ACTL-IAALS Report Paves Way For Fundamental Rule Reforms

Monday, February 1, 2010 - 00:00

Barry Bauman

Executive Director

Lawyers For Civil Justice

As part of our commitment to reduce litigation costs and exposure, Lawyers for Civil Justice (LCJ) is currently engaged in a multi-year process to advocate beneficial changes to the Federal Rules of Civil Procedure.Our advocacy and that of the defense and corporate lawyers with whom we are working could result in changes that will dramatically improve modern litigation. Specifically (LCJ), is pursuing a broad range of procedural and evidentiary rule reforms, many of which are embodied in the Report of the Task Force on Discovery of the American College of Trial Lawyers (ACTL) and the Institute for Advancement of the American Legal System (IAALS). See, American College Report. The Report supports the broad-based reforms of the principal civil rules that LCJ and its allies have been advocating for years and has spurred the federal rule makers to reexamine the fundamental precepts of the 1938 rules.

The Report's stated Principles support many of LCJ's long-held views on which the rule maker's reexamination will focus: 1) pleading should be fact pleading, not notice pleading; 2) the scope of all discovery should be limited to material, proportional information, e.g., information necessary to prove a claim or defense or for impeachment; 3) discovery should be by initial disclosure followed by severely limited discovery proportional to the nature and complexity of the case and tied to claims actually at issue; 4) early disposition of motions should be a priority, 5) early identification of the issues to be tried should be required; and 6) courts should consider staying discovery in appropriate cases until after a motion to dismiss is decided.

The concerns over the costs and burdens of e-discovery - not fully addressed in the 2006 amendments - supply much of the impetus for the reexamination. And, the Report's stated Principles support each of the elements of the LCJ-CJRG proposed E-Discovery and Privilege Waiver Model Rules ALEC Model 03/26/09 - Final: 1) electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court's adjudication, expense and burdens; 2) sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness; 3) absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes; and 4) cost shifting/co-pay rules should be considered generally and for e-discovery in particular and courts should not hesitate to allocate costs to the requesting party. The Model Rules are summarized in the following article: Skyrocketing E-Discovery Costs Require New Rules.

The Report has a number of other recommendations, but the key for LCJ is that the rule maker's reexamination will focus on LCJ's prime "procedural" priorities, and, if made a business community high priority, could result in reform of all of the Federal Rules, including e-discovery, that would significantly reduce the costs and burdens of litigation and increase its efficiency.

Although LCJ has a long history of successfully supporting rules revisions which will improve the civil justice system, the general counsel and senior corporate counsel who provide their perspectives in the front cover article in this issue of The Metropolitan Corporate Counsel understand that more action is needed to address remaining deficiencies. They recognize the importance of pursuing broad-based procedural rule reforms which echo the recommendations of the American College Discovery Task Force because they have experienced first hand the injustices of the current system. Their advocacy, in follow up to their recent participation in the LCJ December Membership Meeting, provides powerful testimony in support of specific procedural rule reform which addresses many of the fundamental deficiencies of the current system. And they recognize the importance of providing the Federal Judicial Conference with the data and information they need to craft new rules which go to the heart of our concerns.

We are very hopeful that the Federal Judicial Conference rule-making committees will soon undertake the first overall exhaustive review of the Federal Rules of Civil Procedure since they were promulgated in 1938. An important part of this "once in a lifetime opportunity" to fundamentally reshape the Federal Rules depends upon our ability to develop litigation cost data that supports the changes that we advocate to: move away from notice to fact pleading; limit discovery to necessary, material information, proportional to the case, and require early issue definition and disposition of motions among many other improvements. Your assistance is crucial to our developing this data and we urge your participation in the empirical data study being conducted by the Searle Center at Northwestern University School of Law.

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