Case management is a fundamental part of civil litigation. It is encouraged and even required by the Federal Rules of Civil Procedure. Yet case management has recently been criticized as inefficient, ineffective, and even counterproductive.1The U.S. Supreme Court has also criticized the effectiveness of case management in the past few years. In Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 559 (2007), for example, the Court dismissed the ability of "careful case management" to weed out groundless cases.
Some commentators, including judges, however, are not so quick to abandon case management as a solution to the problems of expense and delay in civil litigation.2Furthermore, a wave of recent studies sheds light on the value of case management to practitioners. These studies reveal that cases resolve more quickly, costs are lower, and parties are more satisfied when judges and parties are actively involved in case management.
In this article, I review the recent studies of case management and provide advice on how to go beyond the conventional tools of case management in order to reduce cost, delay, and litigation risk.
I. Findings From Recent Research
Five recent studies have examined the views of practitioners toward case management and its effectiveness in civil litigation. Taken together, the studies suggest that most practitioners feel that active case management by courts leads to lower costs, greater client satisfaction, more efficiency, and shorter disposition times.
In 2009, the ABA Section of Litigation conducted a survey of its members regarding their views of pretrial practice in federal court. The respondents comprised highly experienced members of both the plaintiffs' and defense bar.3The ABA Survey found that the current tools of case management are adequate. Approximately 71 percent of respondents agreed that Rule 16(a) conferences inform the court of the issues in the case, and more than half of the respondents agreed that these conferences help to narrow and limit the issues. In addition, 73 percent of respondents overall agreed that early and sustained judicial involvement leads to client satisfaction. The majority of the respondents believed that neither judges nor lawyers make sufficient use of existing mechanisms to set limits on discovery.
The Institute for the Advancement of the American Legal System at the University of Denver (IAALS) conducted an extensive case-processing study, reviewing the dockets in eight federal district courts of 7,689 civil cases that had closed between October 1, 2005 and September 30, 2006. The study found that greater judicial management leads to more efficiency, positive impacts on costs, and shorter disposition times.4The study also found that direct judicial involvement in maintaining strict pretrial schedules, limiting discovery, and deciding motions quickly reduces costs and time spent on a case and improves perceptions of efficiency among all participants. Nonetheless, the study found that Rule 16 conferences are held in less than half of all civil cases in federal district court.
FJC Survey, ACTL Survey, and NELA Survey
Three additional surveys addressing case management all reported similar results. The Federal Judicial Center (FJC) conducted a survey of attorneys listed as counsel in civil cases terminated in the last quarter of 2008.5The American College of Trial Lawyers (ACTL) conducted a survey of 1,494 highly experienced plaintiffs' and defense attorneys in 2008.6And in October and November 2009, the National Employment Lawyers Association (NELA) administered a survey to approximately 300 of its members.7Survey respondents indicated that they strongly supported early and regular case management, with judicial management being linked to lower costs, a narrower range of issues in dispute, and greater client satisfaction. These studies, like the ABA and IAALS studies, concluded that most respondents appeared content with leaving the civil rules as they are.
II. The Tools And Techniques For Effective Case Management
Courts have the inherent power to manage litigation, which is supplemented by various Federal Rules of Civil Procedure, including Rules 16, 26 and 37. Below, I briefly review some key tools of case management that are contemplated by these rules. While many practitioners may be generally familiar with these tools, the studies discussed above suggest that there is room for greater use of these tools to enhance the efficiency of civil litigation.
Rule 26(f)(3) sets forth the basic elements that must be included in a discovery plan, and certain courts provide their own sample discovery plans.8These are important guides for ultimately preparing the case management orders and discovery plans that will govern the case. But a case management order should represent an outcome of a process of careful preparation for discovery, not the starting point for discovery. The preparation can utilize a project management approach; this may yield an internal discovery playbook, which is a guide and reference for the client and counsel that evolves throughout the litigation; and the discovery playbook, in turn, can help guide the process of drafting and negotiating a case management order that best meets the needs of the litigation.
Utilizing Project Management to Develop a Discovery Plan
Project management is a familiar term in many industries and is becoming more prevalent in the practice of law. It is an approach that replaces ad hoc activities with planning, organization, and monitoring in order to help a team meet its goals efficiently. In the context of pretrial litigation, and discovery planning in particular, project management can address the lack of coordination and supervision that often arises in the context of sprawling discovery in complex cases.
While Rule 26(f) requires the parties to prepare a discovery plan as part of their meet and confer obligations early in a case, many of the activities that will lead to a well-developed and thoughtful discovery plan can occur even before the case is filed. Just as the legal team should thoroughly document its internal discovery process, clients can take a variety of steps to be prepared for discovery across all of their cases, and to reduce the burdens and expenses of discovery. The steps include those listed below.9This proactive approach will permit the client to take the initiative and define how the discovery should proceed in the case.
• Establish a process for preserving, collecting, reviewing, and producing evidence . A standard procedure for creating and distributing preservation notices and otherwise implementing litigation holds is essential.
• Create a discovery team. By creating an internal discovery team and engaging outside experts to handle electronic discovery, a client can build up expertise in discovery that can be deployed repeatedly across cases, reducing the costs of duplicated effort and inconsistencies in litigation.
• Establish partners for document review and electronic discovery. Whether by insourcing or outsourcing, clients can control costs and risk.
• Know the data. Knowing the different features of the data, including the existence of metadata, the accessibility of the data, and the forms in which it is stored and can be produced helps prevent blunders that can turn electronic discovery into a problem.
• Identify discovery-process experts. A Rule 30(b)(6) witness may be identified in advance to testify, if necessary, regarding the discovery process.10
Thus, a project management approach to the pretrial process can kill two birds with one stone: improve the efficiency of the client's litigation efforts, while also giving the client a head start in formulating a plan around which the court and the parties can structure the case.11
Creating a Discovery Playbook
Part of the planning process is to develop an internal discovery plan or discovery playbook, which evolves over the course of the litigation. Often, Microsoft Excel or a similar spreadsheet program is useful for documenting the various communications, reports, and other information that together constitute this internal discovery plan. A discovery playbook should document the following elements:
• sources of relevant electronically stored information;
• preservation steps, including litigation holds and updates;
• collection steps, including a detailed worksheet tracking custodians and data sources;
• data processing steps, including records regarding data filters;
• document review steps, and data analysis steps;
• document production steps, including a production log and cover letters;
• tracking of items subject to a clawback agreement, if any;
• volume of redacted and privileged documents; and
• chain of custody of documents, as necessary.12
Aggregating the elements listed above in a single document helps to provide a central resource on which the legal team can rely for basic project management or defense of process purposes.It should also help to ensure that the legal team will be able to comply with the milestones and stipulations set forth in the discovery plan submitted to the court without having to seek extensions of time as deadlines approach.
Case Management Orders
Discovery planning and creation of a discovery playbook set the stage for the scheduling and case management orders that will govern the pre-trial process. Scheduling orders generally include deadlines for the completion of important milestones such as filing of dispositive motions, completion of discovery, pretrial disclosures and conferences, and trial. Many district courts publish forms and guidelines for scheduling orders online, and parties should always consult with local rules as well.
As the studies surveyed above show, greater attorney and client satisfaction are associated with early and regular judicial oversight and use of pretrial schedules. But a schedule is only advantageous to a party if the party can adhere to the timelines in the schedule. This is one of the ways in which early discovery planning benefits clients.
A case management order, though, need not merely be a glorified scheduling order. In addition, it can limit the amount and timing for different elements of discovery, including interrogatories, document requests, and depositions. Also, it can limit the scope of discovery by setting out the disputed factual issues raised, with the goal of narrowing and focusing the litigation. Finally, it can define the methods of discovery. This issue is most prevalent in the context of electronic discovery. For example, answering questions regarding production and search terms in a case management order can greatly reduce disputes, second-guessing, and motion practice later in the case.
Despite recent criticism, case management remains an important part of federal litigation practice. Several major surveys confirm that practitioners find that active case management leads to better outcomes and higher client satisfaction. By developing a plan for case management early and then proactively implementing the plan and fostering careful case management by the court, counsel can take a leadership role in shaping the management of pretrial litigation.
. 1See, e.g., Stephen N. Subrin, Reflections on the Twin Dreams of Simplified Procedure and Useful Empiricism , 35 W. St. U. L. Rev. 173, 181 (2007); Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access , 94 Iowa L. Rev. 873, 900-901 (2009).
2See, e.g., Twombly , 550 U.S. at 593-595 (Stevens, J., dissenting); Arthur R. Miller, Pleading and Pretrial Motions: What Would Judge Clark Do? 30 (2010).
3American Bar Association, Section of Litigation, Member Survey on Civil Practice: Detailed Report 3, 6, 11 (2009).
4Institute for the Advancement of the American Legal System, Civil Case Processing in the Federal District Courts: A 21st Century Analysis 3-8 (2009).
5Federal Judicial Center, National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules 5, 67 (2009).
6Rebecca Love Kourlis and Jordan M. Singer, Managing Towards the Goals of Rule 1 , 2009 Fed. Cts. L. Rev. 1, 2, 7 (2009).
7National Employment Lawyers Association, Summary of Results of Federal Judicial Center Survey of NELA Members 8 (2009).
8See, e.g . , U.S. District Court for the District of New Hampshire, http://www.nhd.uscourts.gov/ru/Form-SampleDiscoveryPlan.asp.
9See also Ashish S. Prasad, Problems and Solutions in E-Discovery , Digital Discovery and E-Evidence (BNA Jan. 2011).
10See The Sedona Principles, Second Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona Conference Working Group Series, 2007) 21, 31.
11For further discussion, see Ashish S. Prasad, Effective Project Management In Discovery , The Practical Litigator 15 (ALI-ABA July 2009).
12See also The Electronic Discovery Reference Model, available at http://edrm.net/.
Ashish S. Prasad is Founder and CEOof Discovery Services LLCand is widely regarded as among the leading experts on discovery in the United States. He has served as Litigation Partner, Founder and Chair of the Mayer Brown LLP Electronic Discovery and Records Management Group, executive editor of The Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production (2004), Co-Editor in Chief of the Practising Law Institute treatise Electronic Discovery Deskbook: Law and Practice, Adjunct Professor of Law at Northwestern University Law School, Chair of the Defense Research Institute Electronic Discovery Committee and Chair of the Advisory Council of the National South Asian Bar Association.