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.