The American College of Trial Lawyers and a legal think tank have called for a sweeping overhaul of civil discovery rules to curtail expensive, time-consuming battles for documents, in a study released on March 11.
The most radical of the changes would impose strict limits on discovery after initial up-front disclosure by both sides.
The 30-page report contains more than two dozen proposals and general principles for overhauling the discovery rules used in both federal and state courts. It was an 18-month joint project of the ACTL and the Institute for the Advancement of the American Legal System at the University of Denver.
Saunders said the task force, drawn from the experienced trial lawyers of the ACTL, came from both the plaintiffs’ and defense bar. The proposals fall no harder on the plantiffs’ bar than on the defense, he said.
There’s a lot to be said about this report; let me start with the most basic problem.
When I file suit, I generally have my client’s story and a little bit of paperwork. The defendant possesses the bulk of the proof. If I do not pry deeply into the defendants’ materials, I will lose, either at the inevitable summary judgment motion that blames me for not having the evidence I was denied, or at the trial where a sweet-talking defense lawyer points their finger at my client demanding "where’s the proof?"
Under the current, supposedly excessive discovery rules, more than half of my discovery requests are already met with unfounded objections like "unduly burdensome" or "not reasonably calculated to lead to discoverable evidence," objections often sustained by courts which already apply de facto limits on discovery in an effort to move cases along. If you want a glimpse of how quickly these judgments are made by courts (as a matter of necessity given the volume), spend a morning in Philadelphia City Hall’s Courtroom 285, where 200+ discovery motions are decided before lunch.
The ACTL proposals dramatically raise the incentive defendants’ already have in filing frivolous objectives by giving defendants all new bases upon which to object, creating whole new anti-discovery principles such as "Proportionality should be the most important principle applied to all discovery" and "All facts are not necessarily subject to discovery." Yet, even as they greatly expand the field of possible objections, the ACTL proposals take no steps towards reducing the filing of frivolous objections.
Thus, my case is supposed to be held to defendants’ self-selected "initial disclosures" followed by time-pressured "limited" additional discovery, but defendants suffer no consequences whatsoever if they initially disclose a tiny fraction of the relevant information then frivolously object to every last one of my requests, tying up the courts (and my practice) by forcing judges to determine the "limited" nature of every last discovery request.
Putting it all together: the proposals eviscerate plaintiffs’ ability to seek out evidence in discovery while increasing defendants’ incentives to file excessive objections.
I wouldn’t say such a lopsided outcome "falls as hard" on plaintiffs as defendants; for contingent-fee plaintiffs’ lawyers, it’s crippling, as it hampers their ability to prove their cases while also making discovery more time-consuming, whereas for hourly-paid defense lawyers, it’s a goldmine, permitting them to litigate the heck out of a case before inevitably winning it. Hourly-paid plaintiffs’ lawyers (a rare beast that appears largely in the mid-to-large-size corporate world) get a boon as well, even if they keep losing their cases, too.
If the ACTL truly wants to make discovery more just, speedy and efficient, I can see three easy ways to level the playing field under these proposals:
- Mandate spoliation and/or adverse inference sanctions for parties that do not produce adequate initial disclosures in a timely fashion;
- Modify the summary judgment burden of persuasion to eliminate the non-movant’s requirement to produce specific evidence in rebuttal (since they’re less likely to have it);
- Mandate attorneys’ fees and/or sanctions against parties which lose (not merely "frivolously file," since courts rarely hold that) motions for protective orders and other discovery objections.
To put it another way: the reason I have to send so many interrogatories and requests for production of documents is because fewer than 1 in 10 gets a candid answer, usually then only after sending threatening letters and filing a motion. Put some teeth behind the principle of "disclosure" and then we’ll get somewhere.