LCJ: Providing New Impetus For Reform On Many Levels

Monday, May 21, 2012 - 14:49

The Editor interviews Wayne B. Mason, President, Lawyers for Civil Justice, and a Senior Partner at Sedgwick LLP.

Editor: Please tell us how some of the developments at the recent May Membership Meeting established a foundation for future LCJ programs later this year and next.

Mason: This year’s meeting provided new impetus for civil justice reform on many levels.  First, we featured two key members of the Judicial Conference policy committees who provided us with an outstanding overview of how procedural rules are developed and what items are given current priority in their committees.  Both Judge David Campbell, who chairs the Advisory Committee on Civil rules, and Judge Paul Grimm, who chairs the Discovery Subcommittee,  took the time to provide LCJ members with a detailed update of their committee’s deliberations, which should make it easier for us to  properly respond to developments in the rules-making committees.

Some of our other panelists discussed a number of cutting-edge legal reform issues including e-discovery, cost allocation, preservation duties, scope of discovery, and cloud computing. It was fascinating to see how the panelists speaking on “Privacy, Discovery and the Consequences of Litigation in the Clouds” wrestled with technological developments as they attempted to predict how those developments would impact the future of litigation.

We also had some very forceful presentations by three leading legal academics – Professor E. Donald Elliot of Yale Law School, Professor James R. Maxeiner of the University of Baltimore Law School and Professor William H. J. Hubbard at the University of Chicago Law School, who evaluated the impact of our expensive legal system on the economy. Their evaluations will have a critical impact in persuading Congress to address legal reform sooner rather than later.

Finally, we were introduced to a number of new ideas by Secretary Ray H. LaHood, Secretary of the U.S. Department of Transportation; the Honorable Alberto R. Gonzales, former United States attorney general and Governor William Weld, former governor of Massachusetts.

Editor: Why do you believe that enacting rule reform is so urgent at this time?

Mason: Failing to adjust the Federal Rules to meet the demands of 21st century litigation will have significant, negative implications today and for our future. Inefficient and unpredictable litigation is a tax on productive behavior and an inefficient system can have significant adverse impacts, including sanctioning appropriate behavior and providing incentives for inappropriate behavior. These perverse effects weaken our economy and social structure, and the global competitiveness of American companies.

Some of the rules are simply out of date, and the myriad variety of “tweaks” to those rules over the last thirty years have been unable to keep pace with the skyrocketing increase in the costs, burdens, and complexity of modern litigation. The 2006 amendments to the Federal Rules of Civil Procedure are a case in point. Despite the best intentions, any hope or expectation that these amendments would curb the discovery “explosion” have been disappointed over the last several years. Contrary to the expressed intent of the amendments, discovery burdens, fueled by court decisions based upon indistinct and inadequate guidelines, have increased exponentially. Broad-based rule reform thus has been shown to be essential to help achieve the consistency, uniformity, and predictability that is necessary to reduce the costs and burdens of modern litigation.

Editor: Why do you believe the recent congressional hearing on the costs and burdens of civil discovery is an important milestone for LCJ?

Mason: This hearing was a landmark event in that it was the first-ever congressional hearing conducted to discuss the growth of litigation costs and burdens in the modern information age. It was held by the Judiciary Subcommittee on the heels of the U.S. Advisory Committee on Civil Rules’ actions to reexamine the civil rules, particularly those that govern the discovery and preservation of electronically stored information. Many of the witnesses there that day testified that broad and meaningful revision of the federal rules is critical to the health of the nation’s economy because the burdens and inefficiencies of the current federal legal system have hindered the ability of U.S. companies to compete in a global marketplace, which is a point that LCJ has stressed for years in many of its formal comments in statements. These witnesses included Rebecca Love Kourlis, former Colorado Supreme Court justice, now director of the Institute for the Advancement of the American Legal System; William H.J. Hubbard, assistant professor of law, University of Chicago Law School; and LCJ member Thomas H. Hill, associate general counsel, Environmental Health and Safety, General Electric Company.

We are also pleased that Congressman Trent Franks, chair of the House Subcommittee on the Constitution, submitted a letter to the U.S. Advisory Committee on Civil Rules in a follow-up to the hearing. This letter urged the Rules Committee to abandon the outdated, confusing standards in favor of a straightforward rewrite of the rules governing discovery, preservation, and cost allocation. The fact that Congressman Franks wrote the letter in anticipation of the March 22-23 meeting of the Rules Committee, during which rule changes were considered, further underscores the importance of that hearing.

Editor: Were you encouraged by the comments of Rules Committee chairs Judge David Campbell and Judge Paul Grimm at the recent LCJ meeting?

Mason: We were honored to have Judge Campbell and Judge Grimm with us at the meeting and were very encouraged by their comments. As chair of the Judicial Conference’s Advisory Committee on Civil Rules, Judge Campbell provided an overall explanation of the rule-making process and discussed the current activities of the rules committee, including the revisions to FRCP 45, which are supported by LCJ and should become effective on December 1, 2013. He also addressed other rule revisions currently under consideration and other areas of keen interest to LCJ including preservation issues presently under consideration by the Committee, the trigger for preservation duties, as well as cost allocation or “requester pays” provisions, which might receive some consideration by the Committee. Judge Grimm also discussed topics of interest to LCJ, including the difficulty litigants’ face in determining the extent of their obligation to preserve information for litigation. Overall, both judges touched upon many of the issues that are important to LCJ and strongly encouraged LCJ’s input into the rulemaking process. 

Editor: What do you think would be the major components of a successful revision of the Federal Rules of Civil Procedure?

Mason: A successful revision of the Federal Rules would implement an interrelated package of bold, broad-based amendments that address notice pleading, the scope of discovery, preservation and cost allocation. If the Rules Committee reevaluates the premise and focus of discovery, especially e-discovery, develops clear preservation standards without creating new pre-litigation preservation duties inconsistent with federal authority and state common law, and creates reasonable cost allocation rules premised on economic incentives, they could certainly deter runaway litigation costs. It is essential to revisit the basic principles of our system and comprehensively reconsider the interrelationship of preservation, discovery, and cost allocation as well as amendments to the rules governing each of those areas instead of continuing to tweak the rules bit by bit.

Editor:  What are some of the important initiatives that LCJ will address in the next 12 months?

Mason: LCJ has plans to continue its legal reform initiatives at the state and federal level, focusing particularly on two of its programs – the FRCP Initiative and the State E-discovery Initiative. LCJ’s FRCP Initiative urges the Judicial Conference to fundamentally revamp the Federal Civil Rules by adopting meaningful amendments in four key areas: notice pleading; limiting discovery and e-discovery; preservation; and cost allocation. And through the State E-Discovery Program, LCJ will continue to identify those states in which the opportunity for e-discovery reform and need for reform intersect. LCJ action teams are already working in priority states to pass rules and support legislation that improve the e-discovery laws in each targeted state. In the coming months, we plan to continue both of these advocacy programs as well as our longstanding goals to improve the gate-keeping function relating to expert testimony in state courts and ensure adequate compensation for the judiciary

Editor: What will be some of the highlights when LCJ meets next year for its 25th Anniversary?

Mason: LCJ’s 25th Anniversary Meeting on November 29 and 30 in New York City represents an opportunity to reflect on 25 years of accomplishment of the organization and to consider where we might go from here.   You have to remember that when LCJ was founded in 1987, the defense bar did not play an active role in civil justice reform.  There was no one organization that brought together the vast experience of the nation’s defense counsel and the resources of corporate America to support such a mission.  Today LCJ is one of several organizations supporting legal reform, but it plays a central role in developing the consensus among allies which is necessary to improve the system.

The 25th Anniversary is going to be an exciting event with an array of distinguished guest speakers, Broadway shows, some exquisite evening affairs and even a few extra amusements in honor of the special occasion. This is our chance to celebrate LCJ’s quarter century of achievement in the field of civil justice reform, and we want to make sure all our members and guests are able to enjoy what should be an exceptional event.