Chief Justice Nathan L. Hecht And E-Discovery Reform

Thursday, November 21, 2013 - 18:15

On our cover, we feature Nathan L. Hecht, who is the 27th Chief Justice of the Supreme Court of Texas and a worthy successor to Hon. Wallace Jefferson. Chief Justice Hecht was first elected to the court in 1988 as a justice and was re-elected four times. He was appointed chief justice by Governor Rick Perry on October 1, 2013. He is the senior Texas appellate judge in active service.

Chief Justice Hecht began his judicial service on the District Court of Dallas County in 1981, and he served briefly on the Texas Court Of Appeals for the Fifth District of Texas at Dallas. Before taking the bench, he was a partner in the Locke firm in Dallas. Justice Hecht holds a B.A. degree with honors in philosophy from Yale University and a J.D. degree cum laude from the SMU School of Law. He served as a law clerk to Circuit Judge Roger Robb on the U.S. Court of Appeals for the District of Columbia Circuit. He also served in the U.S. Navy Reserve Judge Advocate General Corps. Since 2010, Justice Hecht has been responsible for the Court’s efforts to assure that Texans living below the poverty level have access to basic civil legal services.

Throughout his service on the Texas Supreme Court, Justice Hecht has overseen revisions to the rules of administration, practice, and procedure in Texas courts. He was also appointed by the Chief Justice of the United States to the Advisory Committee on Rules of Civil Procedure (Advisory Committee).

Chief Justice Hecht is to be praised for his interest in the federal civil rules, including those that govern e-discovery. Texas has continued to attract headquarters of global companies even through the depths of the recession. Recognizing that unbridled e-discovery can turn those companies off, the Texas state court rules have placed reasonable limits on e-discovery and its related costs.

However, global companies may avoid any location in the U.S. because the federal civil rules still place great burdens on companies that produce large amounts of electronically stored information as they preserve, collect and produce information. If they have similar disputes litigated in the United States and Europe, the costs are going to be significantly greater in the U.S.

Contributing significantly to those costs is the cost of over-preservation. The Advisory Committee has proposed a revised Rule 37(e) that defines the standards for sanctions for failing to preserve information. The proposed rule would create a “safe harbor” by prohibiting sanctions except where the loss of information was not only “willful or in bad faith,” but also caused “substantial prejudice.” This will give companies some certainty that they can avoid sanctions by operating document preservation procedures in good faith and not willfully destroying information that is potentially relevant to litigation. This proposal establishes for the first time a uniform national standard that would not only reduce costly over-preservation, but also litigation over allegations of spoliation.

The Advisory Committee has also proposed an amendment to Rule 26(b)(1) that would limit the scope of discovery to information relevant to the parties’ claims and defenses and proportional to the needs of the case. This would reduce overbroad discovery while still permitting the parties to obtain the information they need. Moving proportionality into the rule section defining permissible discovery lets parties and judges know that they should keep the proportionality of the case in mind. This change will narrow the scope of preservation obligations.

Lawyers for Civil Justice (LCJ) is an organization committed to achieving meaningful reform of the civil justice system by advocating amendments to the Federal Rules of Civil Procedure that govern preservation, discovery and cost allocation. As I mentioned, the Advisory Committee is poised to move forward with significant changes, which, if enacted, will deliver real relief to companies throughout America from some of the extraordinary costs and burdens of discovery. LCJ and the work of leaders like Chief Justice Hecht will play an important role in making those changes a reality.