Section Review

Limiting discovery - A step forward or backward? The report of the American College of Trial Lawyers Task Force on Discovery

A task force of the American College of Trial Lawyers (ACTL), appointed to examine the problems of expense and delay of the American judicial system, prepared a report outlining its views of the causes of these problems and proposed some remedies.1 The report is based on data from a survey conducted on the college's behalf for the Institute for the Advancement of the American Legal System (IAALS).

The suggested remedies are rule changes that focus largely on excessive discovery and notice pleading, which the task force believed were the most important causes of expense and delay.2 The report accurately describes some of these changes as radical. The underlying principles of its proposals is that "the default" underlying the discovery rules should be changed from allowing "virtually unlimited discovery," unless a court orders otherwise, to limiting discovery, unless a court orders otherwise for "good cause.

The report identified three major themes in the survey data: First, cases take too long and are too expensive. Second, the "existing rules structure does not always lead to early identification" of the issues, which "often leads to a lack of focus in discovery [and] [e]lectronic discovery …"needs a serious overhaul." And third, judges should take a more active role and enforce the rules effectively.

It is this author's view that the survey responses do not justify the task force's radical revisions of the discovery rules the task force has proposed.  This author's opinion is due, in part, because the survey does not adequately differentiate between abuse of discovery from excess, evasion or frivolous motions to compel An additional weakness of the report is that the task force's conclusions are based on opinions of a number (probably not statistically significant) of trial lawyers, rather than objective data. A consensus of expert opinion is valuable to establish hypotheses or possibly even some probabilities, but it here is insufficient to draw firm conclusions.

For example, the survey posited the following statements, asking for agreement or disagreement: "The Rules need minor amendments …." and "The Rules must be reviewed in their entirety and rewritten …" 41 percent answered the first in the negative; 55 percent answered the second in the negative. (Appendix B, Table III.3)3 If there were a significant overlap between the respondents to these statements, one would conclude that there was overall satisfaction with the rules. If there were no overlap, one might conclude that the respondents thought that, good or bad, changing the Rules of Civil Procedure would make little difference in improving the civil justice system or that the respondents were generally satisfied with the rules. The report does not indicate whether there was an overlap or, if so, what was its nature.

Two recommendations in the report seem unsupported by the survey responses taken as a whole. It first recommends that discovery be limited to documents and information that "would enable a party to prove or disprove a claim or defense or enable a party to impeach a witness." The second is that after initial disclosures are made, only limited additional discovery should be permitted. These proposals limit discovery not only quantitatively, but substantively. Their justification is that "[f]ewer than half of the respondents thought that our discovery system works well and 71 percent thought that discovery is used as a tool to force settlement."

There were many criticism of discovery, but respondents apparently were not asked if they thought that the main or important abuse was excessive discovery. On the contrary, 71 percent agreed with the statement that, "In the majority of my cases, counsel agree on the scope and timing of discovery." And 73.5 percent agreed that counsel typically do not seek court limitation of discovery because of perceived disproportionateness (Rule 26(b)(2)). An unrelated report by IAALS, "Civil Case Processing in the Federal District Courts" (2009), states: "[t]he problem is simply stated … too many civil cases in American courts take too long to resolve."4 Its statistical analyses did not find a strong correlation between length of the time to case resolution and discovery.

Responses to other questions in the ACTL survey about discovery are equally inconclusive. 39 percent of respondents agreed that "discovery is abused in almost every case" in state courts, but 57.5 percent agreed when the statement applied to federal court litigation. Moreover, no question defines "abuse." Did respondents all mean "excessive" or "unfocused" discovery? Did some mean evasion? The difference is important to determine an appropriate remedy. Significantly, 84.4 percent agreed that "sanctions allowed by the discovery rules are seldom imposed." Op. cit. at Table VI.1

These responses, taken together, suggest that the more significant discovery abuse involves evasion or even stonewalling, because discovery scope and timing can hardly be abusive if the parties have agreed on them, and infrequently seek court action to limit discovery. If excessive discovery results from the agreement of counsel, should there not be a better case for limiting discovery than is made in the report? If obstructing discovery is the problem, limiting discovery is no solution. It assists the withholding of information.

Even assuming the survey were without statistical bias,5 the survey of opinions does not tell much about the quantitative extent of the perceived problems, or whether the presumably "overbroad discovery practices" are actually useful in finding important information. The tools to deal with discovery "abuse" are available in the existing rules. Under the existing rules in Massachusetts and in the federal courts, a judge can limit discovery to a single issue or narrow the range of issues before allowing additional discovery. Why are these powers inadequate? The report does not say. However, the clear implication of the responses described above is that lawyers do not ask the courts to exercise them.

The ABA did a survey of ABA member litigators (ABA Litigation Section Survey on Civil Practice, Detailed Report) substantially similar to the ACTL survey, with some additional questions, one of which was, "[W]hat percentage of firm revenues in civil litigation practice are attributable to discovery costs?" Defense lawyers and mixed-practice lawyers both responded that discovery accounts for 50 percent or more revenue in their practice, while only an average of 29.3 percent of revenue was reported as attributable to discovery in the practices of plaintiffs' lawyers. Supra. P. 86. The implications of the responses are obvious.

The third conclusion of the task force, that electronic discovery needs a "serious overhaul," seems to be an overstatement of what the data show. While an overwhelming majority (87.2 percent) of the respondents agreed that e-discovery increases the costs of litigation, disproportionately (75.2 percent) to the total litigation costs, 65.6 percent believe that the "2006 e-discovery amendments allow for efficient and cost-effective discovery of electronically stored information."6 And 71.5 percent of the respondents agreed that "E-discovery has enhanced the ability of counsel to discover all relevant information. These responses suggest strongly that the rules governing e-discovery do not require radical overhaul.

Other responses show that in the opinion of a substantial majority of respondents, all is not well with e-discovery. Like other discovery, it is "abused by counsel" (66.4 percent),7 outside vendors have increased the costs of e-discovery without "commensurate value to the client" (74.1 percent) and "Courts do not understand the difficulties in providing e-discovery (79.8 percent).

The report, however, sensibly proposes requiring parties to confer and seek agreement about e-information preservation and, in the absence of agreement, prompt judicial intervention. Electronic discovery, it recommends, should be limited by proportionality. This recommendation can be followed with intelligent use by litigants and judges of federal rule 26(2)(C) or the adoption of this rule by state courts. Finally, the report recommends that judges and lawyers obtain training to understand the technical aspects of e-discovery. The sometimes gargantuan costs of electronic discovery may well be an inherent cost of the new technology and the ubiquitous use of e-mails, just as the increase in medical costs is related to the use or overuse of new technology and drugs. If so, rule changes, short of extreme and universally unacceptable limits on e-discovery, are unlikely to be useful.

The recommendation of the ACTL report that has engendered the most heat is the recommendation to return to fact pleading.8 Spokesmen for the plaintiffs' and defendants' bar see black where the other sees white. Nevertheless, it seems intuitively obvious that a set of rules that significantly limits discovery before a litigant has to defend its pleading is in the interest of the party that has possession of evidence.

The visceral opposition to the recommendation to adopt fact pleading, seems to be based on two decisions of the Supreme Court - Bell Atlantic Corp. et al. v. Twombly 550 U.S. 544 (2007) and Ashcroft et al. v. Iqbal, 566 U.S., 129 S. Ct. 1937 (2009). The Supreme Judicial Court in dictum in Iannacchino v. Ford Motor Co., 451 Mass 623 (2008), stated that it follows Twombly. It is possible, even likely, that the Supreme Judicial Court will require much restraint in applying the judicially revised Rule 8(a), especially as it has not actually held that fact-based pleading is what the words of that rule really mean. Compare Feeney v. Dell, Inc., 453 Mass. 192, 213(2009) (complaint dismissed without prejudice, with leave to amend to allege fact critical to the M.G.L. c. 93A claim).

Much ink has been spilled discussing these cases; there is little that this author can add. However, opposition to fact pleading, at least as defined by Twombly, Iqbal and Iannacchino is not limited to plaintiffs lawyers. Professor Arthur Miller predicted that these cases "will weigh heavily on under-resourced plaintiffs who typically contest with industrial and governmental goliaths, often in cases in which critical information is largely in the hands of defendants that is unobtainable without access to discovery."9 Sen. Arlen Spector, (D-Pa.) a ranking member of the Judiciary Committee, has introduced legislation to overrule Twombly. A similar bill has recently had hearings in a subcommittee of the House Judiciary Committee. The New York Times' editorial page has called for Congress to overrule these cases. It remains to be seen how the Massachusetts appellate courts will apply the new Iannacchino fact-pleading standard.

Whether the evidence is adequate for major changes in procedural rules that may significantly affect outcomes in litigation, particularly if the changes adversely affect the outcomes for certain classes of litigants, should be very carefully evaluated. The IAALS report, "Civil Case Processing in the Federal District Courts," appears to conclude that what is needed is less rule changes than better management by the courts.10 The ACTL report strongly recommends that a judge be assigned to each case to actively manage it. The budget problems for Massachusetts may make that recommendation impractical at the present time, and the opposition of some members of the judiciary, and many lawyers, make the implementation of that recommendation virtually unattainable. It is necessary for the bench and the bar to think out of the box for at least temporary solutions to the case management issues that create delay and consequently unproductive expense.

The IAALS report, supra, makes recommendations that do not necessarily require cases to be assigned to the same judges. They include setting reasonable but firm dates early in the pre-trial process for the close of discovery, for the filing of dispositive motions, ruling expeditiously on motions, even when denied, and limiting extensions of time. In addition, anecdotal evidence, of which this author is aware, supported by some of the survey questions of both ACTL and the ABA, suggest that judges must rigorously sanction discovery abuse of all kinds, particularly evasion, frivolous objections and motions to compel, as well as useless and meaningless responses to interrogatories propounded to discover expert opinions, under M.R.C.P. 26(b)(4). Perhaps most important is that judges and trial lawyers, by word and deed, should foster "a legal culture that accepts efficient case processing as the norm."11

One major contributor to the problem of the expense and burden of discovery, as the ACTL report recognizes (p.11), is the explosion of data and the ease with which e-mails are generated. Despite the "Miranda warnings" that lawyers give their clients about e-mails, the use, overuse and misuse of e-mails continue unabated. That use not infrequently creates discoverable and highly relevant evidence. Therein lies the rub. To save money, is it defensible to limit the ability of litigants to obtain such relevant evidence? It may be, but who should have the burden of persuasion on that point - the party seeking evidence or the party withholding it?

Finally, lawyers, like doctors who are concerned with the costs of health care need to face the role that fee-for-service plays in the rise of health care costs, need to face the question, about which the ACTL report only drops a hint, but which is more plainly advanced in the ABA Report, supra. at 86, is whether the way most litigators are paid - by the hour - contributes to discovery "abuse." If this is a significant contributor to the undue expense of litigation, clients, particularly in-house lawyers, can do much to reduce the costs of litigation without risk to the ability of the courts to decide cases using all-important evidence.

Notes

1.    "Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (March 11, 2009).

2.    Notably, neither discovery nor pleading rules appear to have been a major concern in the "Report of the Work Group on Cost and Time Efficiencies in the Massachusetts Courts," Boston Bar Association, Adminstration of Justice Section (2005).

3.    Appendix references are to the appendices to the Final Report of Mathematica Policy Research, Inc., which prepared and conducted the survey. Barret, Cohen & Hall, ACTL Civil Litigation Survey; Final Report, Mathematica Policy Research, Inc. (2008).

4.    IAALS Report, p.1.

5.    Out of 1,398 respondents who responded to "Notice pleading has become a problem….," 1,055 primarily represented defendants, 343 primarily represented plaintiffs. Appendix D, Table IV.1. If the number of survey respondents were equalized, the percentage of ACTL members who agreed with the statement would be close to 50-50 between plaintiffs' lawyers and defendants' lawyers.

6.    Final Report of Mathematica Policy Research, Inc. (2008) p. 53. Mathematica Policy Research, Inc. conducted the survey for ACTL and IAALS.

7.    A survey of federal and state court decisions found that electronic discovery doubled in 2009 over the previous year and 42 percent of those resulted in sanctions for failure to fulfill discovery obligations. Gibson, Dunn & Crutcher 2009 Discovery and Information Law Uodate (Jan 2010) (newsletter for "clients and friends). This survey of decisions suggests strongly that the primary form of discovery abuse is non-compliance with discovery obligations - stonewalling or evasion.

8.    The "fact pleading" suggested in the ACTL proposed rule 2.1 and its illustrations (automobile negligence and simple breach of contract claims) seem at variance with the report's "first principle" that "one size fits all" is not the most effective approach. They cover types litigation, which clearly do not involve the discovery problems the proposed rules are intended to cure.

9.    Statement of Arthur R. Miller, before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the Committee on the Judiciary (Oct. 27, 2009).

10.    Institute for the Advancement of the American Legal System," pp. 9-10.

11.    IAALS Report supra. p. 10.

The Author

Albert P. Zabin is a trial lawyer with Duane Morris LLP. He is a fellow of the American College of Trial Lawyers and the International Society of Barristers. He has a general civil trial practice that concentrates on business disputes and personal injury. He has lectured and published on topics relating to discovery and scientific or technical evidence and witnesses.

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