Over the past 200 years, litigation in federal courts has continually changed. The greatest change has taken place in the past 25 or 30 years. During this period, we have seen the almost total disappearance of civil trials in federal court. Trials have been largely supplanted by motions practice and settlement. But lawyers have not responded to this change and still conduct pretrial as if their cases are going to trial. I think that is a mistake, and in this article I offer suggestions as to what litigants and courts can do to conform their practices to the present-day realities of civil litigation in the federal courts.
In any given year in my district, the Central District of California, about 14,000 civil cases are filed. Yet, fewer than 70 civil cases are tried. When you account for those cases that are not destined for trial from the start—for example, Social Security and habeas corpus cases—it becomes clear that less than one percent of the civil cases that could go to trial actually do. What this means is that the work of the district courts is, more and more, becoming the management of pretrial practice, including discovery, followed by settlement or dispositive motion. I resolve on average about one discovery motion per week. Assuming my colleagues in the district are doing the same, this means that more than 1,200 discovery motions are decided in our court every year. As you might expect, some of these are completely frivolous; others have some merit but, in my view, should have been resolved by the parties short of a motion; and the rest, a small number, involve difficult issues that require the court’s help to resolve. Often when addressing these motions, I wonder out loud whether the lawyers have taken into account that they are spending large amounts of time and money to pursue a discovery motion—and, they hope, obtain discovery—in a case that will in all likelihood be disposed of short of trial. It’s not that discovery doesn’t have relevance for settlement or motions practice. It does. But the scorched-earth practice many lawyers employ, attempting to discover “everything” without regard to cost and aggressively litigating when production is not forthcoming, seems inconsistent with the goals of the civil rules—the just, speedy, and inexpensive resolution of the case—and what one assumes is the client’s goal: obtaining the best possible result for the least amount of money.
Needless Discovery Battles
The modern rules of civil procedure are aimed at eliminating discovery battles. Rule 26 requires the parties at the outset of the case to voluntarily disclose the witnesses and the evidence that they intend to rely on in their case-in-chief. The parties are also required to supplement disclosures in a timely manner when new information becomes available. Plaintiffs are required to set out their damages and explain the bases of their calculations. Rule 26 also requires the parties to exchange information regarding their experts and produce the experts’ reports.
In my view, one of the biggest reasons there are so many unnecessary discovery motions is because lawyers routinely fail to honor their obligations under Rule 26. Often, when reading a motion to compel, I realize that the information the moving party seeks in the requests for production or interrogatories is information that was supposed to have been voluntarily produced under Rule 26 at the outset of the case but wasn’t. So what can be done about this? How can we reduce the costs of litigation and the burden on the courts to resolve these discovery motions? Buried in Rule 37(c) is one answer. This section provides that if you don’t identify critical documents or witnesses in your Rule 26 initial disclosures, you can’t use them in a motion or at trial (with certain exceptions). I don’t think most lawyers know that this provision is in the rules. (It really should be moved to Rule 26.) To fix this problem, courts could include this provision in bold in the initial order. The order could also provide that, if the parties do not voluntarily disclose the information, they will not be allowed to use it. There is no doubt that this would encourage greater compliance with the voluntary disclosure requirements. After all, what’s the use in having great evidence if, because you failed to disclose it, you can’t use it? Although Rule 26 does not apply to criminal cases, there is a similar rule in the Federal Rules of Criminal Procedure that does: Rule 16, which also contains a provision for barring evidence that is not turned over as required. Having been a prosecutor, I can tell you that this provision incites fear in the hearts of prosecutors who don’t want to find out midtrial that the powerful evidence or the compelling witness that they were about to present will not be allowed because there was no Rule 16 disclosure.
Another way to reduce needless discovery motions is for the lawyers to think about compromise in the discovery phase. Many lawyers, it seems, think that the only time they should compromise is when they are settling a case. I disagree with this sentiment. Lawyers should be thinking about compromise at every stage of a case, including the pleading stage, discovery, and motions work. For example, when opposing counsel fails to respond fully to interrogatories, rather than file a motion to compel, see if opposing counsel will agree to allow you to depose the client for more than the seven-hour period allowed under the rules. This might allow you to obtain the information that you hoped to receive in the written discovery without filing a motion. By compromising, you may not get everything you want, but you will probably get everything you need, and that is what discovery should be aimed at. Further, by compromising, the parties save time and money, and the lawyers and the judges can focus on the issues that really matter in their cases.
Electronically Stored Information
Another area that spurs discovery litigation is electronically stored information. I often handle discovery disputes in which it is clear that the lawyers are not really sure of the nature and extent of the electronically stored information or how it can or cannot be retrieved and used. Lawyers need to be versed in technology if they are going to be successful in discovery. If they are not, they should find someone in their firm who is and bring that person into the case for the discovery phase. Because I find that the lawyers are often unable to adequately discuss discovery of electronically stored data, I often require them to bring the client’s information technology person to the hearing or have that person available by telephone to explain what the company is capable of retrieving and the time and costs that would be involved in doing so.
The biggest problem I see with electronic discovery is that lawyers are using 20th-century technology—that is, obtaining all of the documents, organizing them in folders, and trying to read and digest them—to address 21st-century production. A 10-gigabyte thumb drive can hold as much as 8,947,840 pages of data. I don’t believe it is possible to organize and digest even this relatively small amount of data in the limited time available in most cases. Instead, what lawyers should be doing is using 21st-century computer technology to sort through and organize the electronically stored information. Their goal should be to have the computer sift through the millions of documents and distill and organize the hundreds or thousands of documents that are critical to the case, which the lawyers can then become familiar with. One method to do this, the one most popular today, is keyword searching. Most of us are familiar with keyword searches because we use them for legal research on Westlaw and Lexis or when searching for documents on our computers. There are problems with using keyword searches, however; they sometimes miss important documents and, more often, capture many irrelevant documents that have to then be analyzed.
A better method for searching large databases is predictive coding. In predictive coding, lawyers review and analyze a small sample of documents in a case and identify what is relevant. That information is then entered into a computer software program that applies algorithms to the universe of documents to determine which are most likely to be most relevant.
Oftentimes, counsel simply refuse to employ these search methods to locate the relevant documents and insist instead on obtaining “everything” in discovery. In these cases, I often employ cost-shifting to temper their demands. Thus, for example, where production of everything will cost $100,000, I order production contingent on the moving party paying $50,000 to the producing party in advance of production. To date, the moving party has always reconsidered its request and come back asking for significantly less, realizing, it seems, that they don’t really need everything.
In an age of more and more civil filings and fewer and fewer trials, litigants and courts need to focus on the task at hand: moving cases from complaint to discovery to settlement or motion as efficiently and cost-effectively as possible. The most cost-effective way to conduct discovery is for both sides to adhere to the mandates of Rule 26 and voluntarily disclose all important information. Courts should insist that this rule be followed and impose sanctions when it is not. If they do, we will see a reduction in the number of unnecessary discovery motions. As for electronically stored information, the day of reading and digesting every document in a case is behind us. Practitioners need to embrace 21st-century technology and trust that it will provide them with the best chance of obtaining the most critical information at the lowest cost.