By Lee Dryden
The Daily Record Newswire
A wealth of recent revisions to the Federal Rules of Civil Procedure can be summed up with a single goal - moving cases along.
That will be accomplished in part by earlier and more focused discovery aimed at getting judges and lawyers talking sooner.
The changes that were discussed for three years took effect Dec. 1. Now, it's a matter of the legal community embracing them.
"The question becomes 'who is going to push it'?" said B. Jay Yelton III, a partner at Warner, Norcross, & Judd LLP. "Are the lawyers going to implement this? Is the court going to take an active role? It's hard to tell.
"It's going to take a change of how they've always done it."
In October, Yelton moderated a Warner Norcross Data Symposium in Grand Rapids on the changes, using a case study to show how the new rules would play out in litigation.
Panelists covered scope, cost and timing of discovery along with guidelines for judges to deal with parties who fail to preserve electronically-stored information.
A new world of discovery
A major change is an amendment to Rule 26 that allows discovery to begin sooner. The opposing sides can now submit a Request for Production of Documents 21 days after a lawsuit has been filed. Previously, they had to wait until the discovery kickoff at the pretrial conference - typically three to four months after the lawsuit was filed.
Andrea J. Bernard, a partner at Warner Norcross, said the change beats the alternative of going in blind and not knowing what the plaintiff will ask for.
"I think this change to the rules is a really great change because it does give the attorneys and the judge an opportunity to have an informed discussion at the Rule 16 conference about discovery," she said. "It enables you to have an intelligent conversation with the court at the outset about what may need to be done, produced, relevant, etc."
U.S. District Court Judge Paul L. Maloney, of the Western District of Michigan and a member of the policy-making body for federal courts, agreed early discovery requests make pretrial conferences more efficient. He said it allows a greater level of detail and shows where clashes may arise.
"I think it has a real beneficial effect in terms of accelerating the process even before you get to see the judge," he said. "To the extent that the lawyers are talking earlier, I think that is extremely beneficial as well."
Also, the initial pretrial conference must now involve direct simultaneous communication - in person, by phone or videoconference - to avoid delays.
Maloney said the onus is on lawyers and the judge to move cases along efficiently. Expert testimony can be addressed earlier and attorneys can educate the judiciary about the cost of discovery. He wants to see both sides making "good-faith assertions."
Maloney said the new rules are not conducive to the strategy of asking for everything in discovery and hoping you get most of it.
"As a judge, I'm going to be watching for that," he said. "What I'm looking for is two lawyers who are communicating and communicating constructively as to what they need. If it's obvious to me we have two lawyers passing in the night, I'm not going to be too happy.
"I have an instinctual negative reaction to fishing," he said. "The fishing better be light."
Yelton said the changes call for taking discovery seriously at the beginning of a case rather than putting it off as long as possible, hoping for a settlement or a win on motion.
He said courts in New York, California and Illinois use "model discovery orders," which force parties to talk about where discovery is going. A similar pilot program is used in the Eastern District of Michigan, he said.
The rules also call for discovery requests to be reasonable and proportional to the attorneys' needs in the case. Yelton said this may be the most significant of the changes as it is a chance to tell the judge how costly it will be to fulfill the requests. In-house counsel is often most knowledgeable in this area, he said.
Lawyers will have to consider cost and be ready to justify their requests.
"Plaintiffs' lawyers are going to have to figure out at a very early stage what do I really need to prosecute my case, how much is my case worth," said Scott R. Carvo, a partner at Warner Norcross.
Bernard said the change will be helpful in decreasing exorbitant costs to defend lawsuits.
"We've needed this change for a long time. My clients find themselves in the position of saying it's going to cost more to defend this case than the cost at issue," she said. "You really have got a monetary gun to your head."
Both Bernard and Carvo stressed the importance of showing the judge they are making reasonable discovery requests.
A change to Rule 34 prevents boilerplate objections to discovery requests. A typical response previously was that a request was overly broad and unduly burdensome.
Now, attorneys have to explain exactly why they don't plan to comply or which information they will provide.
Providing electronic documents
Federal rules updates include more specifics for judges in cases where electronically-stored information is not preserved. The Rule 37 change clarifies when to levy sanctions - an intent to deprive must be shown, mere loss is not enough.
If the information should have been preserved and cannot be replaced, the court:
- Upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.
- Only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation, may presume that lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable to the party or dismiss the action or enter a default judgment.
Previously, they were cautioned against imposing sanctions for a "good faith failure" to properly preserve information.
Maloney said the change is "very significant" and clarifies the steps for federal district judges. He hopes it leads to better internal processes to retain information.
"It's going to be ultimately a reasonableness inquiry as to what you did and did not retain," he said.
Yelton said the standard remains the same but the change brings "more consistency on how the court will approach it."
Keeping costs down
A common denominator among these changes is removing some of the cost barriers that label the courts as an inefficient place to do business.
Maloney said driving down costs is key as federal courts are "pricing themselves out of the market of resolving disputes." He said attorneys are opting for mediation to avoid court costs. He's hoping for outcomes driven by case merits.
Scope and timing of discovery play a large role in this effort.
"The field has been changed in terms of the scope of discovery," Maloney said. "One of the driving forces behind the amendments is the cost of litigation. Given the tenor of the new rules, I'm looking for lawyer participation and communication very early - and certainly by the time you reach me."
Yelton also mentioned the shortened time periods for serving a defendant and for the court to issue a scheduling order - from 120 days to 90.
"Securing a 'just, speedy and inexpensive determination' is now a responsibility of the parties, not just the court," he said.
While the rule changes are only for federal courts, state courts often follow suit within a couple years - and begin implementing some of the practices sooner, Yelton said.
Published: Thu, Dec 17, 2015
