Is Less Costly Discovery In Our Future?
By Mark Spring
Last week, the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System issued its Final Report on civil litigation and discovery. The report is one of the more in-depth studies on the problems with our current system for litigating civil disputes. The Report makes some fairly aggressive recommendations, many of which are motivated by the increasing costs and burdens of civil discovery. The Task Force and Institute clearly recognized that in many lawsuits it is the costs and burdens of discovery that drive the resolution. The Report specifically noted that the civil litigation system itself and the associated discovery process is often used as a weapon to force settlement, instead of being a system that is affordable and efficient and used to uncover relevant evidence.
Much of the study focuses on the problems with civil discovery and the need to place reasonable limitations on the discovery process. The study criticized the current "one size fits all" approach to civil discovery, stating that the discovery rules need to be modified to limit discovery and make it more proportional to each case being litigated. The Report should be commended for challenging the current practice of broad open-ended discovery procedures that have been the hallmark of the civil justice system for most of the last seventy years.
Some of the specific recommendations of the Report include:
1. Notice pleading should be replaced by fact based pleading so that the parties and court can better define the scope of discovery up front.
2. The development of alternate procedures for resolution of some disputes where full discovery and a full trial are not required and matters can be resolved on the papers and affidavits. The Task Force emphasized that contract interpretations and statutory remedies would be particularly amenable to such a procedure which is currently being used in Canada.
3. The discovery rules need to be modified and the courts need to become more involved in the discovery process to make sure that the principle of proportionality is adhered to.
4. Discovery in general and document discovery in particular should be more limited.
5. Early disclosure of prospective trial witnesses should be required.
6. Parties should not be expected to take every conceivable step to preserve all potentially relevant electronically stored information.
7. Judges must learn more about electronic discovery and offer more guidance to litigants in this area.
8. Contention interrogatories should either be allowed on a very limited basis or perhaps not at all.
9. A single judge should be assigned to each civil case and should stay with the case through termination.
Change often comes very slow in the legal system, but this Final Report recommends some sweeping changes to civil discovery that this blogger believes should be seriously considered by those with the ability to implement such change. For a complete copy of the report, click here.