Rule reform is the rage. In May, Duke University School of Law hosted a two-day conference, organized by the Judicial Conference Advisory Committee on the Civil Rules, that brought together federal judges, lawyers and professors to examine the issues of “access, fairness, cost and delay in the civil litigation process.” The conference built upon analyses provided in three surveys conducted in 2009: 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; the Federal Judicial Center survey of lawyers involved in all cases that were closed during the fourth quarter of 2008; and the American Bar Association Section of Litigation survey of its members.
All three studies concluded that the current “one size fits all” set of rules is far too expensive and time-consuming for the vast array of cases that are litigated today. Each study recommended reforms, including significant changes to the Federal Rules of Civil Procedure, as well as suggested case management strategies to be used by the courts to lower the cost of litigation. The ACTL study, for example, asserted 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.”
Other proposals include elimination or reduction in the number of interrogatories, elimination of expert depositions, imposition of financial limitations on the amount that can be spent, or that a party can require its opponent to spend, on discovery, limitations on the time allotted to discovery, and limiting the persons from whom discovery can be sought.
These critiques presume that the rules, as written, are inadequate to cope with the ever-increasing scope and cost of civil discovery engendered by the explosion of electronically stored information, the increasing complexity of business, and the unending ingenuity of trial lawyers. Is the premise correct?
Certainly, it is belied by the language of Fed. R. Civ. P. 26. Rule 26(f) requires that the parties meet soon after the case has commenced to discuss a discovery plan. Rule 26(d)(1) provides that discovery may not start until that conference has occurred—and Rule 37(f) makes sanctionable the failure to participate in that process. The discovery plan contemplated by Rule 26(f) embraces all of the variables that can cause expense and delay, including required disclosures, the subjects and timeline for discovery, limitations on discovery, electronic discovery, and assertion of privilege. Within this framework, the parties are encouraged to mold the contours of discovery, and its concomitant cost, to the value and complexity of the claim. The results of the conference—be they an agreement or a series of disagreements—are then presented to the Court for a Rule 16(a) conference, allowing the Court to participate in the process, resolve differences, and establish a discovery plan that is proportional to the value of the case.
In sum, the rules provide all of the necessary tools to contain the discovery explosion that has given rise to calls for further amendments. So, why the fuss?
It is because experience shows that judges and lawyers do not use Rules 16 and 26 as they were intended. Initial conferences between counsel are many times superficial, as are the discovery plans that emerge. Rule 16 conferences with the court are likewise often peremptory. Whatever the reasons—overburdened courts, distracted counsel, gamesmanship—the fact is that the tools that presently exist to end the discovery crisis are not being employed in the vast majority of cases that need it. Why, then, would further amendments solve the problem?
Current rules assume that lawyers will exercise good judgment, and their discretion, in working cooperatively toward reasonable discovery plans that are proportional to the claim at issue. Likewise, the rules assume that judges have the time and inclination to involve themselves substantively in the myriad of details and variables that affect the costs and timetable for discovery. Empirically, these assumptions are unwarranted. So if deferral to discretion does not work, the thinking goes, the imposition of mandatory rules might do the trick. It is the difference between asking two lawyers to reach agreement on discovery limitations, and imposing those limitations by regulatory fiat (with the caveat that a court can override the limitations for good cause). It is the difference between a profession and a business.
Editor’s Note: This column contains the views of the author and not necessarily those of the ABA or Section of Litigation. Litigation News hopes this column will spark interest and debate. We welcome your comments and viewpoints on this issue.
Charles S. Fax is an associate editor for Litigation News.