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TRANSCRIPT OF PROCEEDINGS

In the Matter of: )

)

PUBLIC HEARING ON PROPOSED )

AMENDMENTS TO THE FEDERAL )

RULES OF CIVIL PROCEDURE )

JUDICIAL CONFERENCE ADVISORY )

COMMITTEE ON CIVIL RULES )

)

Pages: 1 through 335

Place: Phoenix, Arizona

Date: January 9, 2014

BEFORE: HONORABLE DAVID G. CAMPBELL, CHAIR
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APPEARANCES:

Committee Members and Reporters:

HONORABLE DAVID G. CAMPBELL, CHAIR 

DEAN ROBERT H. KLONOFF

HON. ARTHUR I. HARRIS

HON. GENE E.K. PRATTER

PETER D. KEISLER, Esquire

HON. JOHN G. KOELTL

PROF. EDWARD H. COOPER

PROF. RICHARD L. MARCUS

HON. PAUL H. GRIMM

HON. SCOTT M. MATHESON, JR.

ELIZABETH CABRASER, Esquire

HON. SOLOMON OLIVER, JR.

HON. ROBERT MICHAEL DOW, JR.

JOHN M. BARKETT, Esquire

PARKER C. FOLSE, Esquire
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Speakers: Page

ROBERT D. OWEN 8

Sutherland, Asbill & Brennan 

JOSEPH D. GARRISON 16

Garrison, Levin-Epstein, Richardson, 

Fitzgerald & Pirrotti; National Employment 

Lawyers Association 

TIMOTHY A. PRATT 26

Federation of Defense and Corporate 

Counsel; Boston Scientific Corp.

ARTHUR MILLER 36

New York University School of Law

JON L. KYL 45

Covington & Burling, LLP

HENRY KELSTON 52

Milberg, LLP

JOHN H. BEISNER 61 

Skadden Arps

P. DAVID LOPEZ 68

U.S. Equal Employment Opportunity 

Commission

DAVID M. HOWARD 78

Microsoft Corporation 

KASPAR J. STOFFELMAYR 88

Bayer Corporation

THOMAS A. SAENZ 96

Mexican American Legal Defense and 

Educational Fund

MICHAEL R. ARKFELD 104

eDiscovery Education Center

BROOKE COLEMAN 114 

Seattle University School of Law

JOCELYN D. LARKIN 125

Impact Fund

QUENTIN F. URQUHART, JR. 133

Irwin, Fritchie, Urquhart & Moore; 

International Association of Defense Counsel

WILLIAM P. BUTTERFIELD 142 

Hausfeld, LLP 

ELISE R. SANGUINETTI 151

Khorrami, Boucher, Sumner, 

Sanguinetti, LLP

KATHRYN BURKETT DICKSON 160

Dickson Geesman

LARRY E. COBEN 169 

Anapol Schwartz; Attorneys Information

Exchange Group
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Speakers: 

Page

PAUL D. WEINER 177

Littler Mendleson, P.C.

JANELL M. ADAMS 187

Bowman and Brooke, LLP

THOMAS HOWARD 194

Bowman and Brooke, LLP

ROBERT HUNTER 200

Altec

HON. DEREK P. PULLAN 205

Fourth District Court, Utah 

WILLIAM F. HAMILTON 218

Quarles & Brady, LLP; Bryan 

University; University of Florida Law School

DENNIS CANTY 225

Kaiser Gornick, LLP

TOM HORNE 232

Office of the Attorney General

HENRY M. SNEATH 235

Picadio Sneath Miller & Norton; DRI 

STEVEN J. TWIST 243

Services Group of America

PAUL V. AVELAR 250

Institute for Justice, Arizona 

Chapter

L. JILL MCINTYRE 259

Jackson Kelly, PLLC

PATRICK J. PAUL 265

Snell & Wilmer

JENNIE LEE ANDERSON 271

Andrus Anderson, LLP 

LEA MALANI BAYS 283

Robbins, Geller, Rudman & Dowd 

JAMES C. STURDEVANT 296

The Sturdevant Law Firm

JOHN J. ROSENTHAL 305 

Winston & Strawn, LLP 

RICHARD B. BENENSON 316

Brownstein Hyatt Farber Schreck 

ANDREW B. COOKE 323

Flaherty Sensabaugh Bonasso, PLLC

JONATHAN SCRUGGS 328

Alliance Defending Freedom 
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P R O C E E D I N G S

JUDGE CAMPBELL: Good morning, everybody. 

And thank you for being here. We particularly 

appreciate those of you who've traveled from afar 

to help us address the issues we are wrestling 

with on the Civil Rules Committee. We need your 

input, we welcome your input. And we appreciate 

both the oral and the written comments that you 

will be sharing with us. 

So far, we've received about 405 written 

comments, hundreds of pages of them. We are 

reading them. I can't say that we have all read 

all of them. In fact, I can say we have not all 

read all of them, because I haven't read all of 

them, but we are working on it. And we give you 

our assurance that we will read every one of them 

before we get together for making any final 

decisions. 

There have been no final decisions made on 

this -- these issues. The Committee is very much 

in a listening and learning mode. We won't be 

meeting to actually discuss things until after 

we've held all of these hearings and heard 

everybody's input, because we want to make sure 
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that we consider all of the comments that have 

been made. 

So we are very appreciative for the 

efforts you're making to help us address these 

matters. 

We have a lot of folks who are scheduled 

to speak today. We have 39 individuals who are 

scheduled to speak. And given those numbers, 

unfortunately, that means about ten minutes total 

per speaker. 

We wish we could have you address us for 

longer periods of time, but we have 39 scheduled 

here. We have 43 scheduled in Dallas, and we have 

29 on a waiting list hoping to have an opening 

come up somewhere where they could speak. So we 

feel we really need to move along and give 

everybody an opportunity to speak. 

So when you do speak, what we've done is 

set a timer for about five minutes. We borrowed 

some lights from somewhere in D.C. You'll see a 

yellow light come on when you've used three 

minutes up there on the lectern, a red light when 

you get to five minutes. We are going to then 

have about five minutes for comments. 

And after we've spent about ten minutes 
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addressing those issues, then we will move on to 

the next speaker so everybody gets an opportunity 

to speak. 

Please feel free to submit to us in 

writing any points you wish to make that you 

didn't have time to make here. 

We are going to also ask that you pull 

those mics together and speak directly into them, 

because we have folks on the phone who want to 

hear what is said by you as well. 

In terms of just logistics, important 

matters, we will break at about 10:30 for about 15 

minutes. There are rest rooms in this building. 

If you go out the door and to your right, there's 

two sets of rest rooms on this floor. And there's 

two sets on every floor above it for the four 

floors above it if you need to get into a restroom 

that's not crowded upstairs. 

When you do speak, we are going to ask you 

to please identify, if you would, your firm or the 

organization you're with and your practice area or 

the focus of your -- your studies or your efforts. 

That is helpful background for us. 

So with that introduction, we are going to 

go ahead and get started, and the first speaker is 
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Bob Owen. 

MR. OWEN: Good morning, and thank you. 

My name is Robert Owen. I'm a litigation partner 

and partner in charge of the New York office of 

Sutherland, Asbill & Brennan. I've been a 

commercial litigator in New York City for 40 

years. 

In addition, to my regular litigation 

practice, I've been privileged to counsel four 

global corporations on eDiscovery issues, two 

pharma companies and two oil companies. I want to 

focus on Rule 37(e). 

The most vexing aspect of our current 

regimen for my clients is the uncertainty and 

inconsistency that litigants face when attempting 

in good faith to make preservation decisions. 

When to start preserving, the trigger is not 

certain. 

How to preserve, whether by central 

collection, or custodian self-selection or 

otherwise is not certain. 

What to preserve, especially when 

preservation decisions must be made 

precommencement in the absence of a complaint is 

not certain. 
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How long to preserve, if the anticipated 

claim is not filed, is not certain. 

It's been said in order to be just in its 

application, the law must be clear to those whose 

conduct it regulates. Because of the current 

law's lack of certainty concerning preservation 

and because of my -- of corporations' aversion to 

becoming the next Echostar or Qualcomm or Rambus, 

they overdo it. This is a waste of our country's 

resources, and proposed Rule 37(e) is a tremendous 

step in the right direction. 

I applaud the difficult and hard work 

that's been done by the Committee. Its most 

important contributions are to provide a single 

national standard for spoliation sanctions, and to 

require a showing of culpability higher than 

negligence or gross negligence. 

Preservation of ESI, when residential 

funding was decided in 2002, was a relatively 

simple matter. It is anything but simple now. 

The explosion in volumes and the explosion in 

complexities make the opportunities for mere 

mistakes far more numerous than they were ten 

years ago. 

My clients' line employees don't need 
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extensive of training to know when they are doing 

something in bad faith. They come prewired to 

know when something is wrong. Training them to 

avoid mere mistakes in this area, however, is a 

different matter. In this area, frankly, it's 

almost impossible to train every line employee 

about the nuances of preservation. 

The single point I want to emphasize in my 

testimony this morning is that whatever form the 

final Rule 37(e) takes, it is vital that the rule 

be tightly written. The guidance it provides to 

practitioners and judges must be clear. And there 

must be no wiggle room to misapply the spirit of 

the rule. 

I particularly applaud the Committee's 

intention to displace inherent power, which has 

been -- that is certainly not a certain source of 

counseling for us. 

Why do I say this? There are three 

reasons, really. 

First, although the Committee and its 

groupies of which I am one, live and breathe these 

topics, the vast majority of practitioners in the 

country do not routinely encounter these issues. 

The Rules of Civil Procedure normally 
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provide clear guidance. How many days do I have 

to answer? How many depositions can I take? Do I 

have to produce my expert's drafts? What form 

does ESI get produced in? Pull the book off the 

shelf, look it up, and act accordingly. That's 

what practitioners expect from the rules. 

Rule 37(e) ideally should conform to that 

expectation, especially because those 

outside-the-bubble practitioners have to make 

preservation decisions precommencement, with no 

complaint, no adversary to talk to, and no judge 

to resort to. 

So the preservation rule has to be as 

clear and as unambiguous as possible in order to 

be fair. 

Second, understandably, many judges and 

magistrate judges themselves are also less 

familiar with the nuances in this area than you 

and the people in this room. In a recent Southern 

District case one of our most respective district 

judges was called upon to decide a preservation 

issue as one of about six motions before him, 

including summary judgment. A spoliation motion 

was in the mix. His decision on summary judgment 

was entirely reasonable. His decision on the 
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preservation issues was just wrong. 

Third, there are also judges whose 

personal views are out of step with the Committee 

and for whom tightly worded guidance is essential. 

One such judge in my district for whom I have both 

deep respect and affection issued an opinion 

recently which construed "willful" to mean merely 

intentional conduct. If applied as part of the 

new Rule 37(e), that construction of willful would 

enable residential funding to survive and possibly 

drag the other circuits down to the negligence 

level. 

So my overarching point here is in light 

of these three reasons, please write a clear and 

unambiguous rule if at all possible. How to do 

this? 

First, "willful" is a confusing term. 

When a client destroys documents pursuant to a 

document retention program, that's a willful act. 

The term should be either eliminated from the rule 

or clearly defined, or the "or" should be changed 

to "and." I prefer the latter. 

Second, the (b)(2) clause is, I submit, an 

invitation to construe any loss of data as an 

irreparable deprivation. The deleted e-mail 
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account of the defendant, Mr. Hart, in Sekisui had 

no bearing on the case. Plaintiff had alleged a 

single count of breach of warranty. His state of 

mind had nothing to do with that. But the judge 

there found that the willful destruction of his 

e-mails was sufficient to infer relevance even in 

the absence of any bad faith. 

I submit this shows how this will go if 

you leave (b)(2) in the rule in any form. And I 

suggest that you take it out. 

I deeply appreciate the opportunity to 

come and testify. Thank you very much. 

JUDGE CAMPBELL: All right. Thank you, 

Mr. Owen. 

Are there questions from members of the 

Committee? 

PROFESSOR MARCUS: Mr. Owen, one 

follow-up. You said among your preference, 

preferred results for the culpability provision 

would be saying "willful and bad faith" rather 

than removing "willful" altogether. 

Can you explain why? 

MR. OWEN: First of all, I think that bad 

faith needs to be a part of this as the Committee 

has recognized. Because without a -- an act taken 
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in bad faith, and without an act taken willfully, 

you can't apply the presumption that what was 

destroyed was harmful to the spoliating party's 

case. 

And so I just think willful and bad faith 

emphasizes that there must be a relevance 

connection between what was destroyed and what the 

jury hears in the way of an adverse inference. 

JUDGE CAMPBELL: John? 

MR. BARKETT: You mentioned 

precommencement several times and I wanted to get 

your reactions to factor C in (e)(2), the factor 

that describes sending notice to a potential 

defendant as a factor that courts could consider 

in evaluating the conduct of the preserving party. 

MR. OWEN: I think preservation demand 

letters are a tool for parties to begin 

discussions. I would like to see in the factors a 

suggestion or a reference that if an overbroad 

preservation demand letter is sent, it should be 

regarded as a fishing expedition and as a nullity. 

I think there ought to be a certification 

requirement that if you send a preservation demand 

letter, you're sending it in good faith and it's 

as narrow as possible, because it can be misused. 
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But, you know, I think that starting to 

talk about these things earlier rather than later 

is a plus. The problem is that you don't have a 

starting place from which to negotiate, and so 

it's very formless. And you don't have a judge to 

go to and you don't have a complaint. And so 

those things make it difficult for my clients to 

make scope decisions. 

JUDGE CAMPBELL: Paul? 

JUDGE GRIMM: You've given us some helpful 

thoughts in terms of drafting. I appreciate that. 

With regard to the willfulness and bad 

faith, willfulness or bad faith or eliminate 

willfulness altogether, you've given us your 

preference. You've explained why. 

If one of the options to be considered is 

to define "willfulness," and you have talked about 

the malleability of that term as it can be used to 

range from anything starting with an awareness of

what you are doing, namely that you are not in a 

coma while you are doing it, all the way up to 

trying to have an awareness of some consequence of 

what you are doing. 

Is there language that you would offer us 

if we are trying to evaluate a definition for 
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"willfulness" to have it remain in the rule as 

it's presently drafted? 

MR. OWEN: Yes. And I would suggest you 

look at the Sedona Conference submission on this 

point. They are proposing a definition of 

willfulness as follows: The spoliating party 

acted with specific intent to deprive the opposing 

party of material evidence relevant to the claims 

or the defenses. 

I think that's an excellent definition. 

JUDGE GRIMM: Thank you. 

JUDGE CAMPBELL: Thank you very much, 

Mr. Owen. 

Mr. Garrison? 

MR. GARRISON: Good morning, my name is 

Joe Garrison. I'm NELA's liaison to this 

Committee. And I represent employees in 

employment cases. 

I want to focus on proportionality. Under 

the proposed rule change, proportionality will 

become much more prominent, and I want to ask how 

does this proposal change -- these proposal 

changes address two major objectives of the rules. 

And I would like to express it this way with a 

couple of questions. 
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Question one: Will the focus on 

proportionality lead to acceptance of our civil 

justice system as having more fairness with rules 

that are more even handed? 

And question two would be: Will the focus 

on proportionality lead to a process with less 

cost and more efficiency? 

How to achieve fair, just, and even-handed 

rules is the most important of the questions. If 

the case is only about money, the case with a 

value of X should generally not have a discovery 

cost of 2X or 3X. 

But in making rules, we can't set the 

value of cases by the potential recovery. In 

employment cases, for example, the wrongful 

discharge of a high-level officer will have much 

more money, quote, value than the wrongful 

discharge under the same legal theory with roughly 

the same factual proof of a salaried salesperson. 

You all know there are hundreds of 

examples I could give you that would be the same. 

Just recently in my office, for example, we are 

representing a very high-level woman who earned 

almost half a million dollars a year. And over 

the summer, we represent a bunch of massage 
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therapists who were lucky if they made $30,000 a 

year. 

The value of those cases, I would suggest, 

was a lot greater for the ones who were making 

30,000. And that's because they were facing 

foreclosures of their houses, they were facing 

losing their cars, they were going on food stamps, 

and they were suffering the humility and 

embarrassment of all of that. 

There are parts of our system that cause a 

great deal of admiration and respect by the 

public. And that's largely because the public 

sees that when individuals come into court, those 

individuals have the -- have the value of 

impartial judges and juries and the rules don't 

tilt in favor of a large corporate party. 

But if the amount in controversy is the 

primary factor in evaluating proportionality, then 

we will, in fact, categorize citizens who use the 

courts as rich versus poor and the rich will get 

greater discovery solely because the amount in 

controversy is greater. 

This strikes me as neither fair nor just 

nor even handed. And I would respectfully suggest 

that the amount in controversy factor be 
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eliminated as a factor. That would leave as 

relevant factors the importance of the issues, the 

parties' resources, the importance of discovery in 

resolving the issues, and the cost or burden 

versus the benefit. 

So this last one implicates question two: 

Will the process be less costly and more 

efficient? 

I believe the plaintiff's bar has reacted 

adversely in substantial part because we strongly 

predict that the -- that the present so often 

untenable discovery objection of burdensome, 

harassing, and vague will be replaced by the word 

processor that's going to say objection, the 

discovery sought is not proportional. 

And what happens then to the touchstones 

of cost evaluation and efficiency enhancement? It 

will depend where the burden lies. 

The way the rule is written now, 

there -- or proposed, the burden is going to lie 

with me, the proponent of the discovery, to show 

that my requests are proportional. And while I 

ought to have the burden to show that my requests 

are relevant, the objecting defendant shall have 

the burden to show lack of proportionality. 
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Otherwise, the defendant has got no reason at all 

to be cooperative. 

Just say no might work. Especially at the 

beginning of the case where discovery is 

asymmetrical. How does my client know what 

discovery lies where and what the costs are to 

retrieve it? The burden to show lack of 

proportion should be shifted to the party who 

bears the cost and who knows where the material is 

and how to get it. 

Allocating the burdens in this matter, 

relevance is for the proponent to show and lack of 

proportion is for the objector to show, will go a 

long way in avoiding motion practice in every case 

and should lead to much more productive 

cooperation between counsel. 

So I've got three seconds left. 

Judge Grimm, you and Elizabeth Cabraser 

wrote a paper that cited to Susman's Checklist. 

And Susman's Checklist says for depositions, each 

side gets ten lasting for six hours each. And our 

rules ought to keep this ten deposition 

presumption. 

JUDGE CAMPBELL: Thank you, Mr. Garrison. 

Let me, if I can, ask a question about 
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the -- one of the points you made regarding the 

relative value of the case. Your point about 

somebody with a $500,000 claim getting more 

discovery than somebody with a $30,000 claim has 

been made in many of the written papers. And it's 

a very legitimate point. 

But I'm interested in your thoughts on the 

sort of reverse of that. If somebody has a 

$30,000 claim and to prove it they believe in good 

faith they need to conduct discovery which will 

cost a defendant $60,000, and as a result, the 

defendant settles, not because of the merits of 

the claim, but because they are going to spend a 

lot more litigating it than it's worth. 

What about that problem? I mean, isn't 

the amount -- I mean, that arguably is not just to 

the defendant. And it's not inexpensive as Rule 1 

would suggest. 

So I guess my question is: How can we not 

consider the amount in controversy when -- when a 

court is trying to decide what the appropriate 

level of discovery is in a case? 

MR. GARRISON: I think it's an overblown 

factor is what I'm saying. I think it is a factor 

that can be misread by a number of courts. And 
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the -- what you were just saying would become the 

only factor or the major factor or the 

preponderant factor and it shouldn't be. 

You know, it's easy to say from a 

practitioner's side, and this is what we see is 

that most of those cases that you're talking about 

settle. I have no reason to want to conduct 

$60,000 of discovery myself in a $30,000 case when 

I have a contingent fee. It's cost me then six 

times as much as it ought to cost me to do that 

case. 

Sometimes that happens. But it doesn't 

happen with your better lawyers, Judge. It 

happens with your lawyers who don't know what they 

are doing, to state it clearly. 

And those of us who do know what we are 

doing look at the cost of cases before we start 

them. We reject cases that aren't going to be 

effective for our client. And for them to be 

effective for our client, they have to be 

effective for us as well. 

That's one of the reasons. The other one 

is that in employment anyway, we enforce a lot of 

statutes that don't have high value attached to 

them. And the FMLA is a really good example of 
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that. 

We did a case involving intermittent 

leave. Intermittent leave is, Your Honor, leave 

that happens only once in a while. And the 

deprivation of intermittent leave by a large 

corporation can be important to every single 

worker in that corporation. But it isn't worth 

much. It's going to be worth maybe $5,000. 

A case like that we take to make sure that 

the law is being read the way we think it should 

be read. And the value of the recovery is 

minimal. 

JUDGE CAMPBELL: John?

JUDGE KOELTL: Mr. Garrison, you said that 

under the proposal, judges would treat the amount 

in controversy as the primary factor. The 

proposed rule would list that as one of -- one of 

the factors. That came in because it's already in 

26(b)(2)(C)(3) that it's one of the factors that 

the judges must consider. It's already in there 

in 26(g)(3) that lawyers have to consider that in 

making their requests and responses. 

And in Dallas, we were told that it all 

works just fine, that people know how to balance 

those factors. 
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There are some cases, as you've pointed 

out, where there are interests at stake that are 

nonmonetary. And many of those cases reflect 

congressional judgments by -- by fee shifting at 

the end where the lawyers who pursued the cases 

are able to get attorneys' fees. 

And one would think that judges would 

appreciate that there are cases where there are 

factors that have to be taken into account that in 

an individual case are more important than amount 

in controversy. And the list doesn't prioritize 

the various factors. 

So the question would be if judges had 

been able for 30 years to be able to look at the 

rule and to interpret it fairly, as we were told 

in Dallas they were able to do it, why do we 

expect that judges faced with exactly those same 

considerations, which they were supposed to be 

imposing for 30 years, would now begin to 

interpret them differently or establish priorities 

which don't exist there? 

If it weren't true that there are some 

cases, employment cases, civil rights cases, where 

the interests involved are plainly more important 

than the specific amount in controversy, that 
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provision wouldn't have been included in the rule 

and wouldn't continue to be included in the rule. 

Why do you think judges will begin to 

interpret that differently? 

MR. GARRISON: Because I think this 

Committee didn't move this rule up to where it's 

going for nothing. I mean, you moved it up 

because I think, in fact, it was buried in the 

rules and it really wasn't used. 

Amount in controversy, I don't dispute at 

all that amount in controversy is a factor judges 

look at, and they ought to. When you are looking 

at what kind of costs and benefit is going to 

arise in a discovery dispute, I'm not suggesting 

that's wrong. I am saying that it's listed as 

number one. 

Number one on my list, you know, when I 

make my lists, when my wife makes lists to go 

shopping, number one is the first important thing. 

And it's number one on this list and it shouldn't 

be. 

If you're going to keep it, move it to 

number five. Put it where it belongs, which I 

think is not anywhere. But at least move it down. 

And include the interests of litigants otherwise. 
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JUDGE CAMPBELL: All right. 

MR. GARRISON: Sorry to take so long, 

Judge Koeltl. Your question was very short and I 

couldn't finish it on time. 

JUDGE CAMPBELL: Your answer was right to 

the point. Thank you very much, Mr. Garrison. 

Mr. Pratt? 

MR. PRATT: Good morning. I'm privileged 

to give my perspective on the proposed changes to 

the Rules of Civil Procedure. 

I'm here as the president of the 

Federation of Defense and Corporate Counsel. It's 

an organization that's invitation only, limited 

membership. Its history goes back to 1936. It 

consists of 1400 of the best and brightest defense 

and corporate counsel around the world. I speak 

on behalf of those 1400 members in my November 13 

comment letter as well as my comments today. 

I'm also here to share my experience with 

the civil justice system in two ways. One, I was 

a trial attorney for over 30 years handling 

litigation, trying cases around the country. I 

was a pretty heavy user of the federal court 

system. 

My more recent role in the last six years 
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is a general counsel of a medical device company 

called Boston Scientific. It's in the business of 

health care, and it has over 24,000 employees and 

has 15,000 products available to physicians and to 

patients. And we have litigation, intellectual 

property, products, commercial, you name it. 

Some of the cases we are the plaintiff, 

often we are the defendant. I've seen firsthand 

the cost delays and disruption that our civil 

justice system creates for parties that find 

themselves embroiled in that system. A 

significant percentage of my litigation costs are 

attributed to litigation and discovery matters. 

I'm not suggesting we can eliminate all 

litigation costs. Companies like mine, we are 

going to have to preserve materials, review them, 

and produce them. It's not just because our 

opponents want documents that they think will help 

their case, but also because I want to find the 

documents that prove my case. 

All parties have an interest in getting 

the documents that count. And that's the rub, 

what counts. The current broad standards of Rule 

26 go way beyond what counts and that creates a 

looming fear that you have to hold and produce 
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more documents lest you be sanctioned for not 

doing enough. 

Let me give you some numbers. Since 2005, 

my company has preserved 107 terabytes of data, in 

just the last year, we have preserved 35 terabytes 

of data, including 90 million messages. 

Roughly half of our U.S. employees are 

subject to litigation holds. We pay our outside 

discovery vendor approximately $32 million to 

process, host and provide our document review tool 

since 2005. And it's averaging $5 million a year 

right now to that outside discovery vendor. 

Since 2010, I've paid document review 

teams $7.35 million to review roughly 56 million 

pages. 

You hear these stories over and over again 

from companies. But don't be numbed by them 

because therein lies the critical evidence that 

shouts out for change. All parties know this. 

The requesting party often gets millions 

of documents that have absolutely no bearing on 

the lawsuit so they are not used. Estimates vary 

but my best guesstimate is far less than one 

percent of all produced documents are used for any 

reason in litigation. 
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Think about that. Let's reduce that 

excess, the ones that no party needs. And that's 

what these rules will help accomplish. 

We favor the proposed revisions to Rule 

26. The goal is to bring common sense, reasonable 

and proportional restrictions on the scope of 

discovery. 

The problem with the current rule is 

really twofold. One is "relevant to the subject 

matter of the lawsuit" is very broad, and 

requesters can engage in fishing expeditions by 

allowing discovery of anything reasonably 

calculated to lead to the discovery of admissible 

evidence. 

The changes in Rule 26(b)(1) are laudable. 

They would permit discovery materials relevant to 

a party's claim or defense and proportional to the 

needs of that particular case. 

Moving proportionality into the scope of 

discovery is critically important. It sets the 

framework for how much discovery is appropriate in 

that case rather than deal with that issue from a 

protective order standpoint. 

I don't see how these changes can be 

portrayed as the end of the world as we know it. 
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Focusing on the documents relevant to a party's 

claim for defense and the custodians who have 

those documents will narrow the universe of 

potentially relevant documents without sacrificing 

the true needs of the parties. 

All parties will get the ones that are 

meaningful. We should see more accommodation 

rather than expensive motion practice. 

I believe in the capacity of good lawyers 

to treat each other with reasonable and 

professional ways. If there are outliers, there 

are ways to deal with them rather than craft the 

rules to accommodate them. 

I see my time is running out. I do want 

to comment briefly on proposed changes to Rule 37. 

I agree with the comments that "willful" or "bad 

faith" undefined is dangerous. It's got to be 

tethered to some level of culpability. 

I subscribe to the definition of 

"willfulness" as provided earlier this morning. 

There is a specific intent to deprive the opponent 

of material evidence relevant to the claims or 

defense. 

I am very concerned about the section of 

Rule 37(e) that deals with the irreparable 
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deprivation of information. And keep in mind, my 

company makes products that are often relevant in 

litigation. Sometimes the plaintiffs lose them, 

sometimes we don't lose them, but there's a 

potential that we could lose them. And most of 

those devices are actually helpful to my defense. 

So the idea that if that is lost, 

irreparably, without any showing of materiality, 

and I could be sanctioned for that, I think it's 

an untoward outcome and will result in lots of 

litigation. 

Finally, I favor the presumptive limits on 

depositions, interrogatories, and requests to 

admit as they are included under these proposals. 

These are reasonable limits, they are not 

impenetrable ceilings, and lawyers can figure out 

where their case fits on that scheme. 

Cases are different. Most lawyers can put 

these cases on the right point of importance on 

the spectrum, which important in my view for all 

of those rules is to set a reasonable mark or 

target regarding discovery. They should not 

default to the position that every case is 

critically important and that excessive discovery 

should be allowed. Nor should they default to the 
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issue that cases should not have a lot of 

discovery. 

I think these hit the midpoint of 

reasonableness and leave it to the attorneys and 

judges to move the buoy up and down in accordance 

with the circumstances of that case. 

These changes will help the parties better 

achieve the objectives of Rule Number 1. And the 

true winner, I believe, will be our system of 

justice. 

Thank you. 

JUDGE CAMPBELL: All right. Thank you, 

Mr. Pratt. 

Questions? Sol? 

JUDGE OLIVER: Mr. Pratt, I address the 

question to you relative to what Mr. Garrison said 

earlier. He indicated that under these proposed 

changes that the burden of proof changes in regard 

to proportionality. His position is that the 

plaintiff should have the burden in regard to 

relevance, but the defendant should continue to 

have the burden in regard to showing that the 

discovery is not proportional. 

What is your response to that? 

MR. PRATT: My response is that you can't 
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really define in terms of plaintiff and defendant. 

I've been on both sides of that V, and I've been 

the requesting party no matter which side I am. 

So I wouldn't deal with it in terms of burden. I 

don't think it's the right way to look at it. 

If my company submits a discovery request, 

I've got to certify that that's consistent with 

the Rules of Civil Procedure and I have the burden 

of proving it. So the requesting party for a long 

time has had the burden of certifying and proving 

its compliance with the Rules of Civil Procedure.

I wouldn't talk about it in terms of 

burden in my view. I think this is a question of 

balance. I think that's the right word. When you 

take a look at the factors of proportionality, 

some of them, the -- the receiving party can 

answer, what are the resources. 

JUDGE OLIVER: What happens, and I didn't 

mean to say plaintiff, I guess the person who is 

seeking the discovery would have to show it's 

relevant, but the person who produces discovery. 

So I was wrong in saying plaintiff. 

But -- but the court has to have 

some -- some guidance. The court has to look to 

some party in regard to what the burden is, 
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wouldn't it? 

MR. PRATT: Yeah. I mean I think what the 

court would look at and what I would urge to the 

court if I were urging that right now is to take a 

look at all of these factors. 

Take a look at the amount in controversy. 

Take a look at the issues, the importance of 

discovery in that particular case. And in 

balance, is the discovery right or wrong? 

I wouldn't -- it isn't like a trial on the 

merits in my view, Your Honor, where you have a 

preponderance of the evidence or clear and 

convincing evidence or anything like that. I 

think it's a question of listening to the parties 

present their side of it and saying in this view, 

this case fits here. I don't think it changes the 

burden of proof. I really don't. And I wouldn't 

look at it that way. 

This is a balancing of the interests with 

both parties contributing information that will 

allow the court, if they can't reach an 

accommodation mutually, to decide what the level 

of discovery ought to be allowed. 

JUDGE CAMPBELL: Other questions? 

JUDGE KOELTL: How does your definition of 
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"willful" differ from bad faith? 

MR. PRATT: It may not. It may not. So 

in my letter submission to you, I said you put 

"and" in there, you are making it clear it could 

be an intentional act if that's the way the courts 

define "willful." And it's been defined that way 

at least in one case, and bad faith has the 

element of culpability. 

So, but if you define "willful" in that 

way, which has a level of culpability, it may be a 

difference, Your Honor, between actually doing 

something, willfully actually doing something, 

versus if it's a bad faith, not doing something. 

When you're sitting back and you're allowing 

documents to be destroyed, you are not taking an 

affirmative action. 

So I think if you define "willful" in the 

way that we describe it, I think it -- it will get 

to the point of what I think the primary concern 

is, in my viewpoint, which is allowing just an act 

to be a basis for sanctions. I think it either 

has to be some intent, some culpability, some 

element of wrongfulness, if you will, within that 

particular sanction rule. 

JUDGE CAMPBELL: All right. Thank you 
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very much, Mr. Pratt. 

MR. PRATT: Thank you, Your Honor, thank 

you. 

JUDGE CAMPBELL: Mr. Miller? 

PROFESSOR MILLER: Good morning, 

Mr. Chairman. My name is Arthur Miller. I appear 

for no one other than my own point of view. In 

other words, I'm here on my own dime. 

I know how hard this Committee works. I 

was an assistant to reporter Benjamin Kaplan in 

the '60s. I was a reporter to this Committee in 

the '70s. And I was a member of this Committee in 

the '80s. Those were three very hard working 

periods in my life. 

It's also very difficult for me to stand 

up here and critique the work done by a reporter 

and an associate reporter, both of whom are my 

coauthors. How do we write books together, 

friends? I don't know. 

I've been very disturbed and I will speak 

impressionistically, that for 30 years or so, a 

pendulum has been swinging against civil 

litigation in general, plaintiffs in particular. 

What used to be a sleek pretrial process 

is now littered, literally littered with stop 
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signs, whether they be motions to dismiss, expert 

testimony, class certification, summary judgment, 

now, of course, discovery. 

That pendulum swing to me has lost the 

moorings of the original rules and has worked 

against those who seek compensation, and worked 

against those who tried to enforce public policies 

reflected in federal and state statutes, and 

common law principles. 

I don't think that's very good. I don't 

think it befits the American civil justice system 

to have this preoccupation with cost, abuse, 

extortion, clichés that have been thrown out by 

the defense bar that sadly in my judgment have 

been picked up in judicial opinions without any 

empiric demonstration whatsoever. 

We just heard an anecdote. There are 

dozens of those anecdotes. But some of the 

research suggests that the costs of litigation are 

not that high when compared to stakes. Abuse is 

basically something in the eyes of the beholder. 

And extortionate settlements are the settlement 

you made. 

Now this is the fourth time in recent 

decades that the rules will be amended to restrict 
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discovery. '83, '93, 2000, and now 2014 or '15. 

There is yet to be any demonstration that any of 

these amendments have had any effect, yet you've 

gone back to the same old well without considering 

the possibility that: A, do some empiric work on 

these clichés; B, are there alternative approaches 

to abuse, cost, extortion if they are ever 

demonstrated to exist. No, you limit discovery. 

Make no mistake about it, moving the 

proportionality concept from where it is now into 

the scope of discovery provision is a major shift 

in the balance of discovery. I'm the unindicted 

coconspirator. 

I can almost feel Judge Koeltl laughing at 

me. 

JUDGE KOELTL: No. 

PROFESSOR MILLER: Because it was on my 

watch, my watch, that that provision was inserted 

in the rule. We were concerned with needless and 

excessive discovery. That's what we said in the 

advisory committee note. We lacked empiric 

evidence because the FJC at that time did not 

provide those services. 

We viewed it as a very limited safety 

valve on the scope provision. You've now put it 
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into the scope provision so that the proponent 

must show relevance and proportionality, and the 

advisory committee note makes it clear you are 

intending a limitation on discovery. 

Now, Judge Koeltl said: Well, that stupid 

provision that Miller put together in '83, that's 

been working like a charm, almost as good as US 

Airways, who knows. 

Well, let me suggest, Judge Koeltl, that 

when you put something in as sort of a discount or 

safety valve on relevance, that is quite different 

than pushing it as an adjunct, a correlative, a 

coequal with relevance. 

So the relative paucity of motions under 

the existing provision that the last 30 years has 

seen, you've got to think about the incentive to 

defense interests or any interest opposing 

discovery to make a motion or to try and stop 

discovery based on proportionality. 

We did the best we could in '83 to 

describe needless and excessive. You describe 

proportionality with the same subjective terms, 

the same abstract terms. 

I agree with Mr. Garrison, the cure may be 

more vicious than the disease if there is, as may 
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well occur, a tidal wave of discovery motions 

addressed to blocking discovery based either on 

relevance or on proportionality, and you've taken 

out that very important safety valve which allows 

a district judge discretion to expand the ambit of 

discovery from claims or defenses, which came in 

only in 2000, but allowed anything relevant to the 

subject matter of the action. That's an important 

safety valve. 

Why are you depriving district judges of 

discretion to open up relevance and 

proportionality, if you keep it there, and 

prohibiting that judge from saying: In this case, 

I want to see what's relevant to the subject 

matter of the action. 

So it's a double whammy in there. These 

proposals, by my light, this is me speaking, are 

one sided. Even your obliteration of Rule 84 in 

the forms is a very stealth-like signal that 

you're approving Twombly and Iqbal. 

It's time that this pendulum of the last 

30 years be stopped. I would hope to live long 

enough to see what pendulums always do, namely 

retrace its arc. But I'm an old fogie. 

JUDGE CAMPBELL: Thank you, Professor. 
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Questions? Yes, John. 

MR. BARKETT: Professor, the original 

Rule 34 you mentioned in your comments that we've 

lost the moorings from the original proposals. 

The original Rule 34 provided that documents were 

produced only upon motion and showing of good 

cause. 

Is it your view that that language is 

something that we should have today in the rules 

if we are going to go back to 1938? 

And I'll just give you -- my sense of 

having studied the original rule making is that 

the real focus was on deposition discovery. 

PROFESSOR MILLER: Absolutely. 

MR. BARKETT: And I went back and reread 

Hickman versus Taylor which you cited in your 

paper. And the paragraph that you cite to 

actually is talking about deposition discovery in 

terms of the importance of gathering facts. 

And there's a Charles Clark symposium from 

1951 that contains a survey of the uses of 

discovery tools in the first ten years of the 

rules. And five district courts in four percent

of the cases at the time even involved document 

requests. So it seemed to me like the focus back 
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in the late '30s and '40s was really about 

depositions. 

And we live in a different era today. So 

part of what I think that we are reacting to is 

the effect that electronic discovery is having. 

So when I hear comments about let's go back to 

1938, and I realize that it was also apparently on 

your watch when requests for production went 

extrajudicial in 1970 when the motion and good 

cause requirement was eliminated, I wonder what 

was the original reason why you couldn't get 

documents unless you showed good cause in motion 

and now we've basically taken judges in 1970 out 

of the business and we now have eDiscovery, so 

that the world sort of turned. 

And I'm not sure that Edson Sutherland 

would have written the rules the same way today 

had he been facing the electronic storage 

information market that we face today. 

PROFESSOR MILLER: Number one, the 

original 34 in part reflected concerns about 

privacy that there was something about documents 

and things, remember it's about things, too, that 

cautioned the rule makers to sort of create that 

barrier of the motion. By '48, and later, the 
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motions were being granted without any difficulty. 

So the requirement of the motion was removed 

because it was a needless procedure. It was just 

a motion that was unnecessary. 

The original people, and through my watch 

in the '80s, we and they were very concerned, 

certainly Ben Kaplan was very concerned, don't 

create transaction costs. We had Mr. Garrison 

speaking about the transaction cost that this 

proposal might generate, might exceed the benefits 

that you might get from proportionality. 

So in 34, that was taken out. Now, we 

understand that the 800-pound gorilla right now is 

electronic discovery. The last speaker addressed 

that. You've addressed it. It is a problem. 

There is no doubt there is a problem. But, it may 

be a shorter-term problem than most people think 

because the development of information retrieval 

sciences and linguistics have now already achieved 

a massive improvement in data retrieval analysis. 

MR. BARKETT: I read that reference in 

your papers but do you have a sense of the costs? 

PROFESSOR MILLER: Lower. Lower. 

MR. BARKETT: But who can afford that kind 

of assistance in routine cases? 
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PROFESSOR MILLER: I assume that the very 

people now complaining about electronic discovery, 

about the terabyte concept, those people can 

afford it. 

The study done by the FJC shows that the 

cost of discovery is not that great. It resonates 

to stakes, stakes resonate to the economic 

viability of the parties. 

We've already got pretty good evidence 

that the district judge working with counsel on 

protocols for electronic discovery, coupled with 

the constantly improving retrieval and analysis 

techniques produces lower costs, and forgive us, 

since we are humans in this room, higher accuracy 

than human retrieval. With costs that 

undoubtedly, as we know from the electronics 

industry, will constantly decline, techniques will 

constantly improve. 

And I would hate to see a premature 

rule-making reaction to something that is really a 

moving target. Electronic discovery frightens 

everyone. But some very talented district judges 

have managed to capture and control this 800-pound 

gorilla. And I don't think that tail should be 

wagging this dog, namely discovery as we have 
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known it since 1998.

JUDGE CAMPBELL: All right, thank you very 

much for those comments, Professor. 

Senator Kyl? 

SENATOR KYL: Judge Campbell and members 

of the panel, my name is Jon Kyl. I'm a senior 

advisor of the Washington firm of Covington & 

Burling. My practice is primarily in public 

policy. 

I'm here for the firm because lawyers in 

the firm and clients of the firm have become 

increasing concerned about the abuse of federal 

discovery rules by some, driving up the cost of 

litigation and in some cases forcing settlements 

in situations where it probably is not 

appropriate. 

So I commend the Committee for its hard 

work, for its proposals, and express support for 

those proposals. Indeed, I would even go further 

in at least one area. But I think for those of us 

who not only support the substantive changes, but 

also believe that this is the appropriate process 

for making rules changes in the Federal Rules of 

Civil Procedure, it's important to move this 

process to successful conclusion. 
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There are frustrated parties and interests 

who have other options, such as the congressional 

action that's being pursued on patent litigation 

reform. I think some were surprised at how 

quickly that process has moved forward. 

My point is that it's fine to say that we 

need more time or more empirical evidence or more 

meetings, but this Committee, the standing 

committee, the Judicial Conference, the Supreme 

Court, and eventually the layover time of the 

United States Congress, by my calculation, will 

take about five years before this process has 

concluded and the rules are changed and become 

final. 

So I don't think anybody can deny that 

this process has been thoughtful, it's been 

deliberative, it's been fair, and by all the 

materials I've read, exhaustive. And as a result, 

as I said, I not only commend the Committee for 

the substance of its proposals, but also urge 

support for moving the process to conclusion. 

Others have talked about and will continue 

to document the high cost and low relative return 

of the value of discovery that is currently 

allowed in some cases. University of Virginia law 
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professor John Setear gave this function of 

discovery I think a quaint and interesting name a 

few years ago. He called it the impositional 

function of discovery. In other words, the 

ability to impose costs on the other side. That's 

the concern being addressed here. 

And I don't think it's really necessary. 

We have -- our system allows successful 

conclusions in criminal law, in administrative 

law, in the arbitration context. Other countries 

have systems that don't require this kind of 

expensive discovery. 

And indeed, it's one of the reasons that 

some foreign firms find it difficult to 

contemplate coming to the United States because of 

their fear of our judicial system and the costs 

that would be imposed upon them in cases. 

So what to do? Let me limit my comments 

to Rule 26 and briefly make three points here. 

First of all, the elimination of language 

about leading to evidence admissible at trial I 

think is a positive step. Many have misunderstood 

this language as really reflecting the real 

standard for discovery. And the Committee has 

made clear, I think, the reality. 
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Second, moving the proportionality 

language from the back to the front of Rule 26, I 

think, will be very helpful. And I think that 

while it technically changes very little, if 

anything, the protest from opponents reveal its 

true value that just maybe parties and judges 

might take this requirement more seriously. 

And for this reason, I'm particularly 

supportive of the Committee's recommendation to 

clarify that judges have the power under Rule 

26(c), relating to protective orders, to allocate 

the costs of discovery in some situations to the 

party requesting the discovery, the so-called 

requester pays rule. 

This gets the incentives right. And it 

puts incentives on the parties to determine what 

they really need. And a party who determines that 

he really or she really needs something should 

have the ability to get it if that party is 

willing to pay for it. 

It's very difficult, I appreciate, for 

judges, and very time consuming for judges to try 

to manage the discovery process in litigation. 

And giving the parties the incentive for, in 

effect, self-policing could go a long way to help. 
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This is something my colleague at 

Covington, Don Elliott, has been advocating since 

1986. 

Finally, I think it would be very helpful

if the Committee provided some examples in the 

advisory committee note of when judges should use 

this authority to allocate the cost of discovery 

to the requester rather than the responder. 

I noted that Dean and later Judge Clark 

drew as one of the main lessons from his 

experience that to be effective, a rule should not 

merely grant power but explain how that power is 

to be used, giving illustrations. This could be 

very helpful.

For example, when you have an 

administrative proceeding from the EPA or the FDA, 

determining, after exhaustive examination, the 

safety of a drug or substance, this might be an 

appropriate case in which to go beyond that or to 

try to pierce that should require a requesting 

party to pay for the -- for the attempt to do 

that. 

And I understand that administrative 

determinations don't necessarily restrict the 

right to sue. But that doesn't necessarily get at 
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the question of who should bear the cost of 

investigating something for the second or third 

time after an agency has already done so, and 

especially given the long-standing presumption of 

the regularity of administrative determinations. 

This, I think, should provide at least a 

sufficient basis for, in these kinds of 

circumstances, creating a rebuttable presumption 

that in that situation, the requester should pay. 

So my suggestion is that the Committee 

encourage judges to actually use the power by 

specifying examples of where it is appropriate to 

do so. 

And I'll, in my written comments, expand 

on this a bit further. But for now, again, I 

commend the Committee for its hard work and urge 

that advocates here try to help the Committee 

bring this to conclusion so that we can have a 

successful result in the Committee's process. 

JUDGE CAMPBELL: Thank you, Senator. 

Questions? 

Perhaps I could ask one of you. 

You mentioned requester pays. As I expect 

you know, we have a subcommittee of the rules 

Committee right now looking into the proposal of 
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requester pays in the form that Don Elliott has 

advocated it, which I understand to be that there 

should be some threshold of discovery a party can 

get for free. But if they exceed that threshold, 

whether it's a dollar amount or some other metric, 

they pay for it. 

That would be a very significant change in 

the way discovery is done. And we are not 

recommending that. We are studying that, because 

we've heard from Congress and others that it's a 

legitimate point to look at. 

Do you think the change that we are 

proposing in Rule 26(c)(1)(B) for the allocation 

of expenses would cause judges to think that we 

are supporting that broad notion of requester pays 

that Don Elliott is advocating? 

SENATOR KYL: No, Judge Campbell, even 

though I support what my colleague is proposing, 

and I am aware of the fact that there will be a 

look at that to determine whether something beyond 

what the Committee is doing now might be 

appropriate. 

What the Committee is recommending right 

now would not do that. But it certainly gives 

judges the discretion in certain situations to 
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determine whether or not the requester should pay. 

And what I'm suggesting is that the Committee 

could help the judges to guide them to situations 

when this might be appropriate with some 

illustrations. 

One way would be, as I suggested where 

there's already been an administrative 

determination. A more drastic way, as you imply, 

would be the notion of, and I shouldn't say 

drastic, but a different approach would be where a 

certain level of discovery is, in effect, free. 

And then beyond that, the requester, absent 

extraordinary circumstances, would bear the 

burden. 

But that's a proposal that I understand is 

not included within the Committee's 

recommendations. 

JUDGE CAMPBELL: All right. 

Other questions? 

Thank you very much. 

SENATOR KYL: Thank you very much. 

JUDGE CAMPBELL: Mr. Kelston. 

MR. KELSTON: Good morning. My name is 

Henry Kelston. I'm a partner at Milberg LLP in 

New York. Milberg primarily represents plaintiffs 
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in class actions and other complex litigation. 

Based on just that one piece of 

information, each of you now probably assumes with 

a fairly high degree of confidence that I will 

urge the Committee not to adopt the proposals 

altering the scope and amount of discovery, that 

is, the proposed amendments to Rules 26, 30, 33 

and 36. And your assumptions on that score would 

be correct. 

So rather than discuss specific proposals, 

I would like to draw attention today to some 

larger issues that I believe should frame the 

Committee's deliberations. 

Issue one, does it matter that the 

response to the proposed amendments is so highly 

polarized between the plaintiffs' bar and the 

corporate defense bar? 

On the first day of public hearings on 

these amendments, 41 witnesses testified. And 

while they voiced widely divergent opinions about 

the merits of the amendments, there was one point 

on which there was a clear consensus. That is 

that the proposals to limit discovery individually 

and collectively will be beneficial to large 

corporate litigants and detrimental to plaintiffs. 
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The next day, Law360 described the hearing 

this way, quote: Top attorneys from the defense 

bar and major corporations urged the Federal 

Judicial Committee on Thursday to adopt proposed 

changes to federal rules that curtailed discovery 

in depositions in civil cases, while plaintiffs' 

attorneys and nonprofit law groups warned that the 

changes would limit their clients' access to the 

justice system. 

Reading that, I was struck by the 

realization that no one close to the rule-making 

process seemed either surprised or concerned about 

the highly partisan response to the proposals. 

Everyone inside the rules' bubble had already come 

to accept that the proposed discovery amendments 

are highly skewed in favor of large corporate 

defendants. 

And so I pose this question: Should the 

Committee consider enacting a package of 

amendments that so clearly favors one group of 

litigants over another, as evidenced by the 

comments of both the favored and disfavored 

groups? 

I would suggest that if the public comment 

process means anything, the intensely polarized 
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response to the proposed amendments limiting 

discovery should raise a caution flag at the very 

least. 

Issue two: Why is the response to this 

proposal so polarized? 

The goal of reducing discovery costs is 

not an inherently polarizing one. On the 

contrary, like lowering taxes, one might expect 

nearly unanimous support if the benefits and 

sacrifices are perceived to be fairly distributed. 

But if the benefits are seen as running mainly 

from one group -- mainly to one group at the 

expense of another, those groups become 

adversaries rather than cooperators in the 

process. And that is precisely what we are seeing 

in the response to the pending proposals. 

The reason for this, which is not being 

acknowledged by proponents of the amendments, is 

that if corporate litigants spend less on 

discovery as a result of these amendments, it will 

not be because the amendments have made discovery 

more efficient, more effective, or have caused 

less time to be wasted on unproductive adversarial 

conduct. There is nothing in the amendments that 

requires or even incentivizes conduct that would 
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reduce the overall cost of discovery. 

The concept of cooperation may get a brief 

nod in the notes to Rule 1, but no one really 

expects that to change conduct on the ground. 

By design, these amendments will reduce 

discovery costs for large corporations, simply by 

reducing plaintiffs' access to the information 

they need to prove their claims. This is not true 

cost saving. This is cost shifting with 

plaintiffs paying the price in reduced access to 

justice. This is why the proposals, the reactions 

to the proposals are so deeply polarized. 

Issue three: Are the proposals necessary? 

Do they represent the best, most effective and 

fairest solution to a genuine problem? 

I will not go through the detail as 

Professor Miller discussed much of this. There is 

simply no evidence that there is a genuine 

problem. And in the end, these amendments may 

well end up raising discovery costs, not reducing 

them. By reducing the number of depositions, 

interrogatories, and requests for admission, which 

are relatively low cost mechanisms, the amendments 

may increase the cost of document review, which is 

already the most expensive part of discovery. 
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Regarding the change in Rule 26, scope of 

discovery, this Committee wrote in its report to 

the Chief Justice after the Duke conference, that 

there was no demand at the conference for a change 

in the rule language, which there is no clear case 

for present reform. 

In closing, there's understandably a

strong desire to make changes in the wake of the 

Duke conference to show some concrete results. 

But it is vitally important to the millions of 

plaintiffs seeking justice in the federal courts 

that we do not confuse action with progress. 

Thank you. 

JUDGE CAMPBELL: All right. Thank you, 

Mr. Kelston. 

Questions? Peter? 

MR. KEISLER: A few years ago, several 

years ago, we did a rule change that relates to 

discovery that both plaintiffs and defendants 

liked a lot from the beginning. And that was to 

protect the confidentiality of expert -- draft 

expert reports and communications with counsel. 

And that was, you know, uniformly liked both 

because it was sensible, and because both sides 

have equal stakes in that kind of thing. 
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I'm wondering if we are in a situation 

where, to the extent we are addressing the scopes 

and limits of other forms of discovery where the 

needs and burdens aren't going to be symmetrical, 

whether almost anything we do will be polarizing 

in the way you describe in one direction or

another. Or if not, if there are thoughts you 

have about things that would address that part of 

the rules that wouldn't be as polarizing either 

one way or the other. 

MR. KELSTON: I think there are measures 

we can take to reduce costs and burdens of 

discovery without shifting those costs on to 

plaintiffs in the form of reduced access to 

relevant facts and reduced access to justice. 

Examples would be incentivizing 

cooperation in a meaningful way. 

Revitalizing initial disclosures is 

another possibility that's been briefly discussed 

but not in any serious way. 

Sanctioning parties, for example, for late 

production of material adverse evidence. There's 

another way to speed up discovery, essentially so 

the parties that are bearing high costs of 

discovery I would say, if you want to lower the 
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costs of discovery, go get the information and 

turn it over. Stop making it difficult. Stop 

arguing about every response. 

Yes, it's wonderful to talk about, you 

know, serving only targeted responses so we don't 

get the millions of irrelevant documents. But the 

likelihood is, we are not going to -- in -- we are 

not going to get the really meaningful documents 

either unless we ask with a description that we 

know covers it. And that -- and that's just the 

facts of life the way it is. 

But, yes, there are absolutely things we 

can do that would genuinely reduce the costs of 

discovery as opposed to simply shifting by 

reducing the amount of discovery available to the 

plaintiffs. 

JUDGE CAMPBELL: Gene? 

JUDGE PRATTER: Mr. Kelston, could you 

give us an example of a meaningful incentive to 

cooperate? 

MR. KELSTON: I think I can. 

JUDGE PRATTER: Good. 

MR. KELSTON: I think we should consider a 

rule that says -- discussing, let's say 

preservation, the requirements of preservation, 
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what a party is required to serve. To the extent 

that a party discloses to the other side what they 

are doing and what they are not doing to preserve 

information with sufficient specificity that it's 

meaningful to the other side, and does not 

receive -- excuse me, my mouth is dry -- but does 

not receive objections in return, again, with 

sufficient specificity to make them meaningful, 

that the preserving party should be entitled to a 

rebuttable presumption that what they have done is 

meaningful. I'm sorry -- is reasonable. 

This provides a real incentive for a party 

in litigation to open up and describe what they 

are doing to preserve and not preserve. That 

gives the other side an opportunity to voice 

objections and get them resolved by the court, if 

the parties can't resolve them, and avoid the 

later disputes that end up causing so much 

distress about --

JUDGE PRATTER: Just one follow-up if I 

might. 

We've heard from all quarters and all 

corners that the effort to promote cooperation and 

speed up the process by the so-called 

self-executing discovery, which I frankly think I 
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was hearing a little bit in your example there, 

has been a complete charade and been totally 

unsuccessful. 

Do you agree with that? 

MR. KELSTON: No, I don't think it's been 

a complete charade. 

JUDGE PRATTER: How about a partial 

charade? 

MR. KELSTON: Yes, it's definitely been a 

partial charade. 

JUDGE PRATTER: So it's been a little 

mask. 

MR. KELSTON: There are genuine 

cooperators, there are pretend cooperators and 

then there are parties that don't even pretend to 

cooperate. And it makes a lot of difference in 

the way the litigation proceeds, which variety 

you're working with or against. 

JUDGE CAMPBELL: All right. Thank you 

very much, Mr. Kelston. 

Mr. Beisner? 

MR. BEISNER: Good morning, I'm John 

Beisner. I'm partner with the Skadden Arps law 

firm in Washington. I've been involved on the 

defense side of civil litigation for about 35 
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years. And I appreciate the opportunity to appear 

before the Committee this morning. 

And I also want to express appreciation 

for all of the hard work this Committee does. 

It's very important to everyone out in the civil 

litigation community. 

I've submitted written comments addressing 

a number of issues raised by the proposed 

amendments, but I would like to seemingly join the 

crowd this morning in focusing on the proposed 

proportionality change to Rule 26. 

I guess I'm having difficulty seeing this 

as any sort of radical change to the rule. 

Indeed, several of the members of the Committee 

have pointed out Rule 26(b)(2)(C) already says 

that either on motion or on its own, a court must 

limit the frequency or extent of discovery if it's 

not proportional. This is not a new concept there 

at all. 

And I think the movement of these 

considerations to Rule 26(b)(1) really is just an 

elegant solution to the fact that these 

considerations have lived, as the proposed 

advisory committee notes observe, in relative 

obscurity back in Rule 26(b)(2). 
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I've heard the expression of concern that 

this change is going to create many more disputes, 

and a lot more motion activity. I have a hard 

time appreciating that assertion, because the rule 

is there. It has not produced an avalanche of 

disputes or motions. And I really think it may 

actually serve to diminish the number of disputes. 

Right now, 26(b)(1), in my view, is 

lacking criteria that encourage meaningful 

discussion when discovery disputes arise. I mean, 

in my experience, you get into these discussions, 

and the proponent of the discovery is basically 

saying, "Well, I can basically get whatever I 

would like under this rule." 

And the responding party says, "No, you 

can't." 

And you end up presenting the issue to the 

Court unless cooler heads prevail. 

And I think putting proportionality into 

Rule 26(b)(1) will actually give the parties 

something to talk about. There is some tangible 

criteria there that I think the parties can get 

their teeth into and hopefully reach some 

compromise. 

The suggestion has been made here this 
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morning that the change will shift the burden of 

proof in obtaining discovery. And I think we need 

to look at this at two levels. 

First of all, there's the burden of moving 

to obtain discovery. Most of these disputes arise 

in the context of Rule 34. This change isn't 

going to modify who has to move. The person 

requests discovery, objections are made, and if 

you can't resolve the dispute, the requesting 

party makes a motion. That's not changed by 

anything that the Committee is proposing to do 

here. 

And I think the change, frankly, just 

simply gives more prominence to the 

proportionality considerations that should already 

be part of that discussion, particularly given the 

fact that the attorney making the request, I 

believe, can fairly be said, should be certifying 

under Rule 26(g) that the requested discovery is 

proportional. 

Judge Oliver, to your question earlier, I 

think it's important to look through the 

considerations that are already in the rules and 

think about this notion of burden of proof. These 

considerations don't create any sort of rigid, 
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one-sided burden. As was suggested earlier, it's 

a discussion to which both parties have to 

contribute. 

Let's look at them for just a moment. The 

first consideration, amount in controversy. Well, 

obviously that's something the plaintiff is going 

to be declaring in the case. The importance of 

the issues at stake in the action is something to 

which both parties are going to contribute

discussion. No burden on that issue. 

Each side presumably will speak itself to 

the available resources, the third factor that's 

in the rule. I suspect the requester of the 

discovery, at least in the first instance, will 

need to speak to the importance of the discovery 

in resolving the issues in the case. 

But conversely, it's the responding party 

that will need to address the burden or expense 

issue. And I assume the requesting party 

presumably will take the first shot at describing 

the discovery's likely benefit. 

But in -- in sum, the rule just simply 

articulates consideration. On some of these the 

court will probably be looking in the first 

instance to the requester and to the responding 
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party in other instances. Both sides offer their 

views and the court will have to make a 

determination as to whether the proportionality 

requirement is satisfied. 

With that, I'm happy to respond to any 

questions. 

JUDGE CAMPBELL: Questions? Parker? 

MR. FOLSE: When Professor Miller made his 

remarks earlier, he said, as I think Mr. Pratt 

also said, that in fact, moving the 

proportionality standard into Rule 26(b)(1) would 

be a quite significant change. 

And I took from his comments the idea that 

where it is currently placed in Rule 

26(b)(2)(C)(3) reflected the intent of the 

drafters that it operate as a safety valve on the 

scope of relevance. And that moving it into 

26(b)(1) would make it coequal with relevance and 

not just provide an additional subject to be 

discussed, but work a material change in the scope 

of discovery. 

So how do you respond to his comment? 

MS. BEISNER: Well, I think it's more than 

just a safety valve where it is presently. I mean 

I think it's a requirement. When I file a 
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request, I've got to certify under 26(g) that that 

limitation is satisfied. I think it's an up-front 

consideration. 

Will it make that a more prominent part of 

the discussion in determining whether discovery is 

available? Yes. But I don't think it's a radical 

change. I think it should be part of the 

discussion already. And it probably isn't being 

raised frequently enough. 

But I think if you have right now a motion 

to compel discovery, and you're the responding 

party, there's no reason you can't, as part of 

your response to that, say it's disproportionate. 

MR. FOLSE: How do you explain then why 

there has been relatively little motion practice 

under the element of the rule as it currently 

appears? And don't you foresee that if it goes 

into 26(b)(1) that it will become a much more 

significant aspect of discovery motion practice? 

MR. BEISNER: There's no question it's 

going to become a more important part of the 

discussion, I'm not rejecting that, that concept 

at all. But I think that the fact that it's going 

to create some sea change in all of this, I think 

may be overstating the issue. 
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It's going to make it more prominent. I 

think it should be. I think it's been lost back 

where it is now. 

But I think the idea that it's going to 

preclude any requesting party from getting 

important discovery, which I took it to be the 

gravamen of what Professor Miller said, to me 

doesn't make any sense. 

The considerations that are there that are 

being moved repeatedly use the term "importance of 

the discovery." That's a major focus of that. 

And so, you know, I don't think it's going 

to deprive anyone of access. It may require 

parties that are requesting information to make 

some choices to prioritize what they want, but 

that's not a bad outcome. 

I think unless we get to that point, the 

discovery problems that we are experiencing will 

not be resolved. 

JUDGE CAMPBELL: All right. Thank you 

very much for those comments, Mr. Beisner. 

Mr. Lopez? 

MR. LOPEZ: Thank you. My name is David 

Lopez. I'm the general counsel for the 

United States Equal Employment Opportunity 
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Commission. Before being appointed to that 

position, I practiced in federal court here for 

several years. It is nice to be home, Judge 

Campbell. 

JUDGE CAMPBELL: Welcome back. 

MR. LOPEZ: The EEOC is the federal law 

enforcement agency responsible for enforcing the 

federal antidiscrimination laws. As we prepare to 

celebrate the 50th anniversary of the Civil Rights 

Act of 1964, it is useful to remind ourselves that 

Congress contemplated that the federal employment 

discrimination laws implement national values of 

the utmost importance to the institution of public 

and uniform standards of equal opportunity in the 

workplace. 

These civil rights laws are the envy of 

the world. And the federal courts are an 

essential component of the statutory scheme. 

On March 4th, 2013, I commented in writing 

on the rule changes proposed by this Committee. 

We currently, at the EEOC, have approximately 250 

cases pending in the United States Federal 

District Courts across the country. This rule, I 

believe, provides us with an enormous and unique 

perspective on the broad range of case management 
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and discovery practices used by judges across the 

country. 

This morning I want to raise three points. 

First, I believe that the Committee has come up 

with some proposals that would actually streamline 

and make discovery less expensive. 

We agree, for instance, with proposals to 

shorten time limits for service of the complaint 

and require Rule 34 objections to be stated with 

specificity. 

Perhaps most importantly, we concur in the 

importance of early court involvement in discovery 

planning as well as informal conferences with the 

court prior to filing what are often very 

expensive discovery motions and would recommend 

that these be mandatory. 

Second, I want to express my opposition to 

the presumptive limits on depositions, admissions, 

and interrogatories. The numerical discovery 

limits are a blunt instrument to address supposed 

over discovery. Several civil rights 

practitioners have noted the asymmetry in 

information. We wanted to approach this problem 

empirically. 

Based on the survey of cases over the past 
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three years, the proposed discovery limitation 

would impact a significant portion of the cases we 

prosecute. And we prosecute both small individual 

cases, and large systemic cases. 

Currently, over 40 percent of our cases 

seek relief for more than one person. And 

approximately 20 percent of the docket consists of 

these systemic cases. 

For this three-year period of time, the 

agency took over five depositions in over 40 

percent of the cases. The agency took over 25 

requests to produce in over 40 percent of the 

cases, and served over 25 requests to admit in 15 

percent of these cases. 

As do most plaintiff-side attorneys 

submitting comments, we believe the more likely 

result from reducing the presumptive limits will 

be the considerable time faced and spent in motion 

practice on requests to exceed the limits. This 

will be a particular obstacle for the EEOC that 

often needs to go over the deposition limits. 

Now, I recognize that many judges are very 

flexible in terms of increasing the current 

presumptive limits, but not all judges. Not all 

judges. And as you lower this, as you lower the 
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presumptive limits, we think that what we are 

going to see is much less cooperation on the part 

of the defense bar to agree to raise the 

presumptive limits. 

And in cases involving individuals, in 

cases involving low-wage workers where there's a 

tremendous amount of discovery required, often to 

obtain fact witnesses within the control of the 

employer, we think that this will be a real 

burden. 

As I started to look at the proposals, and 

I came to this process late, I will admit. I was 

struck by the sharp demarcation in views on the 

presumptive limits between the plaintiffs' civil 

rights bar and the defense bar. Given this sharp 

demarcation in views, any proposed changes should 

be based on a factual foundation. 

As I started to look at what the factual 

foundation was for these presumptive limits, what 

I saw mostly were anecdotes and impressions. I 

recognize that discovery costs are rising and 

there have been studies that indicate discovery 

costs are arising. But it is not clear how much 

of this is attributed to the over discovery in 

cases, how much of this is attributed to raising 
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legal fees, how much of this might be 

distributed -- contributed to other factors. 

Thus, I urge the Committee to wait on any 

proposed changes and to ensure first that any 

reduction in the presumptive limits rest on an 

empirical foundation before adopting what would 

certainly now be viewed by many as a retreat on 

the part of the federal court from its historical 

role as a forum for the vindication of civil 

rights violations.

This might include an examination of the 

effectiveness of various protocols that have 

been -- pilot protocols that have been adopted 

across the country in federal court and state 

court. There is a body of empirical evidence that 

I think is emerging that will allow this Committee 

to assess whether these changes are in fact 

needed. I think at this point, I don't think the 

case has been made that they are needed. 

Thank you. 

JUDGE CAMPBELL: Thank you, Mr. Lopez. 

Judge Matheson. 

JUDGE MATHESON: Mr. Lopez, the data that

you provided in your March 4, 2013 letter, and you 

have alluded to this morning, leads me to ask 
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whether data also was collected on the frequency 

in which you had cases that exceeded the current 

presumptive limits and how often requests were 

made to exceed and what the results of those 

requests were. 

Does that data exist? 

MR. LOPEZ: I actually requested that 

information from our regional offices. And what 

we found is that in many cases, the judges, 

particularly in the large systemic cases, the 

judges certainly were cooperative. The other side 

was cooperative, because I think what we are 

seeing in many of the systemic cases is that the 

defendants want to take depositions of many of the 

claimants and many of the individual charging 

parties. So it's almost a situation of a joint 

interest in terms of raising these presumptive 

limits. 

But I think where we have run into 

problems anecdotally are really on the cases 

involving one or two workers or the small class 

cases that often embody very important public 

values and often involve really extreme asymmetry 

of information in terms of trying to be able to 

obtain testimonial evidence from individuals 
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within the control of the corporation. 

Often the charging parties, for instance, 

in low-wage cases, don't have full information as 

to even the names of the individuals who were 

involved in the decision. So that often demands 

additional discovery to get some very basic 

information that if you had a different charging 

party, for instance, who had been in the 

corporation for a while, would have readily 

available. 

So sometimes it really takes a lot of work 

to try to get that information. And it does 

require discovery sometimes above the presumptive 

limits to take short depositions or to get 

information that's necessary. 

And in some instances, we have had some 

problems in those case. 

JUDGE CAMPBELL: Other questions? 

JUDGE KOELTL: Mr. Lopez, I take it from 

your written comments that you support the change 

in the scope of discovery in Rule 26(b)(1); is 

that right? 

MR. LOPEZ: You're talking about 

proportionality? 

JUDGE KOELTL: Yes. 
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MR. LOPEZ: We support it although I do 

have some reservations about -- that were raised 

earlier about the --

JUDGE KOELTL: Calculated to lead to the 

discovery of admissible evidence? 

MR. LOPEZ: Not only that, in terms of the 

proportionality factors, in terms of the 

importance of the cost of the case. 

We are a law enforcement agency. So what 

we try to obtain in our cases is not only 

individual relief, we try to obtain nonmonetary 

relief that will make sure that the violations do 

not recur. 

This is a law enforcement function and it 

is something that cannot be monetized. And we 

would want to make sure that those considerations, 

those public interest considerations are weighed 

as well in this assessment. 

JUDGE CAMPBELL: Other questions? 

Professor Cooper. 

PROFESSOR COOPER: In your written 

comments you suggest that the limit on requests to 

admit, something that has been very seldom 

addressed, should be considered in light of the 

need to submit what sounds like essentially the 
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same request to admit essentially the same fact in 

several different forms so that in the end, you 

will hit on a form the respondent feels compelled 

to admit. 

How frequently do you encounter that use 

of requests and how well do they work? 

MR. LOPEZ: I think requests for 

admissions can be a very, very effective tool. I 

think the problem that all lawyers face is that 

often the ideals of cooperation are not 

necessarily achieved in the discovery process. I 

think there are many of us who would just love to 

try cases and bypass discovery altogether. 

But I think given the realities that we 

often face in our litigation in terms of the types 

of objections that are raised, the sort of 

instinctive objections that are raised, I think my 

point really went to the fact that it's really 

important that we craft these right. And to the 

extent that one formulation triggers an objection, 

that it's often important to craft an alternative 

formulation as well. 

JUDGE CAMPBELL: All right. Thanks very 

much for your comments, Mr. Lopez. 

We are going to have one more speaker 
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before the break, that's Mr. Howard, and then we 

will take our morning break. 

MR. HOWARD: We have a demonstrative that 

we are going to just spend a minute setting up. 

JUDGE CAMPBELL: Okay. 

MR. HOWARD: Good morning. My name is 

David Howard. I am corporate vice president and 

deputy general counsel at Microsoft Corporation in 

charge of both litigation and antitrust. And I'm 

honored to be here. 

I want to state at the outset that 

Microsoft is very supportive of this Committee's 

work and this set of proposals. The rules 

governing discovery have not kept up with the 

explosion of electronic data generated and 

maintained by businesses. 

For a company like Microsoft, to do what 

we believe is necessary to comply with the rules 

is expensive, disruptive to the business of doing 

business, and in many if not most cases 

disproportional to the benefits gained. 

I'm happy to answer any questions later 

about other proposals, but I want to focus my 

testimony on Rule 37(e) and the proposals relating 

to that rule. And I'm going to do that by 
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focusing on some specific Microsoft data and then 

talking about how I think the proposed rules will 

help address the problem. 

In 2012 as we prepared for the Dallas mini 

conference, we debated whether to share Microsoft 

hard data with this Committee, data which had 

previously been considered pretty confidential. 

We decided to do that and to put our money where 

our mouth was. And today we do it again with 

updated data based on even more recent 

information. 

As you can see at the top of the 

demonstrative, and we are going to leave some 

handouts in the courtroom and append a copy of 

this inverted pyramid to our comments that we will 

file later. 

In 2013, we preserved on average over 59 

million pages per average case. In the average 

case we processed over ten and a half million 

pages of data. And by "processed," I mean that we 

applied technical tools to filter and to 

duplicate.

After this processing was complete in the 

average case, attorneys reviewed about 350,000 

pages for privilege and responsiveness. We 
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produced about 87,500 pages in the average case, 

which we believed to be responsive. And according 

to industry data, which is consistent with our own 

experience, about one in a thousand pages produced 

are actually admitted into evidence at trial. 

To put it another way, for each page that 

is actually used in evidence, we produce 1,000 

pages, review 4,000 pages, process 120,000 pages, 

and preserve over 670,000 pages. 

Depending on the tape of case, we spend 30 

to 50 percent of our out-of-pocket litigation 

dollars on discovery. In the last decade, we paid 

about $600 million in fees. $600 million in fees 

to outside counsel and vendors to manage 

discovery. 

And the figure does not even begin to 

address all of our costs. It doesn't address our 

internal costs. It doesn't address our 

opportunity costs based on the time thousands of 

employees under preservation must take away from 

other productive tasks. It doesn't address the 

costs spent to settle cases, cases that are often 

without merit, simply in an effort to avoid the 

preservation and discovery burdens I have 

described. 
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And let me be clear: We have overpaid in 

cases to settle, to avoid the burden and expensive 

discovery. In other cases, we've decided to fight 

even though, frankly, on a pure cost benefit 

analysis, we should settle. 

In terms of actual preservation data, in 

2013, we preserved over 1.3 million pages per 

custodian. That's a 425 percent increase since we 

first began measuring this type of information in 

2010. 

Today, at Microsoft, we're preserving over 

261 terabytes of employee data alone. That comes 

to about 11.5 billion pages. 

So there's a problem. And we believe that 

the proposed amendments are an important step in 

addressing that problem. 

Proposed Rule 37(e) has the greatest 

potential to reduce over preservation in the short 

term. I say this with one proviso. The rule must 

make clear that spoliation sanctions are only 

appropriate on a finding of culpable intent. 

Using a word like "willfulness," which the 

Supreme Court has already recognized in a couple 

of cases is one particularly susceptible of many 

different meanings, injects the type of 
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uncertainty this proposed rule is trying to 

remedy. 

In a world in which we face significant 

spoliation sanctions, even where we take 

reasonable steps to preserve relevant material, we 

have no choice but to over preserve, to go well 

beyond the list of employees reasonably likely to 

have relevant information. We will often put 

those employees' management chains and all of 

their direct reports under a litigation hold as 

well. 

We don't do this because we believe that 

that expanded circle has unique or important 

information. We fear that if we don't, the 

requesting party will argue that the hold was too 

narrow and the data was likely lost. 

Rule 37(e) should reduce the need to over 

preserve as a form of insurance policy. At the 

same time, I don't think that the proposed rule 

will lead to the loss of relevant data through 

sloppy practices. It is in Microsoft's best 

interest to locate and preserve key sources of 

information. They are just as likely to hold data 

relevant to our own claims of defenses as those of 

our adversaries. 
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What we are trying to avoid is preserving 

dozens of hay stacks just to avoid the risk of 

later being accused of missing a needle that may 

or may not have been there in the first place. 

There are many causes for the costs and 

efficiencies in our current system and there are 

other steps that we can collectively take to 

address some of these issues. Educating the bench 

and bar, technological changes in information 

management improvements will all help, but the 

problem won't be solved without fundamental rule 

reform. 

Our rules remain rooted in a paradigm from 

an earlier era, a paradigm that incentivizes 

overbroad discovery and over preservation. To 

really solve the problem, the rules need to change 

in a way that moves us toward merit-based 

discovery. 

Again, I would like to commend this 

Committee for the work that it's doing and for 

moving us in the right direction. 

Thank you. 

JUDGE CAMPBELL: All right. Thank you. 

Judge Grimm. 

JUDGE GRIMM: Just one quick question on 
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the issue of willfulness. And we've heard that 

there are a number of alternatives that people 

have identified, willful and bad faith or get rid 

of willful. 

Is there a definition of "willful" among 

the many that have been articulated in different 

contexts by the courts that if we were looking for 

a definition to try to address the uncertainty 

that you fear that an undefined version would have 

that you would put for us to consider? 

MR. HOWARD: I think that the definition 

put forward by the Sedona Conference of specific 

intent is a good one. I think it's -- it's rooted 

in the law. If you look at the Ratzlaff case in 

the Supreme Court for instance, I think it 

essentially adopts that same definition in another 

context. So I would propose that that's the right 

way to go. 

JUDGE GRIMM: Thanks.

JUDGE CAMPBELL: Judge Pratter and then 

Judge Matheson. 

JUDGE PRATTER: Mr. Howard, I would first 

like to say when I was in practice I paid David a 

lot of money to do a lot of discovery, so I know a 

little bit how he counts. 
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But I would like to know what's the 

definition of the average case that you've used 

when you gave us the standard? 

MR. HOWARD: Well, it's based on aggregate 

statistics. And obviously we handle everything, 

you know, from employment cases --

JUDGE PRATTER: It's not a dollar amount 

or a type of case? 

MR. HOWARD: Yeah, it's not a dollar 

amount or type of case. I mean, we have huge 

patent cases and antitrust cases. And we have 

much smaller employment cases. So it's an average 

based upon the number of custodians on an average 

basis. 

JUDGE CAMPBELL: Judge Matheson? 

JUDGE MATHESON: That was my question as 

well. 

JUDGE CAMPBELL: All right. Rick. 

PROFESSOR COOPER: Mr. Howard, I think you 

said something like you preserved more or less 

670,000 documents for every one that was used at 

trial, some number like that? 

MR. HOWARD: Right. 

PROFESSOR COOPER: Can you tell me how, 

back at the time you become aware of a possible 
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litigation or you are sued you would go about 

identifying those and preserving only them? 

MR. HOWARD: Preserving --

PROFESSOR COOPER: Instead of a much 

larger number. 

MR. HOWARD: In other words, if the rule 

is amended as proposed, how would we go about it 

differently than we go about it now? 

PROFESSOR COOPER: I guess in addition to 

that, just how one would, from that information 

base back when the lawsuit is filed, foresee what 

will turn out to be important when the trial 

arrives. 

MR. HOWARD: Well, I mean I think that the 

process that we go through is relatively simple 

now in terms of trying to overpreserve. And it 

will become even simpler, you know, if the rule is 

amended. 

I mean, we look at the employees who are 

likely to have relevant information. We 

look -- obviously look at the claims and the 

potential defenses in the case. We look at 

the -- the not only what might be important to the 

plaintiff, but what might be important to us as 

well. 
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If the rule is amended, our goal would be 

to preserve the information that we believe is 

potentially relevant to those claims and defenses. 

What we do now, however, requires us to go 

well beyond that. And to over preserve and be as 

conservative as possible in order to avoid the 

possibility that somebody could later accuse us of 

hiding the ball. 

JUDGE CAMPBELL: All right. Thank you 

very much, Mr. Howard. 

We are going to take a break. We will 

resume promptly at eleven o'clock with 

Mr. Stoffelmayr.

(A recess was taken.)

JUDGE CAMPBELL: All right. Let me 

mention one scheduling matter. We are running 

about ten minutes behind schedule. The members of 

the standing committee who are with us, and we 

appreciate them being here, need to leave right at 

noon, so you all should feel free to stand up and 

walk out. We won't be offended. They need to be 

on a bus by noon, because they have a busy 

schedule this afternoon. 

And as a reminder to us on the Committee, 

we need to keep our questions short and to the 
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point so that we give folks maximum opportunity to 

speak. 

It means we will probably run into the 

noon hour by about ten minutes, but we will do our 

best to stay on that schedule. 

All right, Mr. Stoffelmayr. 

MR. STOFFELMAYR: Thank you very much. My 

name is Kaspar Stoffelmayr. It is a real honor to 

be here. I'm the vice president and associate 

general counsel at Bayer. I serve as the head of 

the litigation function there. 

And before coming to Bayer, I had a broad 

civil litigation practice primarily in the federal 

courts representing both plaintiffs and 

defendants. 

Just a little bit about Bayer. It is a 

truly global operation. Here in the 

United States, we have about 12,000 employees. 

And we are active in fields ranging from 

pharmaceuticals to agricultural chemicals to 

plastics and films and materials of that nature. 

As someone who has devoted my entire 

career to litigating cases in the U.S. courts, it 

has really been striking and disappointing to me 

from my experience at Bayer in representing other 
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international companies in private practice, that 

I think if you were to take a poll of general 

counsels of foreign companies and ask them where 

would they prefer to have a major legal dispute 

resolved, either as a plaintiff or a defendant, 

virtually none of them would say the American 

courts, probably wouldn't be on their top three in 

most cases. 

And I thought a lot about why that is. 

And it's not because our courts don't do a great 

job deciding cases on the merits. I think we 

probably have the world's premier system, our 

system of jury trials for resolving disputed cases 

on the merits. 

The reason is the extraordinary cost of 

getting to a decision on the merits in the 

American courts. And that takes us, I think, 

directly to the cost of discovery. 

In the typical large case, virtually 

nothing will occur that requires any resources 

other than discovery. There may be some motion 

practice, may be expert work. But the cost of 

that will not approach the cost of discovery in 

the average case. 

And with that background, I want to focus 
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on the proportionality issue that has been 

discussed in some detail this morning but maybe 

with a slightly different perspective. 

I know people disagree sometimes strongly 

about what the right conclusions are to draw from 

the Federal Judicial Center closed cases survey. 

But one thing I think it clearly shows is that 

there is a large group of cases, exactly how large 

people might disagree about, but a large group of 

cases where the stakes are relatively speaking 

low, the disputed facts are relatively simple, and 

not a lot of discovery occurs. 

No change to the rules on proportionality 

is going to have any effect on those cases. The 

discovery going on in those cases already is 

proportional. There's not much discovery going 

on. 

But there's also a very important group of 

large cases where the situation is very, very 

different, and there is a real need for reform. 

And in talking about that, I want to focus 

on the part of the proportionality rule that has 

been referred to tangentially, but I don't think 

has been a focus of the discussion, and that is 

that discovery has to be proportional not just to 
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the amount in controversy, not just to the 

resources of the party, but even in the biggest 

cases where both parties may have tremendous 

resources, and where the amount in controversy may 

be very high, has to be proportional to the 

importance of the discovery in resolving the 

issues in the case. 

Sometimes as practicing lawyers we act as 

if discovery is an end in itself. Sometimes it 

certainly feels like it is an end in itself. But, 

of course, it's not. The whole point of discovery 

is to develop the evidence that will be useful to 

the trier of fact in deciding disputed issues, 

disputed factual issues. That's why we are doing 

discovery in the first place. And if the burdens 

of discovery are not proportional to that purpose, 

we are doing something wrong. 

To try to get a sense of how far out of 

whack things have become, we looked at our last 

trial of a large case, that is other than a single 

plaintiff employment case, and compared what we 

did in discovery to what was actually used by the 

trier of fact in deciding the case. 

We thought this would be a relatively 

conservative example in the sense that the 
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discovery record was, relatively speaking, modest. 

We produced just over 2 million pages, 2.1 million 

pages. For us that is a relatively small document 

production. And it was a long trial. It was an 

eight-week jury trial. 

And even then, only four/one-hundredths of 

one percent of discovery documents were used as 

exhibits at trial and played any role in the 

jury's determination of the facts. I think the 

ratio would be worse in other cases where you had 

a shorter trial, maybe a one or two-week trial and 

a larger document production. 

And I know my time is up in a moment, but 

what I -- what I think we can take from that is 

surely we can do better. You know, clearly in our 

system discovery is going to go well beyond the 

trial record. The discovery record may be 10 

times, 100 times, even 200 times the trial record. 

And that would be completely proper. 

But where we've gotten to a system where 

the discovery record exceeds the evidence actually 

used at trial by a factor of two, three, five 

thousand times, things are out of whack. And 

surely we can do better than that without closing 

the courthouse doors to anybody. 
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JUDGE CAMPBELL: All right, thank you.

Questions? Judge Oliver? 

JUDGE OLIVER: Yes. Mr. Stoffelmayr, I 

just wanted to go back to something you talked 

about when you started out. And you said that 

major companies or major -- general counsel of 

major corporations would -- foreign corporations 

would prefer not to have -- prefer other places, 

other venues to litigate their cases rather than 

litigating them here in the U.S. 

And I guess my question is: Do you have 

examples from those other countries as to how they 

effectively and fairly handle the kinds of issues 

that we are dealing with here? Because it's not 

just a question of what you prefer so much by 

itself, but it's also a question of fairness as 

relates to all litigants. And so are you 

satisfied that those systems are fair and how do 

they handle the complex issues that we are talking 

about? 

MR. STOFFELMAYR: Sure. Obviously every 

system is different and handles things 

differently. Some systems are terribly unfair and 

nobody would ever say I want to have my disputed 

litigated there unless you thought you were going 
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to be the beneficiary of the unfairness, I 

suppose. 

But certainly there are examples that you 

couldn't easily import to our system. For 

example, in civil law countries where the fact 

finding is done by a judge and done through a sort 

of piecemeal process where the judge 

takes -- takes complete control of the fact 

finding and the evidence gathering in sort of an 

ongoing way over the life of the case. I think it 

would be very hard to import something like that 

into the U.S. system, because we use jury trials. 

And that's one of the great strengths of our 

system. 

But at the same time, there's systems like 

the British system where they do have single-event 

trials the way we do and manage to conduct it with 

far, far less discovery. Many companies obviously 

in forum selection clauses will seek arbitrations 

before the ICC. And in those proceedings 

typically discovery is very limited. 

I don't think it's a limiting scope of 

discovery in the way we are talking about really 

raises a fairness concern, because I'm not talking 

about depriving anybody on either side 
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of -- depriving them of access to those documents 

that really make their case, and the additional 

set of documents that might help them find those. 

It's the other 80 or 90 percent of documents that 

we tend to request and tend to produce that don't 

benefit anybody. 

And I think a telling example, too, from 

our own system, how we know this can work, is if 

you consider disputes between large corporate 

parties where they tend to have -- in a case where 

they have similar resources and where the nature 

of the case means the discovery burdens will be 

symmetrical, they tend to get by with far less 

discovery than you see in cases where the disputes 

are asymmetrical. 

I think of patent cases I have been 

involved in where the stakes were as high as any 

case, in the many hundreds of millions of dollars. 

And the parties had no trouble getting by with 

five to ten depositions, and document productions 

of a couple million pages. 

JUDGE CAMPBELL: All right. We've got a 

little less than a minute. Any other questions? 

No? John, quick question, please. 

MR. BARKETT: Just wondering whether in 
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the example that you gave, the 400 something 

percent example, whether you went back and looked 

at the request for production to figure out 

whether the actual trial exhibits that were used 

related only to a small subset of the request such 

that your 2.1 million pages would have been a half 

a million pages had you focused the discovery on 

areas that -- that related to what was actually 

used at trial. 

MR. STOFFELMAYR: No, we haven't done 

that, but that's a very interesting question and 

I'm going to do that.

JUDGE CAMPBELL: All right, thanks so 

much, Mr. Stoffelmayr. 

Mr. Saenz. 

MR. SAENZ: Good morning, honorable 

Committee members. My name is Thomas Saenz. I am 

the president and general counsel of MALDEF, the 

Mexican American Legal Defense and Educational 

Fund. MALDEF is now a 46-year-old national civil 

rights organization whose mission is to use the 

legal system to promote and protect the civil 

rights of all Latinos living in the United States. 

As you might imagine, much of our work is 

in federal court litigation. Indeed, at any given 
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point in time, we maintain a docket nationwide of 

between 25 and 35 active cases, the vast majority 

of which are in the federal courts. 

Our cases fall in four issue areas: 

Education; employment; immigrant rights; and 

voting rights. And as a result of those 

particular issue areas, with the exception of 

education, most of our cases are in fact federal 

question litigation in the district courts of the 

United States. 

My comments this morning relate to the 

presumptive limits, the changes in presumptive 

limits on discovery and the creation of a 

presumptive limit on requests for admission as 

well as to the elevating of the proportionality 

requirement. 

As I mentioned, our education cases, as a 

result of a Supreme Court decision some 30 years 

ago -- some 40 years ago, tend to be in state 

court these days. But our other cases in 

employment, immigrant rights, and voting rights 

are in federal court. 

But you've already heard much testimony I 

believe about employment, so this morning I want 

to concentrate on two elements that are increasing 
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in proportion of our docket in voting rights and 

immigrant rights. 

There are two things that characterize 

both sets of cases that I think you should be 

aware of. First, both involve government 

defendants, government defendants in a highly 

politicized litigation context. That means that 

these are hotly contested cases. And indeed in 

some cases, it means that while lawyers may want 

to approach discovery and other disputes in a 

particular way, they may be pushed by their 

client, elected officials, to act in a less 

cooperative and more contentious manner. 

Second, these are cases that involve 

significant differentials in access to relevant

evidence. Because although they are not 

denominated as class actions, basically in both 

the voting rights and immigrant rights context we 

are talking about plaintiffs who are stepping 

forward and representing larger classes in 

challenging government actions, government 

structures, in which cases the government itself 

has ready access to the evidence that's needed. 

To be more specific, in the voting rights 

context, our cases are under Section 2 of the 
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Voting Rights Act of 1965. Section 2 under a 

Supreme Court decision some 30 years ago is 

governed by a totality of the circumstances test. 

You can imagine with a totality of the 

circumstances test how much evidence is 

potentially relevant and necessary to successfully 

prosecute these cases. 

In these cases, because of the breadth and 

type of evidence that can be presented, and how 

long these cases take to try, often requests for 

admissions in particular play a significant role 

in streamlining the pursuit of these cases. 

Let me note finally that these cases will 

increase in magnitude as a result of the decision 

last year by the Supreme Court in Shelby County 

versus Holder, which took away Section 5, a 

protection against changes that will now have to 

be challenged to this very contentious Section 2 

litigation. 

With respect to immigrant rights, our 

cases tend to challenge state and local statutes 

and ordinances that seek to regulate immigration. 

And we generally contend that they are preempted 

because of the exclusive federal right to regulate 

immigration in this country. 
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Even though these are often facial 

challenges, we have found ourselves having to 

engage in contentious discovery around the intent 

behind these laws, particularly if an equal 

protection claim is alleged along with preemption 

claim. 

And we have often found as a result of the 

Supreme Court's decision two years ago in Arizona 

versus United States, that what may have started 

as a facial challenge becomes an as-applied 

challenge looking at the specific practices and 

policies that would be followed to implement 

statutes and ordinances that on their face have a 

lack of clarity around them. 

These immigrant rights cases and these 

voting rights cases create an increasing 

proportion of MALDEF's docket. As I mentioned, 

our total docket is between 25 and 35 cases. At 

least half of that today is comprised of these 

complex, highly contested cases under voting 

rights and immigrant rights. 

Because of the characteristics that I 

described earlier, a differential in access to 

evidence and the highly contested, indeed very 

public nature of these cases, setting presumptive 
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limits at a lower level for discovery will hamper 

the ability of plaintiffs across this country to 

engage in this type of critically important 

federal court litigation. I therefore urge the 

Committee to reconsider its reduction in 

presumptive limits on discovery, and indeed to 

reconsider its creation of a presumptive limit on 

requests for admissions and to reconsider its 

elevation of the proportionality requirement with 

respect to discovery across the board. 

Thank you. 

JUDGE CAMPBELL: Thank you, Mr. Saenz. 

Dean Klonoff. 

DEAN KLONOFF: Sir, some of our witnesses 

have been more concerned about the proportionality 

piece, others have been more concerned about the 

discovery limitations. In fact, the EEOC 

generally supported the proportionality. 

As between the two bundles of issues, 

which is of more concern to you? 

MR. SAENZ: Well, on its face, the 

presumptive limits would have a more immediate 

impact. I think there are questions about how the 

elevation of the proportionality requirement into 

Rule 26, what its effects would be. I do, 
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therefore, have concerns about how that might in 

practice be implemented. 

In the highly contested cases that we are 

involved in, there is resistance. As I indicated 

previously, sometimes that resistance is not 

driven by the lawyers. Indeed you have the strong 

sense that they would wish to be more cooperative. 

But because these are political cases, they are 

being pushed by their clients to be much more 

contentious. 

In that context, I am concerned that the 

proportionality requirement being elevated could 

give them another tool to engage in resistance to 

legitimate discovery requests. 

In every case, at least publicly, the 

defendants are claiming that the claims against 

them, the lawsuits against them are not 

significant, are not important, should never have 

been filed. That's the context in which these 

cases are litigated. 

JUDGE CAMPBELL: Other questions? 

Mr. Saenz, I have one if I could ask it. 

I'm assuming that in a number of these 

high profile voting rights or immigration rights 

cases, the discovery exceeds the current 
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presumptive limits of 10 depositions and 25 

interrogatories. 

MR. SAENZ: That's certainly the case in 

voting rights, yes. 

JUDGE CAMPBELL: Have you had trouble 

getting judges to agree to exceed those 

presumptive limits? 

MR. SAENZ: I think it's been a mixed bag. 

Some judges are more familiar with Section 2. And 

in some cases you have defendants who are familiar 

with Section 2 and have been involved in it often 

with the same plaintiffs' lawyers multiple times 

before. In those cases, generally you can reach 

an agreement or you can convince a court to give 

you additional discovery. 

In other cases, it's a lot of education. 

It's a lot of argumentation that's required, and I 

would just note that these are already cases that 

are quite resource intensive and long running. 

And adding additional motions, additional debates, 

additional practice before the court on discovery 

simply takes cases that are already in my view 

quite costly and quite time consuming and makes 

them even more so. 

In a context where quick resolution may be 
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critically important, particularly in voting 

rights you may be looking to get a resolution 

prior to an election or more importantly prior to 

filing deadlines for an upcoming election, so 

streamlining is really important. 

JUDGE CAMPBELL: All right. Thank you 

very much for those comments. 

Mr. Arkfeld? 

MR. ARKFELD: Your Honor, I want to say 

may it please the Court since I had the 

opportunity to practice here for many years. My 

name is Michael Arkfeld. I do not represent any 

groups today of any type, whether plaintiff or 

defendants, requesting or producing parties. 

I think I -- the question I want to 

address today is different, I think, to some 

extent, is whether these proposed rule changes 

will increase or enhance access to our justice 

system. If these rules decrease meaningful access 

to our system because of proportionality or some 

of the other issues or proposed changes, should 

they be adopted. 

I think I bring a rather unique 

perspective here today. I'm -- I was, am a trial 

attorney. I was -- I represent plaintiffs for 
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five years, was a prosecutor for 12 years, and the 

last 20 years served as an Assistant U.S. Attorney 

for the District of Arizona representing the 

United States in civil actions, multimillion 

dollar medical malpractice, a variety of civil 

actions. 

For the past 14 years I've written 

extensively, instructed extensively in the area of 

electronic discovery. I have the privilege of 

reading every eDiscovery opinion so I can update 

my treatise twice a year. I find it very 

fascinating in terms of the history of what we've 

moved through through the last 14 years. 

However, I would like to make one 

preliminary comment, one that concerns me greatly 

from the comments I've heard before is I do not 

hear about a lot of the technological changes or 

advancements we've made concerning electronically 

discovered information. 

I've maintained for the last 13 years when 

I first saw e-mail, text messages, 

chat -- SnapChat, a variety of other things that 

we are seeing today that what technology has 

created in terms of a problem, can be solved by 

technology. And we've seen that, especially this 
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last couple of years. 

Some of us have thrown around the term of 

predictive coding. Some very respective jurists 

throughout the country are saying that has reduced 

the cost of discovery one/fiftieth to what it was 

before. So a hundred thousand dollar cost of 

eDiscovery has now been reduced to $2,000 if you 

look at it from that perspective. 

We are going to see more advancements in 

that area. It is a moving target, there's no 

question about it. 

I've heard today testimony about a million 

documents, two million, six million, 600 million, 

and yet when we talk about that, we need to talk 

about the technological issues with that also. 

How fast can we search a million 

documents? A matter of seconds. 

How can we cull, produce, use hash, 

algorithms, duplicate, how do we use 502(d) of our 

rules to reduce that information and to protect 

all parties in access to the court system? Those 

are the things I hope we focus on in terms of the 

access to justice. 

There's an agenda for a justice statement 

by the ABA. I won't go into it entirely. But 
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first any change to the justice system should be 

based on desire to protect, enhance ability of all 

persons to use the justice system. 

There's a Georgia study that came out in 

2009 that said essentially between 70 to 80 

percent of all Americans from low to moderate 

income do not have meaningful access to the 

justice system. 

Now there's a variety of reasons for that. 

They don't know their rights, complexity of the 

case, cost of the system. But we don't really 

have a system that's available to most Americans 

today. 

That's a whole different issue. Obviously 

we are very much invested in the system that we 

have today. 

For background purposes and one of the 

issues about access to justice, I've had the 

opportunity to talk to two businessmen over the 

last two months on airplane flights. Since I 

teach like twice a month at either government 

agencies or law firms across the country, very 

intensive eDiscovery discussions about technology 

and legal issues. 

And these two businessmen I said to them: 
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How much money has to be in dispute before you 

would take a case to federal court? And both of 

them said, without hesitation, $75,000 or they are 

not going to take it. It would just be a wash if 

it was $75,000. 

I said what would you do with any disputes 

under that? They say we just write them off, 

generally speaking. 

I think we have a system that we need to 

reverse. We need to make more meaningful access 

to it. For example, with proportionality, what 

concerns me about taking that rule out of the back 

and moving it to the front is this: When I was an 

advocate for the United States Government, if I 

had that rule, one of the first things I would do 

is I would go to my client, and I would start 

talking to their IT department and I would say to 

them: What kind of servers do you have, legacy 

systems, unallocated space on your hard drives, 

application and system meta data, BYOD devices, 

and a myriad of other ESI media sources, types, 

locations? 

And they would say to me: Mike, we have 

all of this information. 

I say: You need to give me a cost of what 
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it's going to cost to acquire all of that 

information, put it together. 

They would give that to me, I would go to 

the plaintiff, whoever filed the lawsuit and say, 

well, this is expensive. And you need to get 

information, you need to get experts and other 

people to refute what I'm saying here. 

And that little interaction with moving 

proportionality to the front of that rule is going 

to costs tens of thousands of dollars in e-motion 

costs. I mean in the motion cost. 

As an advocate for the United States it 

would be something that I would utilize if the 

facts presented that. 

And so what I'm urging, you know, this 

Committee here today is if you're going to move 

that or any of these rules, look at it from an 

access to justice. Are we taking our justice

system where we make it easier to access or are we 

increasing the eDiscovery cost as we put these 

rules into effect? 

Unfortunately, I think we are limited in 

time when there's very little meaningful access to 

our justice system, just complexity, costs and now 

eDiscovery. 
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With eDiscovery, when we look at it, we 

look at a system that started developing in 1985 

when we first got desktop computers. I started 

using them in '87 for the Department of Justice, 

putting all my information on it because I knew it 

would level the playing field. 

But in the last 30 years approximately we 

have not kept up with technology. We just saw the 

ABA in 2012, September, first pass some comments 

regarding competency of lawyers in technology. 

They called it the bewildering rate of change in 

technology. 

I don't think there is a bewildering rate 

of change. I don't think we are going to see a 

lot more change. We are going to see different 

locations, access, more advancements. But in 

terms of technology, full text databases, that 

will remain constant and current. 

Though a digital paradigm shift has 

occurred for the rest of the world, I would 

maintain that the courts and legal profession, we 

have not kept up with it. We've seen some real 

important movement in that area, one of them is to 

reinvent the law, how the University of Michigan, 

State University College of Law by Dan Katz and 
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some of the things going on there. I would urge 

you to start looking at that in terms of accessing 

our justice system. 

But I urge the Court here today, I mean 

the Court or the Committee, to start looking at 

the technological advancements that are occurring 

around us all the time now. They have a profound 

influence on these proportionality rules, on the 

37(e) and the rest of them. 

And so if you have any comments, I'm here 

for that. 

JUDGE CAMPBELL: All right. Thank you. 

Are there questions? John? 

MR. ARKFELD: Yes, John. 

MR. BARKETT: In your example that you 

gave of having all these various storage media, if 

there was no rule change made, how would you 

handle that same issue? 

MR. ARKFELD: If there's no rule change in 

terms of -- 

MR. BARKETT: I heard you describe that 

there were four or five, six, seven, eight, nine, 

ten different sources of electronic storage media 

and if the rule change were made, you would go to 

the requesting party and say: This is going to be 
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very expensive, how are you going to deal with it. 

But if no rule change is made, how would 

you deal with that same set of facts? What would 

you be doing? 

MR. ARKFELD: First, I don't think there's 

seven or eight different sources. I think there's 

probably 40 or 50 different -- 

MR. BARKETT: 40 or 50 sources. What 

would you be doing under the current rules? 

MR. ARKFELD: What I would be doing is, 

number one, I would go to my agency and I would 

say to them, hopefully before litigation occurs, 

let's put our house in order in terms of 

electronic information. We need to put it in a 

methodology where we can take --

MR. BARKETT: I accept that, but your 

example was that you had a lawsuit, there were 

these various storage devices, and it was going to 

be very expensive. I'm just trying to understand 

under the current rules how you would handle that. 

MR. ARKFELD: Under the current rules I 

would go to my agency and figure out the cost, go 

to the other side and sit down with them, meet and 

confer and try to figure out with them whether we 

can reduce the scope, the number of custodians and 
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a variety of other issues. 

If we are unable to do that, then I'm sure 

there would be a motion to compel of some sort or 

I would file a motion asking the court to issue a 

protective order for a possible proportionality. 

JUDGE CAMPBELL: So I think the question 

is how do you think that would be different if we 

adopted the proportionality change that's been 

proposed? 

MR. ARKFELD: From my experience if I was 

still an Assistant U.S. Attorney, I would look at 

that rule and immediately go to my client and 

start talking with the other side about 

proportionality and bring it to the forefront in 

terms of cost and that. And before, I think I 

probably, to some extent, you would try to work 

that out. 

Proportionality, under the federal rules 

is, I don't want to say it's not at the forefront, 

it's behind. And the cases I've read, there's 

very few cases that even discuss proportionality. 

And I think part of the reason for that litigants 

don't realize it is there for them. 

If you are going to move it to the front, 

I think what you are going to have is you are 
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going to have a lot more litigation on 

proportionality. It's going to decrease the 

access to the courts, because I sincerely believe 

it's going to cost tens of thousands of dollars to 

bring it up. 

But I, you know, when you work for the 

Department of Justice, we are there to seek 

access, you know, to seek justice. And so as part 

of what I was doing was always trying to ensure 

that they had the correct electronically stored 

information from the perspective of custodians and 

sources and media types and that type of thing. 

So for me, I would not -- I mean, I would bring it

into the meet and confer, that type of thing. 

I think if you move it to the front, I 

think you're going to get a lot more litigation. 

JUDGE CAMPBELL: All right. Thank you 

very much, Mr. Arkfeld. 

Professor Coleman? 

PROFESSOR COLEMAN: Thank you to the 

Committee. I was fortunate enough to clerk for 

Judge David F. Levy when he was chair of the 

standing committee, and so I have great admiration 

for the work that you all do as committee members 

as well as a deep admiration of the rule-making 
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process itself. 

And it's that admiration for this process 

that brings me to you all today to discuss the 

proposed abrogation of Rule 84 in the official 

forms and how I would argue that that proposal 

violates the Rules Enabling Act. 

In short, the rules and the forms are one 

in the same. In order to understand what the rule 

means, you have to look at the form. This means 

that in order to change the rule, you must 

consider or to change the form, you have to 

consider the rule and the form together. 

This is because a change to the form 

necessarily changes the rule to which it 

corresponds, meaning that in order to comply with 

the Rules Enabling Act process, you have to take 

both that form and the rule through the process, 

through consideration, and through publication. 

Here, the abrogation of Rule 84 in the 

forms is being done without reference to the rules 

to which they correspond. And that I argue 

violates the Rules Enabling Act. 

I have three quick points to support this 

argument. First, looking at the history of 

Rule 84 itself, the -- when the original rules 
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were adopted in 1938, Rule 84 was there. It was 

amended in 1946, however, to make clear to parties 

and courts that the forms were not there as some 

kind of passive indication of what the rules 

meant. They were there as an active illustration 

of what the rules meant. And that rule change was 

made because courts were not using the forms as 

sufficient under the rules. 

So the changes in the wording tell us that 

now the forms are demonstrative and sufficient. 

But I also think that the amendment in and of 

itself shows us how the rules and the forms have 

to be considered together. 

Second, if we look at the way the forms 

have been changed over time, this is really 

helpful in seeing how the rules and the forms are 

linked. In almost every occasion where meaningful 

change has been made to the form, it has been done 

in concert with a change to the rule that that 

form corresponds to. 

So, for example, when Rule 4 was amended 

to add the waiver of service of process provision, 

Form 18(a) was abrogated and forms 1(a) and 1(b), 

now 5 and 6, were added. 

If you look historically at every time the 
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forms have been amended, this is the pattern. The 

forms are amended and they're amended in concert 

with the rule. 

Now, there are exceptions. Sometimes 

federal statutory changes mean that the forms have 

to be changed as well. So when Congress changed 

the amount in controversy requirements in 1993, 

the forms had to be amended in order to reflect 

those requirements. 

But there again, the change was not done 

in isolation, it was done in concert with the 

change to federal statutory law. 

In my research, looking at all the times 

the forms have been changed, the only time the 

forms have been changed without reference to a 

rule or federal statutory law has been 

administerial or administrative change. So a 

change -- the date indication from 1900 to 2000, 

the two -- that kind of thing is done without 

reference to the rules. 

But what this shows us is that if we look 

at it historically, changing the rule or changing 

the forms without reference to the rules or 

without reference to federal statutory law is 

incredibly atypical. 
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Third, we have a ready example of how this 

abrogation is going to be problematic. And I know 

the Committee may not want to hear about this but 

Twombly and Iqbal, as you all know, has caused a 

lot of consternation with respect to Form 11. 

The court in Twombly, of course, cited 

Form 11 approvingly, but we haven't heard anything 

from the court since. And the rules committees 

have done an excellent job discussing this 

confusion that the -- that those cases have 

created, both with respect to the form and 

specifically with respect to Form 11. 

But I would argue that discussion that 

you're having kind of proves the point. The form 

and the rule are connected to one another. And 

that while we don't have to necessarily agree, and 

I think we can agree to disagree about whether or 

not we need to use Form 11 to any great degree to 

figure out what Rule 8 means. The fact that we 

are having this discussion shows us that they are 

connected. And that is because a change to Form 

11 necessarily changes the rule. 

And here's where I argue we have the 

Enabling Act process violation. That rule change, 

that change to Rule 8 has not been vetted by the 
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Committee and has not been taken through the Rules 

Enabling Act process, through publication and 

otherwise. And because those two things have not 

been considered together, I argue that this is a 

violation of the act. 

So between the history of the rule itself, 

the history of the way the forms have been 

amended, and this example of how Form 11 and Rule 

8 go together, I think it shows that the rule and 

the forms are kind of inextricably linked. 

And my hope would be if the Committee 

seeks to continue to undertake the abrogation of 

the forms, it would do so by looking at the forms 

and the rules in concert and taking those rules 

and forms through the process, through the 

Enabling Act process anew, and hopefully when you 

go back to deliberate you will consider this 

option. 

Thank you. 

JUDGE CAMPBELL: Thank you. 

Questions? I do have a question for you. 

PROFESSOR COLEMAN: Sure. 

JUDGE CAMPBELL: The motivation on the 

part of the Committee, if I can dare to try to 

characterize what we are all thinking, but I think 
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it's accurate, is to get us out of the forms 

business. In part because many of the forms are 

outdated. We don't do a good job, and, in fact, 

it would be very difficult to do a good job of 

keeping them current through the full Rules 

Enabling Act process. 

Not all of the rules committees, as you 

know, run their forms through the Enabling Act 

process. And our thought has been it's going to 

be virtually impossible to stay on top of that. 

We haven't done a good job. They are outdated. 

Nobody uses them. Let's just get out of the forms 

business and leave it to other entities to propose 

forms. 

If that's the objective, I guess the 

question I have is: If that's the stated 

objective, that's the published objective, we are 

proposing it in that way, why is it necessary, 

then, to go form by form and, as I understand it, 

have a public discussion of whether we should 

eliminate this form under this rule, or why is it 

necessary to publish every rule that relates to 

the forms we are trying to just get rid of? 

PROFESSOR COLEMAN: Well, I think that 

goes back to my point that I think the forms and 
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the rules are inextricably linked and I don't 

think that you can change the form without 

changing the rule. 

And I understand the Committee's point 

about the time that it would take to update these 

forms. I mean, first of all, I would say that the 

Committee is well -- well -- is -- you do an 

excellent job of keeping on top of the forms. 

It's shown that it can do large projects and do 

its other tasks. 

But putting that to the side, if the 

Committee is interested in getting out of the 

business of the forms, I think the answer is to 

publish all the forms with the rules that they 

correspond to, offering that you're abrogating 

those forms. 

The reason I think this is important is 

because that's the Rule Enabling Act process. It 

may be the case that the response from the bench 

and the bar is that they will welcome this, and 

that they don't see that this is a major change to 

the rules. But that is -- that's what that 

process is supposed to do. And I think the 

default should always be to make sure that that 

process is being heeded to. 
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And so it could be that at the end of the 

day we end up abrogating the forms and that's 

fine. But I would like to see the Committee go 

through the process of making sure that the bench 

and the bar have a chance to respond to what I 

argue is a change to the rules by eliminating some 

of these forms. 

And you can see from the level of comments 

that you're getting that I'm one of the sole 

testifiers on this, that this is not something 

that has really caught the attention of the bench 

and the bar. 

JUDGE CAMPBELL: Judge Pratter? 

JUDGE PRATTER: I'm having trouble 

understanding why you think that the process is 

part of the Enabling Act. Because I thought the 

process really came from Section 2073(a)(1), which 

is a judicial conference --

PROFESSOR COLEMAN: Sure. 

JUDGE PRATTER: -- which could be changed. 

PROFESSOR COLEMAN: Sure. 

JUDGE PRATTER: That doesn't mean it's 

part of the act. 

PROFESSOR COLEMAN: Well, I think that we 

consider it to be part of the Enabling Act 
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process. So maybe I'm not being fair in stating 

it as the Enabling Act, but I consider that to be 

part of the Enabling Act process. And, sure, it 

could be changed but it hasn't. 

And I think there's something, I mean, we 

are civil procedure people. We are about process. 

This is what we specialize in. And I think in 

this particular case, a process that has been 

followed time and time again is that when a rule 

is changed, it's put through the committee 

process. It is published for comment. Those 

comments are responded to, the committee goes back 

and considers those comments. 

Here I argue you have a change that is 

happening to the rules that's underlying this 

abrogation of the forms, and yet that hasn't been 

vetted by the Committee either. I mean, that 

hasn't been discussed to a great degree. It's 

been kicked around a little bit. But it also 

hasn't made it through the process of having the 

bench and bar respond. 

JUDGE PRATTER: Again I'm going to keep 

asking you for help. 

PROFESSOR COLEMAN: Sure. 

JUDGE PRATTER: Because I'm having trouble 
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seeing a link between a particular rule and an 

illustration, which the forms are identified as 

illustrative. 

PROFESSOR COLEMAN: Yes, they are also 

identified as sufficient under Rule 84. And again 

that was the change that was made in 1946. 

JUDGE PRATTER: But where does it say in a 

rule that here is a form to live by this rule? 

PROFESSOR COLEMAN: Now if you abrogate 

Rule 84, you are getting rid of that. Rule 84 

says that the forms apply and they are sufficient 

and demonstrate the rules. 

JUDGE PRATTER: I'm not asking my question 

clearly. Where in any given rule does it relate 

to one of the forms that are currently available 

as an illustration? They are not exclusive 

illustrations, by the way. 

PROFESSOR COLEMAN: No. And, in fact, the 

opening of the appendix says that they are not 

exclusive illustrations. And now the amendment 

that you all are proposing specifically 

incorporates some of the forms into Rule 4. 

But you're right that none of the rules 

right now incorporate the form specifically by 

reference. But that's what Rule 84 was meant to 
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do from the beginning and as amended in 1946. 

JUDGE CAMPBELL: Thank you.

PROFESSOR COLEMAN: Thank you very much. 

Appreciate it.

JUDGE CAMPBELL: Ms. Larkin. 

MS. LARKIN: Good morning, my name is 

Jocelyn Larkin. I am the executive director of 

the Impact Fund, a legal nonprofit which supports 

impact litigation to further civil and human 

rights, combat poverty, and ensure environmental 

justice. We do this through small grants to pay 

litigation costs through training and consultation 

with lawyers involved in these cases. We also 

have our own caseload of impact litigation. 

I was an invited speaker at the Duke 

conference and also participated at the Dallas 

mini conference. We have submitted comments and 

we plan to supplement those. 

I want to focus my comments on the 

perspective of litigants who are using the federal 

courts to seek systemic institutional reform. 

Those cases share certain distinct characteristics 

that I think are relevant to the proposed changes. 

These are cases that are not about money. 

They seek injunctive relief to change governmental 
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or corporate conduct. They are cases that are 

frequently brought on behalf of vulnerable groups 

without personal resources or the capacity to 

essentially assist in the litigation. And to make 

that more concrete, I'm talking about children who 

are in an inadequate foster care system, persons 

with developmental disabilities who are 

inappropriately warehoused in institutional 

settings, prisoners who are denied medical care. 

The third characteristic are these cases 

are very difficult. Plaintiffs are required to 

meet very challenging burdens of proof. 

I think Mr. Saenz talked a bit about this. 

Systemic deficiencies we have to show, deliberate 

indifference, a pattern and practice of 

discrimination. We need to establish motive or 

state of mind rather of an entity rather than an 

individual. And we have to marshal a range of 

circumstantial evidence to meet our burden, not 

just to show liability, but also to get the class 

certified. 

The discovery in these cases is entirely 

asymmetrical. We have to understand a very 

complex organization or bureaucracy with many 

players and multiple levels of decision making. 
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The cases, fifth, are brought often by 

nonprofit legal organizations with limited 

resources. These lawyers and thus these cases are 

uniquely vulnerable to a defense strategy of 

obstruction and delay. 

I think that these cases also in social 

terms are among the most important and meaningful 

work of the federal courts, and a testament to our 

legal system and to our democracy. 

The proposed rules will adversely affect 

these cases I believe in three ways, or at least 

raise three concerns for me. 

The five depositions are insufficient to 

obtain the discovery needed to meet these very 

heavy burdens of proof. I think it's been raised 

that there is an ability to get agreement on the 

other side. I think the problem with lowering the 

limit is that you create essentially a new 

strategy -- a new first line of defense for the 

defense. 

So in other words, they say to us: No, 

you can -- you can have the five deposition limit. 

Go to court to get anything in addition. It's a 

no-risk strategy for them, because if we end up 

getting maybe eight or ten because we aren't going 
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to get 15, but if we get eight or ten, the defense 

will automatically get that same number. 

So whether or not we are successful in 

getting more depositions, we -- we've gone through 

the transaction costs, which in these cases, 

again, I said are very important. 

I think also in terms of thinking about 

it, when you don't know at the outset how many 

depositions you are going to get, it's much more 

difficult to effectively plan your discovery. Do 

I need to do everything in five depositions, or am 

I going to be able to count on the fact that the 

judge will give me an additional three or five or 

maybe the ten that I actually need? 

I think that making a complex five-part 

proportionality requirement part of the definition 

of discoverable information will also burden that 

process. 

When you look at the factors again, these 

are cases that are not about money. So the amount 

in controversy calculus, which I know has raised a 

lot of discussion, actually isn't relevant in 

these cases. 

That brings you to the importance of the 

issues that are at stake. And, of course, that, 
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to some extent is a subjective judgment and it can 

be in the eye of the beholder. 

Just to give you a really simple example, 

a couple of years ago we helped fund a case to 

challenge the sex offender registration law in 

Michigan. Those are not popular people, certainly 

not with me. But the question is should a judge 

be passing on whether this is an important issue 

at the outset of the litigation. 

It's often only in hindsight that we as a 

society recognize the severe injustice that these 

kinds of cases challenge. You know, when you 

think about marriage equality, prison condition 

cases, racially discriminatory police practices, 

at the outset, the cases are thought to be 

frivolous. At the end, we say: How did we ever 

let it happen. 

And while there's no one else here to 

speak for them, I just want to remind everyone 

that when we add this complexity to the discovery 

standard, we need to keep in mind the pro se 

litigants who need to deal with that issue. 

I also finally join Professor Miller in 

expressing concern about eliminating the Court's 

discretion to allow discovery relevant to the
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subject matter upon a showing of good cause. I 

think this is a really important safety valve. 

And just to give you a really simple 

example, I do discrimination cases. If I have a 

gender discrimination case, ordinarily our 

discovery is limited to issues around gender 

discrimination and probably the particular 

practice that I'm challenging, say promotion. 

But there are certain cases where if the 

woman is the only person there, discovery might be 

appropriate into issues concerning race 

discrimination or perhaps there are circumstances 

where sexual harassment might be relevant to that 

promotion discrimination case. I don't have a 

claim for race discrimination in my case, but in 

unique cases, that safety valve would allow the 

District Court to go beyond my claims and 

defenses. 

And I'm happy to take any questions. 

JUDGE CAMPBELL: Questions? 

A question on that last illustration you 

gave.

MR. LARKIN: Um-hmmm. 

JUDGE CAMPBELL: Why couldn't you argue in 

that case that because there are no other gender
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promotion issues in the company, it is relevant to 

inquire into race discrimination practices or 

sexual harassment? 

MS. LARKIN: I certainly would be arguing 

that, but it is not one of my claims. And the 

defenses will say you haven't made that separate

claim. 

I think another example, Judge Campbell, 

might be in a circumstance where I have one or two 

people who are challenging an inadequate foster 

care system. Those children might have one or two 

specific kinds of claims, but if we get into 

discovery and we realize that there is a systemic 

deficiency going on as opposed to just they made a 

mistake on one or two people. It may be important 

to go beyond what those two children's claims are 

to get a sense of that larger systemic deficiency. 

JUDGE CAMPBELL: If I could just follow up 

on that. It seems to me that in that example as 

well, if you take the relatively lenient 

definition of relevancy, does it have any 

likelihood of making a fact in dispute any more or 

less likely? 

You can make a strong argument that 

looking at these other instances of improper 
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conduct is very relevant to proving that 

misconduct occurred in your claim. 

One of the things I think we discussed on 

the Committee in eliminating the subject matter 

reference was that nobody on the Committee, as I 

recalled when we discussed it, lawyer or judge, 

had ever heard anybody request a good cause 

extension to subject matter. Everything was 

focused on relevancy. And that seemed to be the 

arena in which all of the discovery decisions were 

made. 

So I guess the question is, is two part: 

Do you really think the argument you would be 

making is not a relevancy argument? But secondly, 

has it been your experience in your cases that you 

do go to that subject matter provision of 

Rule 26(b)(1) and argue that to courts? 

MS. LARKIN: Your Honor, I haven't 

necessarily and certainly my -- my focus is always 

going to be on relevance, but you are making a 

change to the rule and you are intentionally 

taking that language out. 

And so the argument from the defense will 

be that that was intended to narrow the scope of 

discovery. And then that question of what is 
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relevant may become a different calculus than it 

has been in the past. 

JUDGE KOELTL: Is it really an appealing 

argument to the court that you would say I can't 

argue to you that this is relevant to any claim or 

defense in this case, but it's relevant? 

MS. LARKIN: Well, because there are 

circumstances in which we have an individual 

plaintiff who may present only a certain narrow 

set of circumstances about what happened to him or 

her. But we are looking at systemic institutional 

reform. And in that case, it may go beyond the 

specific facts of that person. So it could go 

beyond an individual facility to a broader point. 

JUDGE CAMPBELL: Any other questions? 

All right, thank you very much, 

Ms. Larkin. 

I'm going to mispronounce your name, 

Mr. Urquhart. 

MR. URQUHART: Urquhart. Yes, Judge 

Campbell, thank you very much. 

Again, my name is Quentin Urquhart, and 

I'm here as a partner from the law firm of Irwin, 

Fritchie, Urquhart & Moore in New Orleans. 

I'm also appearing here today in two 
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capacities: First as a lawyer in private 

practice, who tries cases and routinely advises 

clients on the scope of their obligations to 

provide information that is discoverable under the 

federal rules. 

Second, and probably most importantly 

today I appear in my capacity as immediate past 

president of the International Association of 

Defense Counsel, the IADC. The IADC is an 

association of approximately 2500 peer reviewed 

corporate and insurance attorneys for the 

United States and around the globe whose practice 

is concentrated solely on the defense of civil 

litigation. IADC members are partners in large 

and small law firms. They are senior counsel in 

corporate law departments. They are insurance 

executives. 

Our members and firms represent the 

largest corporations around the world, but also 

thousands of small and midsized companies who are 

faced with the challenge today of completing in 

our global economy. And the cost of discovery 

plays a role every single day with those companies 

when they are a litigant in a lawsuit. 

The IADC sponsors over 20 substantive law 
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committees covering virtually every area of civil 

practice from products liability to employment 

law, construction law to corporate work, from 

insurance law to white collar defense and trial 

tactics. Our lawyers are on the front lines each 

and every day litigating and trying these cases. 

Our lawyers care deeply about the process 

of civil litigation. Our organization is one of 

the cofounders of Lawyers For Civil Justice, LCJ. 

We, in sum, support a justice system in 

which plaintiffs are compensated fairly for 

genuine injuries, that responsible defendants are 

held liable for appropriate damages, and that 

nonresponsible defendants are exonerated without 

unreasonable costs. 

We are involved in advising clients every 

single day about what they do with a particular 

matter that is before them. We want to base the 

advice to them as to whether they should settle a 

matter or bring it to trial based on the legal 

merits of the claim. 

While transaction costs, meaning 

attorneys' fees and discovery costs, should play 

some role in that calculus, they should never be a 

primary driver of the decisions that are made by 
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litigants. Unfortunately today, in many cases the 

cost of discovery is playing too large of a role 

in determining whether a client will choose to

stand up for its rights or simply give in. This 

needs to be corrected. 

The IADC wants to commend this Committee 

for its excellent work in putting forth some 

common-sense proposals that will improve the 

administration of civil justice. 

When the proposed rules changes were first 

published, we circulated them to all of our 

members and specifically asked for comment. We 

specifically sent the rules changes to all of our 

chairs of our substantive law committees and asked 

them to respond. 

The response has been uniform support for 

the proposed rule changes and the IADC has now 

submitted a formal white paper to this Committee 

setting forth our positions. 

The balance of my testimony will simply 

serve to highlight those specific provisions that 

are set forth in our white paper. 

First, the scope of discovery. The 

advisory committee's proposed amendment to 

Rule 26(b)(1) we believe is a significant 
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improvement to the overbroad scope of discovery 

allowed under the current rule. 

Presently, many courts allow discovery of 

almost any matter so long as it, quote, appears 

reasonably calculated to lead to the discovery of 

admissible evidence. This "lead to" language is 

now really the tail that is wagging the dog. It 

was really meant as a clarification on the scope

of discovery, but it has really swallowed the 

entire rule. 

The scope of discovery should not be 

driven by a fishing expedition where the 

responding party is required to spend considerable 

resources to locate, review, and produce millions 

of pages of information based on the hope that 

this search might, quote, lead to, closed quote, 

some other type of information that might be 

admissible at trial. 

The proposed amendment properly refocuses 

the parties on evidence that is relevant to claim 

or defense. Whether that evidence is ultimately 

admissible at trial is a question for another day 

and does not need to be an explicit part of these 

rules. 

Second, proportionality, we believe that 
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the advisory committee's proposal to include an 

express reference to proportionality in 

Rule 26(b)(1) will further bring a needed degree 

of pragmatism to the scope of discovery. While we 

know the standard is implicit currently in the 

rule, we believe that moving it up and actually 

using the phrase, "proportional to the needs of 

the case," will make it clear to the parties and 

the courts that the scope of discovery must be 

linked to the needs of that particular case. 

That linkage doesn't ever get talked about 

in many circumstances. Instead, the parties serve 

discovery requests and the response is, well, they 

are abusive or it's going to be unreasonable for 

us to respond. The word "proportional" never gets 

brought up. 

This Committee should be commended for 

bringing that word into prominence. That ought to 

be a discussion that takes place between lawyers 

when we are deciding about the scope of discovery. 

And proportional isn't just dollars. I 

agree with the comments made by members from the 

other side of the V that in cases where dollars 

aren't at play, the importance of those issues 

should play a significant role in determining 
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proportionality. 

Finally, I want to again endorse the 

presumptive numerical limits in the categories of 

discovery that the Committee has proposed. Those 

limits will help to send a firm message to

plaintiffs and defendants, so my own clients, I'll 

now be forced to have a heart-to-heart talk with 

them about the number of depositions, the number 

of discovery requests that are to be propounded. 

In cases that truly require more than 

five, we have those discussions and there has 

never been any issue about expanding it. But I 

think it sends a strong message to parties that 

they should try to reduce the overall amount of 

work that is being done to get a case to trial on 

the merits. 

In sum, the IADC believes that parties to 

litigation should be given a fair opportunity to 

really discovery the facts that are relevant to 

their claims or defenses and then make a rational 

decision on the merits of the case and whether it 

should be settled or whether it should be tried. 

If the parties never get to that point, they never 

get to that decision point because the costs of 

discovery are too high, then justice is being 
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denied. 

The IADC again commends this Committee for 

its important efforts and thanks the Committee for 

the opportunity of presenting this testimony here 

today. 

Thank you. 

JUDGE CAMPBELL: Thank you, Mr. Urquhart. 

Dean? 

DEAN KLONOFF: You mentioned that you 

would have to have a heart-to-heart discussion 

with your client about the discovery limitations, 

but would you agree with the sentiment here and in 

the written submissions that ordinarily the 

defendants like these limitations? 

MR. URQUHART: As far as what, on the 

number? 

DEAN KLONOFF: Yeah. 

MR. URQUHART: That's a really good 

question and we've had a number of discussions 

about it. In certain cases, Dean, I know I'm 

going to need to take more than five depositions, 

and the other side knows it as well. I think it's 

more atmospheric. I think that the five limit is 

more atmospheric. It sets a tone for the parties 

to have discussions with their clients about do we 
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really need all of this? Do we really need to go 

that far? 

So that's why I think and why we support 

that change, because we think it sends the right 

overall message. 

JUDGE CAMPBELL: Other questions? 

Elizabeth? 

MS. CABRASER: Yes, I was intrigued by 

your equation of proportionality and pragmatism. 

I wonder though if front loading that discussion 

about the needs of the case in a qualitative way 

to determine the scope of discovery also front 

loads a merits discussion and perhaps a merits 

decision before that's even informed by the 

discovery that hasn't occurred. Does that -- does 

that bother you from a defense perspective? 

MR. URQUHART: Well, I mean, it's not that 

it bothers me from a defense perspective. I don't 

think believe that should be an appropriate 

discussion at that point of the litigation, the 

actual who's right and who's wrong ultimately 

about it. 

I think lawyers are certainly capable of 

having a rational discussion about the importance 

of a civil rights case or the importance of an 
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economic case where simple dollars are being 

sought and say, look, this is what we are arguing 

about here today. This is the ultimate exposure, 

perhaps, in the case today. 

What should be the rational amount of 

discovery, both from the plaintiff's side and the 

defense side, that we need to get to trial. 

And I think having the word 

"proportionality" in there fosters those sorts of 

real-world talks and discussions between counsel. 

JUDGE CAMPBELL: All right. Thank you 

very much, Mr. Urquhart. 

We will go ahead and we will excuse the 

standing committee folks who need to leave at this 

time. Thank you very much for being with us. We 

will give them just a minute, Mr. Butterfield, to 

step out before you make your comments. 

All right, Mr. Butterfield. 

MR. BUTTERFIELD: Good afternoon. My name 

is William Butterfield. I testify to you today 

from three perspectives. One is as a partner of 

Hausfeld, LLP, in Washington, D.C. where my firm 

primarily conducts complex litigation on the 

plaintiff's side, but sometimes on the defense 

side. 
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Second, as an adjunct professor of law at 

American University where I teach a class in 

eDiscovery. 

And third as vice chair of the Sedona 

working group on eDiscovery. But I do want to 

make it clear that my comments today are personal 

to me and do not necessarily reflect those of 

Sedona. 

I wish to make a few points, and I do 

appreciate the opportunity to testify and I do 

intend to submit written testimony. 

The first point is if the reason for these 

rule changes is truly to reduce discovery costs, 

the proposals, in my opinion, omit two changes 

that would do more than anything else to curb 

excessive discovery costs. 

First, to adopt a cooperation regime with 

real teeth. And I understand that Rule 1 has been 

tweaked to mention cooperation, but it provides no 

mechanism to require it. Meaningful cooperation 

as set forth in various local rules and pilot 

programs would, in my opinion, do more than 

anything else to curb discovery expenses. 

The second means of curbing discovery 

expenses in my opinion, and rather than reducing 
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presumptive limits on various discovery devices, 

the second way is to take a different approach and 

adopt in a real way a phased discovery mechanism. 

And under the current rules, and 

particularly in many local rules, parties get only 

one shot in discovery. So that while some judges 

have promoted phase discovery, one of them is in 

this room, many other judges and local rules do 

not allow time for that approach to be realistic. 

So the result, and the reality is parties 

only get one shot to do discovery and necessarily 

they have to be broad from the get-go. 

So if there was a real phase discovery 

regime, parties could be targeted initially. They 

could take their time and assess what they have, 

take a deep breath and figure out whether they 

need to go further or whether there's good cause 

to go further. 

That in my opinion would actually answer 

some of the proportionality, the vexing 

proportionality problems that you were discussing 

with Mr. Garrison. And he has problems with 

proportionality and my friend, Paul Weiner, 

defends those cases. He has problems with 

proportionality. And I understand those problems. 
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If there was a phase discovery approach, I 

think that would go a real way in helping both of 

those gentlemen and all of us in the field. 

Next I want to turn to Rule 37. I think 

the proposal needs some tweaking. I agree with my 

Sedona colleagues that the term "willful" is 

problematic. I think, as with my Sedona 

colleagues, I think there should be a clear 

separation between what is considered a remedial 

measure and what is considered a sanction. 

So I would suggest either taking Sedona's 

approach or some very minor wordsmithing to your 

current proposal, which would be to revise the 

language of proposed Rule 37(e)(1)(A) to, quote, 

permit nonsanctioned based curative measures such 

as additional discovery, ordering the party to pay 

reasonable expenses, including attorney fees 

caused by the failure. I think that would help 

clarify that those things are curative measures. 

And I do recognize what you put in the Committee 

note, but I think this would go further in 

clarifying it. 

Next under Rule 37, I'm troubled because 

my reading of the rule seems to indicate that 

there's a requirement that there must be a showing 
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that information is lost before even imposing 

curative measures. 

Often additional discovery is necessary 

before determining whether information has been 

lost; for example, whether that information can be 

obtained through other sources, whether there are 

duplicate copies. So I am troubled by that. 

And next, I think it would be helpful if

the Committee notes give some examples of conduct 

that it considers to be in bad faith. So I'm 

concerned about the party that doesn't initiate 

any particular action to destroy relevant 

information but fails to issue any litigation hold 

and simply allows its auto delete tools and 

routine destruction mechanisms to continue in the 

face of a known preservation obligation. 

To me, that's bad faith, I would 

appreciate clarity on that from the Committee and 

the rules. 

Finally, I think I agree with Judge 

Scheindlin. It's very difficult to show the 

relevancy of information that no longer exists. 

So I would propose some burden shifting here. 

So once the moving party or the party 

moving for sanction proves that information has 
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been lost, and proves the requisite level of 

culpability, I would support a rule change to 

clarify that the spoliating party, in order to 

avoid sanctions, must demonstrate that there has 

been no substantial prejudice to the innocent 

party caused by the loss of the information or 

that the information lost was not relevant. 

I see my time -- it's not quite up. It is 

up. 

JUDGE CAMPBELL: Yeah, the number is going 

up, actually. 

MR. BUTTERFIELD: Yes, sorry. 

JUDGE CAMPBELL: Mr. Butterfield, are you 

going to put these specific suggestions in your 

written comments? 

MR. BUTTERFIELD: I will. I haven't even 

begun to get through everything I would like to 

say. But, yes, I will put those suggestions in. 

JUDGE CAMPBELL: Questions? 

JUDGE KOELTL: Mr. Butterfield, the issue 

of phased discovery, the judges have the power to 

do that now, right? And in the employment area 

there is the employment protocols that 

Mr. Garrison worked on as well as defense counsel 

which effectively does phase discovery. 
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It would be very difficult in terms of a 

national rule, with all kinds of different cases, 

to establish any form of phased discovery for all 

cases on a national level. Judges have the power 

to do that as part of case management. 

The question is whether we should do 

anything else to encourage that in the national 

rule. 

And the second question I would just ask 

is my understanding, and you can correct me if I'm 

wrong, from the Sedona materials, is that so far, 

what we've heard from the various inputs from 

Sedona is that Sedona agrees with the amendment to 

26(b)(1) with respect to proportionality. So two 

issues. 

MR. BUTTERFIELD: Judge Koeltl, as to 

phased discovery I understand and agree that 

judges have that power now. In reality, however, 

a lot of times the local rules really don't let 

them do it. 

And I can give you an example. I 

litigated a case in Florida. And the District 

Court there had a rule that once the clock started 

running on discovery, so once you, I think, had 

your 26(f) conference, all discovery, and this was 
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a complex case, you know, lots of things at stake, 

lots of parties. All discovery had to be 

completed in one year. 

In reality, that does not permit phase 

discovery, even though the judge might have the 

power to order it. 

So I don't have the legislative answer for 

you, but it's a new way of thinking, I think, and 

it's an alternative to further reductions of 

presumptive limits which frankly in my world, I 

look at the rules for guidance, and they give no 

guidance in my world. When I have 40 parties in a 

case and when it says I can take five depositions, 

that is not a meaningful rule anymore. And the 

rules in my opinion ought to be meaningful. 

As to what Sedona said, as I said, I don't 

agree with everything personally. You know, it's 

important to note that the way Sedona approaches 

this, number one, this came from the steering 

committee, not the working group, all right. And 

the steering -- and the steering committee members 

made it clear that they were not to be bound by 

positions taken as a whole and in order to reach 

consensus as a whole, and in some cases, they had 

very real differences with the positions taken on 
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a consensus view. 

JUDGE CAMPBELL: Other questions? 

All right, thank you very much, 

Mr. Butterfield. 

We will resume at five minutes past one. 

For those of you looking for lunch, Washington, 

which is the street just north of the building, if 

you go east on Washington Street, so go out the 

doors of the courthouse and keep going, there's a 

lunch shop across the street at the first 

intersection. 

If you want to walk ten minutes down to 

Central and Washington there's a bunch of lunch 

places. 

If you're dying for a Big Mac, there's a 

McDonald's up 7th Avenue to the north. 

We will see you at five minutes past the 

hour. Thank you very much. 

(The noon recess was taken.)

JUDGE CAMPBELL: All right, I think we are 

ready to resume. Welcome for all of you who just 

arrived. We've been at this a bit this morning, 

but we are happy to have you here and look forward 

to hearing your comments. 

As mentioned earlier, we are busy enough 
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with folks to speak to us today, that we have to 

hold folks to a total of ten minutes. So there is 

a light on the lectern that goes on after three 

minute have passed, and a red light after five 

minutes. The idea being if you keep your comments 

to five minutes there will be time for questions. 

But don't feel you have to stop midsentence when 

that red light comes on. 

So we are going to begin and go in the 

order that the witness list has been published so 

the next speaker will be Ms. Sanguinetti. 

MS. SANGUINETTI: Thank you. Good 

afternoon. I want to first of all thank this 

panel for allowing me to come speak. My name is 

Elise Sanguinetti. I practice in Oakland, 

California. I'm a partner at Khorrami, Boucher, 

Sumner and Sanguinetti. One hundred percent of my 

practice is focused on representing individuals in 

wrongful death and catastrophic injury cases. 

When I am in federal Court, I am 

representing people who are individuals that are 

taking on usually large corporations for the 

wrongful death of a family member or a very 

serious injury to themselves. 

My perspective, I've been listening to all 
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of the people speaking today. And I wanted to 

give you the perspective of the individuals who 

would be affected by these rules changes. 

The people that I represent I represent on 

contingent fee basis because none of my clients 

could afford to pursue litigation on their own. 

And this is the only way that they can -- they can 

pursue justice for the wrongful act of others. 

One example I want to give you of a recent 

case that I had in federal court was a family that 

brought an action on behalf of the husband of the 

family that passed away in a scuba diving 

accident. He -- there was a problem with the 

swivel joint on a pressure gauge, it 

malfunctioned. And when the case came to us, we 

knew that there was a potential problem, but we 

didn't know what the problem was. 

And we were tasked with representing these 

individuals, coming into federal court, and asking 

for information. And what I wanted to talk to you 

about today to start off were the limitations on 

the depositions and restricting the Rule 30, 

moving the deposition number from ten to five. 

In that particular case, there were issues 

involving not only manufacturing defects, but also 
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design defects of the valve, causation, and 

disputes regarding damages. 

In that case, we -- the defendant had very 

critical information that wasn't produced to us in 

the initial disclosures, and we had to spend 

significant time tailoring our discovery, which we 

did do. It was still necessary. We had over five 

witnesses that were witnesses to the actual 

incident that we needed to depose, and we also had 

to depose -- we deposed five witnesses on the 

technical information. We were very, very 

tailored to what we needed to do. 

If this rule change went into place, we 

would make an attempt to work with the other side, 

but I've run across roadblocks many, many times in 

trying to negotiate above the number of the amount 

that's allowed by the rule. 

So what this would do is it knocks down in 

half the amount of depositions that we are able to 

take. And from a plaintiff's perspective, a 

single plaintiff -- a lawyer representing single 

plaintiffs, we are very, very conscious of not 

wanting to overtake depositions, because in the 

end, I'm having to explain to the clients the 

costs that I had to spend on their case and why 
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that reduced their recovery. 

So I'm very, very careful and so are my 

partners and my colleagues in making sure that we 

are tailoring our depositions to the depositions 

that we really need. 

But our cases oftentimes, especially when 

it's a product liability case and we are taking on 

a large corporation, it becomes necessary that we 

need to take depositions on many different areas. 

And we have to take more than five. 

With regard to interrogatories, reducing 

the number from 25 to 15 is very dramatic. For us 

trying to figure out what was wrong in this 

particular case, on both a manufacturing 

perspective and a design perspective, we did spend 

specific time tailoring our interrogatories. But 

moving that number to 15, I can't see how that 

would be plausible just to be able to come up with 

the amount of questions that we need to get 

answered, to avoid, hopefully, taking additional 

depositions, or asking for documents that aren't 

relevant. 

Interrogatories are such an inexpensive 

way for us to be able to obtain information. And 

in a single-plaintiff circumstance, they are 
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really critical for us to be able to keep costs 

down. 

With regard to the requests for 

admissions, they are tools that we use often. 

I -- I -- the number itself is not a specific 

number that concerns me. Aside from the fact that 

anytime there's a limitation on us being able to 

narrow down the issues that are ultimately going 

to be at issue at trial, that is what concerns me. 

It's rare that I'm going to be asking more than 25 

requests for admissions. But if it were necessary 

in a case to be able to tailor exactly the 

information that I'm trying to know what the 

defense is going to raise at trial, I want to be 

able to do that, because it's going to save my 

client money and it's judicial efficiency, because 

we will be able to make the case shorter. 

And lastly, and most importantly, 

actually, is the proportionality. That is, you 

know, I heard earlier today that it's not a 

radical change. But then yet in the same breath, 

they said that the change of moving 

proportionality up to the front was -- was not a 

big deal, but it has been living in obscurity. 

Well, it is a radical change. It has 
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been, if they want to say it's been living in 

obscurity, they are showing that by moving it up 

front, it's a radical change. 

It's very concerning to plaintiffs. And I 

want to just make sure the factors is specifically 

with the amount of -- amount in controversy is a 

major problem for cases such as mine where I'm 

representing individual plaintiffs. And maybe the 

amount of a wrongful death lawsuit is a minimal 

amount of what we would be able to recover or a 

catastrophic injury case in comparison to what I 

need to find out or the burdens on the defendant 

to find out what happened to this product that 

caused my client's death. 

But if I am not able to get to the bottom 

of that, if they are considering the amount of 

controversy, I have to be able to obtain that 

information. They are the ones in control of it. 

So I know I'm past my time and I don't 

want to run too far past. But I appreciate very 

much you giving me the opportunity to speak today. 

And I would be happy to answer any questions. 

JUDGE CAMPBELL: Questions? 

Rick? 

PROFESSOR MARCUS: Could I get you to say 
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a little bit more about the concern you have with 

proportionality. Because my reaction is unlike 

other kinds of cases we've heard about, I would 

expect often your prayer for damages looks like a 

fairly large number. So maybe proportionality 

would cut in favor of broad discovery in your 

case. 

MS. SANGUINETTI: I would be doubtful of 

that. My concern right now is that the way that 

the rules work is that we don't have to sit down 

with the other side and say: Let's go through 

these factors. Generally speaking, we are able to 

come to agreements with -- with defense counsel on 

discovery that we need. 

In this case, what I see what's going to 

happen is that we are going to hear -- we already 

hear that things are burdensome but we are usually 

able to come up to an agreement. I think what 

will result is we are going to hear from the other 

side: We can't give you all this information you 

need because it's stored in a difficult way, it's 

going to be very expensive, and, therefore, you 

can take it to a judge. That's what I'm concerned 

about. 

And so every single time I have to go in 
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and file a motion, and I think this is going to 

create a lot of law and motion work that wouldn't 

otherwise be necessary. That would be my big 

concern. 

I think that with these factors, it's not 

only amount in controversy alone, I think it is 

significant, because they aren't always 

high-dollar amounts. Sometimes these injury cases 

that end up in federal court are not very 

high-dollar-amount injury cases. They just make 

the minimums of the court, but we've got diversity 

jurisdiction so we are going to be in federal 

court. And it doesn't always justify -- it 

wouldn't necessarily in and of itself show that 

we've -- that the amount in controversy exceeds 

amount of discovery that we are looking for. 

And I think the same is true for the 

importance, the factor, let's see, the importance 

of the issue at stake in the action, and the 

burden of expense versus benefit. The problem 

with those two factors is that it's oftentimes so 

early in discovery for us to be able to prove what 

benefit we are going to get from the discovery we 

are asking is very, very challenging for 

single-plaintiff cases. 
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JUDGE CAMPBELL: Other questions? 

Art? 

JUDGE HARRIS: To the extent that you have 

a choice between federal and state forums, does 

the discovery and limitations and federal 

procedures have any effect in your choice? 

MS. SANGUINETTI: Yes. Yes. Very much 

so. In California, our rules follow the rule that 

we've been talking about earlier, which it's broad 

discovery. In fact, it's interpreted very, very 

broadly in California. Every judge will always 

err on the side of allowing discovery. 

And so that's a very important factor for 

us. We are always in a position of trying to 

obtain information that we otherwise wouldn't 

know. 

It's not a two-sided situation in 

plaintiffs' cases such as the ones I represent. 

Because the only thing the defense is usually 

interested in is damages. And we are very 

forthcoming with those. But the burden is on us 

to prove that there's a product defect either in 

design or manufacturing in product cases, and we 

have to get that information from the defendants. 

I would prefer a California court because 
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I'm unlimited in my access to obtain that 

information. But in federal court, I do have 

limits. At least within the limits that exist 

right now, I'm able to obtain the information. 

I'm very concerned about what's going to happen in 

the future. 

JUDGE CAMPBELL: All right. Thank you 

very much, Ms. Sanguinetti. 

Ms. Dickson? 

MS. DICKSON: Thank you, Your Honor. I'm 

Kathryn Dickson. I've been a board member of NELA 

and the California Employment Lawyers Association 

for a number of years. In a more bipartisan role, 

I'm a member of the governing council of the ABA 

labor and employment law section. 

I've practiced law since 1976. And I 

represent plaintiffs in employment discrimination, 

wrongful termination, whistle-blower, and 

harassment cases. I come from a very tiny firm, 

three lawyers. And I want to tell you what it's 

like. 

And I try cases in state court, federal 

court, and increasingly, it won't surprise you, in 

arbitration. And I want to talk to you about what 

it's like to be a lawyer practicing in a tiny firm 
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representing individuals under the discovery 

regime that exists and the one that's being 

proposed here. 

I also want to say that I love eDiscovery. 

I think in the 35 years I've practiced, it was the 

single most important development to level the 

playing field for me in my cases. The single 

worst development has been Rule 56 and the 

interpretation of Rule 56. That's the 800-pound 

gorilla in this room, and that's what's driving 

cost. 

The first 15 years of my practice I never 

had a summary judgment motion filed because I 

choose my cases carefully and develop them well. 

Then in the '90s, they started coming and 

in the last ten years, in every single employment 

case I have, there's a summary judgment motion. 

That's where the cost is. 

I also read all 351 pages of what you 

heard in D.C., so I am going to try to address 

what it seemed like you wanted to hear. 

I need discovery for three purposes. I 

need discovery to assess the case for settlement. 

I need discovery to oppose the inevitable summary 

judgment motion. And I need discovery to put on a 
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good trial to win that case for my client. 

The changes that are being proposed here 

are only sufficient for the first purpose, 

assessing the case for settlement. In fact, they 

are almost identical to the agreement that I 

arrive at with most defense counsel to look at the 

case to prepare it for an early mediation. They 

will take the plaintiff, maybe half of the 

plaintiff's depositions or the whole thing. I'll 

take the decision maker, an HR person, maybe an 

important coworker or some other witness. And 

then we can try to mediate the case. 

If these rules were set up so that in 

that -- I agreed with Mr. Butterfield, if they 

were set up so that that was stage one, and that 

would take care of many, many, many cases because 

a lot of them settle. 

But we don't stop there. Next we have to 

move on to summary judgment and trial. So the 

proposed changes on the number of depositions and 

the length of depositions, is that a radical 

change people ask. 

Okay, I'm a trial lawyer. I am fairly 

analytical. So what those changes do, you've gone 

from ten depositions of seven hours to five 
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depositions of six hours. You have gone from 70 

hours of deposition preparation for trial to 30. 

You have slashed our depositions more than in 

half. And they are the most important thing there 

is for preparing for trial. 

So the restrictions don't provide enough 

discovery in most employment cases for us to 

prepare. 

I believe in Irving Younger's Ten 

Commandments for Cross-Examination. I believe 

what I was taught by judges and law professors. 

How do you do a trial? Preparation, preparation,

preparation. 

I have never seen an employment trial 

where the defense put on five or fewer witnesses. 

So I'm standing there and there are these 

beautifully scripted defense witnesses. I have 

nothing to impeach them with, nothing to shake 

their credibility. 

In my last case, with the coworkers who 

said my client was a problem, certain coworkers 

said that I wouldn't have known that one's husband 

had just been hired by the company before her 

deposition. That another coworker, he had just 

been promoted right before his deposition. 
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So we wouldn't have the evidence that we 

need to really have the jury understand whether 

these people are credible or not or what their 

biases are. 

And do judges want to see -- do you all 

want to see focused cross-examination, nice, sharp 

examinations at trial? There's a lot of complaint 

about the lack of trial advocacy quality now. If 

you limit discovery, that will not improve trial 

advocacy in your courts. And it's not good for 

you and it's not good for the juries. 

I looked at my most recent trials, because 

I saw that you were interested in statistics. And 

these are the past five years or so. The number 

of combined depositions before trial was in the 

range of 22 to 28 for those cases that went all 

the way through a trial or plenary hearings in the 

deposition -- in the arbitration. 

The defendants proposed trial witnesses in 

their last pretrial statements were typically in 

the range of 18 to 38. So they are proposing 38 

witnesses for trial and I've had five depositions. 

They, of course, put on fewer than their 38. That 

inevitably happens. But they always put on 

somewhere between 10 and 15. 
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That's in the cases that I've done in the 

last several years. And these were individual 

employment cases. 

So plaintiffs almost always need more than 

five depositions. The categories, you've heard 

what the categories include, harasser, 

perpetrator, decision maker, human resources, 

supervisors, both current and former, higher 

ranking people if you're going to be able to make 

a case for punitive damages, comparators, and any 

investigators. 

No one has talked about the importance of 

videotaped depositions as the actual testimony 

that is shown at the trial. So if witnesses are 

going to be put on at trial, we use videotaped 

depositions. Both sides do. So that's how we get 

the trial testimony. It's not just discovery. 

I can give you more statistics if any of 

you are interested. I took one of my cases and 

just analyzed exactly how many witnesses there 

were. 

And I just want to say two other brief 

things. One is I read in the materials and it 

sort of disturbed me. Somewhere it said that NELA 

members thought discovery was overly costly and 
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abusive. 

I would ask that you look at page 11 of 

the NELA report on the survey results. Because 

more than 90 percent of NELA members talk about 

how very important deposition and document 

requests and interrogatories are. 

What the plaintiffs were complaining about 

is the endless meet and confers, the number of 

times we have to go in on motions to compel, the 

number of times we have to move to quash overbroad 

subpoenas for every employer your client's ever 

worked for, for every medical record since they 

were born. Those things cost us money and time. 

That's what the plaintiffs were complaining about, 

not that there are -- there's too much discovery. 

And then in terms of proportionality, one 

last quick thing. I think in my cases when the 

amount in controversy is the lowest, because I 

represent female farm workers who are sexually 

assaulted in the fields, all the way up to 

corporate executives. 

My corporate executives know a lot and can 

give me informal discovery. They know the names 

of people. They know how things are organized. 

My farm workers generally don't know the last name 
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of their supervisor. He's the mayordomo. He's 

Jose, you know. They don't know anything about 

the structure of the company. 

So it's the people at the bottom sometimes 

who need the most discovery. So that's just one 

more different comment on proportionality. 

JUDGE CAMPBELL: Thank you, Ms. Dickson. 

Paul? 

JUDGE GRIMM: Just a quick question, 

Ms. Dickson. In the current limitations in the 

rules of ten. 

MS. DICKSON: Right. 

JUDGE GRIMM: It sounds like you would 

need more than the ten in a number of the cases 

that you have.

MS. DICKSON: I analyzed it. It's between 

10 and 15 in each case, occasionally even a little 

bit more than 15 depending on what the defendant 

says, and what their -- what the pretext fight is 

about. 

JUDGE GRIMM: How difficult do you find it 

in your practice to get more than ten in the cases 

that you have? Because it sounds like probably 

you have more experience on a consistent basis 

with cases that need more than the limit, whether 
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it would be five or ten. I just am curious about

your experience. 

I think I got a flavor of how you might 

get reactions from opposing counsel. But what 

about with the court? How much difficulty is it 

from the court when you make the comments like 

you've made to us to convince them over the 

objections of your adversary that you need 15? 

MS. DICKSON: I have been denied ten. In 

fact, including within the last year. I asked for 

ten. I said I really need more than ten, but I 

will try to limit it ten, and I was given seven. 

Opposing counsel and I agreed before we 

went in for our case management conference that we 

both thought that it was appropriate to have 10 to 

15. And the trial judge said no. With a 

stipulation, and he said no. 

JUDGE GRIMM: That was in federal court? 

MS. DICKSON: Yes. It was a federal 

judge. 

Yes? 

JUDGE KOELTL: Have you used the 

employment discovery protocols in California? 

MS. DICKSON: I was involved in helping to 

develop them, and I like them very much and have 
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tried to prod our judges to use them. And I know 

that Judge Gonzalez Rogers is using them. And I 

think some of our other judges are considering 

them. 

I think they are excellent, they are truly 

what initial disclosures are supposed to be. They 

would be very helpful. They haven't come up in my 

particular cases. I -- I like them. And I think 

they are very good. 

Also, I'll recommend the Northern District 

ESI guidelines. I worked on those. I was on the 

committee to put those together. And if the word 

"cooperation" is in there once, it's in there 15 

or 20 times. And if we could have legislated 

cooperation in those, we would have. And if we 

could have imposed sanctions for lack of 

cooperation, we would have. 

And I as a mother know that serious 

sanctions can actually change behavior. 

JUDGE CAMPBELL: All right. Thank you 

very much, Ms. Dickson. 

Mr. Coben. 

MR. COBEN: Thank you. My name is Larry 

Coben. And I practice law both here in Arizona 

and Philadelphia and around the country. I'm here 
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today speaking as a civil litigator but I'm also 

here today in a representative capacity. I serve 

as, and have for the last decade, the chief legal 

officer for what is called the Attorneys 

Information Exchange Group. 

The AIEG is a litigation sub group of AAJ 

but actually has its own independent board. We

are a group of approximately 700 civil litigators 

across the United States. And have since the 

late, around mid 1970s to late 1970s, represented 

consumers and almost always involved in litigation 

against motor vehicle manufacturers. 

Our clients are in the tens of thousands. 

And have been over these years representing people 

who have been the victims of Ford Pintos, Ford 

Explorers, GM pickup trucks, Toyota sudden 

acceleration vehicles, et cetera, et cetera. 

Our members probably litigate more complex 

products liability cases than any other 

organizational membership in the country. And so 

I'm here today to try to explain to you the issue 

only related to proportionality and the idea of 

launching or moving the question of 

proportionality from an objective standpoint to 

what appears to be a burden of proof standpoint. 
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And I thought that the best way to do this 

was to kind of take you back to an earlier time, 

and that is when I first had my first Ford Pinto 

fire case. And I wanted to let you see the 

application of what I perceived these rule changes 

will do to determining what information would be 

available in the ordinary discovery practice. 

And the reason I think that's important, 

and I have a little board I'm going to go over 

with you in a minute, is that it's not just 

representing an individual. Because there were 

many folks who suffered minor as well as 

catastrophic injuries from that product. But it's 

also the societal benefit that was ultimately 

obtained by the discovery that was acquired in 

that case and how it literally changed the design 

of motor vehicle fuel systems for every vehicle in 

this country. 

But that was predicated upon the fact that 

we were able, after years of fighting, to break 

down the doors and get broad discovery, broad 

discovery which I submit to you if we were to have 

a new Pinto case today for the first time, we 

would never see. 

So, let me show you. I don't think you 
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will all be able to read this. 

JUDGE CAMPBELL: Could you please try to 

speak into the mic as you do that?

MR. COBEN: I will, I will. 

I just want you to assume that we had a 

case involving a 1978 Ford Pinto. And the 

question in discovery is the design process and 

the testing process for this vehicle to gauge its 

safety through the manufacturer. It doesn't have 

to be a Ford Pinto, but since I'm familiar with it 

and many of us are, I thought this would be 

appropriate. 

Now, ordinarily under the ordinary rules 

of discovery, we would be able to obtain discovery 

of prior similar models, that is the design of the 

forerunner to the Pinto, to find out through its 

design analysis within the company how they went 

about studying the safety of the fuel system. We 

would be able to look at testing. We would then 

be able to look at the development of the Ford 

Pinto through its various iterations, through 

design committee work, through testing work, to 

see its performance. 

We would then be able to also look at 

equivalent type vehicles made by the same 
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manufacturer, same size vehicles with 

alternatively designed fuel systems that could 

provide different levels of protection under the 

same circumstances. 

Now that's a very broad -- I'm making a 

very broad statement, but I can tell you that 

typically, that would be the scope without any 

difficulty. There would be some complaints, there 

would be some arguments about it's too many pages 

of material, et cetera, et cetera. But that would 

be worked out. But that would be the general 

scope. 

Now, that's based upon not knowing what we 

are going to find. And that's important. Because 

now when we look at proportionality and what you 

are asking to make changes, now the burden is on 

the plaintiff to prove what we don't know. 

So, the first question is going to be, or 

at least that I would ask if I was the defense, is 

why do you need information about other model 

vehicles? We are talking about a 1978 Ford Pinto. 

Why do you even need it for the 1974 model? Why 

do you need it for other types of products that we 

design, other types of vehicles? Think of the 

expense. 
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Well, if your client, for instance, has 

suffered minor burn injuries, let's talk about 

that issue. If we are going to talk about the 

cost to the defense of producing all of these 

materials, hundreds of thousands of dollars 

perhaps. And if you're talking about someone who 

does not have catastrophic injuries but yet is 

burned because of a design flaw, where is the line 

going to be drawn? How is the plaintiff to draw 

that line? 

Under these circumstances, with your 

various different elements of proportionality, let 

me show you a document that would never have been 

obtained. 

This is a 1978 memorandum that is no 

longer confidential from Ford Motor Company. This 

memorandum is a generic memorandum developed by 

the Ford engineers to discuss fuel system design, 

integrity and safety. It was revealed in the 

discovery in the Pinto litigation. 

I submit to you that because it doesn't 

involve specifically a Pinto, this has to do with 

fuel system integrity, generally, and the 

recommendations about how to design to prevent the 

leakage of fires and the -- leakage of fuel and 
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fires. 

There is no way under the -- at least the 

verbiage of proportionality that one could even 

know that this exists, let alone argue for its 

relevancy. It's not related to the Pinto. It's 

not related specifically to fire in small 

vehicles. It simply relates generically to how 

motor vehicle manufacturers, this one, determined 

they should design their products. And yet the 

evidence in the Pinto cases demonstrated that that 

design philosophy was not followed. 

The point of all this is I think real 

simple. And that is not so much the verbiage of 

any part of the proportionality testing that you 

are suggesting, but rather how it's going to be 

proven. 

How are litigants, and how is a court 

going to accept the responsibility to determine 

the accuracy of information which either asks for 

broad discovery or asks to restrict broad 

discovery? The problem being not every case is 

the 100th Ford Pinto trial. There's going to be a 

first. And people are not going to know, 

litigants will not know, at least the plaintiffs' 

bar will not know what documents, what information 
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is available. 

How will the court be able to judge 

without looking at the documents? How would any 

court know that this document existed, that this 

document would be relevant to challenging the 

design of a Ford Pinto if in fact proportionality 

requires that you narrow scope and not make more 

work than is necessary. 

And that's a real hard problem, because 

you don't know. And when you place the burden on 

the plaintiff, as opposed to the defendant, it 

turns it upside down. 

In every case now, a defendant can come in 

and say: We object, we think your scope is too 

great. Here's an affidavit from an engineer 

explaining why the Ford Comet isn't relevant to 

the Ford Pinto, even though they are similar in 

sizes. There are all differences. 

And then once we've seen documents to 

explain that legitimizes to some extent an 

objection, then the plaintiff can come forward 

with their own expert. But what you are doing is 

you are putting the cart before the horse. 

By changing where proportionality is 

studied, you're placing a burden on plaintiffs 
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that they are not going to be able to meet. And 

you are challenging judges to make decisions, 

factual decisions about the scope of discovery 

without knowing what exists. 

And those things will make it very, very 

difficult, if not impossible, to be able to prove 

what we needed to prove in the Ford Pinto and in 

other product cases. 

JUDGE CAMPBELL: All right. Thank you 

very much for your comments, Mr. Coben. We are 

past ten minutes, so I think we need to move on to 

the next speaker. 

Mr. Weiner. 

MR. WEINER: Good afternoon. My name is 

Paul Weiner. I'm a shareholder and National 

eDiscovery Counsel at Littler Mendelson. 

I want to open by commending the Committee 

on the outstanding work that it has done with its 

rules proposals. I know firsthand how challenging 

and at times polarizing these issues can be from 

my work as a steering committee member of working 

group one of the Sedona organization as well as 

being a cochair of the advisory board of the 

Georgetown Law Advance eDiscovery Institute. And 

the Committee has done a masterful job of 
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synthesizing the issues and proposing solutions. 

My law firm is the largest management side 

labor and employment law firm in the world. We 

have over 1,000 lawyers practicing in 60 offices 

across the globe. From a litigation standpoint, 

we handle cases in every district and every state 

in the country from administrative charges to bet 

the company class and collective actions. In the 

last five years, Littler has handled more than 

1,000 class and collective styled matters. 

My primary goal today is to underscore the 

crushing eDiscovery burdens facing employers in 

today's digital world that cry out for a need to 

amend the rules along the lines the Committee has 

proposed. Moreover, in asymmetrical cases, and we 

mostly deal with asymmetrical cases, eDiscovery 

oftentimes morphs into improper gotcha tactics 

instead of a legitimate advancement of the merits 

of the parties' claims and defenses. The proposed 

rules remedy this as well. 

To illustrate the crushing burdens facing 

employers in modern litigation I would like to use 

a concrete example from a series of publicly 

recorded decisions in the case of Pippins versus 

KPMG. This was a hybrid FLSA collective action 
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and Rule 23 class action that was filed in the 

Southern District of New York. 

I need to note my firm had no involvement 

in this case, so by talking about it, I am not 

revealing any confidences or attorney/client 

material. However, as I noted, given our 

experience, we face similar factual scenarios 

every day. 

FLSA collective actions are opt-in cases. 

If a specific individual does not affirmatively 

opt into the case, they have no right to relief 

and are never a party in the case. This is 

important because experience demonstrates that 

opt-in rates are oftentimes less than 30 percent. 

More often than not, that means that 70 percent of 

the potential collective action members never 

choose to participate in the case. 

The complaint in Pippins essentially 

alleged that salaried audit associates working for 

a Big Four accounting firm were misclassified as 

exempt under the Fair Labor Standard Act and thus 

were entitled to overtime pay. When the complaint 

was filed, three named plaintiffs were listed. 

The magistrate judge and then the district 

judge held that on day one of the lawsuit, before 
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any type of class was certified, when there were 

three named plaintiffs, the duty to preserve 

extended to all putative collective action members 

nationwide, which included at the time an 

estimated 7500 current and former employees. 

In support of a motion for a protective 

order, the defendant presented an affidavit that 

stated it would cost over $1.5 million to comply 

with this very broad preservation burden to 

essentially preserve hard drives of the party 

employees. The courts denied that motion citing a 

lack of information as to the contents of the hard 

drive. 

Fast forward to later in the case. The 

defendant files a motion for summary judgment and 

wins. The case is dismissed, subject to an 

appeal. 

In response to language that suggested it 

could do so from the original preservation 

opinion, the defendant asked the court to transfer 

the cost of preservation to the plaintiffs during 

any appeal, presenting an affidavit detailing that 

its cost for preservation as of the date of 

summary judgment, when the case was dismissed, now 

exceeded $2.36 million and those costs would 
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continue during the appeal. That motion was 

denied. 

We also need to -- the record also 

demonstrates that at the time summary judgment was 

granted, notice had been given to about 8800 

potential putative collective action members, yet 

only about 1300 of those had opted into the case. 

So remember I said opt-in rates were low. Here it 

was 15 percent. 

We also need to factor into the equation 

that there's an ongoing debate among circuits 

about whether eDiscovery costs are recoverable as 

a taxable cost to the prevailing party pursuant to 

28 U.S.C. Section 1920. The leading case that 

says they are not is Race Tires America from the 

Third Circuit. 

So let's look at the situation. A 

defendant is required to expend over $1.5 million 

on day one of a lawsuit that involves three named 

plaintiffs to preserve nationwide for potential 

collective action involving in excess of 8,000 

putative collective action members before any type 

of class is certified. In fact, only 15 percent 

of the potential people actually participated in 

the case. The defendant wins on summary judgment 
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and the case is dismissed. 

After it's dismissed, the defendant again 

approaches the court, based upon express language, 

asking to have the preservation burden shifted to 

the other side, which have now exceeded $2 

million, and that is denied. And under Race Tires 

and its progeny, even when a defendant ultimately 

wins a case like this on its merits, eDiscovery

costs are not recoverable by the prevailing party. 

This is the example par excellence of the 

crippling burdens employers face every day in U.S. 

litigation. Now, like any case, Pippins has 

unique factual circumstances and it's certainly 

unique from a procedural standpoint, yet the 

crushing eDiscovery burdens faced by employers are 

not unique. I see this every day in our practice 

from state to state and district to district in 

cases large and small. 

Just to quickly illustrate an example of 

gotcha tactics, I only need to point to the 

widespread use of overly broad, cut and paste 

preservation demands that normally include in 

serial fashion an omnibus list of data and 

electronic media that are wholly untethered from 

the facts and issues in any particular case. 
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At best such demands are served in a to 

sand fashion without consideration of cost or 

burden to the responding party. At worst they are 

used as a transparent gotcha tactic. Or as one 

court put it, and this is a quote, "to sandbag a 

party" in the event materials were not preserved. 

For this reason, I have a concern about 

the encouragement of preservation demands and 

proposed Rule 37(e)(2)(C); however, I also have a 

proposed solution. 

So that all of this leads to the question 

of how will the proposed new rules help. I 

briefly submit in three ways. 

First, the rules must be amended to 

provide consistency across circuits. Proposed 

Rule 37(e) as establishment of a national 

culpability standard does this, and I fully 

support its enactment. I also support defining 

the term "willful" as Sedona has proposed with 

that language. 

Second, the rule should reaffirm that 

proportionality in all aspects of litigation, 

including preservation, is a bedrock principle of 

any contemporary system of justice operating in 

today's digital world. 
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For those reasons, I fully support the 

proposed amendment to move the proportionality 

factors into Rule 26(b)(1); however, I would also 

encourage the Committee to go further and 

specifically reference the word "preservation" in 

the preamble to Rule 26(b)(2)(C) as well as in 

Rule 26(b)(2)(C)(1) and (3) and Sedona has also 

commented on that in proposed language. 

Finally, I would encourage the Committee 

to incorporate the mandates of Rule 26(g)(1)(B)(3) 

and to proposed Rule 37(e)(2)(C). This could be 

accomplished by a cross-reference to that rule in 

the text of Rule 37(e)(2) or in the Committee 

note. While the current language provides that a 

preservation request must be clear and reasonable, 

I believe there's a need to go further. 

As Judge Grimm noted in Mancia versus 

Mayflower, 26(g)(1)(B)(3) imposes an obligation on 

counsel to certify that a discovery request is 

proportional to the amount in controversy and the 

needs of the case. I submit that such reasoning 

applies just as strongly in the preservation 

context. 

This addition would also make clear that 

knee jerk, overly broad, cut-and-paste 
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preservation demands that have no bearing on the 

claims and defenses in a case do not advance the 

just, expedient, and inexpensive resolution of 

cases and should not be considered as part of a 

sanctions analysis. 

In closing, I again commend the Committee 

for their work on these issues, reaffirm the dire 

need for the rule amendments with the slight 

modifications I have discussed, and stand ready to 

answer any questions. 

Thank you. 

JUDGE CAMPBELL: We have about one minute. 

Any questions? Rick? 

PROFESSOR MARCUS: I believe you wrote an 

article in the National Law Journal around 

December of 2011 about the preservation duties of 

employment litigation plaintiffs. 

MR. WEINER: I did. 

PROFESSOR MARCUS: I wonder if you could 

think out loud for us about whether there may be 

some impact on them of Rule 37(e). 

MR. WEINER: I certainly believe that 

plaintiffs have preservation burdens just like the 

defendants do. And at the time I wrote the 

article, that was not a popular view. It 
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certainly, with cases like Honeybaked Ham, EEOC 

versus Honeybaked Ham, it's getting more 

widespread acceptance. 

I do think that ultimately the factors not 

only on proportionality, but with respect to 

the -- the sanctions will help both parties. I do 

think they are very fair and balanced including in 

the proposed comment, there is a reference that 

specifically helps plaintiff types, the 

individuals that says, you should consider that 

they are a single plaintiff. So I do think it is 

very fair and balanced. 

PROFESSOR MARCUS: You mean the 

sophistication and preservation? 

MR. WEINER: Correct.

PROFESSOR MARCUS: You think that should 

remain?

MR. WEINER: I don't love the language, 

but I do point out in response to your question 

that there is now a specific consideration that is 

more beneficial to the type of plaintiffs and 

their preservation obligations than to the large 

producing defendants.

JUDGE CAMPBELL: All right. Thank you 

very much for your comments, Mr. Weiner. 
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MR. WEINER: Thank you.

JUDGE CAMPBELL: Ms. Adams?

MS. ADAMS: Good afternoon. My name is 

Janell Adams. I'm a partner at the Phoenix office 

of Bowman and Brooke. We represent a large number 

of defendants, primarily defendants and numerous 

product manufacturers. 

My personal practice is a significant

focus on discovery issues in civil cases. I 

personally am on a day-to-day basis preparing 

responses to discovery. I am personally gathering 

documents, producing them, negotiating with 

plaintiffs if there is a concern, and dealing with 

any motion practice that results. So I am not 

here as a part of a cerebral exercise. This is 

going to affect my day-to-day practice if the 

rules are enacted. 

Along with the Lawyers For Civil Justice, 

I do commend the Committee on these very 

well-drafted rules. I particularly foresee that 

the changes to Rule 26 by removing the subject 

matter language and removing the reasonably 

calculated to lead to the discovery of admissible 

evidence language will result in plaintiffs and 

defendants agreeing to come to the table to figure 
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out how best to determine what needs to be 

produced in a particular case rather than the 

current situation where plaintiffs know that they 

are entitled to very broad discovery and all they 

need to do is ask for it. I believe that judges, 

well meaning, feel that their hands are tied by 

the current body of case law that requires them to 

give every deference to the requesting party. 

The proposed rules will make clear that 

everyone has an obligation to determine what is 

necessary for the particular case. 

There's been some discussion in prior 

comments to this committee that some parties have 

been unwilling to use TAR, or technology assisted 

review, or predictive coding because they do not 

need to do so. And I think that these rules will 

foster the use of those tools, which I think we 

need to do, given the explosion of data that 

is -- we know is going to be a problem in current 

big litigation. 

Although we certainly -- I certainly do 

support the rules and I appreciate the 

well-drafted rules as they are, I do have one 

concern with regard to the proposed change to 

34(b)(2)(C), which perhaps not coincidently is the 
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only provision supported by the AHA which requires 

the producing party to explain whether materials 

were withheld based on objections. And it is

particularly relating to the use of TAR or 

predictive coding which in my practice we use on a 

regular basis. 

You do not know if you have withheld a 

responsive document if you have not identified it 

or found it because you used TAR or predictive 

coding. And I think that the rules for 

proportionality that are contemplated can 

incorporate that and it will make it clear that 

they were not withheld intentionally, which the 

word "withheld" concerns me. It suggests that you 

already located it and are keeping it. Similar to 

a privilege analysis as opposed to where the 

objection at issue was overly broad or unduly

burdensome. 

If the objection was that it was unduly 

burdensome, you have not conducted the search and, 

therefore, you do not know whether you have 

withheld the responsive information. 

So I do have that concern about the 

implication of that rule. 

I note that these rules would particularly 
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help the smaller case because even small cases, if 

the corporate defendant is a big one, can have a 

large number of relevant documents. So we will 

need to use TAR or predictive coding to get to 

even the smallest cases going forward. 

And I think that proportionality will 

evolve just -- and I think it is ripe. I think 

there was some suggestion today that these rules 

are not yet ripe because technology will advance 

and we won't need them as we all learn to, you 

know, more accurately use our data. But I think 

they are ripe now, because proportionality by 

definition will evolve once the technology does. 

Thank you. 

JUDGE CAMPBELL: All right, thank you, 

Ms. Adams. 

Paul? 

JUDGE GRIMM: Just one quick question on 

the -- by using technology assisted review at 

present. If the change to Rule 34 were to go into 

effect that you made reference to, would you be 

concerned that if you were to answer the Rule 34 

request that we have used technology assisted 

review in order to achieve that cost savings and 

more quickly produce the information that you have 
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requested that is responsive, this by definition 

does not involve an evaluation of every single 

document. And so we can tell you that there are 

documents that we did not produce because they 

were rejected by the technology assisted review as 

being irrelevant or being beyond the scope because 

of privilege or protection, but we cannot tell you 

that there are documents that are responsive that 

we did not produce because we haven't looked at 

the -- at what that is. 

Do you believe that you would be 

vulnerable under the -- the new language of the 

rule if you had an answer that was as candid as 

that in telling how you used -- how you responded 

to the request? 

MS. ADAMS: I have some concerns about 

revealing my entire process because to some extent 

how you have gathered documents is to some extent 

work product. 

JUDGE GRIMM: That's different. That's 

not giving a 400-page discussion of how you picked 

your sample group to educate the machine to do the 

algorithm learning. That's just simply saying we 

used this process. Inherent to that process is 

the fact that cost achieve -- cost savings are 
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being affected by not having to review each one. 

If you were to say that, do you feel that 

you would be vulnerable under that rule? 

MS. ADAMS: I think that if you have under 

this rule as proposed it uses the word "withheld." 

So if you then tell the requesting party: I have 

withheld documents, yes, I think they will say, 

what documents have you withheld? And I will not 

be able to identify what documents I have 

withheld. 

JUDGE GRIMM: Thank you. 

JUDGE CAMPBELL: Other questions? 

John? 

MR. BARKETT: What is your practice now in 

disclosing the use of technology assisted review 

to support your production? I'm a little puzzled 

by what you are telling your opponents now. 

MS. ADAMS: It is entirely cooperative at 

this point. You really must have the other side's 

agreement really to have effective use of it. 

Now, I don't necessarily, when I am -- the 

difficulty is like when you are responding to a 

request for production which has -- you cannot 

really use predictive coding currently for. 

Predictive coding is good for relevance or not 
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relevance, but not good for assessing 

responsiveness to a particular RFP. 

So I may, in a variety of different ways, 

determine which documents are responsive to a 

particular request for production, and that --

MR. BARKETT: So you will know you are 

withholding something? 

MS. ADAMS: No, because I won't have found 

it. 

MR. BARKETT: I'm puzzled. I'm sorry. 

How does your -- if your opponent is agreeing with 

you on the use of the technology there is 

presumably some agreement on a cutoff point and 

there is some number of documents that your 

opponent knows you are not going to look at. 

MS. ADAMS: The opponent knows on 

relevance versus not relevance, but they won't 

necessarily know how you determined -- okay, 

you've then taken the pool of relevant documents 

and determined which ones are responsive to which 

particular RFP which the rule requires. You 

haven't gotten to the process of determining which 

of those documents and explained to them how you 

found those, which word searches, which particular 

methodologies, analytics, whatever you've used. 
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MR. BARKETT: It would take too much time 

to continue this discussion. 

JUDGE CAMPBELL: All right. Thank you 

very much, Ms. Adams. 

Mr. Howard? 

MR. HOWARD: Good afternoon. My name is 

Tom Howard. I am also with the law firm of Bowman 

and Brooke. And I want to thank the Committee for 

allowing me the opportunity to address you today. 

I'm relatively new to this process here, 

and I've learned a lot over the last couple of 

months. I know you've been invested in this for 

years. And I also want to thank the Committee for 

proposals to amend the discovery rules that solve 

problems that those of us in the trenches see 

every day with disproportionate discovery and 

costs associated with excessive preservation 

efforts. 

But I intend today just to talk about the 

rules amendments for Rule 37(e). And the theme I 

want to follow as it relates to my practice is 

making sure that the rules as amended continue to 

be predictable and consistently applied. 

My practice for almost 30 years has been 

representing product manufacturers in lawsuits 
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where there has been an allegation of a defect in 

the product. 

A significant part of my practice has been 

involved in discovery. I have coordinated 

discovery projects for product lines, for 

particular types of practice or patent litigation, 

particular defect claims in coordinated federal 

actions, state actions, and even local coordinated 

actions as well as individual cases throughout the 

United States. 

The goal in any of this -- any of those 

projects is to provide legitimate discovery, to 

frankly avoid motion practice, to avoid the 

uncertainty of motion practice, to get the 

parties, the plaintiff information that they need 

to resolve the case on its merits. 

The discovery we are providing, frankly, 

also is needed to defend our products. In typical 

trials, most of the defense documents are admitted 

by the defendant. It's very rare, not very often 

do plaintiffs admit many defense documents. 

Toward this end, it's important 

that -- that there be predictability in the way 

that we approach preservation. And the particular 

situation I might face in coordinating discovery 
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is I could have a client that might produce tens 

of thousands or perhaps hundreds of thousands of 

particular, we will call them widgets. And those 

widgets may have components that are similar 

across the entire product line such that I have to 

be making sure that the discovery is consistent 

and the approach to discovery is consistent. 

And that often means making sure that the 

practices that I engage in in any particular one 

lawsuit meets the most stringent standards for, in 

the case of preservation, preservation, because 

there is committee notes in these rules 

amendments, there are some different standards in 

the -- as Rule 37(e) is currently applied with 

respect to preservation obligations. And where 

the conduct in one particular circuit may be 

acceptable, it might not meet the standards of 

preservation in another circuit. And the purpose 

of these rules is to avoid some of that problem, 

expressly to avoid that problem. 

Toward that end, there is not only current 

preservation standards at least took some time to 

develop, if there are uncertainties in or 

potential uncertainties and inconsistencies in the 

way that the current -- the proposed Rule 37 is 
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implemented, it will then lead to further problems 

where you have different cases pending on 

different time frames and different jurisdictions, 

because if there's an earlier suit with a 

common -- with a particular allegation in which 

you are following what might be acceptable conduct 

or practices in a particular circuit, and then 

later another suit is filed in another circuit 

that takes a different interpretation, your 

standard might, for evaluating conduct, is going 

to be inconsistent and -- with respect to document 

preservation obligations. 

Toward that end, I would like to talk 

specifically about Rule 37 and the questions you 

asked and add another point to that. Should the 

rule be limited to sanctions only for loss of ESI? 

I would propose that from the perspective of 

someone in the trenches dealing with discovery, I 

think it ought to apply across all types of 

discovery -- of evidence. 

Should 37(e)(1)(B)(2) be retained in the 

rule? A particular concern I have is that there's 

a problem with that rule as it relates to ESI, but 

I think if it's limited to tangible items, the 

Silvestri decision, and those type of cases will 
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still hold. And so I think that ought to be 

limited to tangible items. 

Should there be an added definition of 

willfulness, I think the fact that there's a 

potential for an inconsistent definition of 

willfulness across different circuits or in 

different district courts, I would submit the 

court should follow -- or the rules should 

implement the definition of willfulness and 

propose the Sedona group's definition be used 

because that has the -- speaks in terms of 

culpable and conduct. 

And finally, although not asking the 

questions, I'm concerned about the factors in 

37(e)(2) and the potential again across different 

jurisdictions where the same product may be the 

subject of a different lawsuit, that there might 

be an inconsistent application of those factors 

because they are in the rules. 

If they are moved to the comments, I think 

not unlike the illustrations of curative measures 

that are also provided in the comments, I think it 

would satisfy the needs of -- or go a long way 

toward reducing the potential for inconsistencies. 

And with that, I would yield back the 
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balance of my -- actually, I'm over my time, I'm 

sorry. 

JUDGE CAMPBELL: All right, questions? 

Rick? 

PROFESSOR MARCUS: One reaction I have on 

which I would like you to expand is that my 

reaction is if we took out 37(e)(2) factors, and 

left them out entirely or said something in the 

note that might not really be moored to the rule, 

how would that increase consistency in handling of 

these issues as compared to having those in the 

rule? 

MR. HOWARD: Well, as the rules are 

implemented and interpreted, it's possible, for 

example, that some of those factors may be 

interpreted to be given greater weight in certain 

decisions. While the list is clearly provided now 

as an illustrative list of factors, it's possible 

that one or more of them might receive more 

attention and then become a stronger factor, if 

you will, in evaluating conduct. 

PROFESSOR MARCUS: So you are worried 

about consistency? 

MR. HOWARD: I'm worried about 

consistency. 
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PROFESSOR MARCUS: And you don't want it? 

MR. HOWARD: I don't want it. I'm sorry, 

but yeah. 

JUDGE CAMPBELL: Other questions? 

All right. Thank you very much, 

Mr. Howard. 

Mr. Hunter. 

MR. HUNTER: Thank you. I'm Rob Hunter. 

I'm senior vice president and general counsel of 

Altec, Inc., a privately held holding company from 

Birmingham, Alabama. Our largest subsidiary is 

Altec Industries, which is the world's largest 

manufacturer of mobile hydraulic utility 

equipment, the kind of equipment your electric 

utility and telecommunications industry, the tree 

care industry uses to work off the ground, bucket

trucks and that kind of stuff. That's what we 

make. 

As a businessman, I applaud your proposals 

to amend Rule 26 because I believe that efforts to 

reasonably reduce the scope of discovery will 

result in a reduction in the cost of discovery. 

The cost of discovery is important to us. It's 

the single largest external legal spend that I 

have. 
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I spend more money on discovery than any 

other thing in my legal budget externally. In 

fact, I spend more money on discovery than I spend 

in settling claims or paying judgments. 

Over the last five years, I've paid to 

claimants through settlements or judgments 61 

percent of the amount that I've spent on 

discovery. And what you might call the most 

efficient year, 2010, I spent 76 percent on 

settling claims. In 2012, I spent twice as much 

on discovery as I paid to claimants through 

settlements or judgments. 

What does this mean in an industry like 

ours? Well, our market is finite, and it's low 

five digits of new products annually. That means 

I'm -- obviously you do the math, if you sell a 

thousand products and your discovery cost is a 

million dollars, either you have to raise the cost 

of each product by an average of a thousand 

dollars, or you have to impose on your 

shareholders a reduced return on investment, which 

discourages people from coming into the industry 

or staying in the industry, which is exactly what 

has happened. 

In 1977, when Altec entered this industry 
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as a manufacturer, there were 28 competitors in 

the market. 25 years later, there had been a 75 

percent attrition rate and only seven of those 

competitors remained. Today it's four. 

In Europe, there's still over 20. They 

are not faced with the discovery cost we face 

here. We can't sell our products as a practical 

matter in Europe, because our products cost too 

much. The price is too high. 

They don't bring their products to the 

United States, because they are coming into a 

finite market where they may sell three digits or 

four digits if they are really good. If they add 

to that the cost of discovery they will incur by 

coming here, the return on investment is such that 

they simply, it would not be a good business 

decision for them to come to the U.S. and so they 

don't. 

I also applaud your efforts to revise 

Rule 37(e), although I don't think you solve the 

problem. The reason I applaud your efforts is 

because you will now include tangible evidence 

along with ESI. But the problem I have now is the 

risk of being sanctioned for innocent conduct. 

While I'm speaking to you today in over 
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200 locations throughout this country, an Altec 

employee is servicing or repairing a product we 

manufactured. Yes, if that employee has reason to 

believe that there's been an incident that might 

lead to litigation, that employee has a duty to 

preserve whatever components he's taking off that 

unit, whatever fracture surfaces there might be. 

But, that employee will ask the service 

manager or the fleet manager who has requested the 

service: Has there been some incident? Has 

somebody been hurt? And he has to rely on that 

answer, which often is no, or, I don't know. And 

I think our employee should be entitled to rely on 

the answer given. 

Years from now, in hindsight, we may look 

back at what the employee is doing right now as 

I'm talking to you in throwing away components or 

welding over fracture surfaces and say what that 

person did is willful. It was intentional. He 

intended to throw those parts away. He did so 

without any idea there might someday be a claim, 

without any idea that he was impacting anyone's 

ability to pursue or defend a lawsuit. Yet, we 

might be subject to sanctions as it's written now 

where it's willful or, and where willful is not 
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defined. What our man does is intentional. 

Similarly, what he's done is irreparably 

deprive everybody, plaintiff and defendant, of the 

ability to see the component he threw away or the 

fracture surface he welded over. But he did so 

innocently. 

And so I would encourage you while 

amending 37(e), yes, it should include things 

other than electronic discovery. Please protect 

those who act innocently. 

JUDGE CAMPBELL: Questions? 

Yes, sir. 

JUDGE KOELTL: How would you define 

willful? 

MR. HUNTER: I would require some 

knowledge that what is being done is going to 

impact a claim. 

JUDGE KOELTL: A claim or some other 

obligation, some known duty to preserve? 

MR. HUNTER: Right. 

JUDGE CAMPBELL: Other questions? 

PROFESSOR MARCUS: Can I speak? 

JUDGE CAMPBELL: Yeah. 

PROFESSOR MARCUS: Can I ask a 

clarification question if I followed correctly. 
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What I followed was that you said in some period 

you checked that the amount you spent to settle 

cases was 61 percent of the amount you spent on 

discovery in litigation? 

MR. HUNTER: That's correct. 

PROFESSOR MARCUS: Is that because you win 

most of your cases and so you pay nothing in 

settlement of those cases, or is that because you 

generally spend a lot more on discovery than to 

settle a case? 

MR. HUNTER: I guess it's a combination of 

everything. We do have a good success in 

defending our lawsuits. 

JUDGE CAMPBELL: All right. Thank you 

very much for your comments, Mr. Hunter. 

Judge Pullan. 

JUDGE PULLAN: Good afternoon. My name is 

Judge Derek Pullan. I am a state district court 

Judge in Utah and a member of the Utah Supreme 

Court Civil Rules Committee. I'm sorry to say 

this, 23 years ago Judge Campbell was my civil 

procedure teacher in --

JUDGE CAMPBELL: I'm sorrier than you are 

to say that. 

JUDGE PULLAN: I'm sorry I have to say it 
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was 23 years ago. But it's great our paths have 

crossed again. 

This Committee has proposed comprehensive 

amendments aimed at civil discovery reform and I'd 

like to limit my comments just to the issue of 

proportionality. 

As you know, proportionality is not new to 

the Rules of Civil Procedure. Rule 1 has long 

sought the speedy and just and inexpensive 

determination of every cause. 

Since 1983, the rules have permitted 

parties and the court to limit discovery that has 

been unreasonably burdensome. Sadly, that 

provision, very deep in the middle of Rule 26, was 

never enforced with the vigor contemplated. A 

later effort to give proportionality teeth in 2000 

was largely ineffective. 

In the end, proportionality limitations 

could never counterbalance the broad reasonably 

calculated language which has been interpreted to 

define permitted discovery. The proposed 

amendments considering -- that the Committee is 

considering would change that. 

Parties would be permitted to discover any 

matter relevant to a claim or defense and 
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proportional to the needs of the case in light of 

certain express considerations. And I would add 

none of which are primary. 

In making this proposal, the Committee is 

not inventing the wheel. And that's what I'm here 

to testify about. 

For more than two years, Utah Rule 26 has 

allowed litigants to discover relevant material 

but only if the discovery satisfies the standards 

of proportionality. Discovery in Utah is 

proportional, and you'll find this familiar, if 

reasonable, considering the needs of the case, the 

amount in controversy, the complexity of the case, 

the parties' resources, the importance of the 

issues, and the importance of the discovery in 

resolving those issues. 

But what about cases in which one side has 

access to all relevant materials, such as 

employment cases, or cases in which nonmonetary 

relief is the critical question? As here, some 

Utah attorneys express concern that in these 

cases, a proportionality standard would unfairly 

curtail discovery. 

To address this concern, Utah placed in 

the definition of proportionality a requirement 
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that courts consider a litigant's, quote, 

opportunity to obtain the information, taking into 

account the parties' relative access to the 

information. 

Under new rule -- Utah Rule 26, the party 

seeking discovery always has the burden of showing 

proportionality and relevance. Before this time, 

the burden was on the responding party to seek 

protection from the court from unduly burdensome 

requests. 

I would submit that reversing that burden 

is critical to managing discovery costs, 

especially in light of the exponential growth of 

retained data. 

Further, to ensure proportionality, the 

court in Utah may enter orders under Rule 37. And 

those orders include a cost shifting for discovery 

based on the -- as justice requires. 

In a further effort to achieve 

proportionality, Utah divided litigation into 

three tiers based upon the amount in controversy. 

We imposed, as you are considering, presumptive 

limits on deposition hours, interrogatories, 

requests for production and requests for 

admission. These presumptive limits are by rule 
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deemed proportional. Unless the parties agree or 

one party moves for more discovery. And we call 

that in Utah extraordinary discovery. 

The days to complete standard discovery 

are limited, parties must disclose more about 

their case in chief earlier so that discovery 

requests shoot with a rifle, not a shotgun. 

Failure to make timely initial disclosures 

means you don't use the undisclosed document or 

witness in your case in chief. 

In the spirit of federalism, Utah is a 

laboratory with more than two years of experience 

testing the very proportionality framework under 

consideration by this Committee. But Utah is not 

alone. Federal circuit and district courts have 

implemented pilot programs and local rules using 

proportionality as the key to managing litigation 

costs. 21 other states today have either adopted 

or are in the process of considering extensive 

civil discovery reform. 

This is a critical time. It's an ideal 

time for federal rule makers to provide a 

proportionality based framework and bring 

uniformity to these grass roots efforts.

Having noted earlier notwithstanding the 
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grand vision of Rule 1, few in the United States 

would describe civil litigation as speedy and 

inexpensive. Burgeoning discovery costs openly 

undermine equal justice under the rule of law. 

Parties with meritorious claims but modest means 

are denied access to the courts. Specious claims 

settle to avoid the discovery bill. 

Requiring the discovery costs to be 

proportional to what is at stake in the litigation 

restores balance to a system which aspires to the 

just and the speedy and the inexpensive 

determination of every cause for all people. 

I will submit my opening statement into 

the record together with a law review article that 

I coauthored with Philip Favro called New Utah 

Rule 26, a Blueprint for Proportionality Under the 

Federal Rules. 

And I will take your questions at this 

time. 

JUDGE KOELTL: Two questions. First, do 

you have any information about how the Utah 

revised rule is working out? 

And the second question is you said it was 

important that the party seeking discovery have 

the burden of showing proportionality. And I'm 
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not sure I really understand that. 

There's no specific burden in the -- in 

the federal rules. The federal rules give, even 

the proposed rule gives a series of factors to be 

considered, one of which is the burden or expense 

of the proposed discovery, whether it outweighs 

the likely benefit. 

The only source of the information for the 

burden or expense of the discovery is the person 

producing it. So that's where you're going to 

need that information. 

And ultimately, when we talk about burdens 

of proof, we all know the burden of proof only has 

an effect if everything is in equipoise, which it 

seldom is. So the judge is going to have to 

consider all of these factors and make a 

determination if there's a motion to allow or not 

allow or limit or expand the discovery. 

So it's not clear to me why you say the 

burden of -- of showing proportionality is so 

important. 

So two questions. 

JUDGE PULLAN: With respect to what 

information do I have about Utah's experience, the 

Institute for the Advancement of the American 
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Legal System in Denver is helping us track 

changes. And we are two years into that. It's 

included right now surveys of attorneys who have 

practiced with cases under the new rules. Sadly, 

response rates aren't what we would like them to 

be, but they are fairly significant. 

And what we are finding is you have 

generally the younger class of the bar really 

likes the changes. We have, consistent with our 

collective personalities, many who are reserving 

judgment. That's probably what attorneys do most. 

And then we have some who stand on the dock 

complaining about the ship that has sailed. 

And so I think -- but certainly a high 

percentage of attorneys have not realized their 

fears. They have found them to be -- in fact, I 

spoke with an attorney who practices in the 

federal courts in Utah yesterday. And he says I 

actually prefer the rules and under the state 

courts and we are more and more advising our 

clients to file in the state court rather than 

federal court because discovery costs are more 

predictable. 

With respect to equalizing the factors, my 

sense is that with respect to many of the factors, 
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the requesting party is in the best position to be 

able to advise the court early on in litigation 

about those factors. Certainly some fall into 

the -- where the responding party would have more 

information. But we've heard today that, you 

know, costs of -- or the -- one of them is more 

weighty than another. Certainly Utah's rules 

doesn't read that way and federal rules don't read 

that way. 

JUDGE KOELTL: Why is there any issue with 

respect to burden of proof?

JUDGE PULLAN: It's the language of the 

rule, and we will be experiencing that in Utah. 

JUDGE KOELTL: But there is no language of 

the burden of proof in the federal rule. 

JUDGE PULLAN: There is not. There is in 

the Utah rule. I have quoted the Utah rule 

directly where we do have a burden of proof. 

JUDGE CAMPBELL: Peter, do you have a 

question? 

MR. KEISLER: That's what I was also 

trying to understand. As I heard your 

description, Judge, there is a burden on the 

propounder of the discovery. And it sounds much 

more explicitly so than anything that would be in 
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the rule change we are talking about. 

But you also said there's some proviso 

that says but if a propounder has not yet gotten 

access to the kind of information that would be 

needed to support such a burden, there will be 

certain presumptions in that party's favor, which 

sort of sounds to me in the end like what it might 

shake out to is like what one of the witnesses 

said this morning which is that, you know, federal 

judges in discovery disputes aren't really 

focusing on, you know, you had the burden of 

showing something, you haven't, you get more. 

Okay, what's reasonable on these different factors 

of relevance and burden and things like that. 

And I'm wondering if in practice that's 

how it works in your court or if there really is a 

kind of rigorous you had the obligation to make a 

showing, there's nothing here. I don't have to 

worry whether it's rebutted. I mean, the kind of 

thing that happens more on the merits of the case. 

JUDGE PULLAN: I would say it's burden of 

proof soft. What you say is exactly true. And 

Utah's rule has other factors other than what 

you've proposed to determine proportionality. And 

I mentioned one of those. 
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THE COURT: Gene? 

JUDGE PRATTER: First thank you very much 

for coming and giving us the benefit of all of 

this. 

My question has to do with whether or not 

there was anything you did in Utah to educate the 

bench as you -- as you initiated Rule 26, or are 

the judges so quick there, that they are learning 

on a case-by-case basis? 

JUDGE PULLAN: I preach the gospel of 

proportional discovery to our bench. It is 

consistently a subject of judicial education at 

every conference. And it is -- proportional 

discovery will represent a cultural shift on how 

we look at civil litigation. And that cultural 

change has to happen within the judiciary as well. 

And any change of this nature, there has to be a 

committed education effort to the bench. 

JUDGE PRATTER: Thank you. 

JUDGE CAMPBELL: Sol? 

JUDGE OLIVER: You talked about burden of 

production -- I'm sorry, burden of proof and 

there's been some comment from Committee members 

that there's no burden of proof in our rule. 

But would you find it significant that 
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there was kind of a burden of production, for 

example, on the civil rules, whether you move for 

protective order or you're filing a motion to 

compel makes a big difference in terms of where 

you stand when you are before the court. So 

whether you call it a burden of proof or not, the 

question is who has to initiate, you know, the 

proof or would that make a difference anyway? 

JUDGE PULLAN: That's a good question. 

And we dealt with that very issue. In Utah, the 

rule says the party -- the requesting party always 

has the burden of proof. Whether that -- and what 

we interpret that to mean is, any time 

proportionality becomes an issue in the case, 

whether it's in a motion to compel, a motion to 

quash, a motion for extraordinary discovery, if 

proportionality is inserted into any of them, the 

requesting party addresses it first. 

JUDGE CAMPBELL: Paul. 

JUDGE GRIMM: Just a quick question. You 

mentioned that you've had, in addition to the work 

that you've done on infusing proportionality, that 

you've had some disclosure obligations that each 

party has to disclose information to the other. 

It was sort of an aspiration of 26(a)(1) changes 
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back in 1993 that got removed in 2000. 

Have you had enough time with your new 

rules to determine whether or not that 

disclosure -- affirmative disclosure obligation, 

separate and apart from any response to a 

discovery request, whether that has helped in the 

evaluation of proportionality because they have 

actual information upon which they can make the 

arguments not in the abstract but with what 

they've already gotten? 

And secondly, does the disclosure include 

adverse information that's clearly relevant to 

what the other side has asked for or only 

information that would support what you intend to 

prove? 

JUDGE PULLAN: With respect to the last 

question, it's only information that would be 

supportive of your case in chief. And we did beef 

up initial disclosures. You now have to 

disclose -- you have to identify a witness with a 

short summary of anticipated testimony as well as 

a copy of all documents that would come in your 

case in chief. 

And I would add that if you fail to timely 

do that, we have a sanction that says you don't 
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use it and it's not a Rule 37 sanction, it's a 

Rule 26 sanction. So there's no willfulness 

standard. Initial disclosures means something in 

Utah now. 

Have we had enough time to see what 

effect? No, but anecdotally, or at least 

theoretically what we anticipate is the more you 

know earlier, the more focused discovery efforts 

will be. 

JUDGE GRIMM: And therefore, more 

proportional? 

JUDGE PULLAN: Yeah. 

JUDGE CAMPBELL: Thank you very much, 

Judge Pullan. 

Mr. Hamilton? 

MR. HAMILTON: Thank you very much. I'm 

before the Committee today principally in my role 

as an eDiscovery educator, both at Bryan 

University where its principal office is located 

here in Tempe university (sic) where we have 

graduate and undergraduate eDiscovery programs, 

and at the University of Florida Law School where 

we have a robust eDiscovery education program and 

project. 

I view the rules as guidance as an 
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educational vehicle in many respects for the bar 

and for aspiring attorneys and professionals in 

the field. Yes, it sets the rules of the game. 

I've been a litigator for 30 years, so I can 

appreciate that aspects of it. But it's also 

guidance in helping us to establish best practices 

and raise the level of practice that we see out in 

the field. 

I also think that the core of the rules 

since -- since December 1st, 2006, has been a 

focus on Rule 26(f). That's, to my way of 

thinking, the heart of what we are doing in 

eDiscovery is early meaningful disclosure. 

And I believe that's what the prior 

witness was talking about. Because that makes 

proportionality possible. It avoids downstream 

train wrecks and disasters and allows early 

judicial recollection. And I applaud this 

Committee for all its work it's done in that 

regard. 

What I am concerned about is the impact 

and every day I would like to talk to the 

Committee about is the impact of the change and 

really an absence of information in Rule 26(b)(1) 

that's being proposed and how that may impact Rule 
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26(f). 

Let's take a hypothetical example that we 

probably think is beyond doubt at this stage of 

the game, that in Rule 26(f) I'll sit down with 

the other side and I'll say let's talk about your 

e-mail systems, and the witnesses that 

participated in those e-mail systems. 

What kind of server do you have? Who's 

the manufacturer? How does it deliver it? 

Assuming it's perhaps a Microsoft system, do you 

have IMAP, or do you have POP delivery? Is it 

Internet-based mail system? Are PSDs created? 

Are OSTs created? What's the backup rotation? Do 

you have an archiving system that's put in place. 

You would think that there would be an 

immediate response by the opposition to that. 

However, the state of eDiscovery practice is not 

that high, regardless of what we would like to 

hope. In fact, for the medium-size case, and I 

speak to you as a litigator of some experience 

handling not only significant cases, but many 

medium-sized cases during my career, unfortunately 

that is not so. 

Often I will encounter objections such as: 

That's my work product, you'll never get that 
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except over my dead body. We'll respond as we 

deem appropriate. 

Now, we all know that Rule 26(f) has 

aspirational guides to it that the parties will 

discuss this, that they will go over it together. 

But in practice, there are huge obstacles. 

That's why at Florida, at Bryan and at 

Georgetown and Seventh Circuit, there's a 

tremendous focus on how do you do the 26(f) 

conference properly. It's a hurdle we have to get 

over and the vast bulk of practitioners simply 

aren't there. 

So what do we do in practice? How do we 

get them there? We get them there, one, by 

turning to the rules. And there's a principle 

provision in the rule that I found very effective 

in dealing with the opposition, why they don't 

want to go in front of the local district court 

judge, because they know I'll win and they will be 

embarrassed. 

And that's the provision that's been 

excluded by the Committee, which says that 

discovery can be had including the existence, 

description, nature, custody, condition and 

location of any documents. 
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That is a powerful tool out in the field. 

I would urge the Committee to reconsider its 

exclusion of that provision. 

When you go to the comments, you address 

that. And you say -- and you cite that principle 

that I just read. And then your conclusion is 

discovery of such matters is so deeply entrenched 

in practice that it is no longer necessary to 

clutter the rule text with these examples. 

I respectfully submit to the Committee 

that you've overestimated the level of practice 

for the vast majority of cases out in the field. 

It overestimates the level of practitioners that I 

deal with on a regular basis. It's not there. We 

need the additional language in the rule. 

Now, here's the worst part of it. By 

removing that language, what happens is we give 

the opposition that doesn't want to participate in 

a Rule 26(f) conference more ammunition. Now it's 

absent. And they, as we all know litigators that 

don't want to participate, will point to that 

absence and say: The Committee took it out 

because of a reason. 

Of course, if you go back and study the 

report as we all have and there's a reason, you 
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realize that nothing is being changed. But the 

point of the matter is, is when the new rules are 

published and presumably adopted, and I applaud 

them. You all have done wonderful work. When 

they are published and the comment is published, 

the reason for the exclusion is not going to be 

there. It will cause mischief. 

Much of your work that you have tried to 

accomplish here in Rule 26(b)(1) is to take the 

kernel of the rules that we thought we had and 

emphasize things better, removing -- removing 

26(b)(2)(C)(3) up to the front. 

We are doing that because its impact was 

missed. We are making some other changes with 

respect to taking out "reasonably calculated" 

because it missed relevance. 

So what we are doing is -- you're doing is 

tweaking the rule so that it makes sense and 

brings home its original mission. We will take 

out a provision that's going to allow for mischief 

and perhaps undermine the very changes that you 

wanted and something else that is very important. 

So the solution is very simple. We don't 

need to go back to the rule, just insert your 

reason into the comment so we can point to people 
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and, no, see, the reason it's excluded is because 

it's so darn obvious. And how can you be so silly 

as to object to a discussion about it. 

But absent the provision and the comments, 

I guarantee you on the everyday medium-sized case, 

we will be dealing with practitioner after 

practitioner that misunderstands what happened 

with the rules with respect to that provision. 

Thank you very much. 

JUDGE CAMPBELL: If I can ask a clarifying 

point. I think you made this clear, but I just 

want to make sure that I got it right.

You're saying that you're okay with us 

taking that language out, provided we say in the 

advisory committee note this stuff is still 

discoverable? 

MR. HAMILTON: Yes, sir. 

JUDGE CAMPBELL: Other questions? 

Thanks very much, Mr. Hamilton. 

MR. HAMILTON: Thank you. 

JUDGE CAMPBELL: All right. We are going 

to go ahead and take a break. We will break until 

ten minutes to the hour and we will resume at that 

time. 

Thank you. 
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(A recess was taken.)

JUDGE CAMPBELL: If you take your 

seats, we will get started.

Our next speaker will be Mr. Avelar.

It doesn't appear he is here, so let's 

move on to Mr. Canty.

MR. CANTY: Good afternoon. My name is 

Dennis Canty. I am a partner with Kaiser Gornick 

LLP, a San Francisco firm representing plaintiffs.

I practice primarily in the area of mass 

torts involving pharmaceuticals and medical 

devices. I serve on plaintiffs' leadership 

committees in MDLs and state coordinated 

proceedings nationwide.

One of my primary responsibilities is 

the negotiation of scope of preservation and the 

scope and format of production in those types of 

cases. 

Thank you for the opportunity to address you 

today.

Currently, Rule 26 (b)(1) and Rule 

26(b)(2)(C) dictate that the scope of the 

discovery and preservation is relevance unless 

and until the court makes a limiting 

determination. 
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However, proposed changes to 26(b)(1) and 

37(e) seem in effect to say keep what's relevant 

unless you can make a case that it is too 

expensive or burdensome. And even if you make a 

bad call, you won't face sanctions later unless 

your opponent can prove the content of what you 

destroyed and your intent to destroy it. 

It is apparent from the record of these 

proceedings that these changes are driven by 

claims of enormous and disproportional discovery 

and preservation costs. 

Also it seems apparent from the record 

there's a lack of empirical data to support those 

claims or to show that the preservation costs are 

not simply high, but more importantly, 

disproportionate to the stakes and the amount in 

controversy. 

There is a couple of examples. You heard 

today from in-house counsel from Boston 

Scientific. I want to take this example because 

it is typical of what we are seeing. 

Boston Scientific is a big fan of 

proportionality and wants to see it in 26(b)(1), 

and it came here with only half of the proportion. 

It talked about millions of dollars in costs and 
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terabytes of data. But similar to the Lawyer for 

Civil Justice Survey, it fails to provide this 

Committee with any information about the stakes in 

the litigation in which those costs are incurred. 

Counsel didn't mention that four months 

ago Boston Scientific subsidiaries paid $30 

million to the Department of Justice to settle 

allegations that it knowingly sold defective heart 

devices to health care facilities, in 2008 that it 

paid $240 million to the patients that were 

injured with those defective products. 

Those are settlement figures. Amounts in 

controversy are multiples of that. One 

litigation. 

Microsoft. Microsoft put up a pretty 

picture detailing the numbers of pages, not 

documents, pages that it preserves and produces. 

The Committee asked about Microsoft's 

pretty picture. What types of cases do your data 

pertain to? The response was the data is in the 

aggregate, all litigation, from large patent 

claims to employment claims. 

I encourage the Committee to ask Microsoft 

the next question. And that is: What is the 

aggregate amount in controversy of those cases? 
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How are your costs not just high, but 

disproportional to the stakes? 

Pfizer's counsel attended the last hearing 

and bemoaned the cost of 36 point something 

million dollars in the Prempro litigation. These 

were incurred simply to buy and store some backup 

tapes that were never accessed. 

She said, quote, we never went back to 

those backup tapes to retrieve a single document. 

Not once, as the information on those tapes was 

completely redundant. 

What counsel did mention was that as of 

June 2012, Pfizer had committed more than 

$1.2 billion to resolving the claims of the women 

that were injured because it put profits over 

patient safety. Again, this --

PROFESSOR MARCUS: Counsel, I'm sorry, 

could you -- this relates, I'm sorry to interrupt 

you at that point. But this relates to something 

I asked somebody earlier. 

How do you think proportionality should 

work in the kind of cases you talk about, which I 

would assume often have billion-dollar 

possibilities. What should it mean? Shouldn't it 

mean very large preservation? 
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MR. CANTY: Absolutely it should. 

Absolutely. 

PROFESSOR MARCUS: So in those cases it 

sort of helps you. 

MR. CANTY: The idea that discovery should 

be proportional, yes. Absolutely.

What I'm suggesting is that the premise

for the rules, the rule changes, which are 

suggested, are that these preservation costs are 

high, and the intent and he effect of the rules is 

to limit that which is preserved. That's what 

will happen. That's the intent. 

And what I am saying is before we jump 

into that, before we make a decision like that, we 

ought to have some data to tell us that these 

costs that -- the problem that we are trying to 

fix exists. But the problem is there's a 

disproportional amount of preservation costs. 

That's not in this record that I can see. 

When the -- but the Prempro example is 

more important for another reason. And that's 

because, and I didn't participate in the 

litigation but I did go back and look at the 

docket. I reviewed the court's order at docket 

number 162. 
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The court, in its preservation order, 

specifically provided that alternative to backup 

tape preservation is to arrange for the 

preservation of complete and accurate duplicates 

of each material -- of such material. It also 

provided the party may seek relief from 

preservation obligations upon a showing of undue 

cost, burden or overbreadth. 

When this Committee is told that high 

costs are disproportional and due to overbroad 

discovery or preservation -- overbroad scope of 

discovery, the Committee, I think, needs to 

question that. 

When this committee is told that the high 

cost of -- that the concepts of proportionality 

are not currently significant factors in 

discovery, and so changes are needed, the 

Committee needs to question that. And I think you 

can't logically make those rule changes without 

those answers. 

Final comment. We heard reference to the 

Pippins versus KPMG decision as a poster child for 

overbroad discovery. This, I think, exemplifies 

where the problem really exists. 

The case isn't about that. The case is 
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about KPMG's failure to cooperate with plaintiffs. 

I believe that the court's adjectives in 

describing KPMG's conduct were unreasonable, 

nonsense, inappropriate behavior, smacks of 

chutzpah, and KPMG's ongoing burden is 

self-inflicted because of its recalcitrance. 

I'll echo the comments of others here 

today. If you want to make changes to the rules 

to reduce the costs of eDiscovery, add sanctions 

for failure to cooperate. 

Thanks for the opportunity to be here. 

JUDGE CAMPBELL: Thank you, Mr. Canty. 

Are there questions from members of the 

Committee? 

MR. BARKETT: Is your position that there 

should be no changes to the Rules of Civil 

Procedure beyond adding sanctions for failure to 

cooperate? Is that -- I'm not sure where you're 

coming down, that's what's confusing me. 

MR. CANTY: What I'm saying is that the 

effect of the proposed changes to the rules are to 

limit and -- what is discoverable and what is 

produced. When you do that, you run a risk, a 

very substantial and real risk that relevant 

evidence will be lost, irretrievably.
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MR. BARKETT: So your suggestion is that 

there should be no changes to Rule 26, to 30, to 

33, to 36, 37? 

MR. CANTY: Nothing to 26(b)(1), nothing 

to 37(e).

JUDGE CAMPBELL: Any other questions? 

All right. Thanks very much, Mr. Canty. 

Attorney General Horne? 

ATTORNEY GENERAL HORNE: Thank you, 

Mr. Chairman and members. I'm Tom Horne, the 

Arizona Attorney General, but I'm here not as the 

Attorney General but in my individual capacity 

based on my 30 years of experience in private 

practice before I went into public service. 

And I'm here in support of the changes to 

Rule 26(b)(1), which would require that discovery 

be for relevant and material matters. I have no 

comments on the preservation issue. 

But in 30 years of private practice, I saw 

many, many cases where people were unable to seek 

justice because they were told that a lawyer 

giving honest advice that the other side had much 

deeper pockets and they would run them into the 

ground and the attorneys fees would exceed what 

was in dispute, and it simply would not be worth 
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it. 

And I think that limiting discovery to 

material that is relevant and material would very 

much help for people to be able to seek justice 

where they are entitled to it, even if they don't 

have as deep pockets as their adversary. 

The -- there is a second consideration 

which I don't think has appeared in the materials, 

and that is sometimes if -- if discovery is very 

broad ranging, a party can intimidate an opposing 

party by threatening to get into discovery of 

material that is really not relevant, but that may 

be of embarrassment to the other party. 

And that's an abuse of the discovery 

process. But it's a real threat that can 

discourage somebody seeking justice. 

And I think that, again, limiting 

discovery to material that is relevant and 

material would help to -- would help to deal with 

that. 

And finally, I wanted to comment on the 

proposal to reduce the time from the -- the number 

and time of depositions. The -- under the Arizona 

rules, in state court, depositions are limited to 

four hours, and you're presumptively only entitled 
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to depose parties without permission of the court. 

And I think that's a very good rule and would help 

to make the discovery process more reasonable. 

And that's all the comments that I have. 

JUDGE CAMPBELL: All right. Thank you. 

Are there questions from members of the 

Committee? 

JUDGE KOELTL: Do you have any experience 

with whether people choose the state courts as 

opposed to the federal courts based upon what are 

the currently more restrictive Arizona discovery 

rules? 

ATTORNEY GENERAL HORNE: I don't have any 

experience in that. When I was in private 

practice, the state courts were quicker, so we 

tended to choose the state courts if we were the 

plaintiffs. 

JUDGE CAMPBELL: John? 

MR. BARKETT: What are the disclosure 

obligations under the Arizona rules? 

ATTORNEY GENERAL HORNE: A full disclosure 

statement has to be filed. 

MR. BARKETT: It's very different from 

26(a)(1)?

ATTORNEY GENERAL HORNE: I don't remember 
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if it is different. 

JUDGE CAMPBELL: It is. It is quite a bit 

broader and it's not limited to information 

supporting a party's position. 

And I will say that it's not uncommon in 

federal court here for me to have parties come in 

and stipulate to four-hour depositions because 

they've really grown to like them in state court, 

without me raising it. It happens in maybe a 

third of my civil cases. 

ATTORNEY GENERAL HORNE: Well, it's a 

particular problem if one party is trying to wear 

out the other party because they have greater 

economic resources. And I think the four-hour 

limitation, the presumption of only the parties 

and needing court approval for other depositions 

and much stricter materiality rules I think would 

help very much to make it possible for people to 

get justice even if the opposing party has deeper 

pockets. 

JUDGE CAMPBELL: Are there other 

questions? 

All right. Thank you very much. 

ATTORNEY GENERAL HORNE: Thank you. 

JUDGE CAMPBELL: Mr. Sneath?
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MR. SNEATH: Good afternoon, and thank you 

for the opportunity to address you, and I commend 

you for your hard work. 

I'm a principal shareholder in a 15-lawyer 

litigation boutique in Pittsburgh, Pennsylvania. 

We handle primarily complex business litigation 

matters, intellectual property, patent and 

trademark litigation, and environmental toxic tort 

suits and products liability work. Our commercial 

work is both for plaintiffs and defendants for 

corporations, big, medium, and small. 

I also served as president of DRI, which 

is the counterpart to AAJ on the defense side in 

the year 2011 and '12. And I speak for that group 

and its 22,000 members around the country. 

I also serve on our local patent rules 

committee in Pittsburgh, which is a set of rules 

that have been enacted to try to do a lot of what 

your proposals would do to build proportionality 

into the patent cases by staging discovery and 

doing things to make sure that claim construction 

can occur early when many cases tend to be sort of 

decided or settled. So I have some experience in 

the rule-making process. And I respect what 

you're doing. 
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I wanted to talk, because I'm late in the 

day, I figured I would talk about a slightly 

different perspective than I either read about in 

the first set of hearings or now. And that is on 

behalf of small businesses, small and medium-sized 

businesses who are involved in 

business-to-business litigation which, as I read 

the statistics, is a pretty large percentage of 

what's going on in the federal courts. And it's a 

different dynamic than the traditional plaintiff 

versus defendant that we've heard a lot about 

today. 

Small businesses may have to produce lots 

and lots of documents unlike a personal injury 

plaintiff. And so they run into the same problems 

as Microsoft or the big corporations. In fact, 

they might be being sued by a big corporation or 

having to sue a big corporation. 

So as somebody mentioned earlier, I like 

to look at it as requester and responder versus 

plaintiff and defendant. Because I think that's 

sort of artificial, it's always plaintiff versus 

defendant, doesn't really work in a lot of cases. 

I support the rules changes almost 

completely. A few things that I would suggest be 
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tweaked, and they've already been mentioned today. 

So I really want to talk more thematically about 

business-to-business cases. 

We represent large corporations but many 

times we get calls from start-ups. Pittsburgh is 

a high-tech town these days, the Silicon Valley of 

the east, so we have lots of start-ups and growing 

and emerging companies. And they have 

intellectual property issues, they have start-up 

issues of one kind or another. And as defendants, 

they can be crushed in litigation. 

Many of them have no legal departments. 

They don't have general counsels. They've never 

been advised on preservation of documents. They 

have no idea what litigation in the federal courts 

entails. And so the first time they hear about it 

is from me. 

And so when I talk to them and explain 

what can happen, both as a defendant or as a 

plaintiff, that's when they begin to realize that 

they've got to make some very serious decisions 

about how to get justice. 

We represented one corporation, for 

example, that was defendant in the case 

that -- and they were a fairly successful 
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medium-sized corporation who were spending about 

50 to $60,000 a month to pay for database and 

costs in the litigation to house millions of 

documents that the parties had to exchange and 

produce. 

Despite efforts to limit search terms, 

limit numbers of witnesses, and cull it back, it 

still amounted to extraordinary expense both to 

store and manage the database, to hire contract 

lawyers to review the documents and code them, to 

manage them and create layer upon layer of access 

to the database so that experts could only see 

certain documents, clients could only see certain 

documents, lawyers certain documents, all of which 

was governed by a five or six-page protective 

order that was a small industry in itself to 

figure out how to comply on an ongoing basis with 

the protective order. And that becomes a huge 

problem in litigation just in and of itself. 

As plaintiffs, for example, I got a call 

recently from a nonprofit, a business incubator in 

Pittsburgh, whose job it is to provide seed money 

to start-ups. They create jobs. And they 

were -- there is a very wealthy Asian businessman 

set up a website with the exact same name as their 
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company who wants to provide capital and funding 

to companies in America. And they would like to 

sue him for trademark infringement. 

And when I began to -- they have no 

in-house department, no legal counsel, no anything 

in-house telling them how to do it. They've never 

been involved in litigation. I sat down with them 

and I explained, this is what you potentially 

face. And here's what it might cost. And the 

other side can turn around and try to 

contend -- contest your mark, and then you would 

have to go back and get documents from years ago 

that discuss first use in commerce. 

And their eyes glazed over and they looked 

at the expense, and they said we don't have a 

budget for that kind of thing. Our money is 

restricted. We would have to find where we get it 

to even able to be able use it. How do we get 

justice because this guy is going to crush us? 

I'm still waiting to hear back from them. 

They have no idea what to do. And it really all 

stems from, it's not an access to the courts 

issue. You know, Iqbal, Twombly, the rules guide 

us on how you get into court. 

And it's what happens after you get into 
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court and that's where the problem is. And that's 

what you are addressing. It's this false issue 

and it's all about access to the courts. It's not 

all about access to the courts, you can get in 

there. 

But it's about how you streamline the 

practice to make people get back to the concept of 

being efficient lawyers, ethical lawyers, and 

doing their responsibility to produce documents 

initially like they are supposed to. 

And so I wanted to present that 

perspective and say that there is a whole 

constituency out there that we really haven't 

talked about that I think are an emerging part of 

the court docket. So thank you. 

JUDGE CAMPBELL: Mr. Sneath, let me ask 

you a question, if I can. 

MR. SNEATH: Sure. 

THE COURT: That I've had on my mind when 

others have spoken and I've not asked it but we 

did talk about it in a previous meeting we had. 

Some portion of this enormous cost of 

managing information is the result of the 

explosion of information in the digital age. And 

it will be there no matter what we do with the 
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rules or with litigation. 

Some portion, we are told by credible 

sources, is due to the preservation rules and the 

discovery rules. 

Do you have any sense for how we figure 

out if trying to do something with the discovery 

and preservation rules will reduce half the cost 

or ten percent or five percent? In other words, 

are we really going to help these people you 

talked about, or is their problem the result of 

fact that they've got more information than they 

can effectively manage in any dispute, just 

because of all of the information we are storing 

these days? 

MR. SNEATH: Well, the companies who have 

been advised about preservation have done what 

you've heard companies talk about here all day. 

And they are the companies who have never even 

heard that they have to do it or don't know that 

they have to do it. So you have to decide a 

starting point, particularly if they are going to 

be a plaintiff. You know, and there's no lawsuit 

against them. 

So I do think that if you move the 

goalpost closer, and force lawyers to have 
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discussions with those goalposts narrowed, that 

lawyers will do -- the good lawyers, as you've 

heard mention, will do what they are supposed to 

do, and that is to work out an arrangement that 

will be sensible to both sides. 

There is pressure on every lawyer in this 

room who works for a company to reduce costs. And 

that's on both sides of these business-to-business 

cases. So we all have pressure to talk. We all 

have pressure to negotiate, to come up with 

reasonable limits, to come up with reasonable 

search terms. 

And you're right, there's a ton of 

information. But I think if you narrow the 

goalposts as your proposals do in large part, that 

you give the starting point for the discussion at 

a much better place to allow the lawyers to serve 

their client, particularly smaller and 

medium-sized businesses. 

JUDGE CAMPBELL: Other questions? 

All right, thank you very much for your 

comments, Mr. Sneath. 

Mr. Twist? 

MR. TWIST: Thank you, Mr. Chairman and 

members of the Committee. First let me apologize 
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for my rather casual appearance. My left arm had 

an unintended discovery experience with my garage 

floor over the Christmas holiday, and I apologize. 

My name is Steve Twist and I serve as 

general counsel for Services Group of America, 

which is a privately held corporation in the food 

distribution sector of the economy. We provide 

food service to our customers, tens of thousands 

in 18 states around the country. And we do that 

through over 4,000 associates who depend on the 

health of our company and our economy for their 

continued employment. 

My background is set forth a little more 

fully in the written comments that I've submitted 

and will upload onto your website. 

But in my current and past roles, I've had 

significant experience currently with SGA and 

formerly I was counsel for Dial Corp., which 

became Viad, a publicly traded corporation. And 

I've had enough experience over the almost 40 

years of my practice to know that or conclude that 

the current civil justice system is dysfunctional, 

particularly when judged against its fundamental 

purpose stated in Rule 1, which is to provide for 

the just, speedy and inexpensive determination of 
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every action and proceeding. 

The costs and burdens of discovery now 

drive dispute resolution, rather than the merits 

of cases. Such a system is neither just nor 

speedy. And it most certainly is not inexpensive. 

Let me explain briefly why I say this. My 

company spends more money on preservation and 

discovery than it does to pay claims. Our IT 

department reasonably estimated for me that just 

to maintain the preservation and search functions 

that are required of us costs us more than a 

quarter million dollars every year. 

The leading factor in litigation strategy 

is cost, not the merits of claims of defenses. 

Every time I sit down with company executives to 

talk about litigation that we are or may be 

involved in, invariably the question is what will 

be the costs. And invariably, that is a 

significant factor in the decision about when or 

how to proceed. 

In the last year -- in the last two years 

alone, we've been involved in litigation, and I'm 

citing only three matters, in which attorneys' 

fees and costs related to discovery alone have 

exceeded well over $1 million. And in deference 
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to my -- or your earlier presenter, I can tell you 

that the amounts at issue were less than that. 

In none of these cases has there been a 

finding of responsibility against the company.

Let me disclose, in fairness, that these 

cases have been in state court, not in federal 

courts, but I dare say that the costs would have 

been higher. And more importantly, the power of 

the changes in the federal rules that you're 

contemplating will encourage similar improvements 

by states around the country. 

In addition to the IT costs, the energy in 

preserving every conceivable record, every 

iteration of every e-mail and every version of 

every document places an enormous burden on any 

party. Litigation takes unforeseen tolls beyond 

simply the cost of attorneys. It robs company 

employees of time. It eliminates our ability to 

budget properly. It impedes our ability to grow, 

to hire new employees. It has a definite effect 

on the bottom line. 

The triumph of cost over merit is a direct 

result of the current rules and how they are 

applied in practice. That's why I strongly 

support the company's (sic) efforts and I thank 
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you for those. 

Specifically the scope of discovery, as 

defined in Rule 26(b)(1), promotes a litigation 

strategy designed to bring opponents to their 

knees rather than bring facts into light. The 

Committee's proposal to redefine the scope of 

discovery is a much needed and appropriate reform. 

Much of the cost and burden of discovery 

has been caused by the broad scope of discovery 

defined in the terms "subject matter involved in 

the action", and the notion of evidence that's 

"reasonably calculated to" the discovery -- "lead 

to the discovery of admissible evidence." 

The proposal to move the proportionality 

language would result in parties and judges paying 

needed attention to the standard, being more 

focused on the standard. 

I'm aware that opponents have alleged that 

moving the language will shift the burden of proof 

and impose an inappropriate burden on plaintiffs. 

I think that argument is incorrect. 

First, changing the scope of discovery 

does not change the legal burden. 

Second, currently the burden of ensuring 

proportionality falls upon both requesting and 
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responding parties. The committee's proposal does 

not change that. 

Third, if what the opponents mean by 

shifting the burden is a possible increase in 

motions to compel compared to motions for 

protective orders, I don't see that as a major 

factor. 

Reforming the scope of discovery to ensure 

proportionality is worth it. The current 

proportionality rule has failed. The proposed new 

Rule 37(e) is also a much needed reform. Although 

the proposal holds great promise, two parts I 

would commend to your attention before the rule

will have its intended effect. 

First, the Committee should remove the 

word "willful" making clear that the test is bad 

faith. This is crucial because some courts 

interpret "willful" to simply mean "intentional." 

And under that definition it will remain 

impossible for companies like ours to make 

reasonable decisions about preservation. 

The second needed repair is to eliminate 

the exception for the loss of information 

"irreparably deprives" a party of any ability to 

present or defend a claim in the action. Although 
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the Committee intends this exception to apply in 

only the very rarest of situations, it's likely 

that courts would use the exception to avoid the 

primary rule. 

Mr. Chairman and members, thank you very 

much for the opportunity to present to you. 

JUDGE CAMPBELL: Thank you, Mr. Twist. 

Questions? 

Sol? 

JUDGE OLIVER: I think you indicated that 

someone in your company indicated that you had one 

quarter of a million dollars that you use for 

preservation costs. Is that what you said? 

MR. TWIST: Yes, sir. 

JUDGE OLIVER: What would you estimate the 

cost would be if there was a rule change, 37(e) 

was promulgated and became part of the rules? I 

mean, how would you do things differently? How 

much would you save? 

MR. TWIST: Well, that's an excellent 

question, and I haven't taken the time to sit down 

with our IT people to figure that out, but I 

certainly would and before the Committee's 

deadline for public comment will submit something 

on that point. 
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JUDGE CAMPBELL: Any other questions? 

All right. Thank you. Thanks so much, 

Mr. Twist. 

I understand that Mr. Avelar has arrived; 

is that right? Let's take you next, Mr. Avelar. 

MR. AVELAR: Thank you, Your Honor. My 

name is Paul Avelar. I am an attorney with the 

Arizona Chapter of the Institute for Justice, a 

nonprofit public interest law center dedicated to 

protecting constitutional rights. 

Thank you for the opportunity to testify 

here today. And thank you to the advisory 

committee for its extensive work in preparing 

these reforms. 

Although IJ welcomes the amendments 

encouraging early and active judicial case 

management, we are very concerned about the 

proposals to narrow discovery and limit the use of 

discovery devices. These measures will cause 

serious problems in constitutional litigation and 

contrary to their intent, will in most cases 

profoundly increase the frequency and intensity of 

discovery disputes as well as litigation costs. 

Since 1991, IJ has represented 

individuals, small businesses, and other groups in 
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federal courts across the country to enforce 

constitutional rights. IJ represents both 

plaintiffs and defendants to protect these 

constitutional rights. 

For example, IJ Arizona has represented 

several individuals and groups in constitutional 

challenges to Arizona campaign finance laws, and 

at the same time, we have also represented parents 

as intervenors to defend Arizona school choice 

programs. 

Most IJ cases are moderate in size. 

Typically they are resolved on summary judgment, 

but when required, IJ cases typically last between 

one and five days of trial. 

Whether representing plaintiffs or 

defendants to protect constitutional rights, there 

is an asymmetry in access to information with the 

government in sole possession of the information 

and facts generally needed to prove constitutional 

violations. Based on this perspective, I offer 

testimony opposing the proposals related to 

discovery, the limitations on discovery. 

First, the proposed proportionality 

requirement you have heard quite a bit about 

already. Our concern is that the proportionality 
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is dependent on five subjective and fact dependent 

criteria. And a government defendant can simply 

resist requests for information needed to prove a 

constitutional claim on the grounds that it is not 

proportional. 

The amount in controversy in a 

constitutional case may be low or even nonexistent 

where the suit is primarily aimed at injunctive or 

declaratory relief. How will that play into the 

proportionality issue? 

Moreover, as the advisory committee notes 

make clear, the proposal shifts the burden from 

defendants to proof that discovery requests are 

disproportional to plaintiffs to prove 

disproportionality. 

Contrary to the intent of the amendments, 

this requirement will increase litigation costs. 

It is readily apparent that there will be a 

barrage of motions to compel and the need for 

judicial intervention to spring from this proposed 

change. 

Second, the proposals to reduce the 

numerical limits on discovery devices are also 

counterproductive to the goals espoused behind the 

proposals. Constitutional litigation requires us 
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to navigate between Scylla and Charybdis. To 

draft discovery requests narrow enough to draw a 

meaningful response, broad enough to fully capture 

the relevant information, but not so broad as to 

be objectionable. This is especially true where a 

case implicates government behavior across a 

number of years, across a number of agencies. 

Further limiting the number of requests 

permitted will only encourage broader requests for 

discovery and thus more objections. 

Moreover, the limits to request for 

admission are particularly troublesome. There has 

been no problem with burdensome or abusive 

requests for admission so far as I know. These 

admissions -- these requests for admission are 

very useful tools that decrease 

judicial -- judicial time and decrease litigation 

costs. Admissions narrow the issues in litigation 

and they also facilitate proof with respect to 

remaining issues. 

This is particularly true in 

constitutional cases such as we litigate, for 

example cases subject to the rational basis 

standard of review. 

We find that carefully crafted requests 
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for admission can obviate the need for depositions 

of some, restrict or limit the amount of 

deposition needed of others or even prevent the 

need for a trial at all by facilitating motions 

for summary judgment. 

In Nevada, for example, Nevada Federal 

Court, IJ effectively used Rule 36 to obtain 

numerous admissions to prove material facts about 

the lack of any health or safety justification for 

the restrictions that we were challenging. And we 

did this after state witnesses did not clearly 

admit to those facts in deposition. By filing 

these requests for admission, we were able to move 

for summary judgment, and that motion is at this 

time still pending. 

Our concern is thus that far from 

fostering cooperation, limiting requests for 

admission will encourage gamesmanship, which is 

obviously not the point of the federal rules. The 

fair administration of justice requires striking a 

balance. Defendants should not fear harassing 

litigation designed to extort settlements, but the 

doors of justice must be opened wide enough to 

hear meritorious cases. 

Thank you very much for your time and 
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attention today. And if I can answer any 

questions, I'm more than happy to. 

JUDGE CAMPBELL: All right. Thank you. 

Any questions? 

John? 

MR. BARKETT: I'm wondering, I was just 

looking as you were talking and I pulled out Rule 

26(g)(1)(B)(iii), and it says with respect to a 

discovery request, response or objection, every 

lawyer that issues a request for production has to 

certify that those requests are neither 

unreasonable nor unduly burdensome or expensive 

considering the needs of the case prior discovery 

in the case, the amount in controversy, and the 

importance of the issues at stake in the action. 

And the sanctions under 26 are mandatory, they are 

not discretionary. 

So I'm just a little puzzled by the 

statement that you made about changes that would 

occur. If you have to certify to this now before 

you issue a discovery request, what's the problem 

with what's been proposed? I didn't quite get 

exactly what your point was given the existing 

obligation. 

MR. AVELAR: So the existing obligations 
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require the proponent of the discovery to say we 

don't think that these are unduly burdensome. We 

think that they are appropriate for the case. Not 

surprisingly, the other side often disagrees with 

that assessment. 

The problem that we face is that coming 

into the court as plaintiffs against the 

government often times requiring or having a 

burden of proof placed upon us is that we need the 

information that is in the government's 

possession. They are the only ones who have it. 

So our need for it is quite a bit heightened, 

maybe, than in an ordinary case. 

So our concern is that if you switch the 

burden of proof, if you say that it is now on the

plaintiffs to prove that their requests are 

proportional as opposed to --

MR. BARKETT: What do you think 26(g) now 

says? 

MR. AVELAR: Your Honor, I do have --

MR. BARKETT: You are faced with the 

potential for mandatory sanctions if that's not a 

true statement. 

MR. AVELAR: Yes, Your Honor. When we 

file requests, as I think every good lawyer does, 
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we absolutely believe that they fall under that 

requirement under 26(g), that we have met the 

burden or we have -- we have made sure that we are 

not sanctionable. But the other side invariably 

disagrees that something that we have requested is 

either overly broad or unduly burdensome. They 

have a different perspective on how do we need the 

information, how burdensome is it for them to 

retrieve it. 

MR. BARKETT: And that gets resolved by a 

judge? 

MR. AVELAR: Ideally, Your Honor, yes. 

MR. BARKETT: Nothing changes. It will 

still get resolved by a judge. 

MR. AVELAR: Your Honor, I think the same 

is, as with any burden of proof, the question is 

who has the obligation to come forward and 

affirmatively make their case first. 

As with any burden of proof, the burden of 

proof itself tends to affect who has the advantage 

or who has -- who has the, I won't say advantage, 

in the question to be answered just as a burden of 

proof does in regular litigation. 

JUDGE CAMPBELL: Judge Koeltl. 

JUDGE KOELTL: You said that the advisory 
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committee notes shifts the burden. And I'm not 

sure where in the advisory committee notes it says 

that. If there's some specific language that's a 

problem in the advisory committee notes, it would 

be helpful to bring it to our attention. 

MR. AVELAR: The -- the -- it is our 

position that there is a -- that the advisory 

committee notes do switch the burden by 

increasing -- by saying -- I'm sorry, by saying it 

is -- the burden is on the proponent of the 

discovery. 

JUDGE GRIMM: Where does it say that? Can 

you point us to where that is?

MR. AVELAR: I'm sorry. I don't have the 

language in front of me, Your Honor. 

JUDGE CAMPBELL: If you could put it in 

written comments, that would be helpful to us. 

MR. AVELAR: Yes, Your Honor. 

JUDGE CAMPBELL: We would be interested in 

where you -- I don't know that we intended it, but 

if it's being read that way we sure want to know 

it. So that would be really valuable. 

MR. AVELAR: Yes, sir. 

JUDGE CAMPBELL: All right. Thanks very 

much for your comments, Mr. Avelar. 
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MR. AVELAR: Thank you. 

JUDGE CAMPBELL: Ms. McIntyre? 

MS. McINTYRE: Good afternoon, I'm Jill 

McIntyre. I am from Jackson Kelly based in 

Charleston, West Virginia. And we are a 

200-lawyer firm with 11 offices in five states and 

the District of Columbia. We are a full service 

firm providing services to basically corporate 

parties. 

I am the leader of our firm's electronic 

discovery practice group and consult regularly 

with other litigation practices in the firm. More 

and more often I consult with businesses doing 

business in West Virginia about data management. 

My firm -- on behalf of my firm and my 

firm's clients, I applaud the Committee for its 

efforts to create a uniform standard for data 

preservation and for spoliation sanctions which 

results from an intersection of the Rule 26 and 

Rule 37 proposals. 

Deciding the scope of preservation is hard 

because discovery often is too broad. In my 

experience it's difficult to advise clients about 

preservation obligations even in one jurisdiction, 

particularly before a lawsuit is filed. 
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The "reasonably calculated" language is 

used in our state to circumscribe permissible 

discovery which leads to an ingrained expectation 

of overly broad preservation. Those high 

expectations can become particularly problematic 

in a jurisdiction somewhat known for being a 

proving ground for novel claims, and where one 

prominent plaintiff's firm has advertised its 

sanctions practice. 

Removing the "reasonably calculated" 

language from Rule 26 will, at the very least, 

encourage lawyers to consider why the language was 

ever there in the first place and perhaps to 

reevaluate whether their beliefs about the scope 

of discovery are founded. 

Moreover, our state Supreme Court clearly 

has a great respect for the federal rules and 

intends to follow their interpretation, if not to 

adopt the rules wholesale. 

Clarifying the applicability of 

proportionality to the scope of discoverable 

information is an important step forward. With 

the amendments, parties and potential parties can 

be confident that what they need to preserve is 

something less than all potentially relevant data. 
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Another point that I would like to make is 

that the Rule 26(g) standards mentioned during the 

last comment are powerful and perhaps underused. 

One commenter during the Washington session 

suggested that under a cost-benefit analysis, 

sanctions are required to force companies to make 

good faith disclosures of damaging evidence. 

I don't buy that. Lawyers are and must be 

held accountable as officers of the court to 

convey and uphold their disclosure duties. We 

certify that disclosures are complete and correct 

to the best of our knowledge, information and 

belief formed after a reasonable inquiry. And as 

long as courts are taking seriously their 

mandatory duty to sanction under Rule 26(g)(3), we 

do not need a section in Rule 37 for anything 

other than an intent to deprive. 

My next point is that preservation itself 

begins as an onerous prospect and that therefore 

the substantial prejudice standard is the right 

standard in Rule 37. 

Drilling into a shelved set of data to 

determine what part of that data is relevant to 

claims or defenses is not cost effective. And by 

in large, it is not done. Parsing archived data 
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and active data to determine what part of it might 

be relevant to claims or defenses is only slightly 

less difficult. 

The cost of preservation arises not from 

storage, but from the evaluative activity, 

including interviewing, planning and organizing a 

collection plan, creating an environment for the 

data, careful transfer of that data into a review 

tool, obtaining subject matter, expertise, 

culling, conducting searches, teaching the 

machine, et cetera. 

No company is going to make a detailed 

proportional preservation cut unless suit is 

practically certain or warranted by some other 

risk. 

If a body of data -- as it stands now, if 

a body of data might be the sole source of 

relevant information, one simply considers the 

value of that data to the potential case based on 

a proportionality principles and the risk of not 

preserving it. 

If the risk of having a court agree that a 

company destroyed something it should not have 

destroyed, if that is the risk, the company is 

going to keep that data. For this reason, the 
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substantial prejudice required by the proposed 

rules assuages concerns about making a bad 

decision and may allow companies -- should allow 

companies to preserve less. More big chunks of 

data, not looked at carefully, but big chunks of 

data should pass that risk test. 

What will be the effect? A commenter 

during the Washington, D.C. -- maybe today, a 

commenter today suggested that a reduced access to 

documents equals or results in reduced access to 

justice. And I don't believe that's necessarily 

so. 

Take the Microsoft data that was discussed 

earlier today. My belief is that reducing what is 

preserved is going to significantly bracket this 

top level of the funnel. That's not going to 

result in a huge cost savings, because this is 

simply storage. Storage is cheap. The cost of 

storage has fallen a hundred thousand times since 

1990. 

It is going to circumscribe these next 

three layers: Collecting and processing, 

reviewing -- next two layers, collecting and 

processing and reviewing by some degree. This is 

where the cost inures in preservation, the cost of 
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collecting and processing the data you've 

preserved and the cost of reviewing the data 

you've preserved. Once you've gotten to 

producing, heck, how much does it cost to make a 

dual layer DVD and stick it in the mail. 

So the cost of preservation will fall 

because of the changes in the rules, due to the 

proportionality considerations that allow parties

to preserve less here and to deal with less here 

in the middle section. 

I would be happy to answer any questions. 

JUDGE CAMPBELL: All right. Thank you. 

Questions? Rick? 

PROFESSOR MARCUS: I would just like to 

follow up on something you mentioned. As I 

understand it, what you're saying is the 

substantial prejudice feature of 37(e) will enable 

you to limit preservation in ways that you can't 

do presently, in that it will do that either in 

addition to or better than the culpability 

provision which has been discussed a lot today. 

Am I understanding you right and could you 

elaborate on how that would work? 

MS. McINTYRE: The culpability part of 

37(e), of the revisions, is the part that allows 
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us to be confident in the reasonable decisions 

that we make to preserve one item of potentially 

relevant data and not preserve another item of 

potentially relevant data. 

Not preserving one item of potentially 

relevant data based on a reasoned decision can be 

argued to cause prejudice. You don't get to 

discover everything. The discovery that your 

opponent gets is not perfect. 

Just because it's prejudice doesn't mean 

it's substantial prejudice that affects that 

opponent's case so seriously that he or she or it 

cannot prevail. That is what I mean by having the 

standard of substantial in there, because I think 

that -- that you'll receive an argument that any 

destruction of relevant evidence causes some 

prejudice. 

JUDGE CAMPBELL: Any other questions? 

All right. Thanks very much, 

Ms. McIntyre. 

Mr. Paul? 

MR. PAUL: Good afternoon. My name is 

Patrick Paul. I am a partner with Snell & Wilmer 

here in Phoenix. We are a full service law firm 

with nine offices throughout the southwest. We 
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regularly represent businesses of all sizes in 

litigation, primarily from the defense side. I'm 

a past president of Arizona's Association of 

Defense Counsel and a former board member of DRI. 

I sincerely appreciate the opportunity to 

testify here today. And I want to thank the 

Committee for that opportunity and for the hard 

work that has occurred and will continue to occur 

in this process. 

This process is one that is relatively new 

to me, and I've come to learn a lot about it 

recently and really tremendously appreciate what 

you all have done and what the many interested 

parties have contributed to date. 

Last summer, I wrote a -- an op ed piece 

for our local newspaper which talked favorably 

about our judicial system and the public's faith 

in it based upon some empirical data that I had 

reviewed. And I believe it's processes like these 

in which we take an introspective look and suggest 

changes to improve and enhance our system that I 

think allows all of us to continue to provide the 

public with the confidence in our system. 

I'm here this afternoon in my personal 

capacity to urge the Committee to adopt the rules 
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with those modifications suggested by the Lawyers 

For Civil Justice. My own practice involves 

generally environmental, pollution, and 

toxic-related claims, usually from the defense 

side. I have represented small and large 

businesses in state and federal courts primarily 

in Arizona and California. 

This afternoon I would like to focus my 

testimony on the proposed changes to Rule 26, 

while also briefly mentioning my support for the 

suggested presumptive limits. 

Like many others who have testified or 

provided comments on these changes, I 

enthusiastically endorse the goal of early case 

management and more particularly a proportional 

discovery. 

As you have heard time again and as I will 

further attest, increasingly the cost of discovery 

is driving litigation decisions and not the legal 

merits. Consequently, in many cases, prohibitive 

discovery costs may result in a denial of justice. 

The rapidly increasing cost of discovery, 

in my opinion, should not be a reason for 

compromise, settlement, or perhaps a decision not 

to litigate a legitimate claim in the first place, 
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particularly when the vast majority of information 

requested often is entirely unused during

litigation and trial of that matter. 

For these reasons, I support eliminating 

the phrase "appears reasonably calculated." I 

agree with many prior witnesses that the 

substantial time and money saved would ultimately 

inure to the benefit of litigants on both sides of 

the case. 

Although the concept of proportionality 

already exists in the rules, moving that language 

as proposed certainly would seem to result in 

reminding parties that the proportionality 

principle applies to all discovery, and further 

would seem to encourage litigants and judges to 

adopt a pragmatic approach as to the scope of 

discovery in each individual case. 

As I read the proposed amendment, it does 

not change any procedural burden related to the 

scope of discovery. However, it amends the 

substantial -- the substantive definition of that 

scope. 

Also, the proportionality concept itself 

is unchanged by the proposal; only its location is 

different. This change in location seems to me 
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should assist in limiting the problems of overly 

broad discovery by heightening its visibility and 

importance. 

Here it seems the proportionality language 

would allow advocates on both sides to benefit 

earlier in the life span of a case and create 

discovery requests that more truly reflect the 

facts in dispute and the issues contained in the 

pleadings themselves. 

Although some have maintained that the 

proposed amendments related to the inclusion of 

proportionality in the definition will have a 

burden shifting impact, I respectfully disagree. 

The proposed amendment would not change any 

procedural burden related to the scope of 

discovery, but rather would simply amend the 

substantive definition of that scope. 

Again, the concept of proportionality 

remains unchanged by the proposal. Ultimately any 

burden relating to proportionality falls equally 

upon both requesting and responding parties. 

As Mr. Barkett recently noted, Rule 26(g) 

specifically requires the attorney's signature on 

the discovery request as itself a certification 

that the document is consistent with the federal 
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rules and not otherwise for any improper purpose. 

No changes to this rule or its related 

requirements are suggested in the proposed 

amendments. Ultimately the burden of establishing 

the proportionality of a particular discovery 

request will fall equally to both parties. 

Similarly, the discovery process itself 

will continue to require good faith on both 

parties, and the proposed amendments will not 

impact that reality. Counsel can and should 

continue to work to achieve agreement under the 

proposed revised scope of discovery just as they 

do under existing requirements. 

I similarly support the proposed 

reductions in presumptive limits. The proposal 

encourages efficiency in planning and execution of 

deposition and related discovery without limiting 

any party's access to greater inquiry when 

appropriate. 

Once again I sincerely appreciate the 

opportunity to speak and the hard work of this 

Committee. And I'm happy to answer any questions. 

JUDGE CAMPBELL: Thank you, Mr. Paul. 

Any questions? 

All right, thank you so much for your 
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comments. 

Ms. Anderson? 

MS. ANDERSON: Good afternoon. I am 

delighted to have the opportunity to address the 

Committee and so I thank each of you for allowing 

me a few minutes of your time. 

My name is Jennie Lee Anderson, and I'm a 

partner at the San Francisco law firm of Andrus 

Anderson. We do 100 percent plaintiff's side 

civil litigation, and about 80 percent of our 

practice is class action litigation. 

Last month I submitted on behalf of the 

American Association of Justices class action 

litigation group comments on many of the proposed 

rules where we detail our position if the vast 

majority of the proposed changes. 

Today, however, I want to focus on the 

proposed changes to Rule 26(b) and Rule 34, 

because I think in many respects they go hand in 

hand, and give you a few examples from my practice 

that I hope will illustrate my concern that the 

proposed changes to Rule 26(b), however 

unintentional, may unfairly and negatively impact 

Americans' access to the justice system and why 

Rule 34, I believe, will increase efficiency and 
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reduce costs at the same time. 

As you've probably gathered from the 

comments to date, the plaintiffs' bar is almost 

uniformly opposed to the proposed changes to 

Rule 26(b) because we are concerned that it 

unfairly shifts the burden to show that the 

discovery is proportionate from the defendants to 

the plaintiffs. 

The reason for that concern is because 

today in practice under the current rules, how it 

works is I, under Rule 26(b)(1), show the court 

that the discovery that I am seeking is relevant. 

And then under Rule 26(b)(2), the burden shifts to 

the defendant to articulate their objections with 

specificity. And that would include any 

objections as far as an undue burden is concerned. 

So the concern -- because that's the way 

the courts have been applying the rules for so 

many years, the concern is by moving the 

proportionality from part two to part one, that it 

will be interpreted that that now becomes 

plaintiff's burden because (b)(1) has frequently 

been interpreted as setting forth what plaintiff 

must show to justify their discovery. 

I would like to give an example from my 
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practice of how devastating such an interpretation 

of the proposed rule, if it were adopted, would be 

to some of our cases. 

For the last five or six years, my firm 

and others have been litigating a series of cases 

around so-called option arm loans. These are 

loans where they advertised and promoted them as a 

one percent loan and provided potential borrowers 

with a three to five-year payment plan with low 

payments. 

What it didn't disclose is that by 

following that payment plan, negative amortization 

was sure to occur on the loan and ultimately when 

the loan recasts, foreclosure was all but certain. 

The defendant sold these loans directly, 

but it also sold them through a series of 12,000 

so-called correspondent lenders. 

There was a fundamental disagreement on 

the scope of the case which led to a fundamental 

agreement about what discovery was proportionate. 

Defendants took the position that, look, you are 

only going to be able to certify a class on the 

best day of the loans that were sold through the 

one channel that your named plaintiff purchased 

from. In California, that was about 2500 loans. 
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We took a different position. We took the 

position that the loans were designed by the 

defendants and they were exactly the same no 

matter which correspondent lender sold the loan, 

and so, therefore, we were entitled to receive 

class certification and discovery for all of the 

loans. In California, that was over 75,000 loans. 

So we sought discovery on all of the loan 

files. We proposed to defendants a reasonable 

sampling, which was rejected, and we ultimately 

moved to compel all loan files. 

Now, I understand that the Committee is 

very concerned that the proportionality concept is 

not being honored or enforced adequately by the 

courts today. That is not my experience. And in 

this case -- my experience is that the judges are 

very concerned about keeping discovery 

proportionate. And the same is true in this case. 

The judge was extremely concerned that there be 

proportionality. But under the existing rules, he 

correctly looked to the defendants for information 

to assess that. 

He asked the defendants to specify their 

projected costs of responding to the discovery 

with specificity. He asked defendants to accept 
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the random sampling that plaintiffs had proposed 

and agreed that that random sampling would be 

binding on both parties, not just the plaintiffs. 

And defendants also had every opportunity 

to show that the documents we were seeking would 

not support our motion for class certification. 

Despite the court's order, the defendant 

failed or refused to meet any of these standards. 

The judge didn't need to know anything else. The 

loan documents were ordered produced, and we 

certified a class of over 75,000 borrowers who all 

got relief under a settlement. 

So had the rule, the proposed rule been in 

place and interpreted the way we fear, plaintiffs 

would be left with nothing -- with no evidence to 

show the court, and the court would be left to 

make decisions regarding the merits of the entire 

case without the benefit of any evidentiary 

record. 

I am not surprised that the defense bar 

largely supports all of the proposed changes that 

restrict discovery further. However, I do find it 

ironic that they rely on the cost arguments to 

support their position. Because in my personal 

experience, many of the inflated discovery costs 
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are inflicted by the defendants on themselves. 

And that brings me to Rule 34. 

In almost every class action that I have 

litigated, discovery works this way: I receive 

the initial disclosures, which are virtually 

meaningless. And I serve discovery. I get 

responses back from the defendants which include 

two to three pages of objections for each request, 

two to three pages of objections, and not a single 

document produced. Then I spent months, literally 

months meeting and conferring with the defendants 

begging them to please tell me what do you mean by 

expensive? What is your estimated cost? How many 

documents are you talking about? 

Real-life examples are so absurd, you are 

going to find them hard to believe. Recently in 

an antitrust case we were disputing whether 

certain hard copy documents need to be reviewed. 

And I asked them to just tell me how many 

documents are we talking about. Are you talking 

about a Redweld, or are we talking about five 

rooms of documents? The response to that query 

was it's not a Redweld, it's more than a Redweld. 

Not helpful. 

In another case regarding electronic 
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discovery, we were seeking records in a database 

from a car manufacturer on a defective product 

thing, could not get information about how many 

records relate to the automobile applying 

plaintiff's search terms versus defendant's search 

terms. Would not give us that information until 

we moved to compel. 

In each of these instances when we moved 

to compel, in my experience the defendants are 

almost always unable to articulate that the burden 

that they face is truly undue in light of the 

relevance of the documents that I am seeking. And 

the discovery is ultimately ordered to be 

produced. 

However, that is not until the parties and 

the court have expended enormous amounts of energy 

and time and money on these disputes, and Rule 34 

would vastly truncate and streamline that 

procedure. 

I have no more comments, and I'm happy to 

address any questions that the Committee may have.

JUDGE CAMPBELL: All right. Thank you.

Judge Koeltl and then Peter. 

JUDGE KOELTL: You said that now the 

plaintiff only has to show relevance and that 
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under the proposed rule, the plaintiff would have 

to show that what the defendant's costs are going 

to be so that the judge can make the 

proportionality determination. 

Why do you -- why do you -- why do you 

assume that? To take your example, if there's a 

dispute with respect to discovery and production, 

it has to come before the judge in some way. 

There has to be a motion either to compel or to 

strike or for a protective order. And the judge 

will then have to look at all of the evidence 

before the judge. 

And if in your case the defendant has 

refused to present any evidence of cost or burden, 

there will be nothing before the judge to weigh 

against the asserted value and importance of the 

information that's sought. 

It's not clear to me where you -- how you 

interpret the rule to say that under those 

circumstances, the judge has to presume that this 

will be costly or burdensome if the defendant is 

standing there and saying: We are not going to 

present you with any evidence of cost or burden. 

It's the plaintiff's obligation to show how costly 

and burdensome it will be to us, the defendant. 
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Does that seem like a reasonable judge? 

MS. ANDERSON: Well, let me answer your 

question in multiple parts. 

First of all, the concern is not just that 

we would have to suddenly come up with numbers 

that are defendant's cost, but the whole 

proportionality standard is now suddenly in our 

column, that being (b)(1), because that's 

traditionally then how it's been interpreted. 

JUDGE KOELTL: But why, I mean you have a 

burden under (g)(3) to in good faith make sure 

that your request is proportional. And if there's 

a dispute then with respect to the scope of 

your -- of your request under (b)(2)(C)(3), the 

judge must impose a proportionality standard and 

decide it. 

So it is interesting that the judge in 

your case really was on top of all of the rules. 

There has been, you know, some have said that some 

judges really don't apply the proportionality 

standard. You say this judge did. 

And it's not clear to me how then if the 

judge is faithfully following the rules and 

following proportionality, the result of putting 

it in the first sentence would change anything in 
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your case. 

MS. ANDERSON: Well, my concern is because 

while this was a very engaged magistrate, that's 

not always the case. And I have been in many 

instances where -- I have been in many instances 

where the defendant just throws undue burden out 

there and they are never called to task on that. 

So some of it is just judicial management, I 

realize. 

I would say that if it is in fact not the 

Committee's intention to shift the burden, that 

that be expressed, and that the rules expressly 

say that the party resisting discovery must 

articulate their defenses with specificity. And I 

would even advocate that if the party advances a 

burden argument, that that be supported by 

admissible evidence. That is what the -- one of 

the complex departments in the San Francisco 

Superior Court requires. 

So I am not saying that an engaged judge 

would not interpret this rule in a way that is not 

harmful. I'm worried about unintentional 

consequences. And I would ask that if this 

shifting in burden is not intended, that it be 

expressed. 
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And I think that the sheer number of 

comments from the plaintiffs' bar expressing 

concern over this demonstrates how sincere the 

concern is. And we would just ask for, you know, 

that the rule or the comments be very clear in 

this respect. 

JUDGE CAMPBELL: Peter, did you have a 

question? 

MR. KEISLER: Judge Koeltl's question 

covered what I was going to ask about. 

JUDGE CAMPBELL: All right. One other 

question. Gene? 

JUDGE PRATTER: I don't see how there 

would be a different result to your circumstance 

about the snarky response from the defense saying 

it's not a Redweld, it's more than a Redweld. 

I don't care who has to bring it to the 

judge's attention. A, it has to be brought to the 

judge's attention by somebody. And I don't think 

that the result would be different under the 

proposal or from the current -- the current 

situation. 

MS. ANDERSON: Well, I --

JUDGE PRATTER: Frankly, I think that's 

part of the problem with some of the -- you're too 
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young to remember this -- some of the 

Queen-For-a-day issues that we've been hearing or 

the examples we've been hearing. And that's a 

good example. I don't see it being a different 

outcome. 

MS. ANDERSON: Well, my hope would be that 

changes to Rule 34 would encourage more candid 

exchange of this type of information. Frequently 

I don't understand until after months of meeting 

and conferring what objections are you withholding 

documents on and what is the exact basis. 

So Rule 34 would affirmatively require the 

responding party to state the objections with 

specificity from the outset, I would hope, and 

then also identify which object -- what is the 

basis of the objection. Are you withholding 

documents because of privilege or is it an undue 

burden? And if so, let's talk about that undue 

burden. 

I don't want defendants to produce, you 

know, an incredible number of irrelevant 

documents. I want to try to be reasonable. But 

when I'm not given any information about the basis 

of the burden, it's simply impossible to forge a 

reasonable solution without court intervention. 
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And my hope is that Rule 34 will encourage more 

candid exchange early on in the process. 

JUDGE KOELTL: You support the change to 

Rule 34? 

MS. ANDERSON: Yes. 

JUDGE CAMPBELL: All right. Thank you 

very much for your comments, Mr. Anderson. 

Ms. Bays? 

MS. BAYS: Good afternoon. My name is Lea 

Bays. I'm of counsel at Robbins, Geller, Rudman & 

Dowd. Among other things, the firm represents 

investors in securities class actions. 

I strongly support the rule changes that 

promote cooperation and transparency between the 

parties as this is the best way to reduce the 

costs of discovery. However, I believe that the 

change in the scope of discovery does not further 

these goals. The change is unnecessary and will 

only spur adversarial and costly discovery 

disputes. 

The assertion that the change is necessary 

because the proportionality language from 

Rule 26(b)(2)(C) has not been sufficiently 

utilized by courts or counsel is not accurate from 

my experience. 
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I mainly -- in my practice, I mainly 

consult with other attorneys or am involved in the 

eDiscovery process. Almost every single 

conversation I have is about burden. And every 

discussion I have with opposing counsel is about 

how to negotiate that burden while still being 

able to gain access to the information that we 

need. Almost all the discovery disputes that go 

in front of judges has to do with that language. 

So the fact that -- that there is some 

impression that this isn't being utilized, I think 

it is. I think that the rule is actually working 

and we are using it in the meet and confer 

process, which is where I think it should happen. 

I don't think that the change will 

actually lead to more tailored discovery and only 

seeking the most relevant information. Instead, I 

think it will lead to defendants trying to strong 

arm unilateral and sometimes arbitrary narrowing 

of the search methodology, which I think will go 

against everything that we've been trying to do as 

far as encouraging cooperation, in coming to 

agreements on search terms, custodians, date 

ranges, and sources of electronic information. 

As already noted in many of the comments, 
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it seems that it shifts the burden. I understand 

that some are confused as to why that is read, but 

that is how people are interpreting it. 

Any amendment should not encourage any 

sort of blanket and unsupported burden arguments. 

It should encourage cooperation and problem 

solving among the parties to be able to expedite 

the review process. 

Any claim of burden should be 

substantiated by the opposing party with actual 

evidence. And I'm going to explain why this is 

important and why it's important before getting to 

court. 

Yes, when you go to a judge, they will 

have to present information about their burdens. 

I think it's important for them to be doing it 

beforehand, during the meet and confer process, so 

we can actually avoid discovery disputes getting 

in front of a judge. 

I believe there was a question with how 

things would be different or resolved now versus 

if the language was changed and there was an idea 

about a burden shifting in there. 

If someone comes to me and says: This is 

going to cost millions of dollars or it's 
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terabytes of data, I follow that up with requests 

for actual information. What kind of sources are 

you searching? What are your electronic systems? 

Have you duplicated everything? If so, how have 

you done that? 

If you have search term hit lists, give me 

an idea of that. And if there are ones that seem 

to be overly broad, let's work with that and do a 

sampling. Do you want to do a sampling of a 

source that's extremely expensive to access? Then 

let's do that. And I'm willing to cooperate on 

that. 

If the defendants are actually transparent 

with this information and are willing to 

cooperate, I can either see that the burden is 

greatly exaggerated or completely unfounded or we 

can work to solve the problem without limiting my 

access to relevant information. 

My fear is if the burden is even perceived 

to shift, all of this transparency and cooperation 

goes out the window. 

This fear is exasperated by the removal of 

the current language recognizing the relevance of 

matters related to the existence, nature, custody, 

condition of and location of documents. I've 
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already heard panelists at eDiscovery conferences 

saying that after this rule change, they will no 

longer have to provide any information on 

electronic systems or any storage of ESI. 

I think that is extremely dangerous and 

goes -- that is what we turn to because as other 

people have commented, defendants are often 

extremely resistant to providing information on 

their electronic systems or their burden until the 

motion actually goes before the court. 

If this is taken out, then there's nothing 

that we can point to to incentivize defendants to 

give us this information beforehand. It also 

helps with being able to assess the adequacy of 

the production before the production -- after the 

production is made. 

If the intent is not to shift the burden, 

I will echo that this should be expressly stated 

either in the rule or the comments. And that it 

should also encourage transparency about 

electronic systems and ESI storage. 

I'm going to make one more point and then 

I will stop. Regardless of where the 

proportionality language is, I think that any 

assessment of proportionality has got to include 
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the willingness of the producing party to use the 

tools that are already available to them to reduce 

the burden. Although ESI has increased, so have 

the tools that we have available to us to deal 

with them. 

We have deduplication, we have analytic 

tools of e-mail threading, concept searching, 

clustering, and predictive coding, which I do not 

find that a lot of defendants are even considering 

using. 

In addition, judges have encouraged and 

promoted the idea of using 502(d) orders to reduce 

the burden of privilege reviews. I don't see this 

being utilized. We are often open to it, but it's 

not being utilized. 

For my -- if our -- I don't think that our 

clients should be penalized by limiting the scope 

of discovery when the producing party is not using 

the tools available to reduce the burdens by other 

means. 

Thank you very much. 

JUDGE CAMPBELL: Thank you. 

Paul? And then Parker. 

JUDGE GRIMM: Just a quick question. I 

want to just make sure I sort of get an idea about 
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how the collection of proposed rule changes and 

the existing rules that are not proposed to be 

changed are all intended to work together and not 

in isolation. 

MS. BAYS: Right. 

JUDGE GRIMM: So you've heard Mr. Barkett 

say and a number of people referred, that since 

1983, every plaintiff that asks for any discovery 

request has certified, whether they realized they 

have or not, that they have considered the 

proportionality factors which are the exact same 

factors that are referred to in Rule 26(b)(2)(C). 

It hasn't been discussed here today, but 

historically, the origin of Rule 26(b)(2)(C) was 

the very next sentence after the scope of 

discovery and it started off in 1983 as a 

limitation on the scope of discovery and it was 

only removed later. So it had started out exactly 

where it was proposed to be put back. 

When you are asking for information that 

leads to this dialogue about whether it is 

available or not available, and whether they've 

deduped, or whether they've used computer-assisted 

review, it is in the context of your asking for 

Rule 34 responses. 
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The changes to Rule 34 say and a defendant 

under Rule 26(g) certifies by making an objection 

that they have done the proportionality analysis, 

which means that if they are following that rule, 

they have to have a basis, not just go fish. And 

you now have a rule -- proposed change to Rule 34 

that says if they make boilerplate objections and 

they don't back it up, that they have an 

obligation to do that. 

Now, when they give you something that 

which -- does not explain to you that they 

deduped, that they've done the most efficient 

means possible to be able to reduce it, and you 

stand your ground and you go to a judge and you 

say: Judge, they had to certify under Rule 26(g) 

that they made a proportionality analysis. 

They've not told me those numbers. They've made 

boilerplate objections under Rule 34, I certified 

as to why I think it's proportional, the ball is 

in their court, they haven't done it. 

How is it that you feel that that's going 

to put you in a worse situation than you are now? 

MS. BAYS: First of all, again, like I 

said before, I would like to be able to take care 

of this before going to a judge. I really think 
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that we've made extreme, extreme progress in being 

able to cooperate with opposing counsel about 

these issues and never have to make a discovery 

motion. So I would like to be able to do it 

before then. 

And I don't think that that argument would 

carry too much weight with defendants from what I 

have seen. 

So and as far as our certifications, we 

make certifications based upon what our knowledge 

is. We don't know what the other side's burden 

is. They make certifications based upon what 

their knowledge is. They may have a very 

different idea about what is overly burdensome for 

them. 

So I think that it has to be backed up by 

actual evidence to be able to assess that and look 

at all of the factors together with all of the 

information. 

JUDGE GRIMM: Isn't that what you have in 

34? So if they are not going to be persuaded 

by -- they need to be specific under Rule 34. 

They are not going to be persuaded by the 

certification requirement under Rule 26(g). They 

haven't given you the particularized information, 
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then what is it about that situation that gives 

you a glimmer of hope that you are going to be 

able to persuade them to cooperate without going 

to the court, and if they get to the court, tell 

me the judge that you've bumped into under those 

circumstances that's going to go their way and not 

yours. 

MS. BAYS: I think right now we've 

actually been able to get people to cooperate, I 

really do. I -- if I am with a defendant who is 

actually, you know, somewhat on board with 

actually trying to reduce the scope of 

discovery -- reduce the costs of discovery versus 

just reducing the scope of discovery and limiting 

my access to relevant information, we actually can 

get cooperation. 

But that's done through not by 

specifically saying we are going to not give you 

information based upon this request. It's based 

upon the amount of data. It is based upon the 

burden. 

They are not saying they are not going to 

give us information on this particular category. 

They are saying: We will give you that 

information, but we don't want to give you all of 
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it because it's too expensive. 

So it's not like not having to do with 

specific responses or objections to specific 

requests. It's just generally, they want a cutoff 

of that. 

So I don't think that that language is 

particularly helpful for this situation. And I 

think that we really do need to be able to go 

after that. 

We need them to know that the burden is on 

them to show this, so you might as well show it 

now before we get to a judge, and that we can show 

that this information regarding that is relevant, 

because right now it's in the rules saying that it 

is relevant. And you take that out, they will 100 

percent use that against us and say that that is 

not relevant. 

I still get that and it's in the rules. I 

still -- they are like it's not -- it's not 

relevant to the claim or defense, I'm not going to 

give you any of that information. 

And then but usually when I point to the 

rule and we discuss this and we discuss 

cooperation, or I can say then that's fine, if you 

don't want to give us that, then you can't make 
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any burden arguments. That's fine. And then, 

therefore, that's how it's been working. And I 

think it's been working well. 

JUDGE CAMPBELL: Parker, did you have a 

question? 

MR. FOLSE: I was just going to ask 

whether -- my experience is much the same as 

yours, that when there is more information 

exchanged about what a requesting party wants and 

about what a responding party will have to go 

through to get it, that there's a greater 

likelihood of agreements being reached about how 

to achieve what we've been talking about, which is 

proportionality. 

So I wondered whether you had given any 

thought to specific changes that you think we 

should be considering to promote that exchange of 

information, to increase transparency, you know, 

to use your word, which is a good word, that is 

not reflected or that may be undermined by what's 

before us right now. 

MS. BAYS: I have always thought -- I 

think that the -- the checklist, the meet and 

confer checklists that have gone into effect in 

the Northern District of California and now -- is 
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it Minnesota? That -- that discusses all the 

different things that you should be discussing, I 

don't think it gets as detailed as I would like, 

and I would want to put in more things about 

specifics about electronic systems. 

But I think if you keep that in the meet 

and confer process, and you make that mandatory 

before anyone that you have to have discussed 

these things and you have to have been given this 

information before ever making a motion in court 

whether to protect from discovery or to compel 

discovery, that you should have exchanged all of 

this information. 

And there are certain district courts that 

do require, you have to explain what sources 

you're going to go through, you're going to have 

to discuss electronic systems. 

I find that incredibly, incredibly useful 

in getting this conversation up front, and it 

usually does avoid any disputes. 

So I think if there was more of that or if 

there was more explicit stuff in the 26(f) saying: 

Look, you need to exchange all of this. And 

that's part of when you say you've met and 

conferred before filing a motion, then that 
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includes all of this. And I think that would be 

really extremely, extremely helpful in avoiding 

that.

JUDGE CAMPBELL: All right. Thank you 

very much for your comments, Ms. Bays. 

Mr. Sturdevant. 

MR. STURDEVANT: Thank you, Mr. Chairman, 

and members of the Committee. My name is James 

Sturdevant. I'm the principal of the Sturdevant 

Law Firm, a plaintiffs' law firm located in 

San Francisco, California. 

I'm pleased to be a participant and 

witness at this hearing and hope to offer useful 

testimony to the Committee as it considers whether 

to adopt the proposal to amend Rules 26, 30, 33 

and 34 of the Federal Rules of Civil Procedure. 

By way of background, I've been in 

practice actively since the spring of 1973, first 

as a legal services lawyer in Connecticut and 

later in California representing low and moderate 

income individuals and classes of individuals, 

principally in federal court during that time. 

I specialize bringing cases concerning 

statutory benefit programs, federal housing, and 

unemployment programs, food programs, and 
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constitutional rights. 

Thereafter I've been in private practice 

since -- fully since 1980. And I have specialized 

representing plaintiffs in class action litigation 

involving a wide variety of subject matter claims 

emphasizing consumer protection, unlawful and 

fraudulent business practices, employment 

discrimination, harassment, civil rights, 

including the rights of institutionalized 

individuals, Title IX, and the rights of Americans 

with physical and mental disabilities. 

I've litigated cases involving financial 

services, insurance products and services, ERISA 

claims, and claims of state, federal wage and hour 

violations in employment. 

I have tried and settled many class 

actions exceeding a hundred million dollars and 

nationwide injunctive relief. 

I will provide a more detailed description 

when I submit more detailed comments before the 

deadline in mid-February. 

Counsel who represent plaintiffs in 

employment civil rights and consumer protection 

litigation, as I do, almost exclusively handle 

those cases on a contingency basis. That means 
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that they advance all or almost all of the costs, 

including costs related to discovery. 

These include obviously deposition 

transcripts, videotapes where videotaped 

depositions are taken, document production costs 

imposed on the plaintiff, and expert witnesses 

fees, among many others. 

These are significant costs imposed on 

plaintiffs and plaintiffs' counsel which deter any 

but the irrational from taking more discovery than 

they believe is necessary to preparing, 

prosecuting and trying their case. 

The proposed rule changes, like their 

predecessors in 1993 and 2000, will, in my view, 

incentivize defendants to oppose almost any 

discovery beyond the significant limitations 

proposed in the rules. Defendants will be 

motivated to challenge relevance, breadth, and 

scope issues much more aggressively, obliging 

overworked judges and magistrate judges to resolve 

multiple discovery issues frequently at an early 

stage in the litigation when relatively little is 

known to the plaintiff and to the court about both 

the legal and factual issues involved in a 

particular case. 
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The proposed amendments will impose 

significant additional delays in the judicial 

process as a result of motion to compels to get 

discovery or to try to get discovery. And will 

create additional significant costs which, as I 

said, plaintiffs' counsel will be forced to bear 

in order to obtain access to the information which 

is essential to prove the case, obtain class 

certification, and resist summary judgment on the 

evidentiary basis required. 

The proposals to restrict presumptively 

allowable depositions from ten to five and 

interrogatories from 25 to 15 send an unmistakable 

message to federal judges and magistrates, let 

alone defense counsel, that discovery should be 

restricted both in numbers and categories. 

So does the insertion of a specific new 

proportionality standard in the rules. That 

places a standard that obliges federal judge and 

magistrates, not simply the lawyers who practice 

before them, in deciding whether or not discovery 

should be allowed. 

The increased cost of motion practice and 

the denial of necessary discovery will favor 

existing -- pre-existing economic advantages of 
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defendants and the firms which represent them. 

And as all of us know, in the great 

majority of cases now being litigated in federal 

courts involving civil rights, employment issues, 

and consumer protection, the bulk of information 

is possessed by the defendants, not the 

plaintiffs. 

Public litigation involving public as well 

as individual rights must afford all parties with 

equal access to available information so that the 

courts and juries receive the information they 

both need to decide the cases fairly. 

Let me give you a couple of case examples 

very briefly. One is an individual case and one 

is a class action which would be adversely 

affected by the rules. 

The first is a multiparty, multidefendant 

mortgage servicing fraud case litigated in the 

Northern District of California. The plaintiff 

alleged in the case that material information was 

concealed from her about the owner of her loan. 

And she was directed by the mortgage servicer to 

communicate and deal solely with the owner of the 

loan with respect to mortgage modification. 

When she went to the entities that she was 
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told by the mortgage servicer owned her loan, each 

of them denied it. And each of them concealed 

material information that they were parties to a 

trust instrument in which they had invested and 

financial interest in the mortgage loan itself. 

One of the entities to whom she was 

referred, a national bank, did not tell her that 

it was the master servicer under the trust 

instrument and had plenary responsibility and 

obligations to oversee all aspects of the trust, 

including what the servicer did and didn't do. 

The other entity also denied that it had 

any ownership role in the loan and provided no 

information to her. 

There were five named defendants in the 

case. In addition, there were employees and 

contract workers of one of the defendants who 

needed to be deposed as well as third-party 

entities who took part in the transaction but were 

not named defendants. 

In sum, the plaintiff took more than ten 

depositions, some multiple-day depositions of 

percipient witnesses and would and should have 

taken more but for the discovery cutoff in the 

case. 
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The defendants resisted the production of 

each and every document that the plaintiff asked 

for in connection with Rule 30(b)(6) depositions, 

and the defendants resisted the taking of a single 

30(b)(6) deposition. 

A motion to compel was required and after 

extensive briefing. The magistrate judge 

authorized all five 30(b)(6) depositions to go 

forward and ordered the defendants to produce more 

than -- each to produce more than 50 categories of 

documents. 

The documents and the depositions proved 

the elements of the case with respect to aiding 

and abetting the concealment of material 

information, the financial incentives to each and 

all of the defendants collectively. 

The case also involved substantial 

notarial fraud and what has been publicly called 

robo signing. Robo signing is a practice where a 

defendant in the process authorizes some 

individual working for another entity to sign 

documents on its behalf. We demonstrated through 

the discovery and the deposition process that we 

would not have otherwise gotten under the proposed 

rules that robo signing had occurred, that the 
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person who authorized the foreclosure had no legal 

authority to do so. 

The second case involves a class action 

involving what I call predatory lending. It's 

presently pending in the Northern District of 

California. And the class -- a statewide class 

has been certified. The class consists of 

thousands of borrowers. The substance of the case 

is that they were offered loans of $2600 with 

interest rates of 96 percent and above payable 

over a period of 42 months. 

If you do the math, you will find out that 

the borrower, if they stayed -- if they paid fully 

under the 42 months, would have paid nearly four 

times the principal value of the sum loan. 

The sole issue in the case on a classwide 

basis of relevance here is unconscionability, 

whether there were procedural elements of 

unconscionability, surprise, oppression, and 

whether the loans in terms of all of the factual 

circumstances of their terms and what the lender 

knew and what -- and when did the lender know it, 

how much profit it was going to make, when were 

the loans going to be paid off, all subject to 

discovery. None of that information known to any 
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individual borrower or any collection of 

individual borrowers. 

We were -- we needed to take multiple 

depositions. We ultimately took eight, more than 

the pre-existing limit. 

We also had a number of expert 

depositions. The defendants took the depositions 

of all three plaintiffs and nearly ten depositions 

of absent class members. Those would not have 

been allowed under the proposed rules. 

Those are simply two examples. They are 

exemplary. One is an individual case involving 

multiple defendants. One is a class action 

involving a single defendant. 

But they aren't any different from 

standard, routine employment discrimination and 

harassment cases which you've heard a good deal 

about in the hearings today and previously where 

the facts and legal questions are inherently 

complex and require and involve multiple 

depositions to explore the facts and observations 

of coworkers, managers, and human resources 

personnel as well as the decision makers. 

JUDGE CAMPBELL: Mr. Sturdevant, we are 

beyond ten minutes, so if you could wrap up your 
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comments, that would be very helpful. 

MR. STURDEVANT: Artificial prescriptive 

limits in and of themselves are misdirected in my 

opinion at the goal of obtaining justice in the 

civil system and have an interim effect on the 

judges charged with implementing them. 

I urge you not to adopt them, and I will 

submit much more extensive comments before 

mid-April. 

I'm happy to answer any questions that any 

of you may have. 

JUDGE CAMPBELL: Thanks, Mr. Sturdevant, 

for those comments. 

Mr. Rosenthal? 

MR. ROSENTHAL: Only a few more to go. 

Good afternoon. My name is John Rosenthal. I'm 

an antitrust and commercial litigator by trade. I 

also am a chair of Winston & Strawn's eDiscovery 

information management practice group, a group 

that last year spent over 100,000 hours on the 

preservation, collection, processing, posting and 

production of electronically stored information. 

I'm also national eDiscovery counsel to 

several Fortune 500 corporations in various 

industries. And I am on the steering committee of 
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the Sedona Conference working group one. 

At the outset, I would like to thank the 

Committee and the AO's office for their dedication 

and tireless work on these proposed rules. Your 

work is both recognized and appreciated by many. 

Overall, I strongly support the proposed 

package. The rules changes will bring some 

rationality to our discovery system in order that 

we can stem the rising costs of eDiscovery and 

particularly the burden of overpreservation. 

I do disagree with those that have given 

testimony and submitted comments that the 

contemplated changes, particularly to 

Rule 26(b)(1), will in any way close the doors of 

the courts or inhibit the ability of anyone to put 

on their claims or defenses of the case. That's 

simply not the case. 

This rules package is modest. It's 

designed to reduce costs. It will not close 

doors. To the contrary, I think it will open 

doors to many litigants. 

It's telling in my estimation that when 

you look back two years, many of the people now 

appearing before the Committee and submitting 

comments opposed and said no to these rules before 
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they saw the first draft rule. I think that's 

very telling. 

I'll be submitting written comments on the 

whole package, but I would like to focus my 

comments here today on Rule 37. Proposed Rule 37 

attempts to bring some reasonableness to the issue 

of sanctions. The explosive growth of the ESI, 

the absence of a uniform standard, and the 

tactical use of sanctions or the threat of 

sanctions by requesting parties has forced 

corporations to overpreserve ESI. It has raised 

the overall cost of litigation. 

The proposed rule will allow corporations 

to take steps to reduce the cost and burden of 

overpreservation, establishing predictability and 

providing protection from sanctions or the threat 

of sanctions where a party acts in good faith. 

With this said, I do suggest that the 

proposed rule should be further refined to ensure 

clarity, and as Robert Owen said this morning, 

avoid wiggle room. 

I cochaired the Sedona Conference's 

drafting team for Rule 37 and was intimately 

involved in all of the submissions the Sedona 

Conference has made here. I would urge the 
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Committee to take a close look at those 

submissions and in particular give careful 

consideration to the alternative Rule 37(e) 

proposed by the Sedona Conference in our December 

2012 submission. 

With respect to the Committee’s instant 

draft, I have some comments. On the issue of 

curative measures, which has really flown under 

the radar here, I do have some concerns. 

And I would suggest that the current 

version with respect to curative measures in 

37(e)(1)(B) be abandoned. 

The rule should exclusively focus and set 

forth the sanctions standard predicated on the 

showing of both culpability and prejudice. The 

notion that sanctions and curative measures are 

different is a false distinction unsupported by 

decades of case law. In the overwhelming majority 

of reported decisions, the sanctions handed down 

by courts are now what the Committee is referring 

to as, quote, unquote, curative measures. 

The problem is compounded by recent 

efforts by certain courts to describe such, what I 

think to be terminating sanctions such as 

permissive adverse instructions as no more than 
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curative or remedial measures. The Second 

Circuit's decision in Malley versus Federal 

Insurance Company is a prime example. 

More importantly, the current draft allows 

for the imposition of curative measures but 

provides no standard as to what and when they 

should be issued or can be issued. The absence of 

such a standard in my estimation will have 

negative consequences, including years of 

litigation trying to determine when those measures 

are appropriate, the proliferation of various 

standards across the country requiring further 

rules amendments down the road to have a uniform 

standard, and I believe it will dramatically 

increase the cost of litigation because I think 

the curative measures provision will be used as a 

tactical weapon by parties. 

More importantly, the bifurcated approach 

allows what I call the imposition of, quote, 

unquote, de facto sanctions by some courts without 

the showing of either culpability or prejudice. 

In doing so, the curative measures exceptions 

would substantially undermine the goals of this 

Committee with respect to Rule 

37(b) -- 37(e)(1)(B). 
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If the Committee is inclined to leave the 

curative measures provision within the current 

draft, then I would suggest that a showing of 

prejudice should be required before any court can 

order curative measures. 

With respect to the remaining portions of 

37(e), willful and bad faith, I believe both words 

are subject to varying interpretations. When you 

examine the case law, it's not just "willful" that 

Learned Hand described as an awful word. When you 

look at the cases, "bad faith" is being construed 

by courts in different ways either to be 

intentional or nonintentional. 

I respectfully suggest that the court 

should either adopt an entirely new term such as 

the good faith term proposed by the Sedona 

Conference or define both "willful" and "good 

faith" and the suggested definition would be the 

Sedona Conference definition that has been 

referenced here today. 

With respect to the Committee's question 

on substantial prejudice, I would urge the 

Committee that it should go further and define 

substantial prejudice. And in particular, I would 

offer the suggestion of "materially hindered in 
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presenting or defending against the claims in the 

case." 

Regarding the innocent loss provision of 

37(b)(2), I would suggest that you cannot draft 

rules for the exception or in this case what I 

call the mythical unicorn. I would urge the 

Committee to limit this provision in its entirety. 

And instead, I would urge the Committee to 

consider the absent exceptional circumstances 

language that is suggested by the Sedona 

Conference and put that as a predicate to (b)(1) 

and eliminate (b)(2). 

I would also ask the Committee to consider

whether there should be additional elements to be 

considered in the rule with respect to the 

issuance of sanctions. And in particular, whether 

or not there should be a requirement that any 

sanctions motion should be timely. Second, 

whether a sanction motion should be predicated or 

the -- the issuance of sanctions should be 

predicated on the issuance of the least severe 

sanction to remedy the failure to preserve, a 

standard that is now in almost every circuit in 

the country and is not referenced in this rule 

package. 
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Finally, I would suggest a factor should 

be considered that the -- whether or not the 

sanction is proportional not only to the loss but 

the culpability and the prejudice. 

Regarding the factors, I do suggest the 

factors should be further refined in order to 

avoid both ambiguity and protracted litigation 

over what those factors mean and I would refer the 

Committee to the Sedona Conference's submission in 

that regard. 

Thank you very much. 

JUDGE CAMPBELL: All right. Thank you, 

Mr. Rosenthal. 

Any questions? Parker? 

MR. FOLSE: I wasn't sure that I 

understood the point you were making about 

curative measures versus sanctions. I think you 

stated that the idea that there is a real 

difference or a meaningful difference between the 

two is a misunderstanding. 

Are you suggesting that the rule be 

changed so that even curative measures could not 

be ordered by a court absent a finding of 

culpability? 

MR. ROSENTHAL: Yes, I would advocate 
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that. I think that what -- I do not 

believe -- courts have available under other rules 

a whole variety of curative measures. They could 

change the scheduling order, they could order 

additional depositions, they could grant costs, 

under a variety of other rules.

I think when you introduce and try to 

bifurcate between the sanctions and curative 

measures within what has traditionally been a 

sanction rule, 37(e), you're going to create a 

whole host of problems, particularly when you 

haven't really articulated a standard as to when 

curative measures can be issued. 

In terms of the false distinction, when 

you look, and we have surveyed extensively all of 

the sanctions cases, the reality is that 99 

times -- 99 percent of the time, when a court 

says, "I'm going to sanction you," what they do is 

they offer additional depositions, they change the 

schedule, they impose additional fees as the, 

quote, unquote sanction, what the Committee is now 

calling the curative measure. 

I think the better approach is what we 

suggested in Sedona Conference which is you lay 

out the whole range of quote, unquote, curative 
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measures and sanctions and that you say: Here's 

the range. And with respect to terminating 

spoliation instructions and terminating sanctions, 

you have to show culpability. And for the other 

ones, you have to show prejudice and loss, but not 

necessarily culpability. 

JUDGE CAMPBELL: A follow-up question on 

that. If Rule 37(e) specifically said that I 

can't, for example, order additional depositions 

as a curative measure without culpability, why 

would I think I can go do it under another rule if 

it is specifically prohibited by 37(e)? 

MR. ROSENTHAL: I don't think anything 

prohibits the court under Rule 16 or Rule 26 to 

order additional discovery. For example, if 

there's a question, for example, has there been a 

loss of information. Courts now regularly order 

additional discovery to determine that question, 

not necessarily under 37, but either under their 

inherent powers or other rules. 

JUDGE CAMPBELL: Okay, thanks very much, 

Mr. Rosenthal. 

Rick? 

PROFESSOR MARCUS: I'm sorry to interrupt, 

but one thing that I understand you to be saying 
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and I want to be sure whether I'm right. 

It's quite possible that if this Committee 

decided to do something more like what the Sedona 

submission urges be done, that would lead to the 

need to republish and start over the public 

comment period and put everything over at least a 

year. You are saying you want that? 

MR. ROSENTHAL: I'm not saying I want 

that. 

PROFESSOR MARCUS: Or are you saying you 

want to go forward with what we could do now or 

put things over at least a year to do something 

very different? 

MR. ROSENTHAL: What I am asking the 

Committee is go back and look at the Sedona piece 

and consider whether anything done in the Sedona 

piece should be incorporated into this package. I 

don't think that would require you to restart. 

PROFESSOR MARCUS: I'm not saying it 

would, but it might. 

MR. ROSENTHAL: Well, we are certainly not 

advocating that. I think the solution is if you 

want to stay with this current package, either 

take curative measures out or require some kind of 

standard before the imposition of curative 
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measures, and in particular a showing of 

prejudice. 

JUDGE CAMPBELL: Okay. Thanks very much, 

Mr. Rosenthal.

MR. ROSENTHAL: Thank you.

JUDGE CAMPBELL: Mr. Benenson? 

MR. BENENSON: Good afternoon. My name is 

Rich Benenson. I'm the national cochair of the 

litigation practice group for Brownstein Hyatt 

Farber Schreck. The firm is based in Denver, 

Colorado. We have about 70 lawyers in our group 

covering about 14 offices. 

We are regularly practicing in state and 

federal courts throughout the country. We 

represent companies and individuals of all shapes 

and sizes often as plaintiffs, often as 

defendants. And I think we bring some interesting 

perspective to today's dialogue. 

As an initial matter I wanted to thank the 

Committee for the opportunity to present our views 

today for consideration in the final rules 

package. 

I would also like to thank the Committee 

for its hard work and vision with respect to this 

set of proposed amendments. They are welcomed by 
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lots and lots of folks and we hope that they get 

enacted. 

I would like to focus my comments today on 

the proposed changes to Rule 26, and in particular 

the proposal for the express insertion of the word 

"proportional" to the rules. 

I believe that the express insertion of 

the term will lead to better and more efficient 

litigation, and will ease some of the significant 

financial burdens that litigants are currently 

facing as part of the discovery process. 

Importantly, I want to note, I do not 

believe that the express inclusion of that term 

will in any way have an impact on closing the 

courthouse doors or unfairly restricting 

discovery, at least necessary discovery. 

My experience is quite to the contrary. 

And I base that experience on a pilot program in 

the Colorado state courts. The front range of 

Colorado, Colorado Springs up to Fort Collins, has 

initiated a pilot program. The thrust of the 

program is to resolve cases, particular business 

cases more quickly and efficiently. And as part 

of that emphasis, there's a great focus on the 

element of proportionality. 
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Rule 1.3 of the pilot program, for 

example, provides that at all times, the court and 

the parties shall address the action in ways 

designed to assure that the process and the costs 

are proportionate to the needs of the case. The 

proportionality rule is fully applicable to all 

discovery, including the discovery of ESI. And 

the proportionality rule shall shape the process 

of the case in order to achieve a just, timely, 

efficient and cost effective determination of all 

actions. 

Under this rule, the parties are required 

to address proportionality first in the initial 

case management and the meet and confer that leads 

to that case management conference. But it 

doesn't stop there. That obligation to discuss 

proportionality continues through the entirety of 

the case. 

And I can tell you from firsthand 

experience that the process is working. I'm 

currently lead counsel in a consumer protection 

class action case. And we've heard a lot today 

about class actions and the views of plaintiffs 

and defendants in class actions. 

And I thought it was interesting that one 
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of the former speakers talked about the desire for 

more proactive communication. Well, my experience 

is that an express requirement to discuss 

proportionality facilitates that exact result. 

In our case, because the parties were 

required at the outset, even before the case 

management conference, to discuss proportionality, 

it forced the parties to become better informed 

and more quickly informed about the scope of 

discovery, the claims and defenses in the case, 

and the theories and evidence that would support 

those claims and defenses. As a result, there 

were productive, proactive conversations about 

proportionality before we even went to the court. 

Why did that happen? Because that was 

required under the rules. And that was a 

departure from our normal practice. 

The proportionality requirement has also 

forced the parties to have continuing 

conversations about the need for any supplemental 

discovery or supplemental depositions or 

supplemental written discovery. 

As a result, in our case, the plaintiffs 

have received what I believe and I think what they 

believe to be much more focused and relevant 
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disclosures and discovery, and they received that 

information at an earlier part in the case than 

they would have otherwise. 

As a result, the case is proceeding more 

efficiently, our costs are down, and plaintiffs 

have gotten the information that they need. 

Now, to be clear, even with 

proportionality, discovery in that case is 

asymmetrical. But I want to be clear, I'm not 

suggesting symmetric discovery through 

proportionality. I think proportionality is 

important as a concept, because it reinforces that 

discovery scope is not a one-size-fits-all 

proposition. Proportionality should work both 

ways. 

We've heard about large consumer class 

actions. Proportionality in that context will be 

different than in a smaller business-to-business 

medium-sized case. 

But by including expressly the concept of 

proportionality into the rules, the parties will 

be forced to focus on that issue. And the court, 

I believe, will have more discretion and authority 

to design discovery that is proportionate to that 

particular case. 
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I want to reinforce that I don't think 

proportionality only affects large class action 

cases. Indeed, I submit it's even more important 

in smaller and medium-sized cases. 

The panel has heard today from several 

folks, and I won't belabor the point. But 

discovery costs have become a very large 

consideration in litigation. More and more of my 

clients are making decisions about resolution of 

the case, not based on the merits, but based on 

discovery costs and the desire to either avoid 

them or because they can't afford them. 

I submit that if that problem is solved, 

access to the courts actually increases. And 

civil justice and the quality of civil justice 

actually increases.

Indeed, I am regularly in discussions with 

my clients about budgets, and the single most 

problematic piece of that is discovery. And I 

think that that economic dynamic around discovery 

affects both sides of the equation. Plaintiffs 

and defendants are equally impacted in these 

medium-size business-to-business cases. And I 

would submit that that's where the proportionality 

requirement is most needed. 
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I believe that by adding proportionality 

requirements to the rules, that discovery costs 

will be reduced, and the discovery phase of 

litigation will be made more efficient. And I do 

believe that this would benefit all 

litigation -- all litigants and would enable more 

access to civil justice in the courts. 

Again, I would like to thank everybody for 

their time, and I have a few minutes for 

questions. 

JUDGE CAMPBELL: Questions from anybody? 

Yes, John? 

MR. BARKETT: Is there any kind of report 

from the Colorado experiment, the pilot product 

that you described surveying the lawyers producing 

information on how it's worked and the like? 

MR. BENENSON: The pilot program is still 

in its inception but the survey has started. They 

expect it to be completed in about 12 months. 

JUDGE CAMPBELL: Elizabeth?

MS. CABRASER: Under that program, are 

there any presumptive limits on discovery or 

other -- on depositions or other discovery 

techniques? 

MR. BENENSON: There are. One of the most 
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significant ones is no depositions of experts 

unless the court finds, needs and grants 

expressly. 

JUDGE CAMPBELL: All right. Thank you 

very much, Mr. Benenson.

MR. BENENSON: Thank you.

Mr. Cooke? 

MR. COOKE: Good afternoon, thank you. My 

name is Andy Cooke. I practice in a private law 

firm called Flaherty Sensabaugh Bonasso. My firm 

represents individuals, small businesses, large 

businesses, and wide-ranging and diverse 

litigation. My practice is primarily in product 

litigation, representing manufacturers. 

I'm thankful for the opportunity to speak 

this afternoon as a practitioner with an active 

civil trial practice for the past 20 years in 

federal and state courts. 

In the majority of my cases, I represent 

defendants, but I also represent individuals and 

commercial plaintiffs. 

I appreciate and commend the extensive and 

thoughtful work of the advisory committee. I know 

it's late in the day, so I will be brief. 

Because my experience demonstrates to me 
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that the interpretation and application of the 

current discovery rules endangers the resolution 

of many cases on their merits, I support in 

particular the proposed amendments to Rule 

26(b)(1), and I will focus my comments there. 

The advisory committee's proposed 

amendment to Rule 26(b)(1) would better define the 

scope of discovery to allow discovery of any 

nonprivileged matter that is relevant to any 

parties' claim or defense, and proportional to the 

needs of the case. This change would provide a 

meaningful improvement compared to the overbroad 

scope of discovery defined by the current Rule 

26(b)(1). 

The current overbroad scope is a 

fundamental cause, in my experience, of the high 

cost and burdens of modern discovery. 

I also support the striking of the often 

misapplied phrase, "relevant information need not 

be admissible at the trial if the discovery 

appears reasonably calculated to lead to the 

discovery of admissible evidence." 

This language has erroneously been used to 

establish a very broad discovery scope. Even 

though it was intended only to clarify that 
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inadmissible evidence such as hearsay, for 

example, could still be within the scope of 

discovery, so long as it is relevant. That 

principle is as preserved in the proposed 

amendment. 

I believe the changes to Rule 26(b)(1) 

will encourage thoughtful discovery. I believe it 

will encourage cooperation and potentially may 

result in fewer discovery motions because the 

rules will provide clarity and what's permissible 

in discovery. 

The current location of the 

proportionality language requiring responding 

parties to object has failed to limit the problems 

of overly broad discovery. Adding the requirement 

of proportionality to Rule 26(b)(1) will advance 

literally and practically the important principle 

of proportionality in civil discovery. 

Let me address just very briefly a problem 

that I see on a week-to-week or month-to-month 

basis in my practice. 

Too often discovery is used as a -- to 

gain tactical or settlement leverage for discovery 

on discovery or for setting up requests for 

sanctions. Fundamentally, the discovery rules 
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were adopted to promote a just outcome in a manner 

that is speedy and inexpensive as can be possible. 

The rules are there to assist the parties in 

preparing for trial on the merits. 

Discovery should be about the legitimate 

search for necessary information to prepare a 

party's case, not about a tactic to run up costs 

or to gain a tactical advantage. There should be 

no tolerance for tactical discovery, gamesmanship, 

or discovery-on-discovery litigation, but it is 

unfortunately too common under the existing rules. 

I submit that the adoption of the proposed 

revisions to Rule 26(b)(1) will deter parties from 

engaging in overly broad, unduly burdensome and 

vexatious discovery practices. 

Too frequently litigants recognize that 

the current rules can be used to drive up the 

opposing party's costs and expose the opposing 

party to sanctions. 

Under current practice, parties justify 

overbroad discovery requests by stating that such 

requests may lead to the discovery of admissible 

evidence, ignoring the rule's express invocations 

of relevance, and identifying a policy that's 

expressed nowhere in the rules themselves that 
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discovery should be limited and broad. 

By focusing on the claims and defenses, by 

removing the "reasonably calculated" language and 

requiring that discovery be proportional to the 

needs of the case, parties would be required to 

focus on that discovery that is necessary to 

assert a claim or to present a defense. That is, 

they will be required to contemplate discovery 

necessary before the discovery is propounded. 

The Rule 26 amendments represent a 

substantial step toward providing judges with 

well-defined and applicable guidance and in 

reversing the far too prevalent misconception that 

liberal or unlimited discovery that is reasonably 

calculated to lead to the discovery of admissible 

evidence effectively means that discovery is 

unlimited by anything other than well-grounded 

privilege claims. 

Finally, and with due deference to Justice 

Pullan from Utah, most states have adopted the 

Federal Rules of Civil Procedure in whole or in 

part. And many would be informed by the action 

taken to amend the Federal Rules of Civil 

Procedure. 

Accordingly, the adoption of the proposed 
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amendments could have significant effects on 

discovery practices in state as well as in federal 

courts. 

Thank you for the Committee's efforts to 

reform the Federal Rules of Civil Procedure, and I 

support the Committee's aim to create procedures 

that require litigants to focus on the merits of a 

case. 

I am happy to take any questions. 

JUDGE CAMPBELL: Questions? 

All right, thanks very much, Mr. Cooke. 

Mr. Scruggs. You get the last word, 

Mr. Scruggs. 

MR. SCRUGGS: Thank you. And along those 

lines, as the last witness, I hope to provide an 

electric conclusion to today's events, without 

repeating any arguments that you've heard so far, 

or at the very least to cover that repetition in 

my slight southern drawl to make it more appealing 

to you. 

But accent and repetition aside, my name 

is Jonathan Scruggs. I'm here on behalf of 

Alliance Defending Freedom and to express our 

opposition to the proportionality language that 

you've heard so much about and some of the 
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lowering of the presumptive discovery limits that 

has also been discussed. 

Rather than repeat a lot of the arguments 

that you've heard from many of the plaintiffs' 

counsel, I would like to reiterate those, but 

really kind of take it from our own I think rather 

unique perspective of what my organization does. 

Alliance Defending Freedom is a nonprofit 

national legal organization that advocates for 

religious liberties. And one way we do that is 

file civil litigation on behalf of individuals and 

organizations. We do so for free against large 

governmental entities who have violated or 

potentially violating constitutional rights. 

So, for example, we are currently 

representing Conestoga Wood Specialty Corporations 

before the Supreme Court in their challenge to the 

Affordable Care Acts abortion pill mandate, 

alleging that those -- that that mandate violates 

RFRA. 

But we don't just represent plaintiffs. 

We also represent defendants who attempt -- who 

are attempting to accommodate religious liberties. 

Again, for example, we are currently representing 

the Town of Greece, New York, before the Supreme 
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Court in their efforts to open up their latest 

legislative sessions with religious invocations. 

So based on this rather, I think, unique 

experience, we wish to offer our opposition to 

really the proportionality language is what I like 

to focus on and the other discovery limitations. 

And our fear really in the context of the cases 

that we do, cases that really involve almost zero 

monetary relief or low monetary relief. In a 

typical case we do a First Amendment case, it 

usually involves a First Amendment violation and 

no other physical injury. And in that context, 

usually litigants can only get nominal damages. 

In fact, at most usually they can get one dollar. 

So faced in the situation where there is 

literally very low monetary value, we greatly fear 

what a proportionality analysis will bear in this 

context, especially when that analysis is being 

made in the first instance by defendant's counsel, 

who we often find don't understand really the 

vital liberties at stake and the cases we do. 

We've heard so much today about the 

multi-billion dollar lawsuit, and that's really a 

big impetus. But oftentimes I've personally found 

that when either a defendant or sometimes even 
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when a judge involves a -- encounters a case that 

we do, it's kind of a bit confusing because our 

clients are not seeking damages in an extreme 

degree, and they can't be settled on that basis. 

So in that context, we fear that 

defendants will just immediately object to seeing 

that we are only seeking one dollar, to object 

that it's not proportional and to really limit our 

ability to protect civil liberties, not just on 

behalf of our clients, but really on behalf of 

everyone. 

So again, I'm going to be brief since I'm 

the last person. And end my conclusion -- end my 

statements there. 

Thank you. 

JUDGE CAMPBELL: Mr. Scruggs, as you know, 

in the factors that are specified in the proposed 

proportionality language we've included the 

importance of the issues at stake in the action, 

which is already in 26(b)(2)(C). 

Why is it that you don't think you could 

argue that point if you're faced by a defendant 

who says he shouldn't get any discovery, he's only 

seeking nominal damages? 

MR. SCRUGGS: Well, I think oftentimes 
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cases unfortunately get boiled down to monetary 

things. I think even today, look at who's come 

before this panel. It's people representing large 

clients with a lot of money at stake. 

And so I think even before a judge, but 

even more so, with the defense counsel who has to 

make that determination initially and then object 

and then we have to bring the motion to compel, I 

don't see it as worthwhile, or at least it seems 

very risky to me unless the language is more 

clarified in terms of importance, not just in 

monetary terms being the issues, but being 

importance of issues whether in constitutional 

terms or in other terms. 

JUDGE CAMPBELL: John? 

MR. BARKETT: In the 1983 amendment that 

is what is now (b)(2)(C) as Judge Grimm pointed 

out earlier, it was originally part of (b)(1). 

And the advisory committee note has a sentence 

that reads that the rule recognizes that many 

cases in public policies fear, such as employment 

practices, free speech and other matters may have 

importance far beyond the monetary amount 

involved, the court must apply the standards, 

referring to what is now the (b)(2)(C) standards, 
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in an even-handed manner that will prevent use of 

discovery to wage a war of attrition or as a 

device to coerce a party whether financially weak 

or affluent. 

If you haven't had a problem under the 

existing regime, why is it you think you would 

have one under the proposal? 

MR. SCRUGGS: I think at least in 

practical terms, shifting the language forward, I 

think potentially, I don't want to say alerts the 

defense bar, but essentially reinvigorates the 

defense bar to argue in strict proportionality 

terms and in monetary terms. 

That's, I think, the concern, that in 

theory, while there may not be a theoretical, I 

think, problem, I think in practice, that could 

come up more often. And that's what we are afraid 

of with the shift in the language to at least make 

it more explicit. 

JUDGE CAMPBELL: Any other questions? 

Parker? 

MR. FOLSE: Is your solution to 

the -- this fear that even though the standards 

may be in the rules already, that this will send 

some sort of a signal that will make it -- that 
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will effect some change in the landscape, is your 

solution to recommend that the language not be 

moved from where it's currently located into 

(b)(1), or is your solution to add something to 

the Committee note that no such change would be 

intended, or what exactly would you have us do? 

MR. SCRUGGS: Well, I think the preference 

would be to remain the same, but we would also, as 

a secondary request, do the second thing that you 

advised, I think, would be our secondary 

preference along these lines. 

I'm glad that I am eliciting so many 

questions as the last speaker today. We can just 

be here all night maybe. 

JUDGE CAMPBELL: On that note, does 

anybody have another question? 

Mr. Scruggs, thank you very much for your 

comments. 

MR. SCRUGGS: Thank you very much. 

JUDGE CAMPBELL: And thank you to 

everybody who's been here. We very much 

appreciate this input. We look forward to 

receiving your continuing input. 

And we will stand adjourned.

* * *
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C E R T I F I C A T E

I, MERILYN A. SANCHEZ, do hereby certify 

that I am duly appointed and qualified to act as 

Official Court Reporter for the United States 

District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages 

constitute a full, true, and accurate transcript 

of all of that portion of the proceedings 

contained herein, had in the above-entitled cause 

on the date specified therein, and that said 

transcript was prepared under my direction and 

control.

DATED at Phoenix, Arizona, this 15th day of 

January, 2014. 

Merilyn Sanchez, CRR, RMR 

Official Court Reporter 

401 W. Washington, SPC 37 

Phoenix, AZ 85003 
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(602)322-7250