Invitations were as scarce as Superbowl tickets. As chair of the ABA Section of Litigation, I was lucky enough to snag a spot as a participant and observer at an extraordinary gathering of 180 judges, practitioners, and professors who comprise the Who’s Who of civil procedure. Set in a classroom at Duke University Law School, it was a two-day civil procedure class on steroids, but with a mission—to help the Judicial Conference Advisory Committee for Civil Rules set the agenda for change to the civil justice system in the future. I came away with the sense that the system is working for most cases, but for a small group of important cases (including some of the most complex and highest stakes cases), our justice system has failed to adapt, is in danger of becoming obsolete, and needs to be fixed.
Despite the often academic quality of the conference, there were loud calls from many quarters to make litigation in the federal courts faster and cheaper. Large corporations protested that billions of dollars are spent every year on litigation costs before judgments and settlements. The general counsel of a small corporation complained that she cannot afford to litigate six-figure cases in federal court. Defense attorneys applauded the Supreme Court’s recent decisions in Twombly and Iqbal to keep implausible claims out of federal court. They proposed rule changes that would curtail discovery and its costs. Plaintiffs’ lawyers expressed their fear that meritorious cases will not be filed and that justice will not be done as additional hurdles are imposed that must be overcome in the filing and pursuit of claims. Plaintiffs’ lawyers generally opposed rule changes because most of the proposals seemed aimed at cutting back on both cases and discovery in the federal courts. At the conference, the rules process itself became part of the tug of war that is a part of our adversarial system.
The problems identified present big challenges. It will be difficult to fashion a rule amendment that is both evenhanded and likely to make a significant difference. Once conceived, even the most uncontroversial rule would take at least another 3 years to become law. A rule that is perceived as unfair by either side is unlikely to get off the ground. As Judge Lee Rosenthal (Southern District of Texas), head of the Judicial Conference Committee on Rules of Practice and Procedure, said, “Rule making is not for the short winded, impatient or faint hearted.”
Some of the proposed solutions for more efficient litigation require something other than rule change. More active judicial management, for example, cannot be achieved simply by adopting a rule. Federal Rules of Civil Procedure 16 and 26 already provide the necessary framework for judges to shape and manage discovery to achieve efficiencies. Yet they are not fully utilized. A seismic shift in attitudes and knowledge (e.g., about electronic discovery) of the bench and bar will be essential. All of this change, will take time.
I concluded while writing this article (my last as chair) that we lawyers need to be like ostriches. Contrary to popular belief, these birds do not stick their heads in the sand, and even though they cannot fly, they are the fastest land birds. We lawyers plainly cannot fly, and we must not hide from our troubles. We need to act now as caretakers of our justice system, our clients and our profession to begin to change attitudes and practices.
At the conference, the royalty of the civil procedure kingdom discussed not only what is broken and what should be changed, but some also presented what is already being done in some courts and by some lawyers to make our system faster, cheaper, and more efficient, without losing sight of our ultimate objective: to obtain justice. In the spirit of the ostrich, I thought I would share some of these suggestions offered by Judge Shira Scheindlin (Southern District of New York), whose name is virtually synonymous with e-discovery; Chief Judge James Holderman (Northern District of Illinois), who persuaded his colleagues in the Seventh Circuit to undertake pilot projects on jury innovations and e-discovery; and Steve Susman, the prominent Texas lawyer who has figured out how to make more money with less effort.
Agree on practices that lead to efficiency
“Make love and not war” during pre-trial proceedings. That is Litigation Section leader Steve Susman’s lesson to his young colleagues at Susman Godfrey. He explained that since he bills clients based on results, not effort, he is always looking for ways to be more efficient. He believes that most of what lawyers fight about before trial is not worth the effort. He has developed lists of proposed agreements for pre-trial proceedings and for trial. He sends these proposals to his adversary at the beginning of a case (“before they get really mad at each other”). The pretrial stipulations include:
- no letter writing campaigns over discovery disputes; all discovery issues to be discussed in emails and by phone;
- no depositions over three hours, and any statements by counsel at the deposition may be played by the other side to the jury;
- all papers will be served by email only—no hard copies and no additional time for mail service;
- for e-discovery, both sides will select five custodians (and potentially five more by agreement) for whom they receive all emails regardless of relevance; only documents written by a lawyer are withheld, and production of other privileged documents does not constitute a waiver; and
- to keep adversaries honest on their privilege logs and minimize privilege log disputes, each side selects a sample of 20 documents from the adversary’s log that they agree to submit to the court for an independent privilege review.
Judge David Campbell (Arizona) liked Susman’s lists so much that he attaches them to his pretrial order in complex cases. He reports that the lawyers in these cases have generally agreed on eight out of ten of the proposed stipulations.
Use the rule on proportionality
Proportionality was the theme of many of the conference recommendations about the excesses of discovery. A rule change is, however, unnecessary to achieve a better balance between expense and value in discovery. The ability to curtail discovery that is too costly given its value already exists under the rules. Rule 26(b)(2)(c)(iii) requires the court to limit discovery “if 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.” The provision is under-utilized. The majority of respondents in the ABA Section of Litigation survey agreed that counsel typically do not request limitations on discovery under Rule 26(b)(2)(c) and that judges do not invoke the rule on their own initiative. Although no one likes discovery disputes, the rule is there for leverage in negotiations and for judicial action.
Use the Seventh Circuit E-Discovery Principles
The conference luncheon speaker was Judge Holderman, who described a pilot program he launched in his circuit to facilitate e-discovery. It addition to hortatory principles, the Seventh Circuit E-Discovery Principles include useful suggestions that any practitioner can employ, even in circuits that have not adopted the principles, including:
- detailed information to include in any ESI (electronically stored information) preservation letter;
- topics for discussion between the parties before the initial court status conference, such as the scope of preservation, how to handle inadvertent production under Federal Rule of Evidence 502, and the possible staging of discovery;
- other possible ESI discussion topics, including search methodologies, types of information that will not be discoverable, and production format; and
- areas in which lawyers and judges can educate themselves to help better address ESI issues, including FRCP rules that directly address ESI—Rules 26, 33, 34, 37, and 45.
Avoid onerous privilege reviews
Some lawyers have proposed agreements to avoid painstaking and costly privilege reviews that have become routine. Other lawyers in response were skeptical ing inadvertently produced privileged documents, because of the fear that third parties could assert that the privilege had been waived as to them. The Rules since 2008 provide protection for the asking, but Judge Scheindlin said at the conference that lawyers are not asking. Fed. R. Evid. 502(e) states, “An agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement, but not on other parties unless the agreement is incorporated into a court order.”
The agreement of no privilege waiver under a “quick peek” arrangement (where a lawyer gets a quick perusal of an adversary’s documents—without any prior privilege review or screening—for the purpose of limiting the later production) can be extended to third parties by seeking a court order. If the court “so orders” the parties’ agreement, no third party can use the “quick peek” to obtain an otherwise privileged document on the theory that the “quick peek” constituted a waiver.
I’ll ask the impolite question
The question no one asks in polite company—and it was not asked at the Duke conference—is whether lawyers, many of whom bill by the hour, might be secretly happy with a system that requires excessive amounts of lawyer time and corresponding expense. In the Litigation Section survey, views were mixed (56 percent agreement) among both plaintiffs’ and defendants’ lawyers as to whether economic models in law firms encourage more discovery than necessary. Greedy lawyers, the theory goes, might look with disinterest at suggestions to save time and clients’ money.
I believe this is a cynical and incorrect view, at least as to the vast majority of our colleagues. Litigators are faced all the time with situations in which their clients’ interests conflict at least partially with their own economic or other interests. Recommendations to settle, to refrain from commencing doomed lawsuits, to press for a quick schedule, are all at odds with the economic interests of a lawyer who bills by the hour. Yet these recommendations are made, and followed, every day. I believe that it is our sense of professionalism, of what it means to be a lawyer, an officer of the court, and a fiduciary to our clients that motivates us. We nurture our justice system, not only because it provides our livelihood, but also because of its vital importance to society and our individual clients.
Addressing the excesses of e-discovery will also help our profession. A profession whose profitability depends on expensive and seemingly endless relevance and privilege review by its youngest members is against our self interest. At the conference we learned that discovery accounts for most of the cost of litigation, and that more than half of the cost of discovery comes from the relevance and privilege review, the mind-numbing tasks that employ our youngest lawyers. Besides being bored to tears, these lawyers do not get much training. Not surprisingly, many of them wish to leave the profession.
For readers who may still be wondering if striving for more efficiency may be against their financial self interest, I would ask them to take a longer view and consider client relationships. It is the rare lawyer who is so in demand that he or she can afford to gouge clients and send them off unhappy. Lawyers depend on repeat business and referrals to stay employed. The lawyer who provides excellent service, broadly defined, will be most successful. Excellent service increasingly means good results achieved without undue cost or delay.
We need to address the big issues of how best to achieve justice in a way that is procedurally fair and efficient. But that will take time. For now, we have tools within the bounds of the existing rules to make litigation less costly and more efficient. Exchanging best practices is a start and something we all can do to help promote the good health of our justice system, which provides for us and is a bedrock of our civilized world.
This article appears in the Spring 2010 issue of Litigation.
Lorna G. Schofield is the Chair of the ABA Section of Litigation. She practices with Debevoise and Plimpton LLP in New York City.