March 01, 2015

Pilot Project Reduces Delay and Cost in Federal Litigation

How limited-scope projects can offer a low-risk way to reform federal civil procedure.

Laura McNabb

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Rule 1 of the Federal Rules of Civil Procedure calls for the “just, speedy, and inexpensive determination of every action.” Pilot projects are essential tools for effectuating the call of Rule 1. By supplying detailed and creative gap-filling solutions that complement the Federal Rules, pilot projects can help reduce delay and costs in federal litigation.

To illustrate the important role pilot projects can play in the broader conversation about reforming civil litigation, this article examines one such project: the Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (the protocols). This project is designed to streamline pretrial discovery in certain employment cases through automatic and expanded initial disclosures. As the protocols’ preliminary success both within and beyond the federal courts demonstrates, practitioner-driven, limited-scope pilot projects represent one highly effective avenue for augmenting existing procedures.

However pursued, innovation in the federal courts takes place against the backdrop of the Federal Rules. Expansive in length and breadth, the rules embrace a big-picture approach to federal pleading and practice, leaving individual districts to fill in any remaining gaps. This division of labor ensures that the rules are not encumbered by excessive detail that would complicate compliance and undermine national uniformity. Over the years, the rules have been amended several times. But because changing them affects the practice of law in every federal court across the country, proposed amendments are subject to a cumbersome review process composed of seven distinct stages and overseen by the Judicial Conference’s Committee on Rules of Practice and Procedure. This adventure can take two to three years.

By contrast, innovation through pilot projects is significantly less constrained. Because pilot projects do not bind courts everywhere, they can be tailored to specific problems, allowing a level of substantive detail not feasible in the rules. Moreover, unlike the time-consuming and often contentious process of amending the Federal Rules, innovation through pilot projects can occur quickly and typically depends on consensus from both the plaintiff and defense bars. With few procedural formalities to burden the development process, pilot projects can easily respond to a changing legal landscape, offering timely and creative solutions. And because judges will not extensively adopt projects that unfairly advantage one side or the other, pilot projects that depend on voluntary participation ensure low-risk and evenhanded solutions.

The Protocols

The protocols are one such pilot project. The idea for them grew out of the 2010 Conference on Civil Litigation at Duke University, sponsored by the Judicial Conference’s Advisory Committee on Civil Rules. Aimed at reexamining civil procedures and collecting ideas for their improvement, the conference garnered widespread enthusiasm for case-specific pattern discovery—that is, standardized discovery applicable to all cases of a certain type—as one viable avenue for combating unnecessary cost and delay. Because employment cases are regularly litigated in federal courts and present recurring discovery issues involving a predictable set of documents, conference attendees determined that employment law was an ideal area in which to test the viability of pattern discovery. A little over a year later, the protocols officially launched. They can be downloaded at Empl.pdf/$file/DiscEmpl.pdf.

The protocols were designed to improve pretrial litigation by expediting and streamlining discovery. They were developed by a committee of highly regarded plaintiffs’ and defense attorneys from across the country, and premised on the belief that the required initial disclosures under Rule 26(a)(1) are ineffective in certain employment cases. Unlike the generic initial disclosures under Rule 26(a)(1), which parties may not exchange for months, the expanded initial disclosures under the protocols must be automatically exchanged within 30 days after the first responsive pleading or motion. This wholly supplants Rule 26(a)(1) in most employment cases in which the plaintiff alleges adverse action. (The protocols, however, exclude class actions and certain adverse action claims that are combined with discrete kinds of employment discrimination allegations.) Although the change modifies the typical initial disclosures required under Rule 26(a)(1), it is consistent with the rule, which explicitly empowers judges to modify (or even dispense with) initial disclosures by court order.

The protocols also expand the kind and amount of information that must be exchanged to ensure that the parties have prompt access to “core discovery.” This core discovery consists of the documents and information that are (1) most commonly exchanged in employment cases alleging adverse action, and (2) most useful for assessing the merits of such cases. For example, the plaintiff must disclose all diary, journal, and calendar entries concerning the factual allegations or claims at issue, and all documents concerning communications with potential employers, job search efforts, and offers of employment. The defendant must disclose workplace policies or guidelines that are relevant to the adverse action and the plaintiff’s personnel file, performance evaluations, and formal discipline. Of particular importance, most of the information subject to early disclosure is limited to the three years before the adverse action.

To determine whether a given employment case qualifies for the protocols, the presiding judge need only examine the face of the complaint. Once the judge decides that a particular case qualifies, either party can seek to exempt the case from the protocols, in whole or in part, by asking the court. If the judge decides to move forward with the protocols’ expanded initial disclosures, the parties are prohibited from objecting to production of the required documents and information or extending the 30-day deadline. Although the protocols bypass the mandatory initial disclosures under Rule 26(a)(1), they do not preclude or modify the parties’ rights to subsequent discovery under the rules.

To give judges maximal flexibility, the protocols were designed for implementation by standing order. Standing orders—sometimes called “local local rules”—are rules of general applicability that apply only to cases before the issuing judge. Unlike “local rules,” which districts can adopt only if they comply with the formalities outlined in Rule 83, standing orders can be issued by individual judges on an ad hoc basis using the court’s inherent power to manage dockets and control individual cases. Also unlike local rules, which bind all parties appearing before any judge in the district, standing orders bind parties appearing before those judges who specifically adopt them. In those districts where standing orders can be adopted only by the chief judge, individual judges can implement the protocols by incorporating them into their individual practice standards or by issuing an order in each qualifying case. Although the protocols contemplate that judges will implement them on an individual basis, districts can elect to participate wholesale by complying with Rule 83 and adopting the protocols by local rule. To date, the U.S. District Court for the District of Oregon is the only district that has adopted the protocols district-wide.

Benefits of Expanded Initial Disclosures

Since the protocols launched in 2011, anecdotal evidence from attorneys across the country suggests that these routine expanded initial disclosures yield three major benefits. First, they save money and time by enabling the parties to gauge the merits of the case early on. According to defense attorney Chris Kitchel (Stoel Rives LLP), who helped develop the protocols and chaired its defense subcommittee, employers benefit from an abbreviated discovery timeline because the longer discovery extends, the more expensive it is to defend a case. These savings are particularly pronounced for large employers, who regularly litigate employment disputes and so derive significant financial gains from even small improvements in discovery. Employees, who typically have fewer resources, also benefit from the lower costs. Perhaps more important for employees, the protocols balance information asymmetries that commonly exist between the parties at the beginning of this type of litigation. Instead of waiting months for copies of their own personnel files or important communications, employees gain access to basic information at the earliest possible stage of the case.

Second, the protocols reduce unproductive discovery battles by automating initial disclosures, outlining the precise documents and information that each party must disclose, and eliminating objections and extensions of time. Accordingly, parties treat the first round of discovery as a cooperative enterprise instead of a battleground and can save their fights (and their credibility with the judge) for those issues that could affect substantive rights.

Moreover, the protocols also reduce conflict throughout the remainder of the litigation. Armed with better information earlier, the parties can more accurately assess the issues animating the case and more effectively focus subsequent discovery. This may, in turn, reduce conflict in those subsequent waves of discovery or even facilitate settlement.

Third, the order judges issue to implement the protocols, which typically includes a copy of them, can double as a helpful road map for practitioners that simplifies the discovery process. For Joe Garrison, who helped develop the protocols and chaired the protocols’ plaintiff subcommittee, the standing order is particularly important because it reduces problems for clients who hire lawyers with less experience in federal practice. Instead of reinventing the wheel, such lawyers can rely on the expanded initial disclosures outlined in the standing order to unearth the documents and information that are most relevant to their cases. Seasoned practitioners also benefit from the standing order, which can be given directly to clients as a discovery checklist.

Given these clear benefits, attorneys have started to take it upon themselves to advocate for the protocols. For example, Diane King (King & Greisen), a member of the Colorado Plaintiff Employment Lawyers Association, contacted Judge William J. Martínez (District of Colorado) shortly after the protocols launched to press for their adoption. After talking to King and vetting the idea of expanded initial disclosures with local employment defense lawyers, Judge Martínez agreed to use the protocols. Other lawyers agreed to abide by them in their cases in other courts. John Jansonius (Jackson Walker LLP), a defense attorney who helped develop the protocols, has heard of attorneys mutually agreeing to litigate qualifying cases under the protocols without a standing order from the presiding judge.

Anecdotal evidence from judges mirrors attorneys’ favorable response. Emery Lee of the Federal Judicial Center, a researcher who has interviewed several judges about their experiences with the protocols, found that most participating judges support the expanded initial disclosures. Judges Lee Rosenthal (Southern District of Texas) and John Koeltl (Southern District of New York), who oversaw the development of the protocols, have received largely positive feedback from colleagues who have used the protocols. They attribute this to how easy it is to screen eligible cases and issue the order as well as the reduction in combat over document requests.

Like other successful pilot projects, the protocols can inspire innovation beyond the federal courts. Two responses to the protocols illustrate this possible ripple effect. The first occurred in 2012, when the American Arbitration Association (AAA) undertook an effort to adapt the protocols to employment arbitrations. The effort brought together an experienced group of employment advocates and arbitrators for a series of roundtable discussions that focused on how the protocols could be tailored to best fit the arbitration context. One year later, the AAA adopted a pilot project based on the protocols in New York and elsewhere.

State courts may also soon consider adapting the protocols to state employment law cases. Colorado, for example, is uniquely positioned to consider whether adapted protocols might work in state courts given a recent amendment to the Colorado Anti-Discrimination Act. The amendment, signed into law in May 2013, expands the remedies available to individuals alleging employment discrimination. This may significantly increase the number of employment cases before Colorado judges. Some Colorado lawyers have voiced their hope that the state’s courts will adapt the protocols to help streamline discovery.

Barriers to Protocol Usage

Despite all this, the protocols still face three main barriers to implementation. The first stems from the protocols’ relationship with the Federal Rules. Because they effect change outside the formal rulemaking processes, the protocols are vulnerable to the same attacks scholars routinely wage against pilot projects. The primary complaint about pilot projects is that they flout the major purpose of the rules—to achieve uniformity among federal courts—by creating a patchwork system that varies by locality and undermines centralized rulemaking. For critics, this balkanizing effect is particularly troubling because the Federal Rules do not explicitly authorize the use of pilot projects as vehicles for experimentation. When pilot projects are implemented by individual judges, the problem becomes even worse. Critics point out that such variation makes compliance difficult, and therefore increases the risk of sanctions, for practitioners who are unfamiliar with federal court or have multi-jurisdiction practices.

These concerns, however, appear to be more theoretical than practical. Districts across the country already have varying local rules and procedures, and procedural rules are not generally determinative of outcomes. And a concrete example like the protocols quickly allays concerns about the difficulty of compliance. The protocols give practitioners a clear road map to the discovery process and so might actually improve lawyers’ competence. Practitioners may also have the opportunity to discuss compliance with the presiding judge, further reducing error.

Advertising the protocols presents a second barrier to implementation. Given district court judges’ busy dockets and pressing criminal cases, finding effective avenues to disseminate information about the protocols has proven to be a significant challenge. The success of pilot projects often hinges on the efficacy of efforts to “get the word out” to the broader legal community. The difficulty of this important task is evident in the relatively low levels of participation in the protocols since they launched nearly three years ago. As of the fall of 2014, only one district and fewer than 50 judges in other districts have implemented them. This represents fewer than 15 percent of the more than 660 federal judges nationwide. Considering the uniformly positive feedback from both attorneys who have litigated under the protocols and judges who have implemented them, this level of participation seems especially low. Still, participation will grow if attorneys continue to advocate for the protocols in their districts.

The final barrier to implementation, directly related to the limited number of participating judges, is the difficulty inherent in measuring the protocols’ effect on cost and delay. The small number of participating judges, the limited number of employment cases that qualify for the protocols, the protracted nature of litigation, and the relative youth of the protocols coalesce to hamper researchers’ ability to garner sample sizes large enough to permit meaningful empirical analysis. This difficulty undermines the likelihood of widespread implementation in the future because some judges want to see proven results before they are willing to invest in the protocols. But efforts are under way to better understand precisely how the protocols affect litigation. For example, Emery Lee of the Federal Judicial Center is in the process of preparing preliminary findings on the protocols’ efficacy. It is hoped that these findings, which will be based on interviews with judges and attorneys as well as limited descriptive data, will provide a more concrete picture of how the protocols are working and perhaps even inspire more judges to adopt them.

The protocols’ successes demonstrate that practitioner-driven, limited-scope pilot projects can be highly effective tools for improving speed and cost-effectiveness in federal litigation. Thus, future efforts to develop pilot projects should follow the protocols’ model and charge a geographically and ideologically diverse group of respected practitioners with identifying discrete, gap-filling opportunities in their shared area of expertise. Respected practitioners are the key to developing a successful pilot project because they possess the requisite knowledge and skills to spot procedural gaps as well as the social capital necessary to garner support for particular solutions. Limiting the scope of such solutions is also essential: A narrowly tailored approach is much more likely to achieve consensus and accomplish the intended effect in practice.

Equally important, the protocols’ challenges suggest that future pilot projects should attempt to mitigate the theoretical challenges to pilot projects by developing marketing strategies that emphasize ease of attorney compliance. To improve the likelihood and rate of widespread implementation, pilot projects should include data collection plans that measure success and provide concrete evidence of efficacy as early in the project’s lifespan as possible. The sooner empirical evidence is available, the easier it will be for implementation efforts to garner national momentum.

Laura McNabb

The author is a law clerk at the U.S. Court of Appeals for the Tenth Circuit.