Litigation Too Costly, E-Discovery a ‘Morass,‘ Trial Lawyers Say

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Litigation Too Costly, E-Discovery a ‘Morass,‘ Trial Lawyers Say

Posted Sep 9, 2008, 09:00 am CST
By Martha Neil

Updated: The civil justice system in the United States is so bogged down in a "morass" of e-discovery that it is often too expensive for litigants to take their cases to trial, according to a survey of trial lawyers.

Now the next step is to fix this increasingly dysfunctional system, according to a press release (PDF) about an interim report (reg. req.) on the survey, which is a joint project of the American College of Trial Lawyers and the University of Denver's Institute for the Advancement of the American Legal System (IAALS).

The release says the two organizations are now focusing on analyzing how those who have found a way to handle discovery effectively do it, and developing a set of proposed principles to apply in any forthcoming revision of the Federal Rules of Civil Procedure.

Key findings of the survey of the trial lawyers group's more than 3,800 members include:

• That court pleadings and the Federal Rules of Civil Procedure too often are used as leverage to force a settlement, rather than to better define and move a case ahead toward trial.

• That judges don't do enough to control excessive discovery (particularly e-discovery, which can be extremely expensive).

• That the current system works well for some kinds of cases, such as individual tort claims, but is unwieldy for mass tort claims, ERISA cases and administrative law actions, among others.

"The total lack of control over discovery including excessive depositions, over-broad interrogatories, unfocused requests for admissions as permitted by the rules without any court control is killing civil litigation," says one unnamed survey respondent, noting that the problem is compounded with the advent of electronic discovery.

Years ago, this respondent says, litigation files commonly "were about a half-inch thick, with maybe one deposition. The results today with all of this discovery aren't any better or fairer or more just. The results are just more expensive for both plaintiffs and defendants."

Solutions to the situation likely will require a three-pronged approach: changes in civil procedure rules, judicial attitudes and more money for the courts, says former Colorado Supreme Court Justice Rebecca Love Kourlis, in an e-mail to ABAJournal.com. She is now executive director of the IAALS.

"Discovery is out of control. Attorneys know it; judges know it; and clients know it. E-discovery just makes it more obvious," she writes. "We have to figure out a way to fix it.

"One fix is to add a requirement into the Rules of Civil Procedure that costs of discovery must be contained in such a way as to assure that they remain proportionate to the dispute—including attorneys’ fees, expert costs and document costs. Judges would then have to be willing to take control of litigation from start to finish in order to assure that the requirement is honored. To do so, they need resources."

Related coverage:

ABAJournal.com: "OK, Discovery’s a Problem, But What Can Be Done About It?"

Updated at 10:15 a.m. to include Kourlis comments. Updated at 2:53 p.m. on Sept. 11, 2008 to include link to subsequent ABAJournal.com post about Paul Saunders comments.

Comments

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Posted by ITcentral - 2 months, 3 weeks, 1 day, 16 hours ago

The *legal ‘system’* is out of control.
EDD and open source are starting to have a controlling influence on other systems that are flat out wrong and destructive.
Incentives, they sure matter. PDF is really a bad format. Compromise ok, for scanning, because of market forces and needs, but data format is CRITICAL. ODF is not a good answer either, but might emerge as a compromise, with promising future.
Ha! Deal making around IT is now more central than law.
Those who make rightful change impossible, will see change about in ugly ways.
Posted by jim - 2 months, 2 weeks, 5 days, 20 hours, 17 minutes ago

FRCP 26(b) already incorporate “proportionality” by limiting discovery based on such common-sense factors as the needs of the case and the amount in controversy. The 12/06 amendments re: electronically stored information, introduce the concept of “reasonable accessibility,“ which reinforces the proportionality concept. The problems described above stem from a failure to adhere to these limits, instead defaulting to an “anything that is possibly relevant” standard, which is not supported by the Rules.
Posted by HVB - 2 months, 2 weeks, 5 days, 18 hours, 35 minutes ago

well said, Jim. Now we need to find some judges who will follow’enforce those rules. But many of them come from a ‘big litigation” background or forgot what practice entails.
Posted by Jason - 2 months, 2 weeks, 5 days, 18 hours, 27 minutes ago

Perhaps use special masters to conduct discovery hearings as part of Rule 26 with 30(b)(6) witnesses and then have those masters supervise the process plus give the parties assurance by determining their E discovery obligations at the outset.
Posted by HK - 2 months, 2 weeks, 5 days, 17 hours, 54 minutes ago

There are already some “judges who will follow’enforce [sic] those rules.“ Namely, Magistrate Judges Grimm and Facciola, at bare minimum and probably countless others.
Posted by hvb - 2 months, 2 weeks, 5 days, 17 hours, 35 minutes ago

1. should have been follow/enforce.
2. You’re right, there are many who do, but I find more who don’t. Also it is very unpredictable in most caes as to whether a judge will agree about “overburdensome” production. You are playing chicken with the “produce notwithstanding objection” practice as well.
Posted by HSN - 2 months, 2 weeks, 5 days, 16 hours, 40 minutes ago

You might be interested in some scholarship I’ve done on these issues that prety much predicts the experience described by Jim. Judges continue to default to the “liberal discovery” mantra and the limitations on the scope of discovery have been toothless. The article is available as a free download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=965922 or at 248 FRD 1 (2008).
Posted by MTF - 2 months, 1 week, 5 days, 10 hours, 24 minutes ago

Modern discovery rules and statutes, as well intentioned as they may have been when promulgated or enacted, significantly impair the delivery of justice whatever you perceive it to be and should be abolished. Justice delayed is justice denied. The common law procedural rules delivered justice much more cheaply and quickly when compared to modern discovery rules and statutes. History demonstrates modern discovery rules and statutes are just another example of how the law of unintended consequences operates. The legal profession can either learn from this unpleasant experience or condemn itself to repeating it by seeking more rules and statutes.

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