You And Your Law Firms Can Now Join The Effort To Address Costly E-Discovery Abuses

Tuesday, March 2, 2010 - 00:00

Barry Bauman

Executive Director

Lawyers For Civil Justice

As referenced in this month's front cover interview with Paul Saunders, Chair of the American College of Trial Lawyers (ACTL) Discovery Task Force (Task Force), the Judicial Conference Rules Committee has undertaken an ambitious program to review the Federal Rules of Civil Procedure, including the Rules governing notice pleading, discovery, and motion practice.

The program involves a total reexamination of the Federal Civil Rules stimulated, in part, by the recommendations of the Task Force and the Institute for Advancement of the American Legal System (IAALS) - proposals which, if enacted, would represent fundamental, beneficial changes to the "1938 Rules" which many in the defense and corporate bar have been advocating for years. This ambitious rules project will include preparing and presenting scholarly papers on the need for reform based on surveys and studies of internal and external litigation cost data at a major Conference sponsored by the Rules Committee on May 10 and 11, 2010 at Duke Law School.

Lawyers for Civil Justice (LCJ) is working with its corporate members, other business groups, and law firms to gather hard data on litigation costs that will be submitted to the Rules Committee and incorporated into a White Paper that advocates amendments to the rules in many areas. The leadership of LCJ recognizes that you and your law firms have relevant and probative data and vast experience that would be helpful to share with the Advisory Committee in all areas to be covered by the White Paper. For now, however, our focus is on discovery. Consequently, as part of our efforts to develop a data-driven White Paper, we are urging you and your law firms to provide data and anecdotal experiences that demonstrate the disproportionate cost of discovery relative to the value of the case in which the expense is incurred. Examples of data that would be useful include:

• The volume of information (expressed in numbers of documents, pages or page equivalents) produced in discovery compared to that marked in deposition or for trial (on pre-trial lists or in trial).

• The volume of data or cost of production compared to the complaint or verdict value of a case.

• Data from individual cases that reflect the total cost of discovery and separately the portion of the total discovery cost that was spent generating and responding to written discovery, document production, deposition requests (including preparation and conduct of the depositions), discovery motions, and electronic discovery. We also are requesting a brief case description for those cases for which you and your firms have data.

In addition to the information on proportionality and costs described above, you and your law firms may have anecdotal information that indirectly demonstrates the inefficiency or excessive cost associated with overbroad discovery. Anecdotes might include massive discovery in cases that were dismissed on summary judgment or judicial rulings that expanded discovery beyond the facts pled.

Some of you or your firms may practice in jurisdictions that have fast-track calendars similar to the very aggressive scheduling utilized by the United States District Court for the Eastern District of Virginia, commonly referred to as the "rocket docket." It would be very helpful to compare the cost of discovery in comparable cases in jurisdictions that utilized a fast-track docket with the cost of discovery for comparable cases in other jurisdictions that do not exercise tight controls on discovery. Any information that you or your firms can provide in this regard would be most helpful and appreciated.

Of course, your responses and those of your law firms to this request need not be limited to problems with discovery. If you or your law firms have good examples of why the rules should be amended in other areas to save costs, increase efficiency, and get more cases to trial, please include it in your response.

Please discuss the above with your law firms. If you or they can provide any such information, you or they should transmit the information to Bruce Parker at brparker@venable.com. Your information will be shared, on a confidential basis, with those who have volunteered to help draft the White Paper. I thank you and your law firms very much for your and their anticipated assistance. By all means, if you have any questions, please give Bruce a call at (410) 244-7534 or send him an email.