.70453, p<.0001. 29
Cases deemed “complex” in Oregon state court are required to be tried within two years of filing, absent a showing of good cause.
24
Judicial experience and training
The ACTL, ABA and NELA respondents strongly agreed that individuals with significant trial
experience should be chosen as trial judges (85% ACTL, 63% ABA, 69% NELA). Furthermore, 70% of
respondents in both the ABA and ACTL surveys who preferred federal court over state court indicated
that one reason for their preference was the quality of the federal bench. This sentiment was shared by
respondents to the General Counsel survey.
Summary judgment
In the surveys, attorneys who primarily represent plaintiffs voiced a sharply different view of the
nature and purpose of summary judgment than did attorneys who primarily represent defendants.
From the plaintiffs’ attorney perspective, summary judgment is requested and granted much too
frequently, and is rarely used by defendants in good faith. In the NELA survey, for example, 88% of
respondents agreed that summary judgment practice increases cost and delay without proportionate
benefit, 92% expressed the belief that summary judgment motions are used as a tactical tool rather
than in a good faith effort to narrow the issues, and 74% agreed that discovery is used more to develop
evidence for or in opposition to summary judgment than it is used to understand the other party’s
claims and defenses for trial. Several comments to the NELA survey reflected the same viewpoint. One
representative comment noted:
Summary judgment practice should be substantially curtailed. Defendants will seek summary judgment notwithstanding the existence of disputes of material facts that all parties know about, usually because they consider summary judgment practice a form of roulette – they may spin the wheel and turn out lucky.
Self-identified plaintiffs’ attorneys in the ABA survey did not feel as strongly on these issues as their
NELA counterparts, but nevertheless the majority of respondents agreed that summary judgment is
used as a tactical tool (73%) and that summary judgment increases cost and delay without
proportionate benefit (62%).
Defense attorneys, as well as attorneys representing both plaintiffs and defendants, disagreed
with the characterization of summary judgment as a tactical tool or a source of disproportionate cost
and delay. In the ABA survey, defense attorneys and attorneys who represent both plaintiffs and
defendants agreed that summary judgment practice increases cost and delay without proportionate
benefit only 11% and 26% of the time, respectively, and agreed that summary judgment is used as a
tactical tool rather than a good faith effort to narrow issues only 22% and 39% of the time, respectively.
In the ACTL survey, only 30% of all Fellows agreed that summary judgment increased cost and delay
without proportionate benefit, and only 36% agreed that summary judgment is used as a tactical tool.
Defense attorneys responding to the FJC survey indicated in open-ended comments that their
use of summary judgment motions depends in part on the type of civil case. As one attorney explained:
25
We use summary judgment only when it’s warranted and we have had success with it. We only file for summary judgment in 10%, maybe 20%, of our cases. We always file for summary judgment in employment cases because those are often legal issues. Filing for summary judgment is the norm in employment cases.
Despite these differences between plaintiffs’ and defense attorneys, there is considerable
consensus in the surveys, studies and papers that the impact of filing a summary judgment motion is to
drive the parties toward settlement. Judge Higgenbotham stated as much in his conference paper,
noting the growth of a new shared culture in which fewer trials, fewer lawyers with trial experience and
fewer judges taking the bench with trial experience are tied to the presumption that that “civil cases are
to be settled if summary judgment is not granted.” The IAALS Federal Case Processing Study provides
strong empirical support for Judge Higgenbotham’s observation. Of 743 cases in the study in which a
summary judgment motion was denied in its entirety, more than 24% still terminated within 30 days of
the ruling, and nearly 40% terminated with 90 days of the ruling. Similarly, of 396 cases in the IAALS
study in which a motion for summary judgment was granted only in part, more than 15% terminated
within 30 days of the ruling and more than one-third terminated within 90 days of the ruling.30 The
IAALS study concluded that “these figures strongly suggest that the parties look to the court to provide
answers that affect settlement discussions.”
Those answers may come in the form of what Judge Hornby has called “fact-sorting.” As he
explains, a judge must sort through a series of facts (and factual disputes) presented by the parties, and
determine which facts “are undisputed and which facts matter, thus discarding other facts, whether the
outcome is judgment or trial.”31 While at least some aspects of this fact-sorting role might better be
allocated to a jury or to the attorneys themselves, the current practice eschews these responsibilities
and instead looks to the judge to assess for the parties the strength of their respective claims and
defenses. The efficiency of this process is certainly in doubt; as Judge Hornby notes, “*t+he complexity
of many federal cases makes this [fact-sorting] process both time-consuming and hugely expensive.”32
Survey respondents agreed that the summary judgment process was time-consuming, and
primarily laid the problem at the feet of the judiciary. Where asked, the majority of every respondent
group agreed that judges fail to rule on summary judgment motions promptly (54% of ACTL Fellows,
61% of ABA respondents, and 70% of NELA respondents agreed). Some comments to the General
Counsel Survey also suggested earlier and more serious consideration of dispositive motions. Judge
Baylson gave voice to these concerns in his conference paper, stating that:
Some judges are not interested in moving cases, compelling parties to focus on trial, and adjudicating pretrial motions in a timely manner. In these instances, lawyers and their clients don’t know what will happen next, or when a trial is likely to occur. Lawyers are
30
Id. 31
D. Brock Hornby, The Business of the U.S. District Courts, 10 GREEN BAG 2D 453, 460 (2007). 32
Id. at 461.
26
used to winning and losing motions; the only decision that is unfair to a lawyer and a client is the one that was never made.33
Judge Hornby agrees that summary judgment decisions often take significant time, but suggests
that it is in part a resource issue: “busy judges and magistrates cannot easily assemble sufficient blocks
of time to produce a decision, especially when confronting many motions simultaneously.”34 He
suggests that the “large segments of uninterrupted time” needed to write a “decent opinion” is an
“often unavailable luxury.”35
Still, the discontent among attorneys about the time taken to rule on summary judgment
motions is palpable. As one NELA survey respondent put it:
While I think trial dates should be set early, I do think it is incumbent on judges to either rule timely on dispositive motions or move the trial date. Far too often, parties incur thousands of dollars in expenses submitting pretrial reports only to have the court grant a motion for summary judgment just days before the trial setting. This is not efficient for either side.
The IAALS Federal Case Processing Study found that across eight federal district courts, the
median time from filing to ruling on summary judgment motions was 126 days – and in many districts,
the median time was considerably longer. The IAALS study also confirmed that counsel in traditionally
complex cases are more likely to ask the court to engage in “fact-sorting” through summary judgment:
the case types with the highest rates of summary judgment filings were (in descending order)
constitutionality of state statutes, environmental matters, the Freedom of Information Act, patent,
property damage product liability, foreclosure, antitrust, and insurance. To this innate case complexity,
Judge Hornby adds an observation on the procedural complexity at the summary judgment stage: “At
trial, experienced lawyers strategically simplify the facts for juries, and allow judges to narrow legal
issues in jury instructions. Those same dynamics do not operate at summary judgment, at least with
less-experienced lawyers.”36
The considerable time taken to prepare, argue, and rule on summary judgment motions is
accompanied by a considerable increase in costs to all parties. The FJC’s recent multivariate analysis of
litigation costs in civil cases determined that any ruling on a summary judgment motion was associated
with plaintiffs’ reported costs increasing by approximately 24% and defendants’ reported costs
increasing by approximately 22%, controlling for all other factors.
33
Baylson, supra note 26, at 14. 34
D. Brock Hornby, Summary Judgment Without Illusions, 13 GREEN BAG 2D 273, 279 (2010). 35
Id. at 278. 36
Id. at 282.
27
Sanctions
One longstanding suggestion to controlling perceived abuses in pleadings and discovery is a
more robust use of sanctions. However, there was very strong agreement among the various survey
respondents that sanctions allowed by the discovery rules are rarely imposed. Almost 87% of ABA
survey respondents shared this belief, as did 84% of ACTL Fellows and 87% of NELA respondents. The
FJC survey did not ask specifically about the frequency of imposing sanctions, but a majority of all three
respondent groups in the FJC survey (attorneys primarily representing plaintiffs, those primarily
representing defendants, and those representing both equally) supported revising the rules to enforce
discovery obligations more effectively.
The Arizona and Oregon surveys found similar frustration with the underutilization of discovery
sanctions in those state courts. In Arizona, almost 74% of respondents indicated that litigants requested
sanctions for discovery misconduct at least “occasionally,” but 83% of respondents also indicated that,
when requested, the courts “almost never” or only “occasionally” impose such sanctions. In addition,
almost 86% of Arizona respondents indicated that the state court “almost never” or only “occasionally”
imposed sanctions of its own accord. In Oregon, 88% of survey respondents who self-identified as
having experience with sanction requests indicated that the state courts “almost never” or at most
“occasionally” impose sanctions for discovery misconduct. Respondents in both states expressed a
desire for more consistent enforcement of discovery rules.
Empirical studies are inconclusive on the extent to which discovery sanctions are requested and
granted. The IAALS Federal Case Processing Study found only 3.19 motions requesting sanctions per 100
civil cases, only 26% of which were granted. The conference paper submitted by Dan Willoughby and
Rose Hunter Jones examined over 400 cases involving motions for sanctions for e-discovery violations,
and concluded that “the overall number of e-discovery sanction cases is clearly increasing, that motions
for sanction are being filed in all types of cases and all courts, and that in many cases the sanctions
imposed against parties are severe, including dismissals, adverse jury instructions and significant
monetary awards.”37 Willoughby and Hunter further conclude that defendants have been sanctioned
three times more frequently for e-discovery conduct than have plaintiffs.38
A separate (and as yet unpublished) IAALS study of 458 civil cases from 1970 to 2009 in which
Rule 37 sanctions were imposed39 found that defendants receive the bulk of sanctions in contract
disputes (64.8% of sanctions levied) and intellectual property cases (55.2%), but that plaintiffs are
sanctioned more frequently in civil rights cases (74.5% of sanctions), employment discrimination cases
(71.3%), and tort cases (61.6%). The most frequent type of sanctions levied were dispositive (53% of the
37
Dan H. Willoughby and Rose Hunter Jones, Sanctions for E-Discovery Violations: By the Numbers at 3 (2010). 38
Id. at 9. 39
All the cases in the IAALS sanctions study were published and drawn from two annotated sources: Wright & Miller and American Law Reports. The selected cases were drawn from 75 federal district courts in 45 states. Over 80% of the sanctions recorded in the study were imposed before 1990.
28
total), including default judgments and dismissing, precluding or striking a claim or defense. Nearly 30%
of sanctions in the IAALS study were of the monetary variety.
CONCLUSION
An objective review of the conference materials reinforces that there is something more than a
low level of dissatisfied “buzz” about the civil justice system, as would be expected in an adversary
climate. Defense attorneys and general counsel tend to report greater levels of dissatisfaction than
plaintiffs’ attorneys – but all groups agree that the system takes too long and costs too much.
Legitimate cases are not being brought because they are not cost-effective, and significant percentages
of attorneys representing both plaintiffs and defendants report abusive and costly tactics by opposing
counsel.
Some respondent groups think that the rules of civil procedure need to be amended in order to
address these problems. Others think the rules are sufficient but are not appropriately enforced.
Almost all of the attorneys surveyed would welcome greater involvement from the judges in managing
cases, and empirical studies suggest that when judges do set and maintain firm deadlines, cases come to
resolution faster and with less expense.
Specific next steps will be the product of concerted discussion, but there is little doubt that most
everyone believes improvements are necessary and possible. Broadly stated, our common goal is to
preserve access, eliminate excess, and achieve a just, speedy and inexpensive resolution of all civil
disputes filed in our courts.
