Two General Counsel Leaders Discuss How Corporate Counsel And Their Law Firms Can Support The Civil Justice Reform Role Of LCJ: Russell C. Deyo - The Role And Priorities Of The CJRG And How LCJ Helps Eric Finkelman - Uniting Inside And Outside Counsel For

Wednesday, November 1, 2006 - 01:00

The Editor interviews Russell C. Deyo, Vice President, General Counsel and Chief Compliance Officer, Johnson & Johnson, and Co-Chair, Civil Justice Reform Group (CJRG ) Steering Committee; and Eric Finkelman, Vice President and General Counsel, Ciba Specialty Chemical Corporation.

Russell C. Deyo

Editor: What is the mission of CJRG and who are its members?

Deyo: CJRG is a civil justice reform organization run by General Counsel of a number of substantial U.S. companies dedicated to fostering a civil liability system based on rational and predictable rules administered by fair and neutral judges. The General Counsel in the CJRG represent clients that are sued in virtually every state and federal jurisdiction and thus have an up-to-date awareness of venues where laws are unfair, abusive litigation is permitted, and reform is needed.

Editor: How does CJRG go about implementing that mission and does it partner with outside counsel in achieving its goals? To what extent is support for legal reform important to the relationship with outside counsel?

Deyo: CJRG itself and with alliance groups such as the U.S. Chamber's Institute for Legal Reform, the American Tort Reform Association, American Justice Partnership and Lawyers for Civil Justice, devotes itself to legislative reform on the state and federal level and to supporting systems for choosing and retaining the highest quality judges. CJRG members also partner with their outside counsel in pursuing the organization's objectives. A number of CJRG members consider outside counsel support for legal reform important to their relationship with those lawyers.

Editor: What are CJRG's priorities for 2007?

Deyo: Priority states for CJRG for 2007 include California, Texas, Louisiana, West Virginia, Florida and Mississippi either because reforms are urgently needed or because reform that has been accomplished is under attack. Priority issues for CJRG include bringing balance to consumer fraud statutes, improving rules related to electronic discovery, reforming the processes by which state attorneys general delegate sovereign enforcement authority to private contingency counsel, enacting procedures for assuring presentation of high quality scientific evidence in court and diminishing the ability of plaintiffs' counsel to use non-economic damage theories as proxies for punitive damages.

Editor: How does LCJ assist implementing CJRG's agenda?

Deyo: Lawyers for Civil Justice is a focused and highly effective organization that brings the talent and energy of private defense counsel to bear on important civil justice reform priorities such as e-discovery, sound rules for presentation of scientific evidence and rational rules governing protective and confidentiality orders. It is composed of private lawyers that take to heart an obligation to provide the community service of enhancing the speed, fairness and predictability of civil litigation processes and rules. LCJ ably connects outside counsel committed to improving the delivery of justice with in-house lawyers sharing the same interest, assembling project teams that pursue issues toward progress before state legislatures and federal rule making bodies.

Eric Finkelman

Editor: E-discovery is a major concern in state courts. Describe corporate concerns abou the issue and how our readers and their law firms can support reforms at a state level.

Finkelman: Poor e-discovery rules can lead to an extremely - and unnecessarily - complex and convoluted discovery process to the detriment of all parties involved. This hinders the corporation in two major ways.

First, the trial itself becomes much longer and much more expensive. Explicit standards do not exist to determine what is discoverable and what is off-limits. Without standard practices, the e-discovery process is practically limitless. For example, as defense counsel and plaintiffs' attorneys joust over rule ambiguities to try to agree upon what is discoverable, and the extent to which a corporation must go to identify that which is discoverable, legal fees run up, the court system is tied up, and no progress is made towards a final verdict. The bottom line is that current e-discovery guidelines - to the extent that they can be called "guidelines" - mean that all parties involved spend many unnecessary days and unnecessary dollars in the courtroom.

Second, the act of combing through and compiling seemingly endless amounts of electronic information creates a huge burden on the actual business operation of the corporation. The reality is that, under current e-discovery laws, purely legal issues are permeating into other departments and forcing employees to spend huge amounts of time completing work unrelated to their day-to-day jobs.

Editor: What are some of the advantages of the new rules that go into effect on December 1, 2006?

Finkelman: The amendments strike a balance among a variety of views and will help to redress the imbalance in e-discovery, contributing to a reduction of burdens, costs and uncertainty associated with e-discovery. Although the new rules certainly do not give us all that we would want, I believe they advance the essential purposes of the Federal Rules and bring e-discovery closer to the mandate of Rule 1 and within the bounds of proportionality and balance.

Editor: Can you be more specific?

Finkelman: Assuming the Discovery rules become effective on December 1, they enable the discovery of information that is reasonably available in the ordinary course of business and that is relevant to the claim or defense of any party. But the proposed amendment to Rule 26(b)(2) would require a court order for production of electronically stored information that "is not reasonably accessible because of undue burden or cost."

A second feature of the new rules is that under the addition to Rule 37, "absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine good faith operation of an electronic information system."

Editor: LCJ has an active e-discovery committee comprised of corporate and defense counsel from across the country designed to promote needed reform at the state level. How can this and similar groups be helpful to corporations?

Finkelman: What I think gives LCJ's group its vitality is its diverse makeup - the fact that it consists of corporate counsel and defense attorneys gives it a keen eye for subtle business and legal interests, and its geographic diversity ensures that it can make its mark on the federal level and in important states.

LCJ exemplifies what should be a natural, if sometimes underdeveloped, alliance between corporations and defense counsel which, when properly realized, would embody all of the necessary expertise to attain significant reform of many civil justice issues, including e-discovery. E-discovery is sometimes viewed as a model for civil justice reform in other areas where we can draw upon such an alliance.

The LCJ E-Discovery Committee is now focused on state initiatives. We are hopeful that the new federal e-discovery rules will serve as a format for the various states so that we end up with one set of rules. This Committee is very engaged in getting the states to adopt the new federal rules and, hopefully in some cases, improving upon them.

Editor's Note: Each of the interviewees will be included among the participants in the General Counsel's Roundtable at the December Membership Meeting of Lawyers for Civil Justice (LCJ). These interviews provide a preview of their remarks.