Editor: The Lawyers for Civil Justice May Membership Meeting attracted two federal district judges, one state supreme court justice, an Obama administration cabinet member, and a former U.S. attorney general as well as numerous legal academics and a broad array of corporate counsel and defense bar leaders. Why do you think that LCJ can attract such a distinguished group of individuals?
Marchetti: LCJ brings together a very unique constituency of business leaders who are committed to civil justice reform and defense bar leaders who have access to a nationwide network of lawyers who are equally committed to the same mission. We use our biannual meetings to engage policymakers, business leaders and civic leaders in dialogue that establishes a civil justice reform agenda representative of a broad consensus of ideas from among the nation’s top minds. This year, most speakers were invited to address the economic consequences of America’s civil justice system and more particularly our system of discovery, which is unique among the legal systems throughout the world. The two-day session presented an opportunity to interact with opinion leaders in various fields.
Editor: What were some of the major accomplishments this year?
Marchetti: LCJ has achieved several major accomplishments this year. First, through a series of events, including the landmark congressional hearing on the costs and burdens of e-discovery, LCJ has raised the public’s awareness of the overall cost of the American civil justice system and its effect on the American economy. Second, through the submission of several formal comments to the Advisory Committee on Civil Rules, LCJ has provided a constructive analysis of the current system of discovery and offered specific recommendations to address inadequacies of the current system for adjudicating claims.
Third, we have worked closely with various committees of the Federal Judicial Conference to advance necessary changes to the Federal Rules of Civil Procedure covering a range of issues on discovery and e-discovery. LCJ is pleased to have played an important role in advocating revisions to Rule 45, regarding the issuance of subpoenas, which should become effective December 1, 2013.
LCJ’s FRCP advocacy program has already resulted in a beneficial and fundamental shift in the strategy pursued by the Rules Committee as was confirmed by their March 22-23 meeting, where it was determined that both the Discovery Subcommittee and the Duke Conference Subcommittee will carefully review some of the specific proposals put forth by LCJ and other organizations. LCJ’s proposals are necessary to minimize the cost and burden of e-discovery.
Finally, LCJ completed a nationwide survey on e-discovery that provides LCJ with vital information on which states should be the focus of our e-discovery efforts for the remaining year. This is part of LCJ’s state e-discovery initiative.
Editor: Is Congress playing a constructive role in reforming procedural rules or is it going to be played out in the elaborate rulemaking process of the Federal Judicial Conference?
Marchetti: LCJ was pleased that Congressman Trent Franks (R-AZ), chair of the House Judiciary Constitution Subcommittee, submitted a letter to the Judicial Conference Rules Committee that stressed the need to improve the Federal Rules of Civil Procedure in light of evidence gathered at the congressional hearing on discovery.
Editor: Has LCJ been active at the state level as well as in Congress?
Marchetti: In recent months, LCJ successfully opposed anti-protective orders legislation at the state level. We worked with local coalition members in Colorado to successfully defeat the anti-protective orders bill SB-153. This bill would have been particularly detrimental to Colorado, a state that has been losing manufacturing jobs for decades, because it would have allowed a judge to declare a product a source of injury before a jury even had a chance to consider the matter. Earlier in the year, LCJ was instrumental in defeating SB5054, a similar anti-protective orders bill in Washington State. For many years, LCJ has successfully opposed legislation such as SB5054 not only in Washington State, but in many other states as well.
Editor: Why is e-discovery such an important priority of the organization?
Marchetti: E-discovery is still a top priority for LCJ because skyrocketing e-discovery costs are a major hindrance to the effective administration of justice under our legal system. The Federal Rules are outdated, and the myriad variety of “tweaks” made to those rules over the last thirty years has not kept pace with increases in the costs, burdens, and complexity of litigation. For example, the 2006 amendments to the rules did not curb the discovery “explosion.” The guidelines on discovery remain indistinct and inadequate. Until a broad-based package of rule reforms is enacted to comprehensively address the flaws in the system, the costs and burdens of modern litigation will remain unreasonably high. Given this situation, it is as important as ever that LCJ continue to advocate comprehensive reform of the e-discovery rules.
Editor: What is at the heart of the LCJ discovery reform initiative?
Marchetti: The most crucial task of the Advisory Committee on Civil Rules is to cut through the myriad of complex proposals which amount to mere tweaking of the existing rules. The focus must be on developing an interrelated package of broad-based and bold amendments that accomplish the following:
(1) reevaluate the premise and focus of discovery, especially e-discovery;
(2) develop clear preservation standards without creating new pre-litigation preservation duties inconsistent with federal authority and state common law; and,
(3) deter runaway litigation costs by reasonable cost allocation rules premised on economic incentives.
These represent the essential elements of e-discovery reform that LCJ is proposing.
Editor: Do you believe that state e-discovery reform will remain a top priority for the organization?
Marchetti: LCJ’s State E-Discovery Initiative is an ongoing effort to identify key states where e-discovery reform would be useful and then mobilize teams of advocates and experts within those states to accomplish LCJ’s goals. LCJ considers this a high priority because e-discovery reform is still very much needed at both the federal and state levels to help reduce e-discovery costs. This year, LCJ launched an online e-discovery survey as part of the initiative and collaboratively worked with the defense bar organizations. Together, we administered this survey to a broad group of defense and corporate counsel, eliciting responses from more than 200 people nationwide. Respondents provided their views on the need and prospects for amending the rules and procedures in their own states. By evaluating these responses, LCJ was able to identify key states where e-discovery reform would be most effective. By continuing to implement this program in conjunction with our FRCP Initiative, LCJ is effectively advocating rule reform that will minimize the costs and burdens associated with the preservation, production, and discovery of electronic information.
Editor: LCJ appears to have been extraordinarily successful in developing position papers and other scholarly materials that have captured the attention of judges who are in positions of authority and who can support civil justice reform initiatives through the rulemaking process. How is this accomplished?
Marchetti: LCJ is very fortunate to have the opportunity to work with a distinguished group of judges who are very receptive to new ideas for improving the administration of justice and our civil justice system. LCJ is also fortunate to have an outstanding network of LCJ’s associate law firms who participate in any of a number of LCJ committees designed to inform judges of our proposals. LCJ frequently calls on these members to volunteer their time to draft position statements or testify on LCJ’s behalf. LCJ does not pay these volunteers, and they literally dedicate hundreds of hours without compensation for their work. We are also very pleased that LCJ’s outside counsel, Al Cortese, and the LCJ professional staff provide a mechanism for developing a consensus on key issues.
Editor: The 2008 recession took a toll on nonprofit organizations. How is LCJ performing as an organization?
Marchetti: I am pleased to say LCJ’s membership is strengthening. Since the beginning of the year, we have announced that three new companies have joined – BP America Inc., Altria Client Services Inc. and Honeywell Inc. Our associate member law firms remain committed to LCJ and its goals, and LCJ has a vibrant membership outreach committee, which is regularly reaching out to new prospective corporate members. LCJ is very optimistic about its future.