We again hear the calls: Rein in the costs of civil litigation generally and pretrial discovery in particular. Many of these calls originate with a study that the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System conducted in 2008.
Together, they issued an interim report in August 2008, summarizing the survey process and results, and a final report in March 2009, containing “Proposed Principles” and “Recommended Action.”
The final report contains interrelated proposals for pleading and discovery that, if adopted, would substantially transform the one and revolutionize the other. Proponents claim that repudiation and abandonment of the notice pleading and open discovery policies underlying the Federal Rules of Civil Procedure since 1938 are necessary to fix a “broken” discovery system.
I disagree. The drastic keelhauling that the final report proposes is unnecessary, will not accomplish the goal of reducing discovery-related costs, and will have other adverse side effects.
Instead, what is needed to repair our current system—overly costly as it is in both money and delay—is a willingness of judges to adjudicate discovery disputes informally and promptly.
Most worrisome is that nothing in the proposals mentions or endorses the fact that courts (by rule) or even individual judges (by order) can require an attempt at informal judicial resolution of discovery disputes before anyone files a discovery motion.
The Real Problem
What drives discovery costs, especially in complex cases? Two things: searching for, retrieving, and producing information; and legal fees paid to lawyers to fight about discovery. The former may not always be with us, at least to the extent it is today, as enhanced search techniques may bring down some of the costs associated with e-discovery.
So what’s really wrong with current discovery practices? Motions.
What needs fixing is not the discovery rules; what needs fixing is how courts resolve discovery disputes.
But instead of considering how judges can resolve discovery disputes better, the final report sets forth three game-changing recommendations (which it casts as “Principles”) relating to pleading and discovery. First:
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.
Second, in place of the current doctrine that discovery can be of information that may lead to admissible evidence, the final report offers the following approach:
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.
Third, the final report addresses timing:
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.
These are drastic, unwarranted, and unwise responses to the discovery costs and delays in the current system.
According to the final report, “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.” The recommended fact-based pleading would reduce litigation costs by making getting into, and staying in, court more difficult. But that is not an appropriate response to the costs engendered by discovery disputes.
With regard to discovery, the goal of the final report’s proposal is clearly to return civil discovery to the pre-1938 era. This is more than mere reform or even, as the final report acknowledges, “radical.” It is revolutionary.
These proposed changes are wholly unnecessary. Informal judicial resolution of discovery disputes can do more than anything else to rein in current discovery motion practice.
There can be no certainty and only slight, if any, hope that narrowing the scope of discovery will reduce the frequency and expense of, and the delays resulting from, today’s motion practice. Lawyers often prefer to withhold, rather than produce. A narrowed discovery standard that, in essence, depends on ultimate admissibility will offer new—and potentially innumerable—opportunities for attorneys to assert that something is simply not discoverable.
And, when that happens, what will opposing counsel do? File a motion.
So it is today; so it will be tomorrow.
Not only that, but motion practice also may well become more cumbersome and expensive than it is now. Will the “proof log” become an even more commonplace and costly adjunct to discovery motions than today’s inefficient and often useless privilege log? How many more disputes—and, in any event, how many more years—would it take before courts would fashion a case law for working with the new discovery rule? And, until then, what?
As with the pleading principle, restricting discovery to proof will make it more difficult, especially for plaintiffs, to obtain information needed to prevail. This may be the goal of some advocates for these changes. If so, it is an unworthy one.
Does the alternative I propose work? Yes.
An Alternative Proposal
Early in my career as a magistrate, I found myself struggling with massive, often indecipherable, and always time-consuming discovery motions in some Title VII class actions. One day it occurred to me, in an effort to comprehend what really was at issue, to talk to the lawyers. After about an hour of doing so, one afternoon 30 years ago, I wrote a two-page order and dumped a three-inch pile of paper in the trash.
I then developed the practice of having an in-person or telephone conference with counsel in every discovery dispute. These sessions invariably resulted in an order resolving the dispute. In 1994, our court adopted a local rule making this approach the default for resolving discovery disputes expeditiously.
Since then, counsel contact chambers perhaps two or three times a month, letting my staff know there is a discovery problem. Sometimes the attorneys tell the staff orally what the problems are; at other times, they send an email or fax a short letter.
Most often, I can arrange a conference call immediately, never later than within the next 24 hours. Usually, the conference lasts a half-hour or so, rarely more than an hour. It is always on the record and most often results in an order.
Perhaps once or twice a year, counsel and I will conclude that further briefing is appropriate. Even then, we have narrowed the issues and can set an expedited schedule.
Recently, I informally surveyed districts with similar rules. The judges’ responses mirror my experiences:
- The need to handle discovery informally is generally infrequent: at most, once or twice a week or three or four times a month, or as rarely as once or twice a year.
- Disputes typically come to the judge’s attention through a phone call to chambers; otherwise, by email, motion, or request for a pre-motion conference.
- While some district judges handle their own discovery disputes (as I do), most courts with informal resolution rules refer them to magistrate judges.
- Lawyers infrequently appeal magistrate judge rulings, and reversals are extremely rare.
- Although it can take about an hour, sometimes more, to resolve these disputes informally, a half-hour usually suffices.
- Neither respondents nor, according to them, lawyers expressed any opposition to the informal means of discovery.
Although lawyers and judges alike endorse this approach, there may be some drawbacks from time to time. Two respondents noted that some lawyers tend to be “frequent flyers” with a “dial the court” attitude. One respondent noted the lack of a record, due to the absence of formal motions. Another expressed concerns about fairness, when one party comes prepared to argue, while the other does not.
The fact is that informal resolution provides prompt, efficient disposition—and saves litigants a lot of money and courts a lot of time—by avoiding motion practice, which one respondent referred to as “the death knell of a magistrate’s time.” Other comments: “Because discovery disputes really do bog down a case, it’s helpful from a case management standpoint.” “Overall, I think the rule is very good. The process works well and provides a solid and efficient manner for managing discovery.” “My own experience suggests that, once in a while, trying to handle disputes informally turns out to be inefficient. But this happens rarely.”
The judge easily should be able to remedy each of these problems. Reminders that counsel should privately resolve truly minor disputes can curtail frequent flying. A docket record can include any communications from attorneys, not just formal motions. A court can ensure fairness by briefly postponing the conference, if needed.
Also, a court can avoid having informal resolution efforts fall into a shambles, especially in a complex case, by introducing a modicum of formality to discovery conferences. A court can require a statement of issues, brief recitations of positions and arguments, and a modest set of citations. It usually doesn’t take much to let the judge know what the issues are.
Lawyers offer a recurrent explanation for the failure of informal resolution to become the norm, rather than a relative rarity: that, especially in state courts, “judges don’t want to be bothered by discovery disputes. They tell us to go away and take care of them ourselves.”
All judges (and their law clerks) hate discovery disputes. By the time those disputes reach the motion stage, they are typically difficult to understand and even harder to resolve. In any event, adjudication of discovery motions takes time. The busier the court, the less time it has for such ancillary disputes.
But many disputes don’t go away on their own or through informal proceedings. Then, someone has to invest potentially substantial time and effort to decide them formally. In the meantime, the meter has been running both as to costs and case delay.
I urge all judges to try this approach. Take a half-hour or so—sometimes more, sometimes less—just a few times each week or month, to hear and address discovery disputes informally.
Widespread adoption of the informal judicial resolution of discovery disputes will not make litigation inexpensive. That’s far from possible. But it can, and will, substantially reduce discovery-related costs, save time, and spare judicial resources.
This is not just a part of a judge’s duty. It’s our common responsibility.