OK, Discovery’s a Problem, But What Can Be Done About It?
Posted Sep 11, 2008 1:30 PM CDT
By Martha Neil
An interim report (reg. req.) on a recent survey of trial lawyers about the American civil justice system has confirmed what many feared: Out-of-control discovery, among other issues, is making it difficult or impossible to pursue many cases that traditionally would have been brought, as parties settle or even decide not to pursue litigation to begin with because of the expense involved.
But taking the next step and figuring out how to try to resolve this situation won't be easy, says Paul Saunders. A partner at Cravath Swaine & Moore in New York City, he chairs the American College of Trial Lawyers Task Force on Discovery. His group organized the survey of ACTL member lawyers, along with the University of Denver's Institute for Advancement of the American Legal System.
The joint project is now focusing on this issue of what to do about the problem, so specific recommendations are nowhere near complete; the project is just starting to figure out what the possible options might be. However, revising the Federal Rules of Civil Procedure to make it easier for judges to exercise their power to set appropriate discovery parameters is one suggestion that might be made, Saunders tells ABAJournal.com.
Another possibility might be creating different discovery rules for different kinds of cases, he notes, explaining that the judicial system currently seems to work better for certain kinds of cases, such as individual personal injury claims, than it does for others, such as, say, class actions involving "one-way discovery" against major corporations.
The notice pleading called for in the federal system may aggravate the discovery issue, he says, by making it easier for litigation to be filed.
Right now, in major cases, discovery obligations—which kick in the moment a case is filed—can be hugely expensive, largely because of the difficulty of identifying and preserving electronic communications and documents including e-mail and work done on personal computers and electronic devices. Hence, it is possible that the project might recommend that discovery be curtailed. (Organizers plan to study alternative systems, both in the U.S. and elsewhere, to see what seems to work.)
Doing so would reduce the amount of "discovery about discovery," as well as discovery sanctions against lawyers, Saunders says. "You see that more and more. This really diverts cases from the merits. And it results in delay and expense."
But, at the same time, curtailing discovery could mean that meritorious cases will be lost, he points out.
"This is hard problem, because there are good arguments for making full and complete discovery," he says. "There's a smoking gun someplace; shouldn't that be made available?"
Those overseeing the project plan to meet several times during the next six months to discuss possible solutions.
ABAJournal.com: "Litigation Too Costly, E-Discovery a ‘Morass,’ Trial Lawyers Say"