Federal Rules of Civil Procedure – Potentially Bad Revisions on the Horizon for Discovery?

As we have discussed before, the federal Committee on Rules of Practice and Procedure have been entertaining comments on new rule revisions to the Federal Rules of Civil Procedure. Over 600 comments to the proposed revisions have been filed so far; many by lawyers who generally represent plaintiffs. Why largely by these lawyers and law firms? Because it is law firms like ours who see the difficult, uphill battle faced by most plaintiffs in lawsuits against Corporate America. The proposed revisions do nothing to improve that battle.

Orrick, Herrington & Sutcliff is one of the corporate law firms with a particular focus on serving companies in the technology, energy and financial sectors and has filed comments to the rules. It appears few corporations have filed comments and Corporate America has wisely taken the approach of stationing its advocates on the committee and appearing live at committee meetings during the formation of the proposed revisions.

First, in fairness, Orrick claims their comments are based on a review and analysis of “empirical data”. Also in fairness, Orrick clarifies its use of the term “empirical data” to really mean: “The data cited here and throughout is not the product of formal statistical analysis, but rather represents information collected from a small number of courts and a limited number of legal matters handled by Orrick.”(emphasis added).

Orrick focuses its comments on certain individual revisions. In section number I, Orrick discusses the need to require a discovery conference under Rule 16(b)(3)(B)(v). , Orrick compared judges in Ohio and California who did and did not have a local rule requiring Rule 16 discovery conferences with the Court. Orrick reports that in courts where discovery conferences are mandatory, there is a 75.4% reduction “in the percentage of formal discovery motions filed.” Orrick suggests that time and money could be saved by requiring a Rule 16 discovery conference.

I suggest that time and money would not be saved. What the judges are doing in courts requiring Rule 16 discovery conferences is sending a message to lawyers and parties that unnecessary and preventable discovery disputes will not be accepted. These judges are communicating what the whole foundation is built upon in order for the federal rules to work efficiently is: COOPERATION and COLLABORATION. So, the problem is really one of mentality; corporate counsel who wants their lawyers to “crush the plaintiff” and overzealous or under prepared plaintiffs lawyers who demand discovery from the entire “universe of potential documents”. It is the mentality of scorched earth defenses and lawyers ignorant in the practical use of technology that cause unreasonable and uncooperative, usually expensive discovery battles. Rule changes will not do a great deal to alter these types of attitudes.

Orrick also proposes changes to “presumptive limits” on tools such as Requests to Produce. They argue that a presumptive limit saves money and promotes the following advantages:

• Parties must negotiate a date range limitation for each request;
• Parties must negotiate custodians and, absent good cause, must not exceed a presumptive limit of ten custodians;
• Absent good cause, parties will be allowed no more than 25 requests for production; and
• Global de-duplication is permissible.

What Orrick sees as benefits, one could categorize as responsible discovery that already (or should) exist under present rules. Limiting requests to only relevant time periods; narrowing the number of potential custodians from whom a collection is done; and using only the necessary number of discovery requests to those needed; these are already in existence. What rule change proponents like Orrick want is to put finite numbers to these discovery tools; presumptive limits of 10 custodians and presumptive limits of only 25 Requests to Produce. Here again, they seek to impose cooperation and collaboration into the process where those elements should already exist.

There are inherent problems with artificial, albeit presumptive, limitations on discovery. If you are suing a pharmaceutical company involving the negligent and fraudulent marketing of a drug, that lawsuit could conceivably involve dozens of potential custodians from whom collections justifiably should be done. Presumptive limits will create a situation in which every defendant, always, will argue plaintiffs are limited to 10 custodians and, so plaintiffs will be facing an uphill battle in which the burden will be entirely on the plaintiff to prove exceeding the presumptive limit is necessary. Couple this with denying the plaintiff other valuable discovery tools, such as Requests for Production, will result in plaintiffs trying to prove their case in a narrow vacuum controlled by defendants.

Virtually every corporate proponent has vigorously argued in favor of “proportionality” in evaluating the volume of discovery which the court should permit. First, why should plaintiffs with cases that defendants and, even the court, see as “lower value” be limited from their right to seek justice? Second, why would we set case values before any discovery is performed to create an artificial limit to the plaintiffs’ ability to seek information? Finally, what measuring stick do we use for measuring a “small case” and deciding it deserves only limited permission for discovering of information? Besides all these questions, what about discussions for cost shifting or using technology as a way of economically probing for discoverable material? This is a rule seeking to create a boiler plate argument in every case that the difficulty of the defendant collecting the requested information is far too burdensome given the size of the plaintiffs’ case.

There was once a time when some corporations had a solution to lawsuits staring at them off in the not so distant future; that solution was called “shredding parties”. Rent some shredders, buy some pizzas and collect boxes of paper to feed into shredders. By the time plaintiffs arrived, not only was all the paper gone, there was no trail to follow and demonstrate the paper ever existed. But, then technology caught up and we were all sending emails and producing multiple versions of documents; it became more difficult or impossible to hold “digital shredding parties”, even though some corporations tried.

In the proposed rule changes, corporate proponents seek to limit the downside of data loss and destruction, far beyond what has been established in prior cases by very able, techno-savvy judges.

Should a party be sanctioned if they are operating within an established data destruction policy and, without knowing they were soon to face a lawsuit where a lawsuit is filed as data is being destroyed that the plaintiff later claims spoliation over? Of course not. Should a party be sanctioned where they continue a data destruction policy as hundreds of people are injured or killed by their product? Probably, but that requires evidence and a hearing before a judge who can balance the evidence and the decision to impose sanctions.  What should not exist is a predetermined standard of what constitutes bad faith; that unfairly sanctions or unfairly forgives. What should not be in place is an inflexible standard in which the willfulness of the destroying party is not considered in the court’s determination. Proponents of an inflexible measure for spoliation desire willfulness be extracted from the consideration. They suggest every data destruction is willful simply by innocently following a predetermined destruction plan. That could be characterized as intentional, but willful connotes a more thoughtful, deliberate action toward destruction. This is yet another reason to leave determining spoliation in the hands of judges and juries.

The rules are there for guides to the parties and to the court; but they are not intended to take judgment and balancing out of judges hands by creating narrow, inflexible rules.