DISCOVERY File,

REFORM PROPOSALS

DISCOVERY SYMPOSIUM

BOSTON COLLEGE SCHOOL OF LAW

SEPTEMBER 4-5, 1997
TABLE OF CONTENTS

PROPOSALS FOR DISCOVERY REFORM

A. ABA Section on Litigation

B. American College of Trial Lawyers (To Be Distributed Separately)

C. Association of Trial Lawyers of America

D. Defense Research Institute (DRI)

I) Scope of Discovery Under Fed. R. Civ. P. 26(b)(1) 11) Proportionality: a Critical but Sparingly Utilized Limitation on Discovery-Rule

26(b)(2)

111) Federal Rule of Civil Procedure 26(a)(1): Proposal on Revising Mandatory

Disclosure and Federal Rule of Civil Procedure 16: Proposal on Early Judicial

Intervention

IV) Limitations on Document Requests-Rule 34

V) Revising the Presumption Against Sanctions and Creating a Reasonable Safe

Harbor Provision Under Rule 37

VI) DRI's Proposed Changes to Federal Rule 26(b)(5) Related to Assertion of

Privilege

E. Trial Lawyers for Public Justice

F. Product Liability Advisory Council

I) List of corporate members of the Product Liability Advisory Council

II) Comments of Honorable Wayne Brazil, Magistrate Judge, U.S. District Court for

the Northern District of California. These comments were delivered at a

workshop of the Pretrial Practice and Discovery Committee of the ABA Section

of Litigation, held on Monday, August 4, 1997 at the St. Francis Hotel in San

Francisco.

11) Copy of PLAC survey form

/U81997 San0 F *40.k 

1h, t' AMERICAN BAR ASSOCIATION Section of Litigation

UI 752 750 North Lake Shore Drive

(14)651-SSo Chicago, Illinois 60611 OI P k.0 (312) 988-5662

Ne4. NV Fax: (312) 988-6234

Btc E-Mail: abalit@staff.abanet.org website: http://wvw.abanet.org

n="z COMMENTS OF THE TASK FORCE ON DISCOVERY

f1l R. OF THE ABA LITIGATION SECTION

CONCERNING ISSUES BEING CONSIDERED

BY THE ADVISORY COMMITTEE ON CIVIL RULES

H.cg OF OSI.A~tS

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The Task Force on Discovery of the ABA's Litigation Section onlAM L OSlc ( 99S) Las Are CA

was created in 1997 to analyze issues and proposals under consideration by

the Advisory Committee for Civil Rules dealing with discovery reform and

Au Wi L ewc (19991

to propose a position on those issues for consideration by the Litigation

". NJ Section leadership. Because we have not had time to canvass fully the

SelkWA

,, Litigation Section's leadership (and therefore also not had time to present the

Nanfcy McC'eady Hm~l (I59)

a. WA

,, Section's views to the American Bar Association), these comments reflect a CN-IL

s-.'~ preliminary working consensus of the individuals listed below.

PD Ueng t,ln

,, 1. Litigation Section Chair: Gregory P. Joseph, New York, NY. Cok . JIM chairs of the Task Force: Dennis P. Rawlinson, Portland, OR; Lorna - 'G. Schofield, New York, NY. Participating Task Force Members: Nolan N. Atkinson, Jr., Philadelphia, PA; Richard S. Berger, Los o Itld(15981 Angeles, CA; Paul J. Bschorr, New York, NY; Prof. W. Burlette

C oCarter, Washington, DC; Susan Stevens Dunn, Research Triangle

,,AWII Park, NC; Anna Engh, Washington, DC; Loren Kieve, Washington, DC; Roberta D. Liebenberg, Philadelphia, PA; Edward P.

,wanto Liebensperger, Boston, MA; Barbara M.G. Lynn (Litigation Section

Chair Elect), Dallas, TX; Barry F. McNeil (immediate past Litigation

)araL For.,

eo~ MN Section Chair), Dallas, TX; Laurence Pulgram, San Francisco, CA; f D UDoG h Michael Silberberg, New York, NY; Geoffrey Vitt, Norwich, VT;

H. Thomas Wells, Jr. (Litigation Section Vice-Chair), Birmingham, AL. Also participating but taking no position: Hon. Nancy Friedman

Atlas, Houston, TX; Hon. James G. Carr, Toledo, OH.

E.Md .k w&sa bne

Man wUT -O----
General Princils

We support the following general principles, which are reflected in our

positions below and are also likely to affect our position on proposals not addressed in

this report.

* Uniformit. We believe that the discovery rules should be uniform throughout

the federal courts, except as provided in Fed. R. Civ. P. 83 concerning local

district and judicial rules. In other words, the rules should allow the same

degree of latitude, but no more than existed prior to the Civil Justice Reform

Act.

* Jdicial discretion. We believe that judges should be left considerable latitude

to adapt discovery proceedings to the case at hand, to the extent consistent with

the rules.

* Discovery by negotiation. We believe that counsel, particularly those who

practice frequently in a given field, are often in the best position to know what

discovery is necessary and how long it will take. Leaving considerable

flexibility to the parties also should require less judicial intervention than a fixed

rule that can be modified only by court order.

* Early. active and continuing discovery management. We believe that early and

active discovery management by the judge assigned to the case will encourage

parties to agree to reasonable discovery limits and deadlines. Although we

2
recognize the overwhelming caseloads of many judges, we nonetheless support

an approach that provides prompt judicial access when the parties cannot agree

to a discovery plan early in the case or have a discovery dispute.

* Third-party discovery managers. Mediators or special masters handling

discovery issues should be the rare exception, particularly where one or more of

the parties are not in a position to pay the additional expense involved. The

participation of a judicial officer is important to ensure continuity in the pre-trial

supervision of a case, and we believe that active judicial involvement (for

example, in the form of pre-motion conferences) greatly encourages parties to

resolve discovery disputes among themselves without judicial intervention.

Although judges may have the discretion to appoint special masters or mediators

for discovery, we would not support any rule change that encourages such a

practice.

Scone of' Discovy

The Task Force believes that discovery may be excessive and

burdensome in some cases. We therefore would be receptive to attempts to curtail

discovery in appropriate cases. One way to accomplish this result might be to amend

Rule 26(b)(1) to cut back on the scope of discovery

However, we are not strong supporters of proposals (I) to limit

discovery to that relating "to the claim or defense" of any of the parties or (2) to

3
eliminate the last sentence of Rule 26(b)(1) -- "The information sought need not be

admissible at the trial if the information sought appears reasonably calculated to lead to

the discovery of admissible evidence."

Concerning the "claim or defense" proposal, we would not support any

revision that would make discovery dependent on the artfulness or extensiveness of the

pleadings. Although we believe that the "reasonably calculated" formulation may

threaten to overwhelm the other limitations imposed by the discovery rules, we believe

that parties should have access to information about potential witnesses and documents

that is not itself admissible.

In any event, we would propose amending Rule 26(b)(2) to eliminate a

producing party's substantial resources as a factor to be considered in evaluating the

burdensomeness of a discovery request. As currently phrased, the rule may be read to

allow a party to obtain discovery, no matter how tangential or burdensome, simply

because the opposing party can afford to provide it. We would favor retaining a

producing party's meager resources as a factor in evaluating the burden of requested

discovery.

Document Production

We believe that the extent of document discovery has become a serious

problem in large litigation, often imposing unfair burdens and costs on the responding

party. We believe that part of the problem is best addressed on a case-by-case basis

4
through early, active and continuing judicial management. We would also suggest that

the Advisory Committee consider the following:

We would favor provisions that would heighten the showing needed for

additional discovery after substantial document discovery already has been obtained.

We have not yet reached a consensus in support of any particular proposal.

If the Advisory Committee does not recommend some contraction in the

scope of discovery, it should consider ways to stage document discovery so that

preliminary or dispositive issues are addressed first. Lawyers who usually represent

plaintiffs would likely favor merits discovery before damages discovery, for example.

On the other hand, lawyers who usually represent defendants would likely favor

providing class certification discovery before any class-wide merits discovery in a class

action case, or providing initial discovery on product exposure before addressing

product defects in a tort case, as other examples.

Although we favor generally the notion of following initial discovery

with a settlement conference, we do not believe that such a conference should be

mandated by a rule. Rather, we believe that this is a case management issue better

addressed on an individual basis.

We do not favor cost-shifting as a means of discouraging excessive

discovery. We believe that total or partial cost-shifting may be unfair to parties or

practitioners of modest means (and in some cases to other parties, however large their

5
pocketbooks). In many cases these costs simply may be reallocated to a settling

defendant in the form of an increased settlement amount.

In some cases it may be a good idea to depose a document custodian

prior to requesting documents; in others this could add to the overall time and cost

involved. Likewise, as the RAND study indicates, reducing the time for discovery can

often reduce the costs of litigation, but these should remain case management issues

that are better addressed on a case-by-case basis.

We did not reach a consensus on the issue of staying discovery during

the pendency of motions to dismiss insufficient pleadings. Some of us who usually

represent defendants would support a provision like that found in the Private Securities

Litigation Reform Act staying discovery during the pendency of motions to dismiss

based on the insufficiency of the Complaint, coupled with a provision to preserve

documents relevant to the allegations in the Complaint. 2 Such a change also would

2. The Act provides: "(b) Stay of Discovery; Preservation of Evidence.

(1) In general. In any private action arising under this title, all discovery and

other proceedings shall be stayed during the pendency of any motion to dismiss, unless

the court finds, upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party. (2) Preservation of Evidence. During the pendency of any stay of discovery

pursuant to this subsection, unless otherwise ordered by the court, any party to the

action with actual notice of the allegations contained in the complaint shall treat all

documents, data compilations (including electronically recorded or stored data), and

tangible objects that are in the custody or control of such person and that are relevant to

the allegations, as if they were the subject of a continuing request for production of

documents from an opposing party under the Federal Rules of Civil Procedure." 15

(continued...)

6
promote the goal of uniformity among federal cases arising in different substantive

areas. Those of us who usually represent plaintiffs strongly oppose such a change on

the ground that motions to dismiss often remain pending for many months, and

memories fade and documents sometimes are lost with the passage of time.

Privilee Lops

We believe that the practice adopted in some courts of requiring

privilege logs, even in the largest cases, often results in excessive costs and burdens to

the party seeking to maintain the privilege. However, because Rule 26(b)(5) is

unobjectionable, we would not recommend amending it.

As it is, Rule 26(b)(5) does not require a document-by-document log of

information pertaining to the privilege, but rather provides:

When a party withholds information otherwise discoverable under these

rules by claiming that it is privileged or subject to protection as trial

preparation material, the party shall make the claim expressly and shall

describe the nature of the documents, communications, or things not

produced or disclosed in a manner that, without revealing information

itself privileged or protected, will enable other parties to assess the

applicability of the privilege or protection.

Fed. R. Civ. P. 26(b)(5) (emphasis added). The Notes expressly recognize that:

Details concerning time, persons, general subject matter, etc., may be

appropriate if only a few items are withheld, but may be unduly

burdensome when voluminous documents are claimed to be privileged or

protected, particularly if the items can be described by categories. A

2. (...continued)

U.S.C. § 77z-1(b) (1997).

7
party can seek relief through a protective order under subdivision (c) if

compliance with the requirement for providing this information would be

an unreasonable burden.

Thus both the existing Rule 26 and the accompanying Notes leave room for methods

less onerous than a document-by-document log to show the basis for the assertion of

privilege -- for example, describing privileged documents by category, submitting

privileged documents to a Special Master, and excluding from the log documents found

in certain files or from certain time periods.

Nevertheless, document-by-document logs seem to be required by

several courts, sometimes by local rule. See, e.g., S.D.N.Y. Civ. R. 26.2(a)(2)(A)

(requiring identification of document type, subject matter, date, author, addressee and

relationship of author and addressee); see also, e.g., In re Brand Name Prescription

Drugs Antitrust Litig., No. 94 C 897, MDL 997, 1995 U.S. Dist. LEXIS 15210 at *4

(N.D. III. Oct. 6, 1995) ("party seeking to invoke the privilege bears the burden of

proving that it applies, by making a particularized showing for each document or

redaction in issue"); B. Braun Med. Inc. v. Abbott Labs., No. 93-3883, 1994 U.S.

Dist. LEXIS 9445 at *2 (E.D. Pa. July 6, 1994) ('Blanket assertions of privilege

generally are insufficient.... Rather the claim must be made on a document-bydocument basis").

Because the rule in its current form is unobjectionable, we do not believe

that it should be amended to correct its misapplication by some courts. Many cases

8
will involve few privileged documents and because the circumstances of every case are

unique, we believe that the Advisory Committee should not propose a rule requiring a

particular form of privilege disclosure. 3

Mandatory Disclosure

We favor rescinding the mandatory disclosure requirements in Rule

26(a)(1). Initial mandatory disclosure has been one of the most controversial of the

1993 amendments; approximately half of the courts have elected not to utilize it.

Although seen as a way to accelerate the exchange of information and to reduce the

duration and expense of discovery, it would appear that it has not achieved either of

these goals. The RAND Institute for Civil Justice found no measurable correlation

between disclosure (both mandatory and voluntary considered together) and time to

disposition or litigation costs. A survey by a subcommittee of the ABA Litigation

Section reached similar conclusions.

In addition, initial mandatory disclosure has been criticized for forcing

the lawyer out of the traditional advocate's role. In its current form, Rule 26(a)(1)

requires the identification of witnesses and disclosure of documents "relevant to

disputed facts alleged with particularity in the pleadings." Fed. R. Civ. P.

26(a)(1)(A)-(B). This standard first requires a lawyer to use knowledge gained in the

3. The Task Force is working on developing practice guidelines for civil discovery to address issues, like this one, that in our view do not merit a rule change.

9
course of an attorney-client relationship to make a judgment about what is relevant to

the adversary's claims and defenses. Then the lawyer must use that knowledge to elicit

information and obtain documents from the client for the purpose of turning it over to

the adversary. In effect, the rule forces a lawyer out of the role of advocate and into a

role at odds with a client's interests -- in a way that may compromise both the client's

interests and the attorney-client relationship.

Mandatory initial disclosure also subverts the simple notice pleading

contemplated by Rules 1 and 8 by having the parties "detail" their claims so that they

can then require the other side to disclose material that relates to these claims.

If initial mandatory disclosure is retained, we would favor narrowing

Rule 26(a)(1) to require disclosure of information and documents relating only to a

party's own claims and defenses. However, we believe that in some cases even this

form of mandatory disclosure would impose unfair burdens and exacerbate the

inequities found in discovery. This could happen, for example, in "one-way

discovery" cases, such as wrongful death cases and cases broadly challenging the

internal or external business practices of a large party (usually a defendant), such as

securities fraud, mass tort and antitrust cases. In these cases, "relevant" documents

may include virtually every document relating to some aspect of a company's business

for a period of years. The party requesting materials, at the very least, should be

required to specify what documents and witnesses it seeks.

10
Although initial disclosure may have its place in some cases, we believe

that encouraging the parties to engage in an informal exchange of documents when

appropriate is preferable to a rule that attempts to define objectively cases in which

disclosure will and will not work.

As stated above, we believe that uniformity of the rules of procedure in

the federal courts is an important objective, apart from the substance of the underlying

rule. In our view, the mandatory initial disclosure rule is simply too controversial to

warrant nationwide adoption.

Depositions

We do not favor presumptive or other limits on the duration of

depositions. We believe that the proper length of a deposition is too dependent on the

circumstances of any given case, and limits can encourage gamesmanship and increase

the need for judicial intervention.

Concerning the number of depositions, we favor the uniform adoption of

the presumptive limit of ten contained in Rule 30(a)(2)(A). The parties could agree on

a greater or lesser number of depositions under Rule 26(f) and could submit their joint

or individual proposals to the Court, which would then enter a Rule 16 scheduling

order.

I1
Discovery Management

We would support the uniform adoption of Rule 26(0 requiring an early

conference to discuss discovery and other issues. The subparts of the rule might be

amended to require the parties to consider and address, as discussed above, (i) the

extent and timing of any voluntary initial disclosure, (ii) any staging of document

discovery, (iii) the duration and number of depositions, and (iv) discovery cut-off

dates.

12
w
Materials Will Be Distributed Separately
C)
ASSOCIATION OF ThA, LAWYERS OF AMERICA

1050 31ST STREEr, N.W., WASHINGTON, D.C. 20007-4499 202/965-3500

MEMORANDUM

TO: Members of the Discovery Subcommittee, Advisory Committee on Civil Rules

Professors Richard L. Marcus and Stephen Burbank

Participants in the Discovery Conference

FROM: Robert S Peck, DLegal Affairs and Policy Research

DATE: August 15, 1997

RE: Comments of the Association of Trial Lawyers of America on possible ideas for

rule amendments

The Association of Trial Lawyers of America is pleased to participate in this continuing

dialogue on the Federal Rules' approach to discovery organized by the Advisory Committee on

the Civil Rules. At our 1997 Annual Convention, which took place in late July in San Diego, we

held a hearing at which members spoke to us about their experiences with respect to discovery in

federal litigation. Our responses to the alternatives posed in the memorandum written by Professor Marcus are informed by the experiences of our members, our adopted policies which

seek to protect and preserve the civil justice system and the rights of consumers, and several

principles that we believe ought to guide any reconsideration of rules governing discovery

We begin by suggesting that discovery is not a problem in the vast majority of cases

Certainly, the empirical evidence seems to bear this out The most comprehensive study of

discovery in the federal courts, conducted by the Federal Judicial Center, indicates that 52 percent of terminated cases involved no discovery requests Paul R Connolly, Edith A Holleman &

Michael J. Kuhlman (Federal Judicial Center), Judicial Controls and the Civil Litigative Process

Discovery 28-29 (1978). Only a small minority of cases, less than five percent, experienced more

than ten discovery requests Id at 28. In the rare instances when sanctions were sought, they

were generally granted Id at 23-25 This evidence indicates that the "problem" of discovery

abuse is sufficiently rare that wholesale changes in the rules are not warranted

To the extent that the FJC study dissuaded the 1980 Advisory Committee from adopting

discovery rule amendments then under consideration, we believe its findings remain
ATLA Comments on possible ideas for rule amendments

August 15, 1997

Page Two

powerful contraindicators to the similar proposals of today. No empirical findings indicate that

the FJC study is no longer valid In fact, the most massive recent study of discovery practice, albeit one that involved state courts, found strikingly similar results, indicating that the patterns have not changed Susan Keilitz, Roger A Hanson & Henry W K Daley, Is ('wl Discovery in

State Trial Courts Out of ControlV, St Ct J., Spring 1993, at 8

Several other factors argue emphatically against many of the kinds of changes that have

been suggested to the Advisory Committee First, some forms of the discovery abuse that does

occur seem to be attributable largely to certain forms of complex commercial litigation See

Francis H. Hare, Jr. and James L. Gilbert, Discovety in Products Liability Cases: The Plaintiffs Plea for Judicial Understanding, 2 Am J Trial Advoc 413 (1989) It would be a mistake to

write new generic discovery rules directed at the abuses in these cases when the effect could well

be adverse in other cases, where discovery is neither extensive nor difficult

Second, the abuses that do occur exist on both sides of the ledger, i e, in overbroad

requests and in underproduction in response to entirely appropriate requests. In fact, most of the

testimony presented by ATLA members at our San Diego hearing were horror stories about

withheld documents and contentious discovery maneuvers Contingency-fee lawyers have a

significant economic disincentive against prolonging the discovery process, while those lawyers paid on an hourly basis experience the dovetailing of their financial self-interest with their

adversarial instincts to make discovery an arena of unnecessary and expensive dispute See

Maurice Rosenberg, Federal Rules of Civil Procedure in Action: Assessing Their Impact, 137 U.

Pa. L Rev. 2197, 2200, 2204-05 (1988) (ascribing to the rise of the hourly fee and other changes in the legal profession today's more contentious discovery system). We cannot imagine rules

changes that can coexist and appropriately deal with the problems of both excessive and deficient

discovery.

Third, many of the kinds of proposals being advanced to the Advisory Committee are

anchored in such a substantial change in philosophy undergirding the Federal Rules that we

suggest that they should be rejected out of hand Alternatively, they should be considered only in

the context of a rules overhaul that follows a full and detailed debate about whether the premises for the Federal Rules should be changed As it was written and implemented, the Federal Rules

prized the idea that the federal courts should be open and accessible, that process would not

predominate over substance, that gamesmanship would be discouraged even while placing a heavy reliance on the adversary process, and that trial by surprise would become a relic. See Charles W.

Sorenson, Jr, Disclosure under Federal Rule of Civil Procedure 26(A) -- "Much Ado about

Nothing?", 46 Hastings L J 679, 690-95 and accompany notes (1995) We agree with those

premises. Instead, some of the proposals seem to hark back to the days of the Field Code and

detailed pleading rather than fit within the rubric of the Federal Rules and notice pleading
ATLA Comments on possible ideas for rule amendments

August 15, 1997

Page Three

In the comments that follow, which are tied to each of the categories in the June 2

memorandum written by Professor Marcus, we ask that the above-outlined general observations

be considered

1. Narrowing the scope of discovery

ATLA views the proposals to narrow the scope of discovery as having undesirable

consequences- To the extent that discovery abuse is a problem in the federal courts, the problem is at least as much (and perhaps even more) one of evasive discovery as it is one of excessive

discovery. Our experience is validated by a study which found that attorneys encountered

unresponsive or incomplete discovery in 60 percent of all cases The percentage was somewhat

higher (80 percent) in large cases and lower (40 percent) in small cases Late discovery was

experienced in half of the cases. Wayne D Brazil, Viewsfrom the Front Lines: Obsen'ations by Chicago Lawyers About the System of Civil Discovery, 1980 Am B Found Res J 217

At the hearing ATLA held at its 1997 Annual Convention in San Diego, attorneys testified

to similar experiences of documents being withheld, produced late or even destroyed. In a

considerable number of instances, the existence of the hidden documents came to light only because other evidence that served no admissible purpose led to it or the documents became

available from another, unexpected source. In these instances, the non-complying parties frequently attempted to justify their evasiveness by claiming that the documents were beyond the

scope of legitimate discovery or were privileged in some fashion. Any attempt to narrow the

scope of discovery would send the wrong signal to those who now improperly withhold material

damaging to their litigation posture. They will find such a change to be a validation of their

misguided rationalizations for withholding documents and may well encourage further such

misconduct.

We also submit that limiting discovery to that which is relevant to specified claims or

defenses, as proposed by the American College of Trial Lawyers (ACTL), is at odds with the

entire modern system of civil procedure. As Justice Powell wrote for the Court in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)(citing Hickman v. Taylor, 329 U.S. 495, 500-

01, (1947)), "[c]onsistently with the notice-pleading system established by the Rules, discovery is

not limited to issues raised by the pleadings, for discovery itself is designed to help define and

clarify the issues." Sanders specifically recognized that discovery was not tied to the merits of a

case precisely because "a variety of fact-oriented issues may arise during litigation that are not

related to the merits" Id. (footnote omitted). The Court gave a non-exclusive list of issues

including jurisdiction, venue and class certification as examples of areas where discovery is

available even though no claim or defense is necessarily implicated Id at note 13.
ATLA Comments on possible ideas for rule amendments

August 15, 1997

Page Four

The Court's Sanders decision exemplifies the philosophical issue that must be resolved as a

necessary precondition to the kind of change proposed by ACTL Should more rigorous

pleadings be used as a means to foreclose access to the courts in cases that can only be developed

through discovery? ATLA believes the answer to that question should remain "no." Moreover,

the ACTL proposal is unlikely to have much impact on discovery. Lawyers who can meet the

pleading burden would write their claims with greater particularity and in a fashion that would

implicate precisely the kinds of discovery they anticipated that they would be requesting.

Ultimately, rather than narrow the scope of discovery, such a rule would change the way that

complaints and answers are drafted While some have urged a reconsideration of notice pleading,

changes in the rules of discovery are not the appropriate way to accomplish or consider such a

revolutionary development

2. Reducing the burden of document discovery

Many of the same problems that exist for narrowing the scope of discovery are evident in

proposals to reduce the volume of document discovery We suggest that there is nothing

inherently different about documentary evidence that necessitates different treatment with respect

to scope. We do, however, see nothing prejudicial in a rule that might insulate the producing

party from an inadvertent waiver of privileges. Similarly, provided that it does not result in undue

delay, we do not see a problem in requiring advance judicial approval for additional document

production beyond those most obviously relevant to the case, including those that might lead to

admissible evidence

We would submit, however, that a new rule that contemplates shifting production

expenses to the party seeking documents would provide a powerful disincentive to injured

persons to pursue their day in court The typical products liability case provides an example of an

aggrieved individual without substantial resources who must rely heavily on the discovery of

documents from a defendant to prove liability The need for documentation is undeniable and

may well be considerable in volume. Moreover, the defendant has an overwhelming self-interest

in making discovery as fruitless, expensive or difficult for the plaintiff as possible. One such tactic

used in products cases is to inundate the plaintiff with a massive amount of documents in which

the "smoking gun" papers have been skillfully buried so as to be impossible to locate or

understand See, e.g., Sabel v. Mead Johnson & Co., 110 F.R.D 553 (D. Mass. 1986)(finding

non-compliance in the production of 154,000 pages of documents and an inadequate index). We

submit that a cost-shifting rule would encourage similar unnecessary production that might be

carefully and expertly calculated to be large enough to make the plaintiffs case unduly expensive

without crossing the line that might engender judicial sanction In such instances, the defendant

will have succeeded in rendering the prosecution of the case sufficiently problematic for the

resource-poor plaintiff that he or she is effectively non-suited
ATLA Comments on possible ideas for rule amendments

August 15, 1997

Page Five

For many of the same reasons, a rule that required certification by an attorney that the

produced documents were reviewed would encourage corresponding overproduction to both

force the reviewing counsel into unproductive and wasteful work and to make it difficult to assert

that necessary documents were missing. The flip side of this proposal, which would require certification that only requested materials were provided, will prove unavailing to alleviate the

burden on the reviewing counsel. Disputes over the construction of discovery requests are a

major source of contention between counsel. The recipients of discovery requests are often quite skilled at reading the request literally to avoid production of an obviously relevant document

inadequately described or broadly to hide problematic documents See, e.g., Rozzer v. Ford

Motor Co., 573 F.2d 1332, 1341 (5th Cir 1978), Sellon v. Smith, 112 F R D 9, 12-14 (D Del

1986) Only in the most extreme cases would such overproduction be considered a purposeful evasion of the proposed certification rule, especially if the requested documents were fully represented among those produced. The proposal seeks a behavioral change that a rule cannot

accomplish

Though we are not sanguine that an additional admonition against document destruction

would deter the bad actors who now plague the system, we have no objection to such a rule We

are equally skeptical that a rule embracing discovery protocols in specific categories of cases will

necessarily work While such protocols may be useful starting points for discovery conferences

that may be supplemented by requests that take into account unique aspects of the immediate

dispute, we would caution against establishing the protocols as presumptive limits, which is what

we suspect producing parties would assert they are. One reason to withhold such a presumption from a discovery protocol is that it would be used to limit the scope of discovery even where a

particular request that fell outside the protocol fit within the expressed scope of discovery contained in the rules. Protocols should not be used as an alternative means of limiting the scope

of discovery

Finally, we note that the proposed rules on document discovery entertained thus far

largely do not address the form of discovery abuse experienced most frequently by the plaintiffs' bar These include withholding or burying documents, raising non-meritorious privilege claims, interpreting document requests narrowly or broadly to suit an obstructionist discovery strategy,

and falsifying documents

3. Presumptive time limit for depositions

Many of our members responded favorably to the idea of a presumptive time limit for

depositions In most instances, a six-hour time limit would be generous A note of caution was

sounded nonetheless Even though the proposal would eliminate objections not based on

privilege, time limits do create a substantial incentive to be obstructionist or dilatory,
ATLA Comments on possible ideas for rule amendments

August 15, 1997

Page Six

characteristics that some witnesses come to naturally enough Moreover, it will not always be

apparent that this is the tactic the witness employed in order to prevent the most fruitful use of the

allotted time. We strongly suggest that the burden be placed on the producing party to

demonstrate full cooperation during the deposition should a time-limit proposal be adopted

4. National uniformity of discovery provisions

Although uniformity has been the sine qua non of the Federal Rules since its inception and

the balkanization of the discovery rules as a result of the 1993 amendments makes a national

practice unnecessarily complex, we submit that the kinds of discovery abuses that exist cannot be

traced to diversified rulemaking.

5. Specifics of uniform rules

Attorneys who testified at our San Diego hearing found that the initial disclosure

requirements in Rule 26(a)(1) have not been burdensome but has also not encouraged any change

in discovery culture The majority of attorneys cooperate; recalcitrant counsel provide only the

least useful responses Initial disclosure does not change that

Attorneys at the hearing also indicated that in those cases involving complex or

considerable discovery the attorney conference and discovery plan was generally helpful. The

implication was that in simpler cases such conferences were unnecessary The only complaint that

was aired involved the difficulty in obtaining a time for such a conference when it was attorneyinitiated and there were multiple defendants. The testimony indicated that scheduling conferences

proved difficult because there was always at least one defense counsel who could not make the

meeting when the others could. There was a strong suspicion expressed that this was a strategic

move by cooperating defense counsel These experiences strongly suggest that discovery should

proceed without respect to whether the conference has taken place and a discovery plan agreed

upon. Thus, we would recommend repeal of the Rule 26 (d) discovery moratorium pending the

conference We would also suggest that there be a more active role for the judge in assuring the

timely scheduling of the discovery conference

6. Case tracking, standardized discovery, and treating "complex" cases differently

The results of the RAND Institute for Civil Justice study of compliance with the Civil

Justice Reform Act convinces us that it is unrealistic to believe that tracking could be

implemented with any degree of success. Despite significant interest and some inclusion in the

plans, the report indicated that tracking was not employed We suggest that it would not be

prudent to attempt to force such an experiment on the entire federal judiciary through a rules

change when it has proven near impossible to implement
ATLA Comments on possible ideas for rule amendments

August 15, 1997

Page Seven

Our earlier comments about standardized protocols, made in response to topic 2, are equally applicable here and are incorporated by reference There is, however, some value in treating complex cases differently. In exploring such an option, we suggest that there should also be

distinctions made between complex commercial litigation, where the parties often have equal

access to information, and complex cases sounding in products liability, where the defendant

necessarily has the bulk of the information A helpful discussion of this problem is made in

Francis H Hare, Jr. and James L Gilbert, Discovery in Products Liability Cases: The Plaintiffs Plea for Judicial Understanding, 2 Am J Trial Advoc. 413 (1989)

7. Limited initial discovery followed by settlement conference

This idea, which has promise in some cases and is employed by some judges, should not

be contained in a rule, but utilized in appropriate cases in the discretion of the judge. One caveat, however, must be remembered. In many of the cases where extensive discovery is sought, extensive disclosure is necessary for the plaintiff to evaluate fully the value of the claim versus the

settlement offer- Therefore, in no circumstances do we believe it would be wise for prejudice to

attach to such a procedure where the plaintiff insisted that further discovery was necessary to

appropriately consider a settlement Such prejudice would exist in a predisposition to believing that the additional discovery was unnecessary or obstructionist or in some sort of cost-shifting proposal that held the plaintiff responsible for legal fees incurred to obtain an ultimate judgment

or settlement no better than what was presented at such a settlement conference

8. Standardized brief period for formal discovery

While we believe that in most instances such an approach would prove workable, we note

that it would work against plaintiffs in those instances where defendants engage in evasive

discovery tactics There is considerable experience indicating that delay is one such tactic that

might be encouraged by formal time limits on discovery. See, e.g., Shelton v. American Motors

Corp., 106 F.R.D 490, 495 (W.D Ark 1985), rev'd in part, 805 F 2d 1323 (8th Cir. 1986), Dean v. A.H. Robins Co., 101 F R.D. 21, 22-25 (D Minn. 1984); Fattek v. Montgomery Ward&

Co., 96 F.R D. 141, 145 (N D. II1. 1982), Hammond v. Coastal Rental & Equipment Co., 95

F R.D. 74, 76 (S.D Tex 1982); Casson Constniction Co. v. Armco Steel ('orp., 91 F.R D 376,

385 (D. Kan 1980); Kozlowski v. Sea;r., Roebuck & Co., 71 F R D 594, 597 (D Mass. 1976),

Bollardv. Volkswagen of America, Inc., 56 FR D 569, 575 (W D. Mo 197 1), Parrett v. Ford

Motor Co., 52FR.D 120, 121 (WD Mo 1969)

9. Imposing a duty on counsel to cooperate in discovery without judicial in ;olvement

This proposal seems to us another example of one that is well-intentioned and unlikely to be

enforced against the most common evasive techniques As Professor Carrington notes, such a
ATLA Comments on possible ideas for rule amendments

August 15, 1997

Page Eight

proposal would not "materially reduce the evils of cost and delay" and might only "effect marginal improvements" Paul D Carrington, _ Ala. L Rev ___, at 25 (May 27, 1997 draft). We agree that

the most important steps a judge can take is "to set a reasonably firm trial date, provide reasonable

and tailored parameters to the time for discovery, and rule promptly on discovery disputes " Id. Still,

we believe that judicial intervention is necessary at times in order to surmount discovery evasion

Any rule in this area, we urge, should take into account that the RAND CJRA study indicated that

increased judicial management designed to expedite cases did result in some additional costs for

plaintiffs lawyers. Because of the implications for access to justice that more expensive justice entails,

we urge that any rule changes be sensitive to that factor so that the courthouse doors are not

effectively closed to those who do not have substantial resources but seek redress of grievances

through the federal courts

10. Firm trial date

Nothing concentrates the mind like impending demise or a firm trial date. We note that the

RAND study indicated, to the surprise of no one in the profession, that this is the best means toward

reducing cost and delay. Still, we believe that such an approach must be flexible, respecting the needs

of individual cases. For that reason, the need for uniformity is virtually non-existent Instead of a rule

that sets up a presumptive date for trial after the filing of a complaint, which we believe would be

problematic in some districts with heavy criminal dockets, we believe this is an area that should be

preserved to individual judicial discretion Nonetheless, it is a technique that we believe should be

greatly encouraged

11. Enhanced cost-shifting in connection with discovery dlisputes

For the same reasons we stated in response to category two, reducing the burden of document

discovery, we believe it is unwise and destructive of the right of individuals to have access to the

courts to impose additional cost-shifting provisions to the discovery rules.

12. Additional improvements or refinements in discovery rules

Insufficient time was available to explore usefully the variety of areas that Professor Marcus

identified as lacunae in the 1993 amendments. ATLA will provide the committee with views on these

proposals as the exploration of discovery continues
0l
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FACSIMILE (803) 2S6-7SOO

August 15, 1997

VIA FEDERAL EXPRESS

John Rabiej

Chief, Rules Committee Support Office

Federal Judiciary Building

One Columbus Circle,N.E.

Washington, DC 20002

Dear Mr. Rabiej:

Enclosed herewith please find the Defense Research Institute's Report of the Working Group on

Discovery in the Civil Justice System. This document is labeled "Tentative Draft No. 1" because

we are still seeking input and ideas from various defense groups, including the International

Association of Defense Counsel, the Federation of Insurance and Corporate Counsel, Lawyers for

Civil Justice, and other corporate counsel. We believe, however, that the ideas presented here are

worthy of consideration and discussion. We hope that you will agree.

With best gards, I am

St

SGM/mjl

cc: Professor Richard L. Marcus (with enclosures)

Louis B. Potter, Jr., Esquire (with enclosures)

DRI Officers (all without enclosures)

Robert L. Fanter, Esquire (President, DRI)

Robert E. Scott, Jr., Esquire ( President-Elect, DRI)

Patrick E. Maloney, Esquire (Immediate Past President, DRI)

Lloyd H. Milliken, Jr., Esquire (First Vice President, DRI)

Neil A. Goldberg, Esquire (Second Vice President, DRI)

Weldon S. Wood (Esquire (Secretary/Treasurer, DRI)

DRAFT

DEFENSE RESEARCH INSTITUTE (DRI)

WORKING GROUP REPORT ON DISCOVERY IN THE CIVIL JUSTICE SYSTEM

(TENTATIVE DRAFT #1)
DRAFT

President

Robert L. Fanter

Des Moines, Iowa

President-Elect Immediate-PastPresident

Robert E. Scott, Jr. Patrick E. Maloney

Baltimore, Maryland Chicago, Illinois

First Vice President Second Vice President

Lloyd H. Milliken, Jr. Neil Goldberg

Indianapolis, Indiana Buffalo, New York

Secretary/Treasurer

Weldon S. Wood

San Jose, California

DIRECTORS

Lisa M. Bromberg Patricia J. Kerrigan Lee Samis

Morristown, NJ Houston, TX Toronto, CANADA

Paul B. Butler, Jr. Robert S. Krause E. Wayne Taff

Tampa, FL Detroik MI Kansas City, MO

James M. Campbell Richard H. Krochock R. wilriam Tomns

Charlestown, MA Minneapolis, MN London, KY

Rodney S. Edmonds David J. LaBrec John R Tngg

Kansas City, MO Dallas, TX Denver, CO

Cad B. Epps, III Rex K Under Gary T. Walker

Columbia, SC Peoria, IL San Francisco, CA

Thomas A, Gordon Chrys A. Martin Timothy L Walker

Portland, OR Portland, OR Long Beach, CA

George Gore John J. McDonough O'Neal Walsh

Cleveland, OH New York, NY Baton Rouge, LA

Richard L Griffith John S. McEwan, II Leonard A. Weakley. Jr.

Fort Worth, TX Orlando, FL Cincinnati, OH

Victor M. Halbach, Jr. Charles F. Preuss Sheryl J Willert

Jacksonville, FL San Francisco, CA Seattle, WA

John H. Holmes Robert R. Reader William C. Wood

Portland, OR Philadelphia, PA Birmingham, AL

Harvey L Kaplan Ronald A. Rispo John R. Woodard, III

Kansas City, MO Cleveland, OH Tulsa, OK
DRAFT

WORKING GROUP

Editor

Stephen G. Morrison

Columbia, South Carolina

Laura E. Ellsworth Michael W. Hogue

Pittsburgh, Pennsylvania Columbia, South Carolina

John P. Freedenberg Timothy A. Pratt

Buffalo, New York Kansas City, Missouri

Susie M. Glenn John A. Rupp

Columbia, South Carolina Chicago, Illinois

Nell A. Goldberg John R. Trigg

Buffalo, New York Denver, Colorado

P. N. Harkins William C. Wood

Jackson, Mississippi Birmingham, Alabama
DRAFT

TABLE OF CONTENTS

PAGE

INTRODUCTION iv

SCOPE OF DISCOVERY UNDER FED.R. CIV.P. 26(b)(1) I-1

PROPORTIONALITY: A CRITICAL BUT SPARINGLY UTILIZED

LIMITATION ON DISCOVERY - RULE 26(b)(2) I1-1

FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1): PROPOSAL ON

REVISING MANDATORY DISCLOSURE; AND FEDERAL RULE OF CIVIL

PROCEDURE 16: PROPOSAL ON EARLY JUDICIAL INTERVENTION II1-1

LIMITATIONS ON DOCUMENT REQUESTS - RULE 34 IV-1

REVISING THE PRESUMPTION AGAINST SANCTIONS AND CREATING

A REASONABLE SAFE HARBOR PROVISION UNDER RULE 37 V-1

DRI'S PROPOSED CHANGES TO FEDERAL RULE 26(b)(5) RELATED TO

ASSERTION OF PRIVILEGE VI-1

iii
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INTRODUCTION

The Defense Research Institute (DRI) accepts the invitation of the Civil Rules

Advisory Committee and respectfully presents its position on the question of what

changes should be made to the discovery provisions of the Federal Rules of Civil

Procedure to reduce cost and delay in litigation.

DRI is a national membership organization that includes nearly 21,000 lawyers

involved in the defense of civil litigation, committed to enhancing the skills, effectiveness

and professionalism of defense lawyers, anticipating and addressing issues germane to

defense lawyers and the civil justice system, promoting appreciation of the role of the

defense lawyer, improving the civil justice system and preserving the civil jury.

Although DRI undeniably has an agenda favoring the interests of defense lawyers

and their clients, the members who set out to formulate this position paper had a specific

focus: to articulate practical ideas for change which will improve the process of

discovery, preserve judicial resources and create a system which is better, faster,

cheaper and fairer than the system presently in place.

DRI has long been a voice in the ongoing effort to make the civil justice system

more fair and efficient. It has taken advantage of the invitation and opportunity to

participate in the rules formulation work of the Advisory Committee through submission

of written statements, presentation of testimony and participation in meetings like the

recent American Bar Association conference at the University of Alabama.

DRI has also helped to develop and promote values, policies and procedures that

will instill and ensure excellence and fairness in our civil justice system through Lawyers

for Civil Justice, a national coalition of civil defense bar associations, corporations and

iv
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insurance companies. Its members have written widely on this subject in its monthly

publication, For the Defense, which has a circulation of over 25,000. It has been central

to DRI philosophy that excellence and fairness in the civil justice system are inseparable

from truly balanced and equitable discovery rules and procedures.

The focus of DRI's proposed changes to the Federal Rules of Civil Procedure is

addressed at remedying problems in the current discovery procedures that are

unnecessarily increasing the costs and burdens on litigants and the courts. DRI

recognizes that as the ever increasing criminal docket pulls federal court resources away

from the civil dockets, there will less and less resources to deal with discovery disputes,

making it even more important to decrease the need for court intervention in discovery

matters. DRI's proposals are intended to be consistent with the Long Range Plan for the

Federal Courts issued by the Judicial Conference of the United States in December

1995, which noted that society's faith in the federal courts depends upon the court's

adherence to certain core values. Because society generally views the process as too

expensive and too lengthy, DRI has focused its proposals on (1) maintaining and

broadening the rules that have proven successful; (2) eliminating or replacing rules that

have proven ineffective; (3) limiting the scope and burdens of discovery to within

reasonable bounds; (4) decreasing the need for court intervention by moving parties and

attorneys toward communication and professionalism and away from satellite litigation

in contentious discovery disputes; and (5) bringing consistency and predictability to the

process of discovery.

In the current litigation environment, there are two fundamental problems. First,

there are few limits being placed upon discovery: relevance is viewed broadly and too

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often not as a limitation at all in discovery; and huge costs and expense of discovery in

litigation is given short shrift as just a cost of doing business. DRI's proposals are aimed

at fair-minded solutions encouraging the courts and litigants to limit the scope of

discovery.

Second, increasingly common plaintiffs' tactics are to criminalize the discovery

process, attack the opposing attorneys, and cry "cover up" at every opportunity. With

courts increasingly tired of refereeing contentious discovery disputes, the corporate

defendant faces the real possibility that its answer will be struck or it will be sanctioned

so heavily that the verdict seems insignificant. In either event, a written order becomes

a damaging piece of the company's "history of discovery abuse" which will surface in

other cases for the next quarter century.

For example, a product manufacturer is in business to design, make and sell

products. While defending productsliability lawsuits is an inevitable part of the business,

that activity cannot be the central focus of the business. This means that the corporate

structures that have evolved in the design, manufacturing and sales context exist to

serve the primary corporate mission. They do not exist to make a lawsuit easier or

harder for plaintiffs to bring, or to make the course of litigation run more or less

smoothly.

Nevertheless, in the highly focused environment of a single lawsuit, these

corporate structures have come under increasingly successful attack. The plaintiffs' bar

has acted as if the corporate defendant's sole mission should be to provide them with

information about the product they wish to attack and as if the entire corporation should

be organized toward the efficient fulfillment of that mission. Any deviation from this ideal

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is viewed, by the plaintiffs' bar, as evidence of "discovery abuse." It is no longer just the

product that is under attack; it is the corporate organizational structure as it interacts with

the court system that is at issue.

Many in the plaintiffs' bar and a few courts argue that there is something

unprofessional about making a proper objection, trying to reasonably narrow the scope

of discovery to things rationally related to the case at hand, and carefully communicating

discovery problems to the court, the client, and the other side. This argument is wrong

and wrong-headed. Some plaintiffs' lawyers would have the courts and the public

believe that it is unethical and unprofessional for defense counsel to do anything but

respond to all discovery as written and interpreted by the plaintiffs lawyer. They charge

the corporate defendant that has had difficulty responding with "stonewalling." They

charge the corporate defendant's lawyer who dares object with "aiding and abetting a

fraud or crime." They claim that reasonable attempts to define the proper scope of

discovery and to limit the cost, burden and harassment of the corporate defendant are

evidence of a "conspiracy to cover up."

Finally, plaintiffs' lawyers have done an excellent job of convincing each other and

the courts of the value of "sharing" documents and pleadings from one case with

plaintiffs in other cases. A corporate defendant thus must assume that any document

it has ever produced can and will find its way into the hands of the opposing attorney in

a particular case. If a document is even remotely connected to a particular request, but

not produced, then the opposing attorney has "indisputable proof' of "stonewalling."

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With this background, DRI submits proposals designed to address these problems

with basic solutions and specific recommendations for changes to the following Rules

of Civil Procedure:

1. Scope of Discovery - Rule 26

2. Proportionality: A Critical But Sparingly Utilized Limitation on

Discovery - Rule 26(b)(2)(i-iii)

3. Early Judicial Intervention and Mandatory Disclosures - Rules 16

and 26(a)

4. Limitations on Document Requests - Rule 34

5. Reviving The Presumption Against Sanctions and Creating A

Reasonable Safe Harbor Provision - Rule 37

6. Procedure For Asserting and Challenging Claims of Privilege -

Rule 26(b)(5)

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SCOPE OF DISCOVERY UNDER Fed.R. Civ.P. 26(b)(1)

1. EXECUTIVE SUMMARY

Much of the undue cost and delay associated with discovery disputes today

results from the steady expansion of the permissible scope of discovery.

This scope should be limited in some reasonable way to provide a more

workable, efficient mechanism that better serves the ends of justice.

The appropriate limitation can be achieved by deleting from current Rule

26(b)(1) the phrase, "subject matter involved in the pending action, whether

it relates to the," so the rule would provide "relevant to the claim or

defense of the party seeking discovery or to the claim or defense of any

other party."

Similar recommendations have been made by an increasing number of

groups since first being made by the American Bar Association over twenty

years ago.

II. PROPOSED RULE 26(b)(1)

(b) Discovery Scope and Limits. Unless otherwise limited

by order of the court in accordance with these rules, the

scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any

matter, not privileged, which is relevant to the subjeet-oatter

involved in the pending action, whether it r.lato. to the claim

or defense of the party seeking discovery or to the claim or

defense of any other party, including the existence,

description, nature, custody, condition, and location of any

books, documents, or other tangible things and the identity

and location of persons having knowledge of any

discoverable matter. The information sought need not be

admissible at the trial if the information sought appears

reasonably calculated to lead to the discovery of admissible

evidence.

I1l. DISCUSSION

The recommendation of DRI regarding the scope of discovery permitted by Rule

26(b)(1) is not new. Following a National Conference on the Causes of Popular

Dissatisfaction with the Administration of Justice sponsored by the Judicial Conference

I-1
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of the United States, the Conference of Chief Judges and the American Bar Association

in 1976, the ABA Section of Litigation created a "Special Committee for the Study of

Discovery Abuse." The Committee met in extended sessions from August 1976 to

September 1977 to consider revisions to the Federal Rules of Civil Procedure. Its First

Report appearing at 92 F.R.D. 137, 157 (1981), recommends an amendment to Rule

26(b)(1) substantially identical to the amendment being strongly recommended by DRI

and others at this time.

The Committee Comments appearing following the proposed changes observe

that sweeping and abusive discovery is encouraged by permitting discovery confined

only by the "subject matter" of a case rather than limiting it to the "issues" presented.

This Advisory Committee on Civil Rules circulated for public comment an initial

report adopting most of the ABA proposals as reflected at 77 F.R.D. 613 (1978). When

the Advisory Committee released a revised report for further comment in February 1979,

however, the Advisory Committee decided that an early discovery conference with

preliminary identification of issues and adoption of a plan of discovery would resolve the

scope of discovery problems. 80 F.R.D. 323 (1979). As a result, the ABA Special

Committee issued its Second Report in November 1980. It indicated that two additional

studies had become available after the February 1979 revised report of the Advisory

Committee. The studies were identified as Ellington, A Study of Sanctions for Discovery

Abuse (Department of Justice, 1979) and Brazil, Civil Discovery: Lawyers' Views of its

Effectiveness, Principal Problems and Abuses (American Bar Foundation, 1980). The

ABA Special Committee Second Report said the new studies confirmed its view that

there remained serious discovery problems demanding immediate correction, including

the unnecessary use of discovery, the improper withholding of discoverable information

and misuse of discovery procedures. It again recommended an amendment to Rule

26(b)(1) almost identical to the recommendation being made by DRI at this time. 92

F.R.D. 137, 140 (1981). Both reports were approved by the ABA Board of Governors.

The ABA Committee said the amendment to subdivision (b)(1) was intended to

redirect the thinking of the bench and bar away from the almost limitless "subject matter"

standard and toward a more direct focus on the pending "claims and defenses."

The Advisory Committee Note to the 1983 amendments to Rule 26(b)(1) confirms

that the problem was again confronted when they were being considered. The Advisory

Committee acknowledged that excessive discovery and evasion or resistance to

reasonable discovery requests continued to pose significant problems, but it sought to

solve the problems by adding a paragraph providing for greater judicial involvement in

the discovery process.

The Report on Discovery Under Rule 26(b)(1) of the Committee on Discovery of

the New York State Bar Association Section on Commercial and Federal Litigation

indicates it was based on and considers recent opinions, articles and treatises dealing

with Rule 26(b)(1) and the results of the Report of the Survey of the Bar of New York

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State Bar Association. 127 F.R.D. 625 (1989). The Committee reported it found that

Rule 26(b)(1) provides such a broad definition of relevance that it encourages waves of

discovery requests and objections, and results in excessive and costly motion practice

without enhancing the truth-finding process. It recommended an amendment to Rule

26(b)(1) that is substantially identical to the recommendation being made by DRI at this

time. 127 F.R.D. 625, 634 (1989).

Although the 1993 amendments to Rule 26(a)(1) linked the mandatory prediscovery disclosure obligation to "claims and defenses alleged with particularity in the

pleadings," there was still no language reducing parameters to the scope of discovery

under Rule 26(b)(1).

IV. CONCLUSION

DRI expresses its sincere appreciation to this Advisory Committee for again

agreeing to consider solutions to problems of undue expense and delay associated with

discovery. The developed case law and experience of the last several years

demonstrate that the scope of discovery continues to be so broad that it is itself a source

of discovery abuse. At a time when the Congress is reviewing various versions of

results of the Civil Justice Reform Act procedural rules experimentation process, it is

critical that the Advisory Committee reaffirm its role in the Rules Enabling Act process

which DRI strongly supports. Placing limits on the use of discovery and prescribing

conferences have not remedied abuses arising from the scope of discovery. It is now

time to more clearly define the actual scope of the discovery obligation by tying it more

closely to the actual claims and defenses as is being urged by a growing number of

groups, including The American College of Trial Lawyers, the United States Chamber of

Commerce and the Product Liability Advisory Council.

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PROPORTIONALITY: A CRITICAL BUT SPARINGLY UTILIZED

LIMITATION ON DISCOVERY - RULE 26(b)(2)

EXECUTIVE SUMMARY

Rule 26 was amended in 1983 to guard against redundant and

disproportionate discovery.

In the 14 years since the 1983 amendment, courts have rarely utilized the

rule to limit discovery, as was intended.

Courts have misinterpreted and misapplied the limitations and the

mandatory language included in the rule.

Disproportionate, expensive, and burdensome discovery continues to be

a problem with the current discovery system, which would-be rectified by

courts utilizing the limitations in the rule.

If. PROPOSED RULES 26(b)(2)(i)-(iii) AND PROPOSED ADVISORY COMMITTEE

NOTES

A. PROPOSED RULE 26(b)(2)

(2) Limitations. By order or by local rule, the court may alter the limits in

these rules on the number of depositions and interrogatories and may also limit

the length of depositions under Rule 30 and the number of requests under Rule

36 and 34. The frequency or extent of use of the discovery methods otherwise

permitted under these rules and by any local rule shall be limited by the court if

it determines that: (i) the discovery sought is unreasonably cumulative or

duplicative, or is obtainable from some other source that is more convenient, less

burdensome, or less expensive; (ii) the party seeking discovery has had ample

opportunity by discovery in the action to obtain the information sought; or (iii) the

burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties'

resources, the importance of the proposed discovery in resolving the issues.

The court may act upon its own initiative after reasonable notice or

pursuant to a motion under subdivision (c). Additionally, if a party makes a

reauest for a limitation of discovery under this subsection, the court shall analyze and make findings concerning the Proportionality of the discovery requested

consistent with this subsection and order that such discovery be had only if it is

appropriate in light of these limiting factors.

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B. PROPOSED ADVISORY COMMITTEE NOTE

1998 Amendment

In 1983, then Rule 26(b)(1), which was moved to subsection b(2) in 1993.

was modified to add safeguards to guard against redundant or disproportionate

discovery by giving the court authority to reduce the amount of discovery. The

change was made in 1983 to reverse the previous message that discovery was

virtually unlimited. The change to more limited and proportional discovery was

intended to be a maor shift in the liberality formerly accorded to discovery.

However, in the fifteen years since the change of the rule to more limited and

proportional discovery, there have been a paucity of reported cases implementing this amendment, evidencing that no maior shift has actually occurred. See 8

Charles A. Wright, Arthur R. Miller. & Richard L. Marcus, Federal Practice &

Procedure F 2008.1. at 121 (2d ed. 1994) (concerning proportionality and lack of

response to 1983 amendment).

Because of the ever increasing complaints with the costs, expense, and

delay involved in today's discovery process, we are emphasizing further the

obligations of courts to be more aggressive in identifying and discouraging

discovery overuse. The amended rule is again intended to encourage iudges to

perform the proportionality analysis called for under Rule 26(b)(2) in considering

all discovery requests.

Additionally, Rule 34 has been amended to expressly note that decisions

related to the production of documents are expressly governed by Rule 26(b)(2).

Il. DISCUSSION

In 1983 the discovery rules of the Federal Rules of Civil Procedure were

dramatically changed in an attempt to limit widely perceived discovery abuses.

One of the most important amendments was an addition to Rule 26(b) requiring

courts to limit discovery in specified circumstances. Unfortunately, with very few

exceptions, district courts and magistrate judges across the nation have literally ignored the explicit requirements of what is now Rule 26(b)(2)(i)-(iii). This

discussion describes the almost total disregard of those requirements and

suggests modest means by which courts may be induced to implement them.

A. The Language and History of Rule 26(b)2)(i)-(iii)

Before the 1983 Amendments, the last sentence of Rule 26(a) stated: "Unless the

court orders otherwise under subdivision (c) of this rule [providing for protective orders], the frequency of use of these methods is not limited." In 1983, that

sentence was deleted from Rule 26(a) and a new sentence was added to Rule

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26(b)(1). The new sentence expressly required that courts "shall" limit the "frequency or extent of use of discovery methods" upon determining that "(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from

some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome

or expensive, taking into account the needs of the case, the amount in

controversy, limitations on the parties' resources, and the importance of the

issues at stake in the litigation."

The 1983 amendment was intended "to guard against redundant or disproportionate discovery" and "to encourage judges to be more aggressive in identifying and discouraging discovery overuse." Advisory Committee Notes to 1983 Amendment. Accord Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2008.1 (1994) ("Wright & Miller') (purpose was "to promote judicial limitation of the amount of discovery on a case-by-case basis to avoid abuse or overuse of discovery through the concept of proportionality"). The- Reporter for the Advisory Committee characterized the change as a "180 degree shift" from the previous invitation to expansive discovery:

Until last August, the last sentence in rule 26(a) said: "Unless the court

says otherwise, go ye forth and discover." That had been the message of the last sentence of rule 26(a). In 1983, we decided it was a lousy message. That sentence has been stricken and replaced, quite literally, by the reverse message which you now find in rule 26(b). Rule 26(b) now

says that the frequency and extent of use of discovery shall be limited by the court if certain conditions become manifest. Just realize the 180- degree shift between the last sentence of the old rule 26(a) and the new

sentence. Judges now have the obligation to limit discovery if certain things become manifest. The things that are then listed in the paragraph are basically the evils of redundancy and disproportionality.

Arthur R. Miller, This August 1983 Amendments to the Federal Rules of Civil Procedures: Promoting Effective Case Management and Lawyer Responsibility 32-33 (1984) (quoted in Wright & Miller, § 2008.1 at n.3).

In 1993, the Portion of Rule 26(b)(1) that included subsections (i), (ii), and (iii) was moved to paragraph 2 of Rule 26(b), and minor revisions were made to the wording of

subsection (iii). Rule 26(b)(2) now reads:

By order or by local rule, the court may alter the limits in these rules

on the number of depositions and interrogatories and may also limit the

length of depositions under Rule 30 and the number of requests under

Rule 36. The frequency or extent of use of the discovery methods

otherwise permitted under these rules and by any local rule shall be limited

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2. Only a Few Courts Have Applied the Factors in (I) Through (iii).

Only nine cases discussing Rule 26 in this 14-year period actually contain an

analysis of the wording, the factors, and the principles of Rule 26(b)(1)(i) through (iii) --

or, after December 1993, Rule 26(b)(2)(i) through (iii). In the first of these, the court

stated:

I believe it would be helpful to the parties to take cognizance of the

Notes of Advisory Committee on Rules in its discussion, in part, of the

recent amendment to Rule 26(b)(1), effective August 1, 1983.

The first element of the standard, Rule 26(b)(1)(i) is designed to

minimize redundancy in discovery and encourage attorneys to be sensitive

to the comparative costs of different methods of securing information.

Subdivision (b)(1)(ii) also seeks to reduce repetitiveness and to oblige

lawyers to think through their discovery activities in advance so that full

utilization is made of each deposition, document request, - or set of

interrogatories. The elements of Rule 26(b)(1)(iii) address the problem of

discovery that is disproportionate to the individual lawsuit as measured by

such matters as its nature and complexity, the importance of the issues at

stake in a case seeking damages, the limitations on a financially week [sic]

litigant to withstand extensive opposition to a discovery program or to

respond to discovery requests, and the significance of the substantive

issues, as measured in philosophic, social, or institutional terms.

Therefore, AVCO's motion to compel and request for production of

documents is granted in part and denied in part.

City Consumer Services, Inc. v. Home, 100 F.R.D. 740, 748-49, 38 Fed. R. Serv.

(Callaghan) 936 (D. Utah 1983). This first case was decided on December 21, 1983,

information essential to developing their case, that we are left with the firm

conviction that the discovery order he issued, when he issued it, was erroneous.

Our conclusion is consistent with the evolving concept of the district judge's

managerial responsibility in complex litigation. Although amended Fed. R. Civ.

P. 26(b)(1), which expands that responsibility, did not take effect until August 1,

1983, after the discovery order in issue here was issued, the Advisory Committee's Note indicates that the purpose of the amended rule is in part to

remind federal district judges of their broad powers - and, we believe, correlative

responsibilities -under Rule 26.

Marrese v. Am. Academy Ortho, Surgeons, 726 F.2d 1150, 1162 (7th Cir. 1984). A review of

later opinions, however, reveals that this strong statement by the Seventh Circuit on

responsibility to limit has not affected the approach taken by the district courts and magistrate

judges.

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just months after the 1983 Amendments took effect. It reflects the kind of analysis that,

at a minimum, should have introduced almost every subsequent opinion addressing a

motion for discovery limitations.

The fullest analysis of the principles of cost-benefit analysis to limit discovery

appears in U.S.A. v. Clean Harbors, No. C-89-109-6, 1995 U.S. Dist. LEXIS 5683, at 11-

12 (D.N.H., Feb. 21, 1995), an unpublished opinion (available on Lexis, but not

reported):

As the court has alluded to previously, there is a recognized maxim

that discovery is properly limited in instances where the burden or expense

of the proposed discovery outweighs its likely benefit. Fed.R. Civ.P.

26(b)(2). Further, Rule 26 empowers a court to "impose conditions on

discovery in order to prevent injury, harassment, or abuse of the court's

process." Bridge C.A.T. Scan Assocs. v. Technicare Cor., 710 F.2d 940,

944-45 (2d Cir. 1983). Given this maxim, it is difficult for the court to

subscribe to Clean Harbors' Assertion that the information requested is

within the entire parameters of discoverable information.

In support of its argument concerning discoverable information,

Clean Harbors suggests to the court that, even if the time necessary to

conduct and acquire the requested documents were substantial, the fact

that the -documents are relevant to the case warrants their discovery.

Clean Harbors' argument borders on the disingenuous.

Superficially. the court emphasizes that:

relevancy ... does not automatically entitle a plaintiff to

discovery. Besides the explicit exclusion of privileged

matters from the scope of rule 26(b), "Rule 26 (c) confers

broad powers on the courts to regulate or prevent discovery

even though the materials sought are within the scope of

26(b)." Fed. R. Civ. P. 26, Notes of Advisory Committee on

Rules, Subdivision (b) (1970) Amendment). See In re

Racticel Foam Corp., 859 F.2d 1000 (1st Cir. 1988). In

addition, in 1983, Rule 26 (b) (1) was amended to expand

district court judges' power to limit discovery requests. Mack

v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 187 (1 st

Cir. 1989).

Santiago v. Fenton, 891 F.2d 373, 379 (1st Cir. 1989).

Reviewing the, requests for documents, it is clearly evident that

Clean Harbors does not attempt to limit its inquiry to certain time periods.

Rather, Clean Harbors takes the unruly and broad approach of requesting

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"all documents..." or "All manuals, guidance, directives, memoranda, deposition transcripts, trial transcripts, arbitration transcripts. . . ." Simply reading Clean Harbors' requests, there are no indications concerning the

extent to which Chicago is obligated to conduct or end its research. See Williams v. City of Dothan, No. 82-226-S (M.D. Ala., March 28, 1983). If

the court allowed such broad language to guide discovery, there is little

doubt that Chicago would be forced to search its archives, since business

inception, in order to comply with Clean Harbors' requests.

Recognizing the potential effect of requiring Chicago to look for tens of thousands of files at a potential expense of thousands of person hours

and hundreds of thousands of dollars, the court is heedful of the fact that it must apply a forceful use of the reins on a restive horse and disallow

such broad discovery requests. See Scrogqins v. Air Cargo. Inc., 534 F.2d

1124 (5th Cir. 1976).

U.S.A. v. Clean Harbors, No. C-89-109-L, 1995 U.S. Dist. LEXIS-4683, at *11-12

(D.N.H., Feb. 21, 1995).

This image of reining in a horse comes directly from the language of the Advisory Committee Notes to the 1993 Amendment quoted above, and is also alluded to in a

1995 District of Massachusetts opinion, which quotes the commentary:

Like Rule 30(a)(2), Rule 26(b)(2) assumes some specificity, with respect to numbers and names, regarding the depositions a party seeks. Further, since a court must determine the cumulative effect of the proposed discovery, as well as the opportunity for the party to obtain the information

through other means, the rule also appears to assume that discovery has

at least commenced. Any ambiguity is clarified by Local Rule 26.2(B)(2), which requires a party to exhaust available discovery before seeking leave

for additional discovery events.

These rules were promulgated to enable courts to maintain a

"tighter rein" on the extent of discovery and to minimize the potential cost

of "[w]ide-ranging discovery" and the potential for discovery to be used as

an 'Tinstrument for delay or suppression." See commentary to Rule

26(b)(2).

Whittinaham v. Amherst College, 163 F.R.D. 170, 171-12 (D. Mass. 1995).

The fullest discussion of the commentary and philosophy of the 1993 Rule change

appears in another unpublished Lexis decision:

Discovery in a civil action is not some fundamental right, to be

pursued as long and to whatever extent as a party may desire. It is a

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rather recent innovation. Indeed, in criminal cases, where the stakes are

often far higher than they are in civil cases, the discovery remains limited.

Experience has demonstrated that the discovery rules can be and sometimes are abused, and there is presently an ongoing effort to curb

such abuses. Parties are often, and non-party witnesses are always, coerced participants who should not be held hostage to the personal perceptions of a party seeking discovery as to what is desirable or

appropriate. The 1993 amendments to the Federal Rules of Civil Procedure reflect that effort. Rule 1 now expressly states that the rules

should be "administered to secure the just, speedy and inexpensive determination of every action." The cooperation of counsel is emphasized. Rule 26(b)(2) expressly authorizes courts to limit the length of depositions when discovery is unreasonably cumulative, the party seeking discovery has had ample opportunity by discovery in the action to obtain the

information sought or the burden or expense of the proposed discovery outweighs its likely benefit. [..

Those amendments are consistent with the objectives of the Civil

Justice Reform Act. Pursuant to that statute this district has adopted, as

has every other district, a Delay & Expense Reduction Plan. Pursuant to

that Plan a committee of attorneys has been appointed to consider

guidelines and rules for discovery practice. The Advisory Group, which developed the recommendations upon which the Plan is based, concluded

that the scope of allowable discovery should balance cost against likely benefit. It suggests that cost-shifting be considered when the scope of

discovery moves toward being overly burdensome and expensive. That

suggestion echoes the clear results of a survey of federal practitioners in

this district.

The discovery rules are not a ticket to an unlimited, never ending exploration of every conceivable matter that captures an attorney's interest.

Parties are entitled to a reasonable opportunity to investigate the facts - and no more.

.Vakharia v. Swedish Covenant Hospital, No. 90 C 6548, 1994 U.S. Dist. LEXIS 2712, at * 2-5 (D. N.D. III. March 2, 1994), adhered to, reconsideration denied, 1994 U.S. Dist.

LEXIS 11828 (Aug. 23, 1994).

But such words and reasoning are rare. As demonstrated in section A above, this sort of cost-benefit analysis is simply not being conducted consistently, even though it has been permitted and encouraged since August 1983. (There is not even one opinion per year in the last 14 years providing any detailed evaluation based on the factors in

subsections (i) through (iii).)

C. Reasons That Factors in Rule 26(b)(2)(i)-(iii) Should Be Applied

I1-11
DRAFT

Not only are courts required to limit discovery upon finding one or more of the

predicate conditions specified in Rule 26(b)(2)(i)-(iii), but there are substantial public

policy reasons why courts should apply those sub-parts more often.

1. The Application of Rule 26(b)(2)(i)-(iii) Is Needed to Improve Judicial

Efficiency and the Public Perception of Litigation.

For efficiency and fairness in the courts, and to ensure that the public perceives

the courts as efficient and fair, discovery needs to be reasonably restrained:

Indeed, the Expense and Delay Reduction Plan, adopted by the U.S.

District Court for the District of Massachusetts pursuant to the requirements

of the Civil Justice Reform Act, 28 U.S.C. § 471, imposed the limitations

on the number of depositions, interrogatories and requests for admissions,

in order to encourage cost-effective discovery. At least one court has

noted the "Public's dissatisfaction with exorbitantly expansive discovery,

and the impact that the public outcry has had upon our discovery Rules."

Eisenach v: Miller-Dwan Medical Center, 162 F.R.D. 346, 348-49 (D. Minn.

1995).

Whittinahan v. Amherst College, 163 F.R.D. 170, 171-12 (D. Mass. 1995). The court in

Eisenach observed that "any current view that the deficiencies in pleading may be cured

through liberalized discovery is at increasingly mounting odds with the public's

dissatisfaction." 162 F.R.D. at 349.

2. The Application of Rule 26(b)(2i)-(iii) Is Needed to Preserve Scarce

Government Resources.

Rule 26(b) has-been used with some frequency to shield government agencies from disruption of their work. For example, "a court may use Rule 26(b) to limit

discovery of agency documents or testimony of agency officials if the desired discovery

is relatively unimportant when compared to the government interests in conserving

scarce government resources." Exxon Shipping Co. v. U.S. Dent of Interior, 34 F.3d

774, 779-80 (9th Cir. 1994), citing, e.g., Moore v. Armour Pharmaceutical Co., 927 F.2d

1194, 1198 (11th Cir. 1991) (considering the "cumulative impact" of repeated requests for the testimony of Center for Disease Control researchers working on a cure for the

AIDS virus in upholding a decision to quash a subpoena under Rule 45).

One court, citing Rule 26(b), singled out depositions of government employees as

a significant exception to otherwise broad discovery:

Despite the generally permissive approach to discovery in the

federal courts, the court does not believe that parties to an employment

discrimination case should be able to depose EEOC investigators as a

matter of course .... The EEOC has plenty of work to do investigating

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new complaints, and its principal responsibility is to serve the public as a

whole, not to work for the benefit of particular litigants. Accordingly, the

court finds under Rule 26(b)(2) that plaintiff should not be permitted to

depose Murdock on the facts that he turned up in his investigation of

plaintiffs claims.

Levh v. Modicon, Inc., 881 F. Supp. 420, 425 (S.D. Ind. 1995).

3. The Application of Rule 26(b)(2)()-(iii) Is Needed to Prevent, or at

Least Limit, Harassment.

-iz

A correct formulation of the rule was recently recognized: "Despite such a broad

interpretation [of relevance in discovery practice], the frequency and extent of the use

of permissible discovery methods shall be limited by a court's discretion, as guided by

the factors set forth in Rule 26(b)(2). . . . This rule directs a court to examine the

burdens potentially to be borne by the various parties if the contemplated discovery is

performed, and to limit such if it determines that the burdens or expenses of the

discovery outweighs the benefits." Tri-Star Pictures, Inc. v. Unper, No. 88 Civ. 9129

(DNE), 1997 U.S. Dist. LEXIS 2458, at *24-25 (S.D.N.Y. March 6, 1997), quoting Vorhes

v. McMahon, No. 95-CV0398E(F), 1996 U.S. Dist. LEXIS 12390 (W.D.N.Y. Aug. 2,

1996).

The corollary to this is: "When the discovery to be obtained is through the

deposition of a senior executive, a court must remain mindful that 'permitting unfettered

discovery of corporate executives would threaten disruption of their business and could

serve as a potent tool for harassment in litigation."' Tri-Star Pictures at *25-26, quoting

Wertheim Schroder & Co., Inc. v. Avon Prod., Inc., No. 91 Civ. 2287, 1995 U.S. Dist.

LEXIS 79, at *2 (S.D.N.Y. Jan. 9, 1995) (quotation and citation omitted). Thus, some

courts have protected senior management-from depositions when the proposed

deponents do not have unique, personal knowledge of the information sought by the

opposing party. Seeg., Mulvey v. Chrysler Corp., 106 F.R.D. 364, 366 (D.R.I. 1985)

(refusing to permit deposition of Chryslers president, Lee lacocca). In doing so,

however, courts have relied almost exclusively on Rule 26(c) and have ignored Rule

26(b)(2)(i)-(iii).

In addition, on a national scale, the judicial system must consider the immense

cost to society of diverting scientists, engineers, physicians, economists, and other

professionals from important tasks such as developing new, safer products, curing

disease, and consummating transactions. These non-executives, and many others, have

important roles in society. Thus, it is not only government officials and CEOs and CFOs

of large corporations who must be shielded from excessive discovery and discovery

abuses through an application of Rule 26(b).

4. The Application of Rule 26(b)(2)(i)-(iii) Is Needed to Protect Privacy

Interests

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In 1984, the Supreme Court observed:

It is clear from experience that pretrial discovery by depositions and

interrogatories has a significant potential for abuse. This abuse is not

limited to matters of delay and expense; discovery also may seriously

implicate privacy interests of litigants and third parties.

Seattle Times Co. v. Rhinehart, 104 S. Ct. 2199, 2208 (1984) (a protective order is

limited to the context of the discovery, and does not restrict the dissemination of the

information if gained from other sources; does not offend the First Amendment). In a

footnote to his comment, the Court alluded to "the inadequate oversight of discovery by trial courts" that "sometimes" occurs. Id. at n. 20

IV. Conclusion

Because of the infrequent use of Rule 26(b)(2)(i) through (iii) we urge that, at a

minimum, the Advisory Committee Notes to Rule 26,(b)(2) be amended to include a

statement that courts must undertake the analysis under sub-sections (i) through (iii) if

requested and should do so "upon their own initiative" whenever it appears that

discovery may be being overused or abused, and another statement clarifying and

stressing that, upon finding unreasonable or disproportionate discovery, the court must

act to restrain it.

It is not enough for the parties to argue, or for the court to reason, that; for

example, in a case with $50 million in dispute, any and all discovery is warranted. The

discovery sought still must be non-redundant, not unduly expensive, and not excessive

considering the importance of the information, according to the factors itemized in the

Rule. "Liberal discovery" and "expansive discovery" and "discovery with a wide scope"

must be tempered by the constraints of Rule 26 that have been in effect, but almost

never employed, since August 1983.

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FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1):

PROPOSAL ON REVISING MANDATORY DISCLOSURE

AND

FEDERAL RULE OF CIVIL PROCEDURE 16:

PROPOSAL ON EARLY JUDICIAL INTERVENTION

EXECUTIVE SUMMARY

DRI approves the goal of the 1993 amendments to Rule 26(a), i.e., to

make discovery of fundamental facts;

* faster

* less formalized

* a product of communication, not contention, between counsel

DRI agrees that the meet-and-confer requirement of Fed.R. Civ.P. 26(9

has furthered that goal.

DRI does not believe that mandatory disclosure of Fed.R. Civ.P. 26(a) has

furthered that goal. Among other things:

Discovery requests are simple to draft and many lawyers maintain

"form" discovery requests; consequently, the time and expense "saved" by eliminating this step are minimal.

Conversely, Rule 26(a) places significant burdens on the responding

party, particularly on a corporate defendant which may have millions

of documents, throughout the country and the world. For example,

Rule 26(a):

is ineffective in reducing written discovery since document

requests are usually served in any event;

* unreasonably increases the costs of litigation;

requires multiple searches of documents: one for the

"mandatory disclosure" phase and a second once document

requests are received;

Il1-1
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requires counsel to anticipate what is "relevant" to the other

party. The parties will inevitably disagree on the scope of "relevance" and "particularity in the pleadings";

permits general unsupported allegation to trigger wideranging open-ended discovery;

* is incompatible with notice pleadings standards.

Consequently, DRI recommends that Fed. R Civ. P. 26(a), as

currently drafted, be repealed.

DRI suggests that an Initial Disclosure process with the following

components would be a preferable way to effectuate prompt, less

formalized disclosure of essential case facts:

a. Disclosure would be sequential, with plaintiff proceeding first.

b. As its Initial Disclosure, plaintiff would, within 15 days of

filing the Complaint:

(1) provide a narrative description of the incident that led

to the filing of the case;

(2) set forth the specific causes of action for which plaintiff

currently has factual support, specifying for each

cause of action what defendant did or failed to do;

(3) provide a description and computation of any damages

claimed;

(4) make available for inspection all documents currently known to plaintiff and within his or her custody that

support the claim, including all damage documents.

[This subsection is intended to address the essential

documents reasonably known and available to the

party at this preliminary stage of the case. Production

under this subsection is without waiver or limitation of

the party's ability or right to identify or rely upon other

documents that support his or her case at some later

date in the proceedings];

(5) identify all witnesses currently known to have material

information that supports the claim. [This requirement is subject to an analogous caveat to the one above

relating to documents.]
DRAFT

c. Within 45 days of receipt of plaintiffs Initial Disclosure, the

defendant would make its Initial Disclosure, which would:

(1) confirm whether defendant was properly identified in

the complaint and, if not, state the correct identification

and state whether defendant will accept an amended

summons and complaint reflecting the correct

identification;

(2) state defendant's version of the incident that lead to

the filing of the complaint (including identification of

key participants);

(3) set forth precisely the affirmative defenses for which

defendant currently has factual support and provide

the factual support for each such affirmative defense;

(4) make available for inspection any insurance

agreement that may be liable to satisfy part or all of a

judgment which may be entered in the action;

(5) make available for inspection all documents currently

known to defendant and within his or her custody that

support the defenses to the claim. [This subsection is

subject to the same caveat as in plaintiffs disclosure

in § b(4) above]

(6) identify all witnesses currently known to have material

information that supports any defense. [This

subsection is subject to the same caveat as in

plaintiffs disclosures in § b(5) above.]

d. Within 30 days of the date on which these Initial Disclosures

have been exchanged, the parties would conduct a meetand-confer under FRCP 26(f) to discuss what additional

documents may exist and may be subject to an agreement to

produce. This would allow the parties, who have the most

familiarity with the issues and types of documents potentially

available, to reach agreement on specific documents to be

produced, and to more clearly identify those subject to

dispute.

e. Within 15 days of the meet-and-confer, the parties would

jointly submit to the court a Proposed Scheduling Order

containing:

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(1) both Initial Disclosures;

(2) a list of those documents agreed to be exchanged;

(3) a list of all known potential witnesses identified by

name, address and phone number;

(4) any proposed Protective Order (or competing

proposals for same);

(5) a Discovery Plan or Plans (or competing proposals for

same).4

f. As soon as practicable after the filing of the Proposed

Scheduling Order, the court would schedule a Rule 16

Pretrial Conference to discuss the Proposed Scheduling

Order and to finalize the discovery schedule.

This proposal recommends a blending of existing Rules 16(a)

and 16(b) such that the conference would be mandatory and

would address all issues addressed in those existing

subsections. The proposal also recommends that this

conference occur after submission of initial disclosures and

a proposed discovery order.

g. In cases where discovery is unusually complex, the court

may schedule, on at least 20 days notice, a Discovery

' The Discovery Plan could address any matter in the case but would typically include:

a. the subjects on which discovery will be needed;

b. a proposed completion date for discovery;

c. the maximum number of interrogatories, requests for admissions and

document requests, with response dates;

d. the maximum number of depositions, togetherwith any proposed limitation

on the length of depositions;

e. due dates for expert reports;

f. date for supplementation of discovery responses;

g. parties' suggestion on how to expedite this position of the action;

h. deadlines for joinder,

i. deadlines for dispositive motions;

j. other pretrial matters.

If the parties could not agree on a Joint Discovery Plan, each party can provide

their own proposal.

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Conference. No later than 7 days before the conference, the

parties must have met, conferred and submitted a report

outlining what has been done to date; what remains to be

done; and where discovery disputes exist. Supplemental

briefing is permitted to accompany the Report.

The rationale for and details of this proposal are set forth in greater detail

in Section V below.

II. PROPOSED CHANGES TO RULE 26(a)(1)

A. Repeal Current Rule 26(a)(1)

B. PROPOSED RULE 26(a)(1):

(A) Plaintiff shall file and serve its Initial Disclosures within 15 days of

filing the Complaint which shall:

(i> provide a narrative description of the incident that led to the

filing of the case (includinq the identification of key

participants):

(f set forth the specific causes of action for which plaintiff

currently has factual support, specifying for each cause of

action what defendant did or failed to do

j Dy provide a description and computation of any damages

claimeda

(iv) make available for inspection all documents currently known

to plaintiff and within his or her custody that support the

claim, including all damage documents:

(v) identify all witnesses currently known to have material

information that supports the claim.

(B) Within 45 days of receipt of plaintiff's Initial Disclosure, the

defendant shall file and serve its Initial Disclosure, which shall:

ift - confirm whether defendant was Properly identified in the

complaint and, if not, state the correct identification and state

whether defendant will accept an amended summons and

complaint reflecting the correct identification;

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( state defendant's version of the incident that led to the filing

of the complaint (including identification of key participants);

iii set forth precisely the affirmative defenses for which

defendant currently has factual support and provide the

factual supDort for each such affirmative defense

iv) make available for inspection any insurance agreement that

may be liable to satisfy part or all of judgment which may be

entered in the action:

(y) make available for inspection documents currently known to

defendant and within his or her custody that support the

defenses to the claim:

(j, identify all witnesses currently known to have material

information that supports any defense.

(C) Within 30 days of the date on which these Initial Disclosures have

been exchanged, the parties shall conduct a meet-and-confer

pursuant to Rule 26(f) and shall, in addition, discuss what additional

documents may exist and may be subject to an agreement to

produce. The parties shall also attempt to agree on any Protective

Order.

(D) Within 15 days of the meet-and-confer, the parties shall iointly

submit to the court a Proposed Scheduling Order containing:

(i) both Initial Disclosures:

(ii) a list of those documents agreed -to be exchanged

fin a list of all known potential witnesses identified by name,

address and phone number:

iv) any proposed Protective Order (or competing Proposals for

same):

(y a Discovery Plan or Plans (or competing proposals for same).

The form of order is attached hereto at Exhibit A.

(E) As soon as practicable after the filing of the Proposed Scheduling Order, the court shall schedule a Rule 16 conference.

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(F) The court may, in its discretion, conduct Discovery Conferences.

Unless exigent circumstances are present, the court shall provide 20

days notice of any such conference. No later than 7 days before

any such conference, the parties shall submit a discovery report to

the court identifying:

i) what discovery has been conducted:

(u what discovery remains to be taken:

(1 where disputes exist and the party's position on such

disputes.

Any party may file a supplemental brief with respect to disputed

issues.

Ill. DISCUSSION

A. INTRODUCTION

The objectives of the Federal Rules of Civil Procedure are set forth clearly

in Rule 1: 'They shall be construed and administered to secure the just, speedy, and

inexpensive determination of every action." Our system of civil justice, however, has

been criticized as being too slow, too expensive and unjust.s Some blame the lawyers,

others blame the courts, and yet others blame the rules that define the course of civil

actions. Although many proposals have been advanced, and some implemented, there

is a growing consensus that additional changes should be made.

The proposal outlined in this portion of the DRI position paper stems from

-several premises: (1) the parties, who are best able to identify and develop the issues

in a given case, should be given every encouragement to work together to ensure that

the case is being developed efficiently, timely and consistent with judicial expectations;

(2) the parties should voluntarily disclose as much as possible about their respective

' In 1988, the Foundation for Change and The Brookings Institution convened a task force to

recommend ways to alleviate the excessive cost and delay associated with litigation. What

resulted was a task force report that made numerous recommendations to expand judicial

resources and to adopt procedural reforms. The Brookings Institution (1989). Also, the Chief

Justice of the United States appointed a Federal Courts Study Committee, which began work in

1988. The committee recommended several modifications to the system, including alternative

dispute resolution, early judicial involvement in case management, and phased discovery. The

Federal Court's Study Committee (1990). President Bush also created a Council on

Competitiveness to consider reforms to the system. The report of the Council proposed

modifying the rules on expert procedures, limiting the number of cases, reducing the size of jury

awards, and making the existing judicial resources more efficient through case .management

techniques and streamlined discovery. President's Counsel on Competitiveness (1991).

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positions as early as possible; and (3) early oversight by an informed court is important

to ensure that the parties are meeting their obligations, impending problems are resolved

swiftly, and the future course of case preparation mapped. In general, these objectives

can be achieved by requiring the parties to confer early and often, report their respective

positions to the judge in proposed orders and meet with the court early in the process

and again at a more mature stage of discovery.

B. THE CURRENT SYSTEM

I. Mandatory Disclosure. As amended on December 1, 1993, Rule

26(a)(1) imposes mandatory disclosure requirements on the parties. Without waiting for

discovery requests, each party is to provide to the other party (1) the identity of each

individual likely to have discoverable information relevant to disputed facts alleged with

particularity in the pleadings; (2) documents, data compilations and tangible things in the

possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings; (3) a computation of any category of damages claimed

by the disclosing party, with supporting documentation; and (4) any insurance agreement

where the proceeds may be used to satisfy part or all of the judgment.

Because a significant number of districts elected to opt-out of the

mandatory disclosure requirements, Rule 26(a)(1) is not uniformly in effect throughout

the country. As of March 28, 1997, the mandatory disclosure rules were in effect in 49

districts, but not routinely in effect in the other 45 districts. Federal Judicial Center,

Implementation of Disclosure in United States District courts (March 1997). Judges and

attorneys have had over three years experience with the mandatory disclosure rules.

The ever-growing viewpoint is that the procedures are not achieving the desired

objectives

The Civil Justice Reform Act ("CJRA") was passed in 1990 in an effort to

reduce the delay and expense of litigation in federal courts. The CJRA required each

federal district court to develop a case management plan in an effort to achieve these

goals. It also created a pilot program to test six principles of case management. One

of the six case management principles was to encourage cost-effective discovery through voluntary exchanges and cooperative discovery devices. The CJRA required

an eventual independent evaluation to determine the effects of the various case

management techniques, and the RAND Institute for Civil Justice was asked to conduct

the independent evaluation. RAND recently completed this evaluation and has prepared

an extensive report of its findings and conclusions.

I

All of the districts involved in the RAND evaluation had adopted some

variant of voluntary or mandatory exchange of information. The RAND Institute for Civil

Justice, An Evaluation of Judicial Case Management under the Civil Justice Reform Act,

at 61 (1996). In evaluating the results of the various early disclosure processes, RAND

found that neither voluntary nor mandatory early disclosure had a significant effect on

how long it took to dispose of a case or how many lawyer hours were involved. The

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RAND Institute for Civil Justice, supra, at 68. "The findings on satisfaction and fairness

suggest that lawyers do not like a district policy of mandatory early disclosure. They

were both significantly less satisfied and a little less prone to call management fair when

this district policy existed." Id. at 68.

Furthermore, in 1995, the Committee on Pretrial Practice and Discovery of

the ABA Section of Litigation (the "ABA Committee") initiated a survey of plaintiffs' and

defendants' attorneys who have operated under the rule 26(a)(1) mandatory disclosure

requirements. In reviewing the results of the survey, the ABA Committee concluded that:

Analysis of the survey results suggest that Rule 26(a)(1)

disclosure has not had a sign;ficant impact on federal civil

litigation. To the extent that it has had any measurable

effects, most are negative. The survey provided no evidence

that, at the one year mark, disclosure had reduced discovery

costs or delays. Nor did the responses suggest that

disclosure has reduced conflict between adversaries during

the discovery process. Consequently, during its first year of

implementation, disclosure has not resulted in the systematic

improvements for which its proponents had hoped.

Committee on Pretrial Practice and Discovery, Mandatory Disclosure Survey: Federal

Rule 26(a)(1) After One Year, at 1 (1996). A sizeable majority of the respondents

wanted the mandatory disclosure requirements eliminated from the rules. Id. at 6.

Commentators have also criticized the mandatory disclosure requirements.

See e.a., Tobias, Automatic Disclosure and Disuniformity in the Ninth Circuit, 41 Wayne

L. Rev. 1385, 1399 (1994) ('The above analysis shows that the interdistrict court and

intrastate disuniformity created by the automatic disclosure procedure has imposed

numerous disadvantages. Most important, disclosure has complicated federal and state

civil practice and has increased cost and delay."); Issacharoff, Unintended

Consequences of Mandatory Disclosure, 73 Tex. Law Rev. 753, 786 (1995) ("[I]t is

difficult to escape the conclusion that the mandatory disclosure procedure is misguided.")

Hence, Mandatory Disclosure and Equal Access to Justice: The 1993 Federal Discovery

Rule Amendments and the Just, Speedy, and Inexpensive Determination of Every Action,

67 Tul. L. Rev. 179 (Spring 1994); Sorrenson, Disclosure Under Federal Rules of Civil

Procedure 26(a) - "Much Ado About Nothing?", 46 Hastings L.J. 679 (March 1995);

Lasso, Gladiators Be Gone: The New Disclosure Rules Compel a Re-examination of the

Adversary Process, 36 B.C.L. Rev. 479 (May 1995); Belleau, A Critique of the "New

Discovery Rules" - Raising More Questions Than They Answer... Business as Usual

in the Federal Court, 42 Jul. Fed. Law. 36 (July 1995). There is little logical or empirical

evidence to preserve the mandatory disclosure aspects of Rule 26(a)(1). Alternatives

need to be advanced.

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2. "Meet and Confer" Requirement. Fed.R. Civ.P. 26(f) requires the

parties to "meet to discuss the nature and basis of their claims and defenses and the

possibilities for a prompt settlement or resolution of the case, to make or arrange for the

disclosures required by subdivision (a)(1), and to develop a proposed discovery plan."

The plan should include the following:

(1) What changes should be made in the timing,

form, or requirement for disclosures under subdivision (a) or

local rule, including a statement as to when disclosures under

subdivision (a)(1) were made or will be made;

(2) The subjects on which discovery may be

needed, when discovery should be completed, and whether

discovery should be conducted in phases or be limited to or

focused upon particular issues;

(3) What changes should be made in the limitations

on discovery imposed under these rules or by local rule, and

what other limitation should be imposed; and

(4) Any other orders that should be entered by the

court under subdivision (c) [the entry of protective orders] or

under Rule 16(b) and (c) [dealing with the entry of scheduling

orders and the subjects to consider at pretrial conferences].

Fed.R. Civ.P. 26(f).

The general framework for these provisions was derived from amendments

to the rules enacted in 1980. That change was driven by widespread criticism of

discovery abuse. The 1980 amendment envisioned a two-step process. The first set

was for the parties to agree on an acceptable plan. The second step of the process

authorized the court to hold a "discovery conference" and to enter an appropriate order

governing discovery. See 1980 Advisory Committee Notes. Because this process was

elective, to be invoked only at the request of a party facing discovery problems, it was

sparingly used. It turned out that early judicial involvement in the discovery process was

managed through scheduling orders entered pursuant to Rule 16(b) or through other

judicial mechanisms. Accordingly, in 1993, Rule 26(f) was amended to remove the

provisions for a discovery conference. While the Advisory Committee noted that judicial

control of discovery is desirable, it was believed that appropriate judicial oversight could

be accomplished through Rule 16 conferences. See 1993 Advisory Committee Notes.

As the Advisory Committee noted:

The provisions relating to a conference with the court are

removed from subdivision (f). This change does not signal

any lessening of the importance of a judicial supervision.

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Indeed, there is a greater need for early judicial involvement

to consider the scope and timing of the disclosure

requirements of Rule 26(a) and the presumptive limits on

discovery imposed under these rules or by local rules.

Rather, the change is made because the provisions

addressing the use of conferences with the court to control

discovery are more properly included in Rule 16, which is

being revised to highlight the court's powers regarding the

discovery process.

Preserved in the 1993 amendments was the requirement that the parties meet and

confer on an appropriate scheduling order to submit to the court.

The meet and confer provisions of 26(f) seem to be effective and wellreceived. In the Report of the ABA Committee on Pretrial Practice and Discovery, the

survey showed that increased communication between opposing counsel was a "positive

result." ABA Committee on Pretrial Practice and Discovery, supra,- at 30-31. The ABA

Committee noted that these desirable effects could have been achieved by the Rule 26(f)

meet and confer provisions themselves, without mandatory pre-discovery disclosure. Id.

Commentators have also observed that a meet and confer rule may be a better solution

for resolving discovery problems. See, e.., Bell, Automatic Disclosure and Discovery -

- The Ruse to Reform, 27 Ga. L.Rev. I (Fall 1992).

3. Early Judicial Intervention. Rule 16(b), which was added by

amendment in 1993, provides for the earliest judicial involvement in the case

management and discovery process. As the Advisory Committee noted at that time:

"Rule 16(b) assures that the judge will take some early control over the litigation ... "

Interestingly, however, Rule 16(b) does not require a meeting with the judge. It simply

provides that, after receiving the parties' Rule 26(f) report, the judge can enter a

scheduling order "after consulting with the attorneys for the parties and any

unrepresented parties by a scheduling conference, telephone, mail, or other suitable

means . ." This order shall issue as soon as practicable, but in any event within 90

days after the appearance of a defendant or within 120 days after the complaint has

been served on a defendant. Fed.R. Civ.P. 16(b). The scheduling order entered by the

judge shall limit the time (1) to join other parties and to amend the pleadings; (2) to file

motions; and (3) to complete discovery.

Additionally, the scheduling order may modify the time for disclosure under Rule 26(a)

and 26(e)(1), may set a final pretrial conference and trial date, and may include any

other matters appropriate to the circumstances of the case. Fed.R. Civ.P. 16(b).

Even though Rule 16(b) does not require a hearing, the court is allowed

under Rule 16(a) to hold an early pretrial conference. Rule 16(a) allows the court to hold

a conference for such purposes as: (1) expediting the disposition of the action; (2)

establishing early and continuing control so that the case will not be protracted because

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of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the

quality of the trial through more thorough preparation; and (5) facilitating the settlement

of the case. Additional subjects that the court and counsel may consider at a pretrial

conference are identified in Rule 16(c). The effectiveness of a Rule 16(a) pretrial

conference is dependent upon an informed and committed judge, well-prepared counsel

and a mutual commitment to make the process work.

Although advantages flow from involving the court early in the litigation

process, it has also resulted in some untoward effects:

There also have been difficulties with the pretrial orders that

issue following Rule 16 conferences. When an order is

entered far in advance of trial, some issues may not be

properly formulated. Counsel naturally are cautious and

often try to preserve as many options as possible. If the

judge who tries the case did not conduct the conference, he

could find it difficult to determine exactly what was agreed to

at the conference. But any insistence on a detailed order

may be too burdensome, depending on the nature or posture

of the case.

See, 1983 Advisory Committee Notes. The sanctity of the early Rule 16 pretrial order

is heightened when one considers the schedule imposed in the order "shall not be

modified except upon a showing of good cause and by leave of the district court or,

when authorized by local rule, by a magistrate judge." Fed.R. Civ.P. 16(b). Also,

sanctions can be imposed for failing to obey such a pretrial order. Fed.R. Civ.P. 16(f).

Clearly, advantages and efficiencies are achieved when the trial court

intervenes at an early stage to assert control over the case and to schedule deadlines

for completion of important pretdal steps. Flanders, Case Management and Court

Management in United States District Court, at 39, Federal Judicial Center (1977).

RAND, in evaluating the effects of CJRA, concluded that: "[e]arly judicial case

management is associated with both significantly reduced time to disposition and

significantly increased work hours." See, RAND Institute for Civil Justice, supra, at xxiii.

The principal problem with the early orders entered under Rule 16(a) or

16(b) is that there is no effective and expressly sanctioned follow-up conference with the

court on discovery-related matters. It is important to invoke judicial oversight on a

prospective basis in the early stages of litigation, and Rule 16 allows this. Yet, under

Rule 16, the next authorized judicial conference is the final pretrial conference, which

generally is scheduled on the eve of trial. Fed.R. Civ.P. 16(d). Most parties, therefore,

are judicially unmanaged during the discovery process. The court's authority can be

invoked by either party filing a motion to compel. Yet, motions to compel provide for

only isolated invocation of judicial oversight. In certain cases, more is required.

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Requiring the parties to meet and confer on discovery matters, to submit

a discovery report to the court, and to participate in a discovery conference will result in

a more efficient management of the more complicated case. Invoking judicial oversight

at a more mature stage of discovery may minimize any tendency toward over-discovery

by the discovering party, and under discovery by the responding party. Such a rule

would also laudably allow the parties to discuss the course of discovery in a context

more positive than under the current rules, which requires such discussions only

preparatory to the filing of a motion to compel.

C. GENERAL OUTLINE FOR INITIAL DISCLOSURE/EARLY JUDICIAL

INTERVENTION PROPOSAL

What follows is a general outline of the proposed changes that would allow

early and more effective exchange of fundamental case information. Further details will

be provided in the ensuing section.

1. An Initial Disclosure process will modify existing Rule 26(a). The

parties will now be required to agree on a much more detailed scheduling order; to

disclose the known factual support for the claims and defenses; and to describe what

information has been voluntarily exchanged by the parties.

2. The Rule 16(b) and 26(f) conferences will be preserved. The hope

is that the court, by reviewing the detailed proposed scheduling order which is the

product of the parties' joint effort, will be more knowledgeable and effective in the early

pretrial stage. At the conference, the court is encouraged to take any additional steps

that would streamline the discovery and trial preparation phases.

3. Rule 26(f) and Rule 16 will be amended to permit a "discovery

conference" in certain cases. The cases subject to the discovery conference shall be

set by local rule or, in particular cases, agreed to by the parties or ordered by the court.

The parties must meet and confer prior to the discovery conference to prepare a

discovery report. The role of the Court at the discovery conference is to resolve

discovery disputes, evaluate the extent of discovery and determine the appropriateness

of further discovery. The court shall enter a discovery order at the hearing.

6 Because the amendments to Rules 16 and 26 have occurred in serial fashion, they are choppy

in certain respects. If one were to start from scratch, the "proposed scheduling order" might be

denominated a "case management order," because that is a more apt description. The

conferences envisioned by Rule 16(a), (b) and (c) might all be consolidated into a "case

management" conference, which implicates, among other things, the entry of the proposed case

management order. These and other selected housekeeping amendments could streamline the

process and make it more consistent. To accomplish this, however, would require some

significant changes in the terminology and organization of the applicable rules.

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D. STEP-BY-STEP ANALYSIS OF THE INITIAL DISCLOSURE/EARLY

JUDICIAL INTERVENTION PROPOSAL

By now, it is widely agreed that Rule 26(a)(1) does not accomplish its

goals. It does not decrease the time to disposition, lessen the costs of litigation or

increase the satisfaction level of lawyers and judges. Two other discovery mechanisms,

however, seem to accomplish these objectives - (1) early "meet and confer'

conferences among counsel where discovery plans are established, issues resolved and

the parties get the first crack at assessing their needs in a particular lawsuit; and (2)

early judicial intervention, where a court can approve or modify the parties' discovery

plan. The proposal set forth below modifies mandatory disclosure, but expands the

opportunities for the parties to determine the course of the case, with the court available

to be sure the pretrial discovery is being handled consistent with the objective of

achieving a "just, speedy and fair resolution of disputes." The following is a more

detailed explanation of the various components of the proposal. The process will be

described chronologically, following the filing of the case.

a. Step 1 - Initial Disclosure.

(1) Sequenced Disclosure. The initial disclosures of the

parties should be sequential, with plaintiff proceeding

first. There are several reasons for this sequence.

First, the plaintiff has advance knowledge of the

lawsuit and, thus, advance time to collect relevant

documents and information. Second, while notice

pleading excuses a plaintiff from providing factual

detail in the complaint, Rule 11 requires such factual

detail to be known to plaintiff and his or her counsel as

of the date of filing. Third, because the factual detail

provides a better understanding of the case for a

defendant that pure notice pleading and because it is

already known to plaintiff and plaintiffs counsel, it is

reasonable to require early disclosure so as to better

enable a defendant to comprehend the cases and

formulate responsive disclosures

7 The District of South Carolina opted out of Rule 26(a) disclosures and adopted Local Rules

providing for mandatory responses to court ordered interrogatories. S.C.L.R. 7.03-.09.

According to its Rules, the plaintiff must file its court ordered interrogatories at the time it files

its complaint, id. at 7.05, and the defendant must later file its responses to the court ordered

interrogatories within 30 days of its answer or the plaintiffs service of its court ordered

interrogatories. DRI's proposal for staged responses is similar to that adopted by the District of

South Carolina.

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Plaintiff's initial disclosure will occur within 15 days of

filing the complaint; defendant's initial disclosure will

be due within 45 days of plaintiffs disclosure.

Defendants are given additional time because the

lawsuit may require investigation of numerous

individuals and documents without prior notice, all of

which takes a significant amount of time. Should a

plaintiff wish a more expedited process, that plaintiff is

free to file its initial disclosure at an earlier date, thus

triggering defendant's 45-day response period on a

more expedited basis.

(2) Content of Initial Disclosures. Plaintiff and defendant

have essentially reciprocal disclosure obligations,

including:

a narrative description of the incident that lead

to the filing of the case;

the claims (for plaintiff) and defenses (for

defendant) and the factual support that

currently exists for each such claim or defense;

disclosure of all documents and witnesses that

support the disclosing party's claim or

defenses.

In addition, a plaintiff must disclose damage

information and a defendant must disclose insurance

information and information concerning whether

defendant was properly identified in the complaint.

Parties may resist laying out factual support for their position at so early a

stage. However, the intent of this initial disclosure process is simply to require the

parties to state what they know, rather than "sandbag" to a later stage of the

proceedings. The groundwork of such a requirement is already in the rules. Rule 11

imposes an obligation on all parties to make factual allegations that either have

evidentiary support or are likely to have evidentiary support after further investigation or

discovery. Fed.R. Civ.P. 11 (b)(3). There is a provision for filing a motion for a more

definite statement, which may seek a fuller exposition of the underlying facts. Fed.R.

Civ.P. 12(3). Rule 26(f) requires the parties to meet to discuss the "nature and basis of

their claims and defenses. .. ." At the Rule 16 pretrial conference, the court may

formulate and simplify the issues, including eliminating frivolous claims or defenses and

seeking admissions of fact from the parties. Fed.R. Civ.P. 16(c)(1), (3). Finally, Rule

33 expressly authorizes contention interrogatories, which would require the parties to

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state the factual support for their claims and defenses in the early stage of the litigation. Fed.R. Civ.P. 33(c). Indeed, some courts have mandatory interrogatories that seek

essential factual information. Requiring disclosure of basic factual information without

requiring resort to these other mechanisms will both educate the parties and permit the

court to focus on the appropriate case management opportunities.

What follows is the discussion of some of the more significant aspects of

the proposed initial disclosures:

(a) Narrative description of the incident(s) that

led to the filing of the case. For plaintiffs disclosure, this

category is intentionally broad, but is intended to permit the

plaintiff some latitude depending on the particular case. In a

products case, the plaintiff may describe (1) the plaintiff; (2)

the defendant's role in the incident; (3) the product in

question; (4) how the incident occurred; and (5) specifically

how it is claimed the product malfunctioned or caused the

injury. In a patent infringement case, for example, the

plaintiff may describe (1) the particular patents at issue; (2)

the plaintiff and its connection to the patents; (3) the

defendant and its connection to the patents; and (4)

specifically how the patents were infringed. Finally, in an

employment discrimination case, the plaintiff can describe (1)

the plaintiff; (2) the length, nature and other pertinent aspects

of the employment relationship; (3) how the plaintiff alleges discrimination; and (4) the relevant discussions and

evaluations arising out of the relationship. As can be seen,

most of this information is within the province of plaintiff and

is not dependent on conducting occasional discovery.

The purpose of this section for the defendant is to

respond to plaintiffs factual statement of the case, as well as

to provide the court with sufficient background information to

allow an understanding of the defense position. Rather than

simply deny plaintiffs version, the defendant should state

affirmatively the basis for the denial. Although the defendant

at this stage has not been given an opportunity to conduct

formal discovery, the defendant should provide the

information it has currently available. In a products case, for

example, the defendant could describe the product in

question, the relevant circumstances of manufacturing and

selling the product, and generally the circumstances of the

incident. In a patent infringement case, the defendant could

describe the patents in question and how they were not

infringed by the defendant. Finally, in an employment

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discrimination case, the defendant can describe the

circumstances of plaintiffs termination or affected

employment opportunity. The defendant may choose to

address why plaintiffs pleaded causes of action do not have

factual support.

(b) Statement of the causes of action or

defenses for which the party currently has factual

support, setting forth the factual support for each. The

typical federal court complaint lists a garden variety of causes

of action. Not every cause of action will have factual support,

nor is this required under the rules. Rule 11 simply requires

that "the allegations and other factual contentions have

evidentiary support or, if specifically so identified, are likely

to have evidentiary support after a reasonable opportunity for

further investigation or discovery . . . ." Fed.R. Civ.P.

11 (b)(3). Accordingly, while Rule 11 requires the plaintiff to

conduct a pre-filing investigation, often many causes of action

are pleaded without an underlying factual basis. The hope is

that these causes of action will be supported by facts

developed during discovery, or withdrawn before trial. This

section requires the plaintiff to identify the causes of action

on which it will primarily rely and provide factual support for

each of the causes of action. Additional facts will obviously

be developed during discovery, but plaintiff should provide opposing counsel and the court with available supporting

facts at the outset. For example, in a typical products case, the plaintiff may allege that the product is defective in

manufacture, design and warnings. If the plaintiff has factual

support for a defective design claim, but no evidence of a

defective manufacturing claims, that should be identified in

the initial disclosure. This provision is not without precedent.

The inquiry about what the plaintiff claims the defendant did

or failed to do that entitles plaintiffs to relief is incorporated in "mandatory interrogatories" adopted by some districts.

Just as plaintiff must identify its principal causes of

action, the defendant should identify its affirmative defenses

and any factual support for each such affirmative defense.

Again, this provision is not intended to bootstrap the

defendant in any way. It will, however, provide the court with

an understanding of what affirmative defenses are most

critical, what facts support them, and legally how they may

defeat plaintiff's claims. Some may argue that this is

controversial in that the defendants must lay out and support

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their defenses in the early stages of the case. The

affirmative defenses, however, must be stated in the answer.

This provision will allow the defendant to encourage the court

to focus on particular defenses, either for discovery or for

dispositive motions.

(c) Description and computation of any category

of damages, making available for inspection and copying

the documents or other evidentiary material, not

privileged or protected from disclosure, on which such

computation is based, including materials bearing on the

nature and extent of injuries suffered. This disclosure

relates only to plaintiff and is derived essentially from existing

Rule 26(a)(1). It should not be too onerous for the plaintiff,

in the early stages of the case, to set forth what is known

about damages and injuries. Not only will this information

provide an avenue for further discovery, it also allows for an

early assessment of the stakes at issue in the case. This

information will also be useful to the court in discharging its

obligations under Rule 26(b)(2), where the court must

balance the burden and expense of proposed discovery

against its likely benefit.

(d) Identification and production of any

insurance agreement This provision is derived from

existing Rule 26(a)(1)(D). This information should be readily

available to the defendant. It is customary that this

information be provided early in the process.

(e) Production of documents that support the

party's case. One of the most problematic provisions of the

existing rule is 26(a)(1)(B), which requires production of all

materials "relevant to disputed facts alleged with particularity

in the pleadings." It is almost inevitable that parties will, in

good faith, disagree to some extent about what is or is not

"relevant" in a given case. The rule thus incorporates, as its

standard for production, an issue on which parties inevitably

disagree. This invites mistrust, disputes and controversy,

which perhaps explains why in most cases parties serve the

same formal discovery regardless of whether "mandatory"

disclosure has occurred (as a means to protect against a

different construction of "relevance").

In contrast, each party is able to conclude for itself

what documents support its case; no disputes or mistrust are

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involved. Documents key to the parties' claims are thus

produced, and such production will also help to highlight

those documents the parties consider most supportive of their

positions.

This initial production is intended to encompass only

documents reasonably known and available to the party at

this early stage of the case. The provision is not intended to

preclude later production or claims that documents produced

later in the case also support the party's claims or defenses.

This rule would not require the initial disclosure of

nonsupportive documents. However, the adverse party will

clearly request these documents through existing discovery

mechanisms in any event. Second, parties often take the

position that certain potentially nonsupportive documents are

not "relevant' to the particular case at hand and thus would

not produce them under the existing rule in any event.

Finally, the meet-and-confer provision of this proposal (ee

below) provides an opportunity for the parties to voluntarily

exchange "nonsupportive documents.")

(f) Identification of witnesses. This provision is

derived from existing Rule 26(a)(1)(A), but is limited to

witnesses currently known to have material evidence that

supports the claim (for plaintiff) or the defenses (for

defendants). The rationale is similar to that set forth above

with respect to supporting documents.

The rule as currently drafted calls for identification of "each individual likely to have discoverable information

relevant to disputed facts stated with particularity in the

pleadings." This could require the identification of hundreds

if not thousands of individuals. For example, if the allegation

is that environmental contamination occurred due to poor

handling practices at an industrial plant over a 20-year

period, hundreds if not thousands of employees and former

employees are arguably "likely to have discoverable relevant

information." This imposes a substantial burden on

defendants and does not materially assist the plaintiff in

ascertaining helpful information.

b. Step 2 - Meet and Confer (Rule 26(f)). Within 30 days of the

date on which the initial disclosures were exchanged, the parties are to conduct a "meet111-19
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and-confer' conference. This section of the proposal incorporates the basic provisions

of Rule 26(f) but also modifies and expands them.

In this proposal, the meet-and-confer occurs after the initial disclosures.

This is considered preferable to the current rule, which can result in the meeting before

the initial disclosures and thus before the parties have a sound understanding of the

opponent's case. Once the parties have had a chance to digest the information provided

through the initial disclosure, they can more effectively discuss what else must be done.

In addition to the topics of discussion listed in Rule 26(f), the parties should

be required to discuss the voluntary production of "nonsupporting documents." Based

on the initial production of supportive documents, each party will have a better

understanding of the type of documents maintained by the opponent and thus a basis

to request voluntary production of additional documents. For example, in a defective car

case, a defendant would likely produce supporting testing reports in its initial disclosure

and plaintiff would then likely request any additional testing reports.

One of the disadvantages of the current Rule 26(f) is that, although the

parties are required to confer on a number of subjects, only a limited amount of

information is required to be included in the "Report of Parties' Planning Meeting." See,

Form 35 to the Federal Rules of Civil Procedure. Essentially, the report requires

information on pre-discovery disclosures, a discovery plan, and proposed deadlines. Not

only should the parties be required to address a wide range of issues at the Rule 26(f)

conference, but they should memorialize their discussions in a form that will be helpful

to the court. By receiving this expanded information, the court can more effectively

guide the parties through the case management and discovery phases.

It is desirable, therefore, to encourage counsel to meet to discuss the

respective positions on various issues, including discovery. This should be done before

undertaking formal discovery or invoking any judicial oversight. It is believed that the

more information provided as part of this early meet and confer process, the more

streamlined and efficient the process will become.

Consequently, this proposal includes a provision for a Proposed Scheduling

Order to be submitted 15 days after the meet-and-confer conference. Cast as a

proposed order, it adds the authority and mandate of the court to that to which the

parties have agreed. In addition, it will provide an opportunity for the court to review the

content of the initial disclosures to ensure appropriate detail has been included. A form

for the Proposed Scheduling Order (adapted from Form 35) is attached as Exhibit A.

In essence, the Proposed Scheduling Order includes:

information derived from both initial disclosures and the meet-andconfer;

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a listing of all documents initially exchanged;

a list of all known witnesses that support the claim and defense;

any proposed protective order (or competing proposals for same);

any discovery plan (or competing proposals for same);

this discovery plan may include a provision for future (or periodic)

discovery conferences.

See Exhibit A.

c. Step 3 - Rule 16 Scheduling Conference. Under this

proposal, existing Rules 16(a) an 16(b) would be blended to require a mandatory

conference with the court as soon as practicable after the filing of the Proposed

Scheduling Order. The objectives of the conference include:

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the

case will be protracted because of lack of

management;

(3) discouraging wasteful pretrial activity;

(4) improving the quality of the trial through a more

thorough preparation;

(5) facilitating the settlement of the case;

(6) establishing deadlines;

(a) to joint other parties;

(b) to amend pleadings;

(c) to file motions;

(d) to complete discovery;

(7) ruling on proposed protective orders;

(8) ruling on the proposed scheduling order; and

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(9) addressing other matters appropriate to the

circumstances of the case, including the matters listed

in Rule 16(c).

This proposal also ensures that the initial conference occurs only after the initial disclosures, and meet-and-confer have been completed and the resultant

information incorporated into a proposed order. This enables both the parties and the

court to discuss case management issues on a more informed basis, thus enhancing the

quality and productiveness of the discussion.

d. Step 4 - Formal Discovery. At any time, either party may

serve interrogatories, requests for admissions and requests for production of documents

as authorized by the scheduling order. Within the time allotted by the rules, each party shall respond or object to these requests. This entire process shall be governed by the

existing discovery rules and practices. The parties shall pursue discovery diligently and

attempt to resolve their differences amicably. In addition to pursuing paper discovery, either party may take depositions as authorized by the scheduling order.

e. Step 5 - Discovery Conference. For cases where discovery problems are anticipated, the court may schedule periodic Discovery Conferences. This

may be done in the initial scheduling order or by later order as the problems arise. If a

case is subject to the discovery conference procedures, the following provisions would

apply:

(1) Meet-and-confer. No later than 14 days before the

conference, the parties shall confer to attempt to resolve any existing discovery disputes.

(2) Discovery Report. No later than 7 days before the discovery conference, the parties shall submit a discovery report to the court. The discovery report shall provide information in the following categories: (1) what written

discovery has been exchanged; (2) what documents have been exchanged or made

available for inspection and copying; and (3) what depositions have been taken. The

discovery report shall address discovery issues both retrospectively and prospectively. In the retrospective sense, to the extent that there are lingering discovery disputes that

are appropriate for judicial resolution, these disputes should be identified in the report. Both sides should state their respective positions on these discovery disputes. Supplemental briefing will be permitted, in the discretion of each party. Prospectively, the discovery report shall identify what, if any, additional discovery is sought by each

party. The party seeking additional discovery should state why the additional discovery is necessary and appropriate under the rules. A party opposing such additional

discovery shall state the basis of the opposition. The primary objective of the discovery report is to provide factual and legal information to the court so that the remaining course

of discovery can be properly managed.

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(3) Discovery Conference. The discovery conference

serves several significant objectives. The first is to allow resolution of existing discovery

disputes. To this extent, it is similar to a hearing on a motion to compel. The second

significant objective is to define the course of future discovery. The court may entertain

whether a party should be allowed another set of interrogatories, another request for

admissions, or another request for production of documents. There may be some issue

about the taking of additional depositions.

Under the existing Rules of Civil Procedure, the courts are authorized to

limit discovery. Rule 26(b)(2) allows the court to limit discovery if it is determined that:

(1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from

some other source that is more convenient, less burdensome, or less expensive; (2) the

party seeking discovery has had ample opportunity by discovery in the action to obtain

the information sought; or (3) the burden or expense of the proposed discovery

outweighs its likely benefit, taking into account the needs of the case, the amount in

controversy, the parties' resources, the importance of the issues at stake in the litigation

and the importance of the proposed discovery in resolving the issues. The problem is

that too few judges enforce these limitations. Under this proposal, the discovery

conference allows them an opportunity to do so.

At the discovery conference, the court may also invoke the protective order

provisions of Rule 26(c) by ordering, among other things, that discovery not be had, that

discovery may be conducted only on specified terms and conditions, that discovery may

proceed only by a method of discovery other than that selected by the party seeking

discovery, or that the scope of discovery be limited to certain matters. The court may

also assess the expenses of discovery on one party or the other. The court may also

be asked to address the scope of a party's duty to supplement under Rule 26(3). The

discovery conference ought to encourage all parties to take reasonable positions in

discovery. The court can deal with a discovering party's efforts to overreach with

unreasonable discovery requests. It can also deal with a party's refusal to provide

appropriate discovery under the rules. The court shall enter a discovery order, which

memorializes its rulings and charts the course for the conclusion of discovery.

IV. CONCLUSION

Over the years, the bench and bar have had the opportunity to judge the

effectiveness of various case management processes. The current proposal eliminates

those procedures that have proven costly and ineffective, while preserving those that

have promoted efficiency, economy and fairness. The proposal does not require a

wholesale restructuring of the Federal Rules of Civil Procedure. Rather, it effects a finetuning of the process. Parties are required to conduct substantive discussions at an

early stage of the proceedings. They are required to report to the court. The court must

provide effective judicial management in an early scheduling conference, and, as

necessary, a later discovery conference. It is not anticipated that significant additional

judicial resources will be committed to this effort. Not all cases will be subject to the

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discovery conference requirement. Additionally, the discovery conference may simply take the place of a hearing on a motion to compel. If a court's expectations are

consistent and well articulated, the parties may be able to work through their discovery problems without the need of a discovery conference or other judicial oversight.

111-24
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[Adapted from Form 35 of the Federal Rules of Civil Procedure]

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF

Plaintiff,

vs. : Docket No.

Defendant.

PROPOSED SCHEDULING ORDER

[The purpose of this questionnaire is for the parties to share basic

information about the claims and defenses in this case and to propose a

discovery plan. This information is to be used by the trial jude in managing

the discovery and pretrial aspects of the case. It is understood that the

case has recently been filed and, as discovery progresses and more

information is gathered, the parties will have a better understanding of their

respective positions. In completing this questionnaire, the parties should

share the information presently known and attempt to narrow the claims,

defenses and expected discovery.]

1. Pursuant to Fed.R. Civ.P. 26(0, a meeting was held on (date) at

(place) and was attended by:

(Name) for plaintiff(s)

(Name) for defendant(s) (party name)

2. Plaintiff's Statement of Case and Factual Bases of Claims.

a. Describe the incident(s) that lead to the filing of the case.

EXHIBIT A
DRAFT

[The purpose of this section is for plaintiff to set forth the

factual basis of this lawsuit. Information to be provided

includes identity of the plaintiff the relationship with the

defendant, and a statement of the case. This section should

be adapted to the particular type of case at issue, i.e.,

personal injury, commercial, discrimination, etc.]

b. Set forth precisely the causes of action for which you currently

have factual support, setting forth for each cause of action what the defendant did or

failed to do that entitles you to the relief sought for that cause of action.

[The court understands that plaintiff has likely included a

number of causes of action in the complaint. In this section,

the plaintiff should identify the causes of action for which

there exists factual support, and candidly identify those

causes of action for which factual support is either absent or

incomplete. Plaintiff in doing so, is not waiving the right to

pursue these causes of action or develop additional factual

support for all pleaded causes of action.]

c. Provide a description and computation of any category of

damages claimed by you, making available for inspection and copying the documents

or other evidentiary material, not privileged or protected from disclosure, on which such

- computation is' based, including materials bearing on the nature and extent of injuries

suffered.

[The purpose of this section is to provide defendant with a

description of the injuries and damages claimed by plaintiff adapted to the particular claims raised in the case. For

example, in a personal injury case, plaintiff should set forth

the nature and extent of the claimed injuries, their degree of

permanence, the identity of health care providers who have

treated plaintiff and the nature and extent of damages

claimed by plaintiff.]

111-26
DRAFT

3. Defendant's Statement of Case and Factual Bases of Defenses.

a. If you are improperly identified, state your correct identification

and whether you will accept service of an amended summons and complaint reflecting

the correct identification.

b. State your version of the incident(s) that lead to the filing of

the case.

[The purpose of this section is for the defendant to respond

to the factual statement of the case provided by plaintiff. It

is understood that the case is only recently filed and that

defendant has perhaps not had an opportunity to describe

itself its relationship with plaintiff and its factual response to

what plaintiff claims that defendants did or failed to do that

entitles plaintiff to the relief sought in the action.]

C. Set forth precisely the affirmative defenses for which

defendant currently has factual support, and provide the factual support for each such

affirmative defense.

[The court understands that the defendant may have set forth

a number of affirmative defenses in the answer. In this

section, the defendant should set forth those affirmative

defenses for which defendant currently has factual support,

and candidly identify those affirmative defenses for which

factual support is currently absent or incomplete. Defendant,

in doing so, is not waiving the right to pursue these

affirmative defenses or develop additional factual support for

all affirmative defenses.]

d. Identify, and produce for inspection and copying, any

insurance agreement under which any person carrying on an insurance business may

be liable to satisfy part or all of a judgment which may be entered in the action or to

indemnify or reimburse for payments made to satisfy the judgment.

111-27
DRAFT

4. Plaintiffs Voluntary Disclosures.

a. What documents, data compilations and tangible things have

you produced or agreed to produce to defendant.

[The purpose of this section, and the corresponding section

for the defendant, is for each party to identify what materials

it has voluntarily produced or agreed to produce to opposing

counsel. The parties are encouraged to discuss their

respective informal discovery requests and produce materials

voluntarily in advance of the service of interrogatories,

documents requests and requests for admission.]

b. What individuals with potential discoverable information have

you identified by name, address and telephone number.

5. Defendant's Voluntary Disclosures.

a. What document, data compilations and tangible things have

you produced or agreed to produce to plaintiff.

b. What individuals with potential discoverable information have

you identified by name, address and telephone number.

6. Discovery Plan. The parties jointly propose to the court the following

discovery plan: [Use separate paragraphs or subparagraphs as necessary if parties

disagree.]

a. Discovery will be needed on the following subjects: [brief

description of subjects on which discovery will be needed.]

b. All discovery commenced in time to be completed by (date).

[Discovery on (issue for early discovery) to be completed by (date).]

c. Maximum of interrogatories by each party to any other

party. [Responses due _ days after service.]

111-28
DRAFT

d. Maximum of requests for admission by each party to any

other party. [Responses due _ days after service.]

e. Maximum of _ depositions by plaintiff(s) and _ by

defendant(s).

f. Each deposition [other than of ] limited to maximum

of__ hours unless extended by agreement of parties.

g. Reports from retained experts under Rule 26(a)(2) due:

- from plaintiff(s) by (date)

-- from defendant(s) by (date)

h. Supplementations under Rule 26(e) due (time(s) or intervals)).

7. Protective Order. Identify whether either party has insisted on the

entry of a protective order under Fed.R. Civ.P. 26(c) and, if so, whether the opposing

party has agreed or will agree to the entry of the requested protective order.

8. Recommendations of the Parties. Consistent with Rule 16(a), state

whether parties have any recommendations on the following subjects:

a. How to expedite the disposition of this action.

b. How the court can establish early and continuing control so

that the case will not be protracted because of lack of management.

c. How the parties can avoid wasteful pretrial activities.

d. How to improve the quality of the trial through more thorough

preparation.

e. How to facilitate the settlement of the case.

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DRAFT

9. Discovery Conference. State whether, by local rule or agreement

of the parties, this case should be scheduled for a discovery conference under Fed.R.

Civ.P. 16(d). If so, provide the following information.

a. The discovery report will be filed by (date).

b. The discovery conference will be held on (date and time).

10. Deadlines and Trial Date.

a. Plaintiff should be allowed until (date) to join additional parties

and until (date) to amend the pleadings.

b. Defendant should be allowed until (date) to join additional

parties and until (date) to amend the pleadings.

c. All potentially dispositive motions should be filed by (date).

d. Settlement [is likely] [is unlikely] (cannot be evaluated prior to

(date)] (may be enhanced by use of the following alterative dispute resolution procedure:

*1.

e. Final lists of witnesses and exhibits under Rule 26(a)(3)

should be due

- from plaintiff by (date)

- from defendant by (date)

f. Parties should have days after service of final lists

of witnesses and exhibits to list objections under Rule 26(a)(3).

g. The case should be ready for trial by (date) [and at this time

is expected to take approximately (length of time)].

Date:

111-30
0l 4_-

IC
DRAFT

LIMITATIONS ON DOCUMENT REQUESTS - RULE 34

EXECUTIVE SUMMARY

Rulings on document requests should always be based upon the relevance

and proportionality of the requests.

The broad standard accorded to "relevance" in discovery matters

often places no limits on discovery leading to overbroad requests.

Rule 26(b)(2) limitations on proportionality of discovery are most

applicable to rule 34 document requests and should be expressly

incorporated.

The burdens of document production can be extensive and

should be limited when documents are-only tangentially

related to the case.

Courts should be encouraged to order less burdensome

discovery or alternatively shift the burden of the costs

associated with responding to expensive document

production when the requested documents are only

tangentially related to the case.

Rule 34 should recognize that the requesting party has a duty to participate

in the document production process.

'instead of using requests for production of documents as weapons

to seek discovery sanctions, the requesting party should have a

responsibility to participate in the process of identifying the

documents it seeks.

Requiring attorneys to communicate and be involved in the process

will increase the efficiency of producing documents and decrease

the courts involvement in discovery disputes.

Local rules are not being used to manage document production and

express authorization needs to be added to rule 34.

Rule 34 should recognize that special burdens exist with computerized or

electronic documents and should specifically address those issues.

IV-1
DRAFT

I. PROPOSED RULE 34

Production of Documents and Things and Entry Upon Land for Inspection

and Other Purposes

(a) Scope. Any party may serve on any other party a request, (1) to produce

and permit the party making the request, or someone acting on the requestor's

behalf, to inspect and copy, any designated documents (including writings,

drawings, graphs, charts, photographs, phonorecords, and other data compilations

from which information can be obtained, translated, if necessary, by the

respondent through detection devices into reasonably usable form), or to inspect

and copy, test or sample any tangible things which constitute or contain matters

within the scope of Rule 26(b) and which are in the possession, custody or control

of the party upon whom the request is served; or (2) to permit entry upon

designated land or other property in the possession or control of the party upon

whom the request is served for the purpose of inspection and measuring,

surveying, photographing, testing, or sampling the property or-any designated

object or operation thereon, within the scope of Rule 26(b).

(b) Procedure. The request shall set forth, either by individual item or by

category, the items to be inspected and describe each with reasonable

particularity. The request shall specify a reasonable time, place, and manner of

making the inspection and performing the related acts. Without leave of court or

written stipulation, a request may not be served before the time specified in Rule

26(d).

The party upon whom the request is served shall serve a written response within

30 days after the service of the request. A shorter or longer time may be directed

by the court or, in the absence of such an order, agreed to in writing by the

parties, subject to Rule 29. The response shall state, with respect to each item

or category, that inspection and related activities will be permitted as requested,

unless the request is objected to, in which event the reasons for the objection

shall be stated. If objection is made to part of an item or category, the part shall

be specified and inspection permitted of the remaining parts. The party

submitting the request may move for an order under Rule 37(a) with respect to

any objection to or other failure to respond to the request or any part thereof, or

any failure to permit inspection as requested; provided, however, that prior to

moving for an order under Rule 37(a) the moving party must have consulted with

the obiecting party conceming the specifics of the objections, made a agood faith

effort to obtain the documents without court action, and performed all of the duties

set forth in section (e) below.

A party who produces documents for inspection shall produce them as they are

kept in the usual course of business or shall organize and label them to

correspond with the categories in the request.

IV-2
DRAFT

(c) Persons Not Parties. A person not a party to the action may be

compelled to produce documents and things or to submit to an inspection as

provided in Rule 45.

(d) Limits on Discovery.

(Mi The limitations on discovery provided for in Rule 26(b)(2) are

expressly incorporated herein.

(2 Documents shall not be discoverable unless relevant to the claim or

defense of the party seeking discovery or to the claim or defense of any -' other party.

3 In addition to the mandatoy limitations under Rules 34(d)(1) and (2)

above, the court, in it discretion, may place limitations on the production of

documents which are only potentially, conditionally or tangentially relevant

or admissible in the case, as opposed to documents which are essential

to the claims and defenses brought by the parties, includIng (i) ordering

that discovery not be had: (ii) shifting the costs and attorneys fees related

to the production of non-essential documents to the requestingq party,

especially in cases between parties of eaual or similar financial condition:

or (iii) ordering the parties to proceed with less expensive methods of

discovery pending the requesting party's establishment of a need for the

reauested documents.

M Duties of Requesting Party. The requesting Party has a duty to

participate in the process of document production, including (i) describing

requests with reasonable particularity. (ii) consultation with an objecting party

concerning the scope of documents requested, (iii) narrowing or defining the

scope of the reauests where reasonable and practicable, (iv) identifying specific

documents or categories of documents which have not been Produced which are

sought by the reguesting party and are either known to or thought by the

requesting Dart to exist, and (v identifying the basis or source of information

suggesting the existence of additional responsive documents.

(if Modification or Limitation By Local Rules. These rules may be modified

or limited by Local Rule, including the timing and circumstances for Rule 34

requests for production and the number of reauests each Party can make.

(g Computerized Documents. Although computerized documents, such

as databases, electronic mail, and other electronically stored information, are

subiect to production under Rule 34, when lamge quantities of computer data are

responsive to reauests or are in a form which makes the examination or

production of such information overly burdensome or expensive, the court shall

place limitations on the production of such materials consistent with Rule 26(b)(2)

IV-3
DRAFT

and may, in its discretion, grant other protection. including (i) shifting costs and

attorneys fees, especially in cases between parties of equal or similar financial condition: or (ii) orderinq the production of only portions of the computerized documents which are located by relevant computer searches against the database. In addition, courts should grant special Protection against the waiver of privilege by the production of certain privileged documents among large volumes of computer databases, where appropriate.

Ill. DISCUSSION

=-f

A. INTRODUCTION AND HISTORY OF RULE 34

Prior to 1970, document productions under Rule 34 were more limited than other forms of discovery, requiring a showing of "good cause" before production of documents would be ordered. In 1964, the Supreme Court recognized that the showing of good cause was "not a mere formality" but rather was "a plainly expressed Jimitation on the

use of the Rule." Schlagenhauf v. Holder, 379 U.S. 104 (1964); see generall 8A Wright, Miller & Marcus, Federal Practice & Procedure § 2205 (2d ed. 1994). Some courts viewed the "good cause" requirement as requiring that "special circumstances make it

essential to the preparation of the moving party's case that the desired information be

made available to him." See Federal Practice, supra, at 367 n.5 and accompanying text.

Since then, the scope, breadth, expense, and burden of document production has completely reversed its course. In 1970, Rule 34 was amended to eliminate the requirements of showing "good cause." Ever increasing demands for a broader and broader scope of documents, often characterized as "fishing expeditions,"8 became the

rule rather than the exception.

By 1983, the overuse of discovery, especially Rule 34 document requests, had reached such a point that Rule 26 was amended to "guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery..." 1983 Advisory Committee Note. Despite the amendment in 1983 to include the court's obligation to prohibit disproportionate discovery, the limitations of Rule 26(b)(2) have been virtually ignored. See, 8 Wright, Miller & Marcus, Federal Practice

& Procedure § 2008.1, at 121 (2d ed. 1994) ('The paucity of reported cases

implementing this amendment shows that no radical shift has occurred.")

8 Prior to 1970, broad discovery requests characterized as "fishing expeditions" were generally

denied. See, e.., Service Uquor Distr., Inc. v. Calvert Distillers Corn., 16 F.R.D. 344 (D.N.Y 1954) (Rule 34 was not intended to allow fishing excursions); Tobin v. WKRZ. Inc., 12 F.R.D. 200 (D. Pa. 1952) (fishing expeditions could take place in interrogatories or depositions but not in Rule 34 request for documents).

IV-4
DRAFT

In addition to the overuse of discovery requests, unfortunately Rule 34, in combination with Rule 37, has become an ever increasing device to obtain a tactical advantage in the case rather than a mechanism to obtain documents. Too often the tactic of plaintiffs attorneys is to wage a war against the credibility of a corporate defendant by attacking its document production. Instead of seeking to obtain the documents necessary to prepare for the trial of the case, Rule 34 document productions become the secondary battlefield where plaintiffs seek to criminalize the discovery

process, attack the opposing attorneys, and cry "cover-up," in the hopes of receiving a sanction in the case and a damaging piece of the company's "history of discovery abuse" which will be used against it for the next quarter of a century.

This proposal discusses the mechanism by which the courts can once again reverse the time, expense, and burden on the courts and the parties by (1) enforcing reasonable limitations on the scope of document requests; and (2) focusing plaintiffs and defendants alike on mutual responsibilities of participating in the process of document

production instead of focusing on ways to attack the opposing party.

B. RULINGS ON DOCUMENT REQUESTS SHOULD ALWAYS BE BASED UPON THE RELEVANCE AND PROPORTIONALITY OF THE REQUESTS

1. The Broad Standard Accorded to "Relevance" In Discovery Matters Often Places No Limits On Discovery Leading to Overbroad

Requests

In Amcast Indust. Corp. v. Detrex Corp., 138 F.R.D. 115 (N.D. Ind. 1991), the court cited the problem: "The request in this instance represents not merely a 'fishing expedition,' but as one court described it, an effort to 'drain the pond and collect the fish from the bottom.'" Id. at 121 (quoting In re IBM Peripheral EDP Devices Anti-Trust Litigation, 77 F.R.D. 39, 41-42 (N.D. Cal. 1977). Thus. to prevent overbroad discovery, courts must place some restraints on the scope of "relevance" in discovery.

a. Discovery Standard For Relevance

Rule 26(b) specifically requires that parties may obtain discovery that is "relevant

to the subject matter involved in the pending action." Fed.R. Civ.P. 26(b)(1) However, the standard generally cited for relevance in discovery is whether a request "appears reasonably calculated to lead to the discovery of admissible evidence." Id. Rule 26(b)(1) makes this statement to indicate that documents need not be admissible to be discoverable. Although the scope of relevance for purposes of discovery should not be limited by the rules of evidence concerning admissibility (e.g., hearsay documents may not be admissible, but should be discoverable), there must be limits to relevance in

discovery.

IV-5
DRAFT

limits for Rule 34. And the subsequent provisions of Rule 26(b)(2) that require courts to limit discovery method when the courts determine that discovery is unreasonably cumulative, or the benefits of the proposed discovery are outweighed by the costs,

appear to be directed to the scope of discovery in individual cases rather than to the

management of cases generally, through local court rules.

This lack of explicit authorization to limit discovery request under Rule 34 is important, for at least one federal circuit court has held that local court rule restricting discovery under Rule 34 is in conflict with the Federal Rules of Civil Procedure, and thus invalid. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987). At issue in Hollowa was

a local rule which conditioned discovery requests for prisoner petitions on first obtaining leave of court. Id. at 874, 877. The Eighth Circuit stated that "[t]he conflict between the local rule, which requires leave of court before filing a request for production of documents, and Fed.R. Civ.P. 34(b) which permits such requests without leave of court, is clear. Accordingly, Local Rule 23(VIII)(B)(6) is invalid, and we so hold." Id. at 880. If this reasoning is applied to Rule 34 restrictions found in other local court rules, rules such as Rule 4.4 of the U.S. District Court for the Middle District of Georgia may similarly be held invalid, at-,east until the Federal Rules of Civil procedure are revised to explicitly allow the same kind of restrictions that are authorized for Rules 30, 33, and 36.

6. Other Court Decisions Have Placed Few Restrictions on the Use of

Rule 34

A second LEXIS search, of federal court decisions since 1970,-revealed that there have been well over one thousand federal court cases addressing, or at least

mentioning, Rule 34.'s A review of 150 of these cased turned up no court decisions significantly limiting discovery under Rule 34. At the most, the courts have simply enforced existing limitations by insisting that parties adhere to the procedural requirements of the rules. See, e.g., R. W. Intl Corp.-v.-Welch Foods. Inc.,-937 F.2d 11, 16-17 (1st Cir. 1991) (denying Rule 37 sanctions against the possessor of documents

until the requestor of documents has sought an order to compel production); Premier Resort Krabi, Ltd. v. Mohawk. Inc., Civ. No. 96-2128-EEO, 1997-U.S. Dist. LEXIS 373, at *3,4 (D. Kan., January 14, 1997) (prohibiting parties' from sidestepping Rule 34 procedures by requesting the production of documents in Notices of Deposition); Ledbetter v. United States, CA3 96-CV-0678-x, 1996-U.S. Dist. LEXIS 20039, at *3,4, (N.D. Tex., December 18, 1996) (requiring that requests for documents be made formally before seeking an order to compel production); Schartz v. Unified School Dist. No. 512, Civ. No. 95-2391-EEO, 1996 U.S. Dist. LEXIS 19123, (D. Kan., December 18, 1996) (finding a violation of Rule 34 where a request for documents used language that was too general or all-encompassing); and Schwartz v. Marketing Publishing Co., 153 F.R.D.

"g The LEXIS search was done in the GENFED library, NEWER file, which picks up all federal

court cases since 1944. 1970 was the year that Rule 34 was amended to eliminate the good

cause requirement.

IV-14
DRAFT

16, 21 (D. Conn. 1994) (denying an order to compel production for documents that were

requested only informally, instead of according to the procedures set out in Rule 34).

Thus, local courts are authorized to make and amend rules in ways not

inconsistent with the Federal Rules of Civil procedure (see Fed.R. Civ.P. 83), and to limit

discovery requests by order or local rule (see Fed.R. Civ.P. 26(b)(2)). But to date, with

few exceptions, the courts have not used local court rules to significantly limit discovery

requests under Rule 34. Local court rules affecting Fed.R. Civ.P. 34 are as likely to

liberalize discovery as to limit discovery. It is possible that local rules implementing

limits significantly more restrictive than those found in Rule 34 would be held to be

inconsistent with Rule 34, and thus invalid, because local court restrictions on Rule 34

have not ben explicitly authorized. See Fed.R. Civ.P. 26(b)(2); Holloway v. Lockhart,

813 F.2d 874, 880 (8th Cir. 1987). Court decisions demonstrate a willingness on the

part of the courts to enforce the procedural requirements of Rule 34, but show little if any

initiative to impose more substantial limits on Rule 34 discovery. It seems likely that

changes will need to be made to existing Rules 26 34 before the courts will be

authorized, and willing;to place more significant limitations on the use of discovery under

Rule 34.

E. RULE 34 SHOULD RECOGNIZE THE SPECIAL BURDENS RELATED TO

COMPUTERIZED DOCUMENTS AND DATA COMPILATIONS AND

PROVIDE SPECIFIC GUIDELINES FOR ADDRESSING THOSE ISSUES

In 1970, Rule 34(a) was amended to expressly include computer or electronic

documents including in the definition of documents: "other data compilations from which

information can be obtained, translated, if necessary, by the respondent through

detection devices into reasonably usable form." Even back in 1970, the Advisory

Committee noted that there may be unique issues concerning burden and expense

related to computer databases and electronic documents:

The burden thus placed on respondent will vary from case to

case, and the courts have ample power under Rule 26(c) to

protect respondent against undue burden of expense, either

by restricting discovery or requiring that the discovering party

pay costs. Similarly, if the discovering party needs to check

the electronic source itself, the court may protect respondent

with respect to preservation of his records, confidentiality of

nondiscoverable matters, and costs.

Committee Note, 48 F.R.D. at 527.

The foresight of the committee in recognizing in 1970 that the costs and burdens

associated with searching for and producing computerized documents may take on

unique challenges needing limitations was not misplaced. With technology leaping

generations every few years, the use and storage of information by computerized or

IV-15
DRAFT

electronic media has expanded exponentially. Documents, which in 1970 would have

filled a warehouse, can now be stored on a single data cartridge. Additionally,

documents are not only knowingly maintained, but computers often create, through backup mechanisms, and maintain unknown copies of archived information. Furthermore,

documents maintained on back-up data files are often randomly created and difficult to

search or index. Thus, even when an active database is deleted, computers may

maintain back-up files which are randomly stored and organized. Thus, a party may

have documents it is not even aware of.

As we move into the information age, the explosion in the capacity to retain

information on computer databases raises significant issues related to how documents

are to be produced in the future. While data may be more easily stored, it may not be

easy or inexpensive to review or produce.

For example, the five boxes of documents in a corporate client's office may

expand to an equivalent of ten thousand boxes when a data cartridge containing some

responsive material is discovered. At first glance, it would -seem .eas.y to produce -

simply copy the data cartridge and turn it over. However, it is then discovered that the

data cartridge also contains irrelevant information, trade secret information, other

personal and -confidential information, and even privileged information. Thus, the

production of the data cartridge could result in the loss of trade secrets, confidential

information, and privileges. On the other hand the cost of reviewing every page of each

document on.the database may cost over a million dollars. This is a real situation many

corporations are currently facing.

The problem is compounded when liberal interpretations of"relevance" are utilized

in measuring discoverability; strict views of waiver of privilege are applied; and general

notions that a party should bear the expense of producing documents. Thus, there are

challenging issues related to computerized -documents which courts and litigants now

face, and the issues will dramatically increase in the years to come.

Despite the explosion of the increased capacity to retain information on

computerized media since 1970, there have not been any changes to the Federal Rules

of Civil Procedure addressing the unique issues raised. DRI.proposes that certain

limitations, at a minimum, should be expressly recognized. many of which were originally

recognized back in 1970.

First, the rules should recognize that computer documents create unique issues,

especially concerning the massive quantity of information at issue and the expense of

producing such information. Therefore, a separate provision of Rule 34 should be

created to address computerized documents, which can be modified and amended as

future issues are raised.

Second, courts should be given the express authorization to shift costs associated

with computerized documents when appropriate. Computerized documents are highly

IV-16
DRAFT

likely to be the types of documents that contain small portions of relevant information,

within a much larger bank of information.20 Thus, courts should be encouraged to

utilize cost shifting as a mechanism to increase the efficiency of such searches.

Third, the rules should recognize that computer aided searches may be the most

appropriate method for searching computerized documents for responsive information.

Thus, a requesting party may be requested to identify various search commands that it

seeks, and the producing party can conduct such searches and produce the responsive

information found.

Finally, the rules should recognize that historical views of waiver of privilege

should not apply in the same manner to computerized materials as to other written

documents. When the only economical way to produce computerized materials is in

mass, the inadvertent production of documents among millions of documents on

computer databases should be not be viewed as a voluntary waiver and loss of

privilege.21

IV. CONCLUSION

The greatest burden currently being placed on parties in the discovery process

is the ever expanding scope of document productions. The standard for "relevance" has

generally been broadly .construed, the limitations under Rule 26(b)(2) have been

sparingly applied, and-the explosion of electronic and computerized documents has

tremendously expanded the quantities of potential documents available. It is time to

reign in the cost and expense currently being assessed against corporate America during

the discovery process. DRI's proposals are submitted to address these problems and

burdens in a fair and even-handed manner.

20 Some courts have already recognized fee shifting to be appropriate related to the production

of computerized documents. See In re Air Disaster at Detroit Metro. Airport, 130 F.R.D. 634

(E.D. Mich. 1989); Adams v. Dan River Mills, Inc.. 54 F.R.D. 220, 222 (W.D. Va. 1972); Penk v.

Oregon Stat Bd. of Higher Education 816 F.2d 458 (9th Cir. 1987); Pearl Brewing Co. v. Jos.

Schlitz Brewing Co., 415 F. Supp. 1122 (S.D. Tex. 1976).

21 The problems associated with producing computerized documents are currently being

addressed differently by the courts. See e-g. CIBA-Geigy Corp. v. Sandoz, 916 F. Supp. 404

(D.N.J. 1995) (court held that the party waived the privilege of certain documents by producing

a corporate database which contained certain privileged documents); United States v. Keytone,

885 F. Supp. 672, 676-77 (M.D. Pa. 1994) (court held that the party unknowingly waived the

privilege for certain privileged e-mail messages by inadvertently producing them in discovery);

but see Transamerican Computer Co. v. IBM, 573 F.2d 646 (9th Cir. 1978) (no waiver by

inadvertent production).

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REVIVING THE PRESUMPTION AGAINST SANCTIONS AND

CREATING A REASONABLE SAFE HARBOR

PROVISION UNDER RULE 37

EXECUTIVE SUMMARY

There is a presumption that any objection to discovery is unjustified and

should be sanctioned. Unfortunately, that presumption is squarely within

the four corners of Rule 37. While initially providing a necessary incentive,

this presumption of abuse has long run its course.

The solution to this problem is to eliminate the presumption of

discovery abuse from sections (a), (b) and (d) of Rule 37. The

proposed amendment would retain the "substantial justification"

standard currently used in the Rule, while converting the Rule to a

rebuttable presumption against sanctions. Specifically, the

proposed amendment would provide that the court shall sanction a

party by requiring payment of the prevailing counsel's expenses and

attorney's fees, if and only if the party's actions were 'Without

substantial justification."

As discovery becomes increasingly contentious and sanctions become

more frequent and more severe, the role of Rule 37 in discovery becomes

crucial. Recognizing such, it is critical that the Advisory Committee

address the lack of specificity and guidance in Rule 37(b)(2). Establishing

provisions that create minimal safeguards and that codify the well-reasoned

decisions that provide some level of consistency is paramount to

conforming Rule 37 to a practical rule that ensures fairness, symmetry and

certainty in its application.

The solution to this problem is to adopt an amendment that is an

even-handed structural approach to codifying the better reasoned

decisions addressing sanctions under Rule 37(b)(2). Additionally,

it should create a "semi-safe" harbor provision for "active" "good- faith" efforts at compliance that is not so impregnable or irrebuttable

so as to encourage abusive discovery tactics. It should also

establish safeguards that employ the generally accepted restraints

fundamentally necessary to a consideration of litigation-ending

sanctions.

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PROPOSED RULE 37 and ADVISORY COMMITTEE NOTES

A. Proposed Rule 37:

Failure to Make Disclosure or Cooperate in Discovery: Sanctions

(a) Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows:

(1) Appropriate Court. An application for an order to a party shall be made to the court in which the action is pending. An application for an order to a person who is not a party shall be made to the

court in the district where the discovery is being, or is to be, taken.

(2) Motion.

(A) If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not

making the disclosure in an effort to secure the disclosure without

court action.

(B) If a deponent fails to answer a question propounded or

submitted under Rules 30 or 31, or a corporation or other entity fails

to make a designation under Rule 30(b)(6) or 31(a), or a party fails

to answer an interrogatory submitted under Rule 33, or if a party, in

response to a request for inspection submitted under Rule 34, fails

to respond that inspection will be permitted as requested or fails to

permit inspection as requested, the discovering party may move for

an order compelling an answer, or a designation, or an order

compelling inspection in accordance with the request. The motion

must include a certification that the movant has in good faith

conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material

without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the

examination before applying for an order.

(3) Evasive or Incomplete Disclosure, Answer, or Response. For

purposes of this subdivision an evasive or incomplete disclosure,

answer, or response is to be treated as a failure to disclose, answer,

or respond.

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(4) Expenses and Sanctions.

(A) If the motion is granted or if the disclosure or requested

discovery is provided after the motion was filed, and the court finds

that the movant made a good faith effort to obtain the disclosure or

discovery without court action, the court shall, after affording an

opportunity to be heard, require the party or deponent whose

conduct necessitated the motion or the party or attorney advising

such conduct or both of them to pay to the moving party the

reasonable expenses incurred in making the motion, including

attorney's fees, unless 2anijf the court finds that the mo.tion was

filed without the mo':vant'c first making a good faith cffort to obti

the dic ciur o. r di ...... , without eourt action, or that the

opposing party's nondisclosure, response, or objection was without

substantial justification subctantially justifiod, or that .and no other

circumstances make an award of expenses unjust.

(B) If the motion is denied, the court may enter any protective

order authorized under Rule 26(c) and shall, after affording an

opportunity to be heard, require the moving party or the attorney

filing the motion or both of them to pay to the party or deponent who

opposed the motion the reasonable expenses incurred in opposing

the motion, including attorney's fees, unless only if the court finds

that the making of the motion was without substantial iustification

substantially juctificd, or that and no other circumstances make an

award of expenses unjust.

(C) If the motion is granted in part and denied in part, the court

may enter any protective order authorized under Rule 26(a) and

may, after affording an opportunity to be heard, apportion the

reasonable expenses incurred in relation to the motion among the

parties and persons in a just manner. Such sanctions shall only be

imposed against a Party or person, however, if the court finds that

the party's or person's actions were without substantial iustification.

(b) Failure to comply with order

(1) Sanctions by Court in District Where Deposition is Taken. If a

deponent fails to be sworn or to answer a question after being

directed to do so by the court in the district in which the deposition

is being taken, the failure may be considered a contempt of that

court.

(2) Sanctions by Court in Which Action is Pending. If a party or an

officer, director, or managing agent of a party or a person

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designated under rule 30(b)(6) or 31 (a) to testify on behalf of a party

fails to obey an order to provide or permit discovery, including an

order made under subdivision (a) of this rule or Rule 35, or if a party

fails to obey an order entered under Rule 26(f, the court in which

the action is pending may, in accordance with section (b)(3) of this

rule, make such orders in regard to the failure as are just, and

among others the following:

(A) An order that the matters regarding which the order was made

or any other designated facts shall be taken to be established for

the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or

oppose designated claims or defenses, or prohibiting that party from

introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying

further proceedings until the order is obeyed, or dismissing the

action or proceeding or any part thereof, or rendering a judgment by

default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an

order treating as a contempt of court the failure to obey any orders

except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under Rule

35(a) requiring that party to produce another for examination, such

orders as are listed in paragraphs (A),(B), and (C) of this

subdivision, unless the party failing to comply shows that party is

unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall

require the party failing to obey the order or the attorney advising that party

or both to pay the reasonable expenses, including attorney's fees, caused

by the failure, unless gnlyif the court finds that the making of the motion

was without substantial iustification 'ubct""ti"l" juifFor that and no

other circumstances make an award of expenses unjust.

(3) Limitations on Sanctions

(iI General Sanctions. Sanctions may be imposed upon a party or

person under subdivision (b)(2) only if the court finds that the party's or

person's failure to comply with an order was without substantial

justification, unless other circumstances would make the imposition of

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sanctions unjust. In considering the appropriate sanction, the court should

consider: (1) the efficacy of less drastic sanctions: and (2) the degree of

preiudice to the adversary.

Q Severe Sanctions. In addition to the findings in subsection (a),

sanctions of dismissal, default judgment. or other litigation-ending sanction,

shall not be imposed unless, upon a showing of clear and convincing

evidence, the court finds: (1) the noncomplying party acted willfully or in

bad faith: and (2) the noncompliance substantially prejudiced the

adversary. In assessing the appropriateness of such sanction, the court

shall also consider: (1) the meritoriousness of the claim or defense

involved: (2) whether the party was warned that failure to comply would

lead to dismissal or default: (3) the pubic policy favoring disposition of

cases on their merits: and (4) the efficacy of less drastic sanctions.

(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.

(1) A party that without substantial justification fails to disclose

information required by Rule 26(a) or 26(e)(1) shall not, unless such

failure is harmless, be permitted to use as evidence at a trial, at a

hearing, or on a motion any witness or information not so disclosed.

In addition to or in lieu of this sanction, the court, on motion and

after affording an opportunity to be heard, may impose other

appropriate sanctions. In addition to requiring payment of

reasonable expenses, including attorney's fees, caused by the

failure, these sanctions may include any of the actions authorized

under subparagraphs (A), (B), and (C) of subdivision (b) (2) of this

rule and may include informing the jury of the failure to make the

disclosure, provided that the sanctions imposed under this provision

shall comport with subdivision (b)(3).

(2) If a party fails to admit the genuineness of any document or

the truth of any matter as requested under Rule 36, and if the party

requesting the admissions thereafter proves the genuineness of the

document or the truth of the matter, the requesting party may apply

to the court for an order requiring the other party to pay the

reasonable expenses incurred in making that proof, including

reasonable attorney's fees. The court shall not make the order

unless if it finds that (A) the request was held objectionable pursuant

to Rule 36(a), or (b) the admission sought was of no substantial

importance, or (C) the party failing to admit had reasonable ground

to believe that the party might prevail on the matter, or (D) there

was other good reason for the failure to admit.

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(d) Failure of Party to Attend at Own Deposition or Serve Answers to

Interrogatories or Respond to Request for Inspection.

If a party or an office,r director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31 (a) to testify on behalf of a party fails

(1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to

interrogatories submitted under Rule 33, after proper service of the

interrogatories, or (3) to serve a written response to a request for

inspection submitted under Rule 34, after proper service of the request, the

court in which the action is pending on motion may make such orders in

regard to the failure as are just, and among others it may take any action

authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of

this rule, provided that the sanctions imposed under this provision shall

comport with subdivision (b)(3). Any motion specifying a failure under

clause (2) or (3) of this subdivision shall include a certification that the

movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court

shall require the party failing to act or the attorney advising that party or

both to pay the reasonable expenses, including attorney's fees, caused by the failure unless onlyif the court finds that the failure was without

substantial iustification cub.tantially justified or that and no other

circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be excused on the

ground that the discovery sought is objectionable unless the party failing

to act has a pending motion for a protective order as provided by Rule

26(c).

(e) [Abrogated]

(f) [Repeated. Pub.L. 96-481, Title II, § 205(a), Oct. 21, 1980, 94 Stat

2330]

(g) Failure to Participate in the Framing of a Discovery Plan. If a party

or a party's attorney fails to participate in good faith in the development and submission of a proposed discovery plan as required by Rule 26(f), the

court may, after opportunity for hearing, require such party or attorney to

pay to any other party the reasonable expenses, including attorney's fees,

caused by the failure.

(h) Safe Harbor Provision. There is a rebuttable presumption that a

party's or person's conduct does not constitute a lack of substantial

iustification if: (1) the Party made an active good faith effort to comply: or

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(2) the noncomplyina Party timely raised the discovery issue and brouaht

it to the opposina party's or court's attention for disposition within the time

deadlines of the Federal Rules of Civil Procedure or the Federal Rules of

Appellate Procedure.

B. PROPOSED ADVISORY COMMITTEE NOTES

1. Response to Request For Production of Documents

A rebuttable presumption in favor of "substantially justified" conduct and "active

good faith" by a partV should exist if a party responding to a reauest for production of

documents has performed the following:

(a) Timely provided a response to a request for production of

documents, specifically identifying documents which have been or

will be produced and identifying specific obiections to the

objectionable requests:

(bN Conducted a reasonable search for non-obiectionable documents

consisting of:

1. investigation of persons likely to have possession of

responsive documents: and

2 making a request for materials from persons or employees of

Party likely having responsive materials:

(c) Produced non-obiectionable, responsive documents discovered in

the search:

L4 Upon request by the requesting party, has met and conferred

concerning the scope of the production request: and

( supplemented documents of any additional responsive documents

within a reasonable time of discovery their existence.

2. Interrogatory Responses

A rebuttable presumption in favor of "substantially iustified" conduct and "active

good faith" should exist if a party responding to interrogatories has performed the

following:

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(a) Timely provided a response to the interrogatory, specifically identifying specific objections and providing responsive answers to

the non-objectionable portions of the interrogatory;

(fb Investigation of persons and documents likely to have information

responsive to the interrogatory

(g} Upon request by the requesting party, has met and conferred

concerning any obiections to the interrogatories; and

(d) provided supplementation to any interrogatory within a reasonable

time of any additional responsive information.

Ill. DISCUSSION

A. INTRODUCTION

Courts are becoming increasingly impatient with refereeing contentious discovery disputes. At the same time, hiding behind the truism that the discovery rules must be liberally construed, parties continue to stretch the permissible bounds of discovery. Efforts to preserve fundamental fairness and reason by defining sensible limitations to

the scope of discovery are becoming increasingly difficult. The task is made all the more difficult by the unlimited access to the discovery of millions of electronic files in the corporation's computer database. As truculent discovery disputes become the norm, substantial monetary and litigation-ending sanctions are becoming common place. As

a result, attempts to criminalize the discovery process are being fueled by a strong incentive and met with growing success.

In this environment, despite all efforts by a responding party to set forth good-faith objections and reasonable limitations, discovery disputes are difficult to avoid. Propounding parties, faced with these incentives, are too quick to cry foul, and routinely attack the response as a matter of course. This often forces corporate defendants into

a Hobson's choice of caving-in to baseless claims of discovery abuse, or facing the real

possibility of severe sanctions if the dispute is brought before the court. Rule 37 as

currently drafted exacerbates these problems in two significant ways.

First, there is a presumption that any objection to discovery is unjustified and should be sanctioned. Unfortunately, that presumption is squarely within the four corners

of Rule 37. While initially providing a necessary incentive, this presumption of abuse has

long run its course.

Second, as discovery becomes increasingly contentious and sanctions become

more frequent and more severe, the role of Rule 37 in discovery becomes crucial.

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Recognizing such, it is critical that the Advisory Committee address the lack of specificity and guidance in Rule 37(b)(2). Establishing provisions that create minimal safeguards

and that codify the well-reasoned decisions that provide some level of consistency is

paramount to conforming Rule 37 to a practical rule that ensures fairness, symmetry and

certainty in its application.

B. RULE 37

1. The History of Rule 37

Rule 37 establishes procedures for ensuring compliance with the discovery provisions set forth in Rules 26 to 36. The intent of the rule is to "provide generally for

sanctions against parties or persons unjustifiably resisting discovery." Fed.R. Civ.P. 37

advisory committee notes (1970 amendments).

The Rule was originally adopted in 1938, and was entitled "Refusal to Make

Discovery; Consequences." See -generally Wright, Miller & Marcus, Federal Practice and

Procedure: Civil 2-d § 2280 (1994).

Under this initial draft of the Rule, courts were required to impose sanctions such

as expenses and fees, if and only if it found that the defeated party acted 'Without

substantial justification." Fed.R. Civ.P. 37 (1938). Given this formulation of the Rule,

despite its clear allowance for sanctions, courts were reluctant to impose the sanctions

on parties or counsel . See Fed.R. Civ.P. 37 advisory committee notes (1970 amendments); Ryan, Hazards of Vexatious Conduct in Litigation, 30 Def. L.J. 123, 129

(1981); Note, Sanctions Imposed by Courts on Attorneys Who Abuse the Judicial

Process, 44 U. Chi. L. Rev. 619, 629 (1977). When sanctions were imposed, they generally served a remedial function. Moreover, sanctions as a whole were substantially less severe and were not offered to punish parties in the name of deterrence.

For 32 years after its adoption, with the exception of one insignificant amendment

in 1949, Rule 37 stood virtually unchanged.

2. The 1970 Amendment to Rule 37

Experience demonstrated a number of defects in the rule, and in 1970 the

Supreme Court adopted several amendments to address these issues. Fed.R. Civ.P.

37 advisory committee notes (1970 Amendment) ("Experience has brought to light a

number of defects in the language of the rule as well as instances in which it is not

serving the purposes for which it was designed.").

One of the perceived 'defects' originated from the Rule's incorporation of

provisions for both the 'refusal' and the 'failure' to properly respond to discovery. While

the Supreme Court made clear in 1958 that there was no distinction between these

terms, Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v.

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Rogers, 357 U.S. 197, 207 (1958), lower courts continued to conclude that certain good faith 'failures' did not amount to sanctionable 'refusals.' See, eg., Hinson v. Michigan Mut. Liability Co., 275 F.2d 537 (5th Cir. 1960); Kearns v. Seven-Up Co., 30 F.R.D. 333,

334 (D.C. Pa. 1962).

To address this issue and put an end to the controversy, the 1970 amendments

to Rule 37 replaced all references to 'refusal' to comply, with 'failure' to comply. This

change made clear that under Rule 37, even innocent parties acting in good faith could

be subject to sanctions.

The 1970 amendments also addressed another perceived defect - the reluctance

of the courts to impose sanctions under Rule 37 to address the problem of discovery abuse. As the Advisory Committee made clear, while the existing provisions of Rule 37

provided the requisite authority to impose sanctions for expenses and fees, courts had

nevertheless displayed an unwillingness to do so.

The present provision of Rule 37(a) that the court shall

require payment if it finds that the defeated party acted

without "substantial justification" may appear adequate, but

in fact it has been little used. Only a handful of reported

cases include an award of expenses, and the Columbia

Survey found that in only one instance out of about 50

motions decided under Rule 37(a) did the court award

expense. It appears that the courts do not utilize the most

important available sanction to deter abusive resort to the

judiciary.

Fed.R. Civ.P. 37 advisory committee notes (1970 amendments).

To address this reluctance on the part of the judiciary to sanction discovery abuse, the Rule was explicitly amended to create an incentive within the rule to "encourage" courts to impose the sanctions available under Rule 37. Id. ("the change in language is intended to encourage judges to be more alert to abuse occurring in the discovery process ... it presses the court to address itself to abusive practices").

In considering an amendment to provide this encouragement, the Committee was

faced with the growing perception that most discovery disputes implicitly involved some level of discovery abuse. This presumption of guilt of discovery abuse found its way squarely into the amendment to the Rule.

The Committee was ultimately convinced that with the growing prevalence of

discovery abuse, and the reluctance of courts to impose sanctions, the rule should be

amended to encourage courts to "ordinarily" impose the sanction of costs and fees

whenever they were forced to resolve a discovery dispute. Id. ("[t]he proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that

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the losing party acted justifiably in carrying his point to court"). While the Committee

elected to retain the "substantial justification" language to protect against unwarranted

sanctions, it shifted the burden towards a presumption of guilt of discovery abuse,

regardless of the good faith nature of the challenge. Id. (the amendment "places the

burden on the disobedient party to avoid expenses by showing that his failure is justified

or that special circumstances make an award of expenses unjust").

The rule as amended in 1970 provided, as it does today, that expenses and fees "shall" be awarded "unless ... the opposing party's nondisclosure, response, or objection

was substantially justified, or that other circumstances make an award of expenses unjust." Fed.R. Civ.P. 37(a), (b) and (d).

3. The Effect of Presumptive Sanctions and the Criminalization of

Discover

With the 1970 amendments, the standard of "substantial justification" remained,

and aside from some added encouragement, the courts' general authority to sanction

under Rule 37 went unchanged. The amendments' clarification that the innocent failure

to comply with discovery would be sanctionable, combined with the shift in the burden

towards a presumption of discovery abuse, accomplished the immediate effect the

Advisory Committee set out to achieve - sanctions in civil litigation under Rule 37

exploded during the 1980s in an effort to control discovery abuse.

Over the course of the last twenty five years, however, the fundamental goal of

the amendments has been lost. A variety of changes in the discovery landscape have

resulted in a Rule that needs immediate fixing. With the vast expansion in the scope of

permitted discovery, the overall breadth of discovery available as a result of the use of

computer databases, and the rise in severity of sanctions that have become a regular fixture in discovery disputes, the amendments to Rule 37 have ultimately fueled an

unintended fire of satellite litigation over discovery sanctions.

Contending that the rules of procedure must be liberally construed, parties

continue to expand the scope of discovery, seeking almost any topic even remotely related to their allegations or the conduct the opposing party. At the same time, as

discovery attempts to keep pace with technology, corporate defendants are being required to review, analyze and produce millions of electronic files, in addition to the

sometimes overwhelming production of ordinary documents. In addition, plaintiffs in

different litigation against the same corporation are collaborating more than ever by

pooling documents and sharing responses to discovery requests - all in the purported

name of verifying "full disclosure." See, eg., Francis H. Hare, Jr., et al., Full Disclosure:

Combatingq Stonewalling and Other Discovery Abuses, pp. 166-67 (1994) (encouraging

this practice among plaintiffs as a means to flush out suspected discovery abuse and

obtain judicial sanctions against corporate defendants). All of this makes it increasingly

easy for parties to raise suspicions and fears of discovery abuse.

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Indeed, despite the massive amounts of documents being produced, often in

several litigation matters at once, any perceived inconsistency between an interrogatory

answer in one case and an interrogatory answer in another case can become the basis

of a claim of "evasion." Any distinction between the documents produced in once case

and the documents produced in another can become the basis of a claim of "suppression."z2 In short, plaintiffs are becoming too familiar with the opportunity to

consistently cry foul.

Facing this, parties and courts no longer need a rule that presumes discovery

abuse in every dispute and strongly encourages sanctions with little or no guidance or

certainty. Today, the unchecked allowance for increasingly severe sanctions and the

general shift of burdens under Rule 37 has simply added to the problem by arming counsel with ammunition with which to pursue needless and unnecessary claims of

discovery abuse. Moreover, at a time where many parties are already adept at pointing

the discovery finger as a tactical measure, the problems are compounded by the severe

types of litigation-ending sanctions that have become common place conclusions to

discovery disputes brought before frustrated courts.

Under the existing provisions of Rule 37, the corporate defendant faces

considerable uncertainty given the absence of any consistency in the various circuit's

approach to imposing sanctions. These parties also face a real possibility that without

prior notice, and despite the absence of any willful failure to comply or appropriately

respond, their answer will be struck or they will be sanctioned so heavily that the verdict

seems insignificant.

Left unrestrained, and devoid of any guidance, Rule 37 will continue to spurn wasteful and costly satellite litigation regarding the imposition of sanctions. Rule 37

should not continue to provide an unneeded incentive in a time when discovery is

becoming a tactical weapon aimed at the chance of obtaining these powerful sanctions

against corporate defendants.

While the original intent of the 1970 amendments was to make clear to the

judiciary that the rules should not shield defendants from sanctions, it was never

intended that the amendments should ultimately function as a sword for plaintiffs

anxious to take advantage of increasingly powerful sanctions.

22 Aggressive plaintiffs counsel contend, for example, that: "[p]roducts liability defendants

routinely produce different information and documents to different plaintiffs who have asked

identical questions, even though one law firm usually serves as a national litigation coordinator

and clearinghouse for each type of case. The different responses and documents are convincing evidence of the defendant's bad faith approach to discovery." James E. Butler, Jr. & Patrick A.

Dawson, The Bench as Battleground: The Discovery Process is Broke and Only Judges Can Fix

It, 21-22 (1992).

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4. DRI's Proposed Amendments Are Intended To Provide Safeguards

for Imnparting Symmetry, Certainty and Fairness into Rule 37(b)(2)

This article proposes reasonable amendments to Rule 37 that address this

growing problem: (1) the removal of the presumption of discovery abuse from sections

(a), (b) and (d); and (2) the codification of reasonable standards for assessing the

appropriate severity of the sanction to be imposed; and (3) the creation of a reasonable,

but rebuttable, safe harbor provision. These amendments are intended to restore

symmetry to the rule's application, reduce satellite litigation, and codify ,the betterreasoned safeguards that are currently being employed in a majority of the circuits.

At the outset, the proposed amendment adopts the "substantial justification"

standard currently employed throughout the Rule. It also requires the court in selecting

an appropriate sanction to at least consider: (1) the efficacy of a less drastic sanction;

and (2) the prejudicial effect upon opposing counsel.

The proposed amendment goes on to specifically limit the entry.of a dismissal,

default judgment or other litigation-ending sanctions to instances where the court finds

by clear and convincing evidence that: the noncomplying party acted willfully or in bad

faith, and the noncompliance substantially prejudiced the adversary. It further codifies

certain additional considerations noted above that should be addressed by the court prior

to the imposition of such severe sanctions.

Finally, the proposed amendment creates a rebuttable presumption that sanctions

are not warranted under the "substantial justification" standard if a party makes an

"active good-faith effort to comply" with the order or discovery requests at issue or,

alternatively, affirmatively raises the existence of the discovery issue with the opposing

party or the court for resolution. The proposed advisory committee note also provides

guidance of the types of conduct that should give rise to a rebuttable presumption of

"substantial justification" or "active good-faith effort to comply" when responding to Rule

33 and Rule 34 discovery requests.

C. REVIVING THE PRESUMPTION AGAINST SANCTIONS

The shift in burdens to a presumption of discovery abuse provided a necessary

incentive at the outset. This amendment to Rule 37 served its role of encouraging the

judiciary to sanction parties to reduce discovery disputes. With a judiciary that is now

well aware of its ever expanding authority to sanction, however, the presumption of

abuse under Rule 37 is unwarranted. In today's litigation climate, where it has become

to easy to cry foul, and too difficult to ensure that reasonable good faith efforts will avoid

undue sanctions for discovery, the incentive under Rule 37 has shifted from encouraging

parties to provide full and fair disclosure, to providing additional encouragement to

parties to seek sanctions with claims of discovery abuse.

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The solution to this problem is to eliminate the presumption of discovery abuse

from sections (a), (b) and (d) of Rule 37. As delineated above, this amendment would

retain the substantial justification standard, while converting the rule to a rebuttable

presumption against these sanctions. Specifically, the proposed amendment would

provide that the court shall sanction a party by requiring payment of the prevailing counsel's expenses and attorney's fees, if and only if the party's actions were "without

substantial justification." See Proposed Amendments to 37(a)(4), 37(b)(2), and 37(d) above. This would be consistent with the presumption recently employed under section

(g) of Rule 37 which provides that expenses and fees "may" be awarded "if a party or

a party's attorney fails to participate in good faith in the development and submission of

a proposed discovery plan ..." Fed.R. Civ.P. 37(g).

Notably, removing this presumption does not dilute the authority of the court to

sanction. Such authority lies squarely within the provisions of Rule 37. As Judge Charles Renfrew explained, "[t]he basic cause of the underutilization of sanctions is not

their unavailability but the courts' unwillingness to use them." Renfrew, Discovery Sanctions: A Judicial Perspective, 67 Calif. L. Rev. 264, 271-272 (1979). While this

unwillingness to impose sanctions warranted an incentive under the 1970 amendments,

the removal of the presumption as suggested herein will do little to quiet courts clear

willingness to sanction parties today. Any level of unwillingness on the part of the

judiciary has long been removed, and the need for an incentive is gone. Under the

current circumstances, a more balanced Rule 37, devoid of a negative presumptions or

incentives, is more appropriate.

In short, a party's conduct in responding to discovery in complete good faith, by providing reasoned and responsible disclosures, should no longer be presumed to be

sanctionable, such that a party should be required to pay costs. Reviving the

presumption against a sanction of costs for all discovery disputes, as provided for under

the original draft of Rule 37, will allow a party to presume that reasonable and good faith conduct will not result in unwarranted costs being imposed upon counsel or the

client. This is significant at a time when it is becoming more and more difficult for even

the most ethical of corporate defendants to avoid discovery disputes and unwarranted

sanctions.2 3

23For example, under the current version of Rule 37, the court in LFE corp. v. Drytek. Inc.. 36 FR Serv 2d 985 (DC Mass 1983), held that despite the fact that the defendant's objections to

several of plaintiffs discovery requests were made in good faith, and despite the fact that the

parties had resolved their differences as to seven of the eleven discovery requests to which

objections had been made, an award of expenses as a sanction under Rule 37(a)(4) was

appropriate. While the defendant's good faith in opposing the motion was not doubted, the court

nevertheless held that the defendant's objections were not justified to the extent necessary to

avoid such an assessment under Rule 37.

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D. CODIFICATION OF STANDARDS FOR SEVERITY OF SANCTIONS

1. Asymmetry and Uncertainty in Rule 37(b)(2)

Left unchecked, Rule 37(b)(2) has become an unpredictable source for the

application for severe sanctions on parties who are deemed to have failed to comply with

discovery orders and requests. In its present form, Rule 37 authorizes courts to impose

sanctions "as are just." Fed.R. Civ.P. 37(b)(2)(A). While the rule sets forth examples

of sanctions which may be considered in the courts' discretion, there are neither specific

limitations nor reasonable guidelines for the imposition of such sanctions.

While this presented little problem in 1935 when the rule was adopted, and in

1970 when the rule underwent its last substantial modification, the rule is no longer used

to guide a judiciary that is reluctant or unwilling to impose sanctions. Federal courts

across the country are increasingly quick to impose severe sanctions which they deem

just under Rule 37(b)(2). See, e. , National Hockey League v. Metropolitan Hockey

Club Inc., 427 U.S. 639 (1976) (endorsing, even encouraging, other courts to utilize the

extreme sanction -of dismissal when appropriate, adding that such sanctions must be

available not merely to penalize the offending party but to deter others who are tempted

to engage in similar conduct)24; Philips Medical Sys. Int'l B.V. v. Bruetman, 982 F.2d

211 (7th Cir. 1992) ($19 million default judgment entered for plaintiff; defendant's

counterclaim dismissed); Frame v. S-H, Inc., 967 F.2d 194 (5th Cir. 1992) ($10.2 million

default judgment remanded for hearing on damages; liability determination upheld);

Adriana Int'l Corp. v. Thoeran, 913 F.2d 1406 (9th Cir. 1990), cert. denied, 498 U.S.

1109 (1991) (default judgment in excess of $8 million).

The asymmetry and lack of uniformity which has developed across the circuits,

while not surprising given the absence of any guidance under the rule, is at best

troubling. Parties, and particularly corporate defendants who often face litigation in

several circuits, face uncertainty and speculation regarding the potential for the various

sanctions. Actions which warrant a standard sanction in one circuit may lead to most

severe sanction in another.

2. Severity in Rule 37(b)(2)

The absence of uniformity and certainty in the application of the rule is most

concerning in the context of the court's increasing willingness to impose litigation-ending

sanctions. As the Fifth Circuit recently warned, such sanctions involve a "question of life

or death, or to be or not to be ... We are thus loath to approve of the dismissal of a case

as a sanction ... without evidence of the maleficent conduct that justifies death." FDIC

v. Conner, 20 F.3d 1376, 1381, 1383 (5th Cir. 1994).

24 National Hockey dramatically shifted the previously permissible justifications for imposing

sanctions by encouraging courts to impose harsh sanctions for deterrence purposes.

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DRAFT

While several circuits have articulated specific factors that must be considered in

imposing these sanctions upon litigants who fail to comply with discovery orders and

requests, other circuits have failed to identify any reasonable guidelines. The First,

Second, Seventh, Eighth and Eleventh Circuits have yet to articulate a specific set of

standards.2' Even among the circuits that have delineated standards, no single approach is followed by more than one circuit.26 As recently described by one

commentator, the imposition of sanctions has essentially become "a game of chance - a roll of the dice." Jodi Golinsky, The Second Circuit's Imposition of Litigqation-Ending

25 For a detailed discussion of the general approaches adopted by these circuits, see Jodi

Golinsky, The Second Circuit's Imposition of Litigation-Ending Sanctions For Failures to Comply With Discovery Orders: Should Rule 37(b)(2) Defaults and Dismissals Be Determined by a Roll

of the Dice?, 62 Brook. L. Rev. 585 (1996). Golinsky notes that the First Circuit strictly construes

Rule 37(b)(2), favors adherence to the National Hockey general deterrehce doctrine, and

encourages the use of litigation-ending sanctions when necessary. Id. at 598. After reviewing

numerous decisions, she notes that it is difficult to determine what type of-misconduct will be

deemed sufficient to warrant litigation-ending conduct in the Seventh Circuit. Id. at 599. The Eighth Circuit's imposition of such sanction is policy driven, and the cases reveal that courts

must review less severe sanctions unless the party's failure was deliberate or in bad faith.

Finally, the Eleventh Circuit appears to clearly require a finding of wilfulness for the imposition of such sanctions.

26 The Circuits that have explicitly set out factors to be considered in this analysis have adopted

the following approaches: 3rd Circuit (1) extent of party's-personal responsibility; (2) prejudice to adversary; (3) history of dilatoriness; (4) willfulness or bad faith; (5) effectiveness of lesser

alternative sanctions; and (6) meritoriousness of claim or defense - see, eq., Harris v. City of

Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995); 4th Circuit (1) existence of bad faith; (2) amount of prejudice to the adversary, which necessarily includes an inquiry into the materiality of the evidence not produced; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions - See, eg., Mutual Fed. Say. and Loan Ass'n

v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989); 5th Circuit: (1) existence of willfulness or bad faith accompanied by clear record of delay or contumacious conduct; (2) violation of the discovery order attributable to the client instead of the attorney; (3) violating party's misconduct substantially prejudices the opposing party; and (4) a less drastic sanction

would not substantially achieve the desired deterrent effect - see, e g=, FDIC v. Conner, 20 F.3d

1376, 1380-81 (5th Cir. 1994); 6th Circuit" (1) whether the adversary was prejudiced by the

dismissed party's failure to cooperate, (2) whether the dismissed party was warned that failure

could lead to dismissal; and (3) whether less drastic sanctions were imposed or considered

before dismissal was ordered - see, eq-, Beil v. Lakewood Enq'q & Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994); 9th Circuit (1) public's interest in expeditious resolution of litigation; (2) court's

need to manage its dockets; (3) risk of prejudice to party seeking sanctions; (4) public policy of

favoring disposition of cases on their merits; and (5) availability of less drastic sanctions - see,

eg., Henry v. Gill Indus. Inc., 983 F.2d 943, 948 (9th Cir. 1993); and the 10th Circuit: (1) degree of actual prejudice to the defendant; (2) amount of interference with the judicial process; (3) culpability of the litigant; (4) whether the court warned the party in advance that dismissal of that

action would be a likely sanction for noncompliance; and (5) efficacy of lesser sanctions - see,

e._, Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993)

V-16
DRAFT

Sanctions For Failures to Comply With Discovery Orders: Should Rule 37(b)(2) Defaults

and Dismissals Be Determined by a Roll of the Dice?, 62 Brook. L. Rev. 585 (1996).

As apparent, however, even under these varied approaches, there are a few

discernable sound principles that are consistent among many of the circuits - willfulness

or bad faith, prejudice to the opposing party, and a consideration of the efficacy of lesser

sanctions.

a. Willfulness or Bad Faith

It is generally recognized that litigation-ending sanctions should not be imposed

in the absence of willfulness or bad faith. This principal emerged from the Supreme

Court's decision in Societe Internationale, which was embraced to a limited extent in the

1970 revision to Rule 37 that substituted the word "failure" for "refusal." 357 U.S. 197

(1958). This amendment made clear that courts may impose certain sanctions for the

"failure" to comply with discovery orders or requests despite the absence of any

willfulness by the party. It also made clear, however, that the consideration of willfulness

would remain a relevant factor in the selection an appropriate sanction. Fed. R. Civ. P

37 advisory committee notes (1970 amendments) ("'Willfulness' continues to play a role

... in the choice of sanctions"). While the advisory committee notes and the decision in

Societe Internationale point out that severe sanctions are only appropriate if there is

proof of willfulness or bad faith, Rule 37 contains no such provision. 2

Notably, there was a prior suggestion that this doctrine should be written into the

Rule in 1959,' but the Advisory Committee elected not to incorporate such a provision

in the 1970 amendments. At noted above, however, it is indisputable that while litigants

faced a judiciary unwilling to impose sanctions in 1970, litigants today face a myriad of

differing factors in each individual circuit that determines whether such sanctions are

appropriate. Today's litigants also face a judiciary more than willing to impose litigationending sanctions when it deems such sanctions "just."

27 "Rule 37 should not be construed to authorize dismissal of this complaint because of

petitioners noncompliance with a pretrial production order when it has been established that

failure to comply has been due to an inability, and not to willfulness, bad faith, or any fault of

petitioner." Societe Intemationale, 357 U.S. at 212.

2 See Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2283 n.18 (1994)

(noting that "the proposal was to say in the rule that an involuntary dismissal with prejudice

cannot be invoked unless the recusant is in willful bad faith and the party has, by his conduct,

demonstrated a discernible lack of confidence in the merits of his case") (citing Comment,

Recent Innovations to Pretrial Discovery Sanctions: Rule 37 Reinterpreted, 1959 Duke L.J. 278,

290).

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DRAFT

b. Preiudice to the Opposing Party

Another common factor, and the only one that is recognized by every circuit which

has set forth a specific set of factors, is the consideration that litigation-ending sanctions

should not be warranted unless the opposing party is prejudiced by the non-compliance.

Unfortunately, there is little consensus regarding the significance or level of prejudice

necessary to justify the imposition of severe sanctions. Compare, Henry v. Gill Indus.,

Inc., 983 F. 2d 943, 948 (9th Cir. 1993) (risk of prejudice to opposing party considered

a "key" factor); Federal Deposit Ins. Corp. v. Conner, 20 F.3d 1376 (5th Cir.

1994)(requiring "substantial prejudice"); Coane v. Ferrara Pan Candy Co., 898 F.2d

1030, 1032 (5th Cir. 1990) (same); Mutual Fed. Say. & Loan Ass'n v. Richards &

Assocs., Inc.. 872 F.2d 88, 92 (4th Cir. 1989) (prejudice analysis necessarily includes

a consideration of the materiality of the evidence the party being sanctioned failed to

produced). Two things are clear from a review of the pertinent decisions: (1) there

remains no certainty or symmetry in the application of this factor; and (2) the courts

agree with the basic principal that litigation-ending sanctions are unwarranted unless a

party is significantly or substantially prejudiced by the party's failzre to respond

adequately to the.discovery.

c. Consideration of the Efficacy of Lesser Sanctions

A final factor that is consistently found among the better- reasoned decisions, is

the recognition that prior to the imposition of litigation-ending sanctions, the court should

carefully consider the efficacy of lesser sanctions. See, e.g., Harris v. City of

Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995); Mutual Fed. Say. and Loan Ass'n

v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989); FDIC v. Conner, 20 F.3d

1376, 1380-81 (5th Cir. 1994); Beil v. Lakewood Eng'g & Mfa. Co., 15 F.3d 546, 552 (6th

Cir. 1994); Henry v. Gill Indus. Inc., 983 F.2d 943, 948 (9th Cir. 1993); Jones v.

Thompson, 996 F.2d 261, 264 (10th Cir. 1993). This principle is sound and it is logical

to require this consideration prior to imposition of any significant sanctions under Rule

37(b)(2).

E. CREATING A SAFE HARBOR PROVISION

Similar types of safe harbor provisions have been adopted in other contexts. For

example, the Securities Act encompasses a "safe harbor" provision for forward-looking

statements, which essentially provides that a party making a forward-looking statement

shall not be liable for any materially misleading statements contained therein if it has

performed certain generally accepted tasks. 15 U.S.C. § 78u-5(c). Similarly, a party

responding to discovery should be granted a rebuttable presumption (or semi-safe

harbor) that its conduct was substantially justified if it has performed the tasks ordinarily

or routinely performed in responding to discovery.

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DRAFT

1. Active Good Faith Effort To Comply

By currently providing for sanctions for the "failure" to comply, Rule 37 permits the

imposition of sanctions regardless of whether the party acted in good faith or completely "refused" to comply. To address this, the Rule attempts to protect parties that acted with

"substantial justification" but offers no guidance regarding what actions will suffice. The

proposed amendment clarifies that parties who assert an "active good faith attempt to

comply" shall not be sanctioned under this standard. This is consistent with case law

which recognizes that sanctions should not be imposed on parties who made good faith

efforts to comply. See, eq., Richmark Corp. v. Timber Falling Consultants, 959 F.2d

1468 (9th Cir. 1992) (recognizing Rule 37 sanctions are inappropriate when party has

taken reasonable step to comply, but finding that party before the court had not acted

in good faith); Cullins v. Heckler, 108 F.R.D. 172 (S.D.N.Y. 1985) (award of expenses

and fees not warranted where party made a good faith effort to comply); Curtin v. Curtin,

90 F.R.D. 582, (N.D. Ohio 1981) (refusing to impose sanctions despite prior counsel's

dilatory tactics when party and new counsel were acting in good faith); In re

Westinghouse Elec. Corn. v. Uranium Contracts Litigation,-563 F.d 992.(10th Cir. 1977)

(error to hold party in contempt under Rule 37 when party had made a good faith effort

to comply); Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858 (5th Cir. 1970)

(district court erred in striking claim where party made good faith effort to comply);

Technitrol, Inc. v. Digital Equipment Corp., 62 F.R.D. 91 (N.D. III. 1973) (same); see

gnerall, Robert Koets, Sanctions for Failure to Make Discovery Under Federal Civil

Procedure Rule 37 as Affected by Defaulting Party's Good Faith Efforts to Comply, 134

A.L.R. Fed. 257 (1996) ("sanctions ... are not ordinarily applied where the defaulting

party has made an active, good-faith effort to comply).

However, the definition of "active good faith" in this context may also present

difficulty in defining. Therefore, DRI also proposes that the advisory committee note give

guidance related in at least two contexts: responses to Rule 33 and Rule 34 requests.

a. Response to Request For Production of Documents

A rebuttable presumption in favor of "substantially justified" conduct and "active

good faith" by a party should exist if a party responding to a request for production of

documents has performed the following:

(1) Timely providing a response to a request for production of

documents, specifically identifying documents which have been or

will be produced and identifying specific objections to the

objectionable requests;

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DRAFT

(2) Conducted a reasonable search for non-objectionable documents,

consisting of:

(a) investigation of persons likely to have possession of

responsive documents; and

(a) making a request for materials from persons or employees of

party likely having responsive materials;

(3) production of non-objectionable, responsive documents discovered

in the search; -

(4) Upon request by the requesting party, has met and conferred

concerning the scope of the production request; and

(5) supplementation of documents of any additional responsive

documents within a reasonable time of discovery-their existence.

b. Interrogatory Responses

A rebuttable presumption in favor of "substantially justified" conduct and "active

good faith" should exist if a party responding to interrogatories has performed the

following:

(1) Timely providing a response to the interrogatory, specifically identifying specific objections and providing responsive answers to

the non-objectionable portions of the interrogatory;

(2) Investigation of persons and documents likely to have information

responsive to the interrogatory;

(3) Upon request by the requesting party, has met and conferred

concerning any objections to the interrogatories; and

(4) providing supplementation to any interrogatory within a reasonable

time of any additional responsive information.

B. Noncompliant Party Affirmatively Raises Issue With Opposing Party or

Court For Disposition

A rebuttable presumption of "substantial justification" and "active good faith"

should exist where the party against whom sanctions are sought affirmatively raises the discovery issue which is the basis of the alleged sanctionable offense. It should be presumed that a party who openly raises an issue with the opposing party and timely

V-20
DRAFT

files a motion for protective order, or takes the other appropriate measure, was not

acting in bad faith. Parties and even different courts differ on legal interpretations, and

during the course of the discovery process there may be close calls which are subject to debate. There may be reason to assert an objection which is well-reasoned and

rational, but which is contrary to the then existing law. However, a party should not be

sanctioned for affirmatively taking a reasonable position advocating the change in

existing law or in distinguishing the current law from the specific issue at hand. For

example, under Rule 11, it recognizes that the certification is only that "are warranted

by existing law or by a nonfrivolous argument for the extension, modification, or reversal

of existing law or the establishment of new law." Fed.R. Civ.P. 11(b)(2) (emphasis

added). 29 Thus, if instead of hiding or ignoring the issue, a party affirmatively raising

an issue to which there could be a reasonable difference of opinion, but to which the

party objects, it should be presumed that the party is acting in good faith.

IV. CONCLUSION

If proper;y applied these proposed amendments to Rule -37 can lead to

appropriate judicial restraint in the application of the Rule while reducing the ever

increasing amount of satellite litigation addressing sanctions.

The amendments provide an even-handed structural approach to codifying the

better reasoned decisions addressing sanctions under Rule 37(b)(2). Additionally, they

create a "semi-safe" harbor provision for "active" "good-faith" efforts at compliance that

is not so impregnable or irrebuttable so as to encourage abusive discovery tactics. They also establish safeguards that employ the generally accepted restraints fundamentally

necessary to a consideration of litigation-ending sanctions.0 Significantly, the

amendments achieve these goals while retaining the flexibility in the Rule necessary to

permit the court broad discretion to impose an appropriate levels of sanctions. These

or similar amendments are paramount to imposing some level of symmetry, fairness and

certainty in the application of Rule 37.

2 We note that Rule 11 was recently amended to include a "safe harbor" provision allowing a

party to withdraw the challenged paper within 21 days of a party filing a motion for sanctions

under the rule. Fed.R.Civ.P. 11 (c)(1)(A).

3 As one author aptly notes, "As criticism regarding discovery abuse mounts, and courts

increasingly employ severe sanctions to curb the abuse, the critical role Rule 37 will play in

federal courts cannot be overstated. Perhaps it is time to reconsider the lack of specificity and

guidance in Rule 37(b)(2) with respect to litigation-ending sanctions, and conform it to the

process and approach already employed by a majority of circuits" Golrnsky, at 662

V-21
I

<I

t1
DRAFT

DRI'S PROPOSED CHANGES TO FEDERAL RULE 26(b)(5)

RELATED TO ASSERTION OF PRIVILEGE

EXECUTIVE SUMMARY

Rule 26(b)(5), which governs objections to discovery on the grounds of

privilege and/or work product, was added to the Federal Rules of Civil

Procedure effective 1993.

While the rule as written does not require that a responding party provide

a document-by-document index in every instance that it makes an

objection on the grounds of privilege or work product, courts have

interpreted the rule as containing such a requirement.

The rule as written requires that the information about the material withheld

be provided at the time the written response is served. In cases involving

production of numerous documents, complying with this requirement within

the thirty days given for serving a written response is an impossibility.

In cases involving production of .numerous, documents, generating a

document-by-document privilege index is a costly and burdensome

exercise, and the burden is disproportionately placed on the corporate

defendant

In some instances, requesting parties will demand costly and burdensome

privilege logs from the responding party, even though the material withheld

is clearly privileged or otherwise outside the proper scope of discovery.

In some instances, a document cannot be placed on a document-bydocument privilege index without revealing privileged information.

* According to the Advisory Committee comments, a responding party may

waive its privilege objection if the party does not strictly comply with the

rule.

These problems can be addressed if the rule is modified to provide for a

two to three-step process whereby the responding party provides notice,

through a general description of the documents withheld, that it is

withholding otherwise discoverable information from discovery. The

requesting party could then lodge a good faith challenge to that objection

and request additional information and support for the privilege claim. The

court would only become involved if the parties could not agree on the type

of information to be provided or the schedule for providing such

information.

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If. PROPOSED CHANGES TO RULE 26(b)(5)

(A) When a party withholds information otherwise discoverable under these

rules by claiming that it is privileged or subject to protection as trial

preparation material, the party shall notify the requesting partv in its

discovery responses that it is withholding otherwise discoverable material

under a claim of privileqe and/or work Droduct and shall generally describe

the nature of the documents, communications, or things not produced or

disclosed in a manner that, without revealing information itself privileged

or protected, will enable other parties to assess the applicability of the

privilege or protection.

(B) If the requesting party in good faith believes that the material withheld

is subject to discovery despite the claim of privilege or work product, it

shall so notify the responding party in writing and reguest that the

responding party provide additional information about the material withheld.

The -responding. oarty shall thereafter, within a reasonable time, provide

additional information about the material withheld sufficient to suoport the

claim of privileae or protection and in a manner that will not reveal

information itself privileged or protected. The amount of detail to be

provided and the schedule for providing the additional information shall be

proportional to the number and type of documents involved. If the parties

are unable, after good faith negotiations, to agree on the amount of detail

to be provided at this time or on the schedule for providing such additional

information, they may seek the guidance of the court. If the court

determines that either Party has not participated in this process in good

faith, it may order sanctions.

Ill. DISCUSSION

A. RULE 26(b)(5)

Rule 26(b)(5)'s clear purpose is to require parties to supply their opponents with

enough information about material withheld from discovery under a claim of privilege that

the opposing party can contest the claim, if he or she believes the material withheld to

be discoverable despite the privilege3' or that the claim is improper.

The rule provides:

31 For example, if the material were "ordinary" work product, then the opposing party could try

to discover it by showing "substantial need" of the information and 'inability, without undue

hardship, of getting the same information through other means." Fed.R. Civ. P. 26(b)(3).

VI-2
DRAFT

When a party withholds information otherwise discoverable

under these rules by claiming that it is privileged or subject

to protection as trial preparation material, the party shall

make the claim expressly and shall describe the nature of the

documents, communications, or things not produced or

disclosed in a manner that, without revealing information itself

privileged or protected, will enable other parties to assess the

applicability of the privilege or protection.

Fed.R. Civ. P. 26(b)(5). While the rule does not literally require that the objecting party

provide a document-by-document list of materials withheld (i.e. a "privilege log"),32

courts that have interpreted the rule have applied it as if it does contain such a

requirement. Moreover, the failure to provide such a log in a timely manner could result,

in a finding of waiver. Fed.R. Civ.P. 26(b)(5), advisory committee notes.3

The rule as it has been interpreted and applied puts a disproportionate burden on

products liability defendants, for the reasons set forth below. The suggested changes

would address three problems posed by the current version of the rule: they would make

clear that the initial description of material withheld from discovery could be made in a

general way, instead of by way of a document-by-document list they would make clear

that any challenge to the claim of privilege would have to be made in good faith; and

they would provide a reasonable period of time for providing additional information in

support of a privilege claim, should the claim be challenged.

32 The rule only requires a party objecting to discovery on grounds of privilege to "make the claim

expressly" and to provide a description of the "nature of the documents... not produced in a

manner that, without revealing information itself privileged or protected, will enable other parties

to assess the applicability of the privilege or protection." Fed.R. Civ. P. 26(b)(5).

As the advisory committee notes to the rule states:

Details concerning time, persons, general subject matter, etc., may be appropriate

if only a few items are withheld, but may be unduly burdensome when voluminous

documents are claimed to be privileged or protected, particularly if the items can

be described by categories.

Fed. R. Civ. P. 26(b)(5) advisory committee notes. In addition, the rule specifically provides that

the description shall be done in a way that does not reveal "information itself privileged or

protected."

3 But see First Savings Bank. F.S.B. v. First Bank Svs.. Inc., 902 F. Supp. 1356 (D.Ks.

1995)(setting aside magistrate's order, finding waiver too serious a sanction for noncompliance

with rule 26(b)(5)).

VI-3
DRAFT

1. Special Problems With the Rule As Applied

The rule as it has been applied presents serious problems, especially to corporate

lefendants in products liability cases. Courts have a tendency to permit broad discovery

i a products case and there is a marked difference in the status of the parties. This

neans that the burden of discovery falls primarily on the corporate defendant. In

iddition, products liability defendants often face very broadly worded discovery requests

itended to "catch" documents not otherwise asked for in other discovery. When this

Vpe of "dragnet' request is read broadly, it can encompass litigation-related, lawyerreated kinds of materials residing in a manufacturers litigation files.

In other words, by simply wording a discovery request in a certain way, a plaintiff

an literally demand material created by attorneys and other representatives of the party'

i the course of defending products liability actions. For example, a plaintiff might ask

or "any and all documents concerning other incidents involving this product." Because

)f the breadth of this type of request, it literally asks for material from the files of cases

nvolving similar defect allegations. Reports of consulting engineers, litigation crash

ests, attorney-client correspondence, and attorney evaluation letters fall into the

ategory of "any and all documents concerning other incidents involving the product."

leviewing other litigation files and specifically identifying these types of materials on a

rivilege log is a costly exercise. Moreover, the result can be a road map through the

lefendant's litigation strategy in other cases.

a. The Burdensome and Revealing Privilege Log

While the rule as written does not necessarily require a document-by-document

ist in all instances that a party lodges a privilege objection, courts that have interpreted

he rule have applied it as if it does contain such a requirement.' One particularly

roublesome decision is Mader v. Motorola, Inc., 1994 W.L. 535125 (N.D. II1. 1994) from

he Northern District of Illinois. In this case, instead of simply requesting that the

Jefendant produce any witness statements taken for the case, plaintiff asked for "all

See, g Condoan v. Methodist Hospital, 158 F.R.D. 54 (E.D. Pa. 1994) (defendant

)hysician's general privilege objection to request for expert reports from other malpractice

actions inadequate, ordering compliance with the rule); Rodaerv. Electronic Data Systems Corp.,

155 F.R.D. 537 (E.D.N.C. 1994) (ruling that disclosure of any documents withheld under claim

f privilege, through "log" of such documents, "mandated" by rule); Resolution Trust Corporation

Bright 157 F.R.D. 397 (N.D. Tex. 1994)(permitting RTC to redact certain portions of privileged

Jocuments already reviewed in camera, but still requiring RTC to notify defendants of redactions

Dy complying with rule); Braun Medical, Inc. v. Abbott Laboratories, 1994 W.L. 422287 (E.D. Pa.

1994) (in patent case, requiring document-by-document list of privileged documents over

lefendant's objections that such a list would be too burdensome and would reveal privileged

nformation).

VI-4
DRAFT

documents relating to any statements from any individual or group of individuals

concerning matters in this case." Id. at 9. The defendants responded as follows:

Defendants object to this request as calling for documents

protected by the attorney-client privilege and the attorney

work product doctrine. Subject to and without waiving that

objection, defendants will produce the statement of Sandy

Carsello. Defendants further state that they have attorney

notes of interviews of potential witnesses conducted by

attorneys for the defendants and that these attorney notes

are protected by the attorney-client privilege and the attorney

work product doctrine and will not be produced. Id. at 8.

This response and objection clearly contained a "description of the nature of the

documents withheld" which should have been sufficient under the rule. It alerted the

requesting party that material was being withheld, described that material as "attorney

notes" of witness interviews, and "expressly" claimed that the notes were protected from

discovery as privileged and as work product. Attorney notes of witness interviews are

opinion work product, the most highly protected form of work product. Hickman v. Taylor,

329 U.S. 495 (1947). It is difficult to see what more telling description defendants could

have provided.

The court did not agree, commenting that

[P]laintiff has no way of knowing whether defendants' blanket

characterization of their documents is appropriate, as

defendants have not provided a privileged document log.

Absent a description of what documents are at issue, plaintiffis not in the position to make a showing necessary to

overcome work product immunity for particular documents. Id.

at 10.

The court then ordered the defendants to respond to the discovery request by providing

a privilege log "as [rule 26(b)(5)] requires." While the court made clear that the

defendants would not need to disclose the subject matter of the interviews with

witnesses, it did require them to provide the names of persons interviewed. Id. at 10, n.7.

This opinion is clearly wrong. First, names of persons interviewed by an attorney

in the course of preparing his client's case are protected from discovery, as a host of

courts have pointed out.3s In requiring a log of these interviews, the court here required

5 See. e.g., Laxalt v. McClatchy, 116 F.R.D. 438 (D. Nev. 1987) (identities of witnesses

interviewed by investigators in connection with litigation protected as work product);

Commonwealth v. First Nat'l Supermarkets, Inc., 112 F.R.D. 149 (D. Mass. 1986) (holding that

VI-5
DRAFT

defendants to give plaintiffs information they were not entitled to have. Second, plaintiffs

did not have a right to the material withheld in this instance, no matter ,what kind of "need" they might have shown.' Thus, knowing which witnesses the opposing counsel

had interviewed added nothing of practical utility to the discovering party's store of

knowledge, but rather unnecessarily revealed defense counsel's work product.

More importantly, the defendants' objection, as set forth in their discovery

response, was completely adequate to fulfill the purpose of the rule. It told plaintiffs

exactly what defendants were "withholding" and in language that should have alerted

plaintiffs to the nature of the material at issue. The kind of additional information

plaintiffs would have gleaned from a "log" would not have "assist[ed]" them in

determining whether defendants' "characterization" of these interviews was "appropriate."

Besides giving them the names of interviewees, which plaintiffs were not entitled to have,,

-a document-by-document list likely added little to plaintiffs' understanding of the "nature

of the material withheld."

In making this requirement the court in Mader evidenced a '"form over substance"

approach to the application of rule 26(b)(5). This approach, which appears to be in line

with the approach taken by other courts, has created unnecessary discovery burdens in

products liability cases and has endangered the protections that should be afforded

privileged information.

b. The Problem of Timing

Besides the problems presented by the application of the rule in these kinds of

situations, the rule as written presents another problem: the timing of compliance. The

rule as written implies that it must be complied with at the time that the discovery

responses are served. In the case of large document productions, the responses are

often served prior to the production itself and sometimes prior to the completion of the

document review by defense counsel. If the court is going to interpret the rule to require

a document-by-document list, then providing such a list within the 30 day response

period is, in such situations, impossible. In practice, responding parties have tried to

solve this problem by postponing the provision of the "log" until the documents are

actually produced or, in some cases, even later. Given the language of the rule and the

names of persons interviewed by attorney, as well as date and place of interview, protected from

discovery by work product doctrine); Board of Educ. v. Admiral Heating and Ventilating, Inc. 104

F.R.D. 23 (N.D. Ill. 1984) (distinguishing interrogatories asking for names of persons with

knowledge from those asking for names of persons interviewed); Uinta Oil Refining Co. v.

Continental Oil Co.. 226 F. Supp. 495 (D. Utah 1964) (sustaining objection to interrogatory

seeking names of all persons from whom plaintiffs had requested statements).

38While the Supreme Court has not yet ruled that attorney notes of interviews are completely

and forever beyond the scope of discovery, it has made it clear that it would take an unusual set

of circumstances for the material to be subject to discovery.

VI-6
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admonition of the advisory committee, this practice may not always protect a litigant from

claims of waiver.

c. The Bad Faith Challenae

Mader v. Motorola, Inc., 1994 W.L. 535125 (N.D. III. 1994), illustrates another

problem that products liability defendants often face with regard to the rule, that is, the

bad faith challenge to the privilege objection. Rule 26(b)(5)'s clear purpose is to require

parties to supply their opponents with enough information about material withheld from

discovery under a claim of privilege that the opposing party can contest the claim, if he

or she believes the material withheld to be discoverable despite the privilege37 or that

the claim is improper. Unfortunately, this purpose often gets lost in the heat of battle.

Some plaintiffs' counsel will challenge any claim of privilege or work product, just so the

--- defendant will have to jump through the hoops of meeting its burden to "prove" the claim

is valid.3

In Mader, the objection made clear that the responding party was withholding

attorney notes of witness interviews, material which is widely viewed as opinion work

-product and thus beyond the scope of discovery. Plaintiff was not entitled to that

information and was not entitled to the attorneys notes. Moreover, plaintiffs counsel

likely knew that the material was work product and that he or she was not entitled to the

information. Yet the plaintiff challenged the claim and demanded a privilege log. The

result was a log that set forth for plaintiff-ihe names of persons defense counsel had

interviewed, in other words, that set forth the defense counsel's opinion work product.

A rule that results in this kind of disclosure contradicts the basic purposes of

privileges and the work product doctrine. When the Supreme Court articulated the work

product doctrine in Hickman v. Taylor, 329 U.S. 495 (1947), the Court pointed out that

"it is essential that a lawyer work with a certain degree of privacy .. "-reasoning that,

if discovery of such material were permitted:

much of what is now put down in writing would remain

unwritten. An attorney's thoughts, heretofore inviolate, would

not be his own. Inefficiency, unfairness and sharp practices

would inevitably develop in the giving of legal advice and in

the preparation of cases for trial. The effect on the legal

profession would be demoralizing. And the interest of the

clients and the cause of justice would be poorly served.

37 For example, if the material were "ordinary" work product, then the opposing party could try

to discover it by showing "iubstantial need" of the information and "inability, without undue

hardship, of getting the same information through other means." Fed. R. Civ. P. 26(b)(3).

* See. e.g.. James E. Butler, Jr. & Patrick A. Dawson, The Bench As Battleground: The

Discovery Process is Broke and Only Judges Can Fix It, THE VERDICT, May/June 1992, at 19-20.

V1-7
DRAFT

Id. at 511.

If courts interpret rule 26(b)(5) to require, in every instance, a document-bydocument list of an attorney's work product just because such information falls within the

scope of a broadly-worded discovery request, then attorneys will be less sure that their

work will be entitled to that "certain degree of privacy" and the problems foreseen by the

Supreme Court could be at hand.

IV. CONCLUSION

The proposed changes to Rule 26(b)(5) would address the problems outlined

above: they would clarify that only a general description of the material withheld is,

required at the time -the responsive discovery pleading is provided; they would provide

a reasonable period of time for providing more detail, if such were necessary; and they

would require the requesting party to avoid privilege challenges that were made just for

the--sake of-requiring the responding party go through the exercise of generating a

privilege log. The proposed changes would also permit the parties to address their

-disputes over timing and detail to the court, if necessary. The court would have the

power -to sanction either party if it found that either were unnecessarily seeking court

guidance.

These proposed changes would add much needed clarity to the rule and would

-assist both iitigants and the courts by minimizing the likelihood of bad faith challenges

to a claim of privilege.

VI-8
mL
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.

A PROJECT OF THE TLPJ FOUNDATION

SUITE 800

1717 MASSACHUSETTS AVE, N W

WASHINGTON, D C 20036

(202) 797-8600

Fax (202) 232-7203

August 15, 1997

Via Courier

John Rabiej

Rules Committee Support Office

Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002

Re: Conference on Discovery of the Advisory Committee on the Civil Rules

September 4 and 5, 1997

Dear Mr. Rabiej:

Enclosed please find two (2) copies of the Statement of Trial Lawyers for Public

Justice and the TLPJ Foundation for the above-referenced Conference on Discovery.

Thank you very much for your attention to this matter.

Sincerely,

F. Paul Bland, Jr.

cc (including enclosure):

The Honorable David F. Levi

Professor Richard L. Marcus

Professor Stephen Burbank

Jeffrey Barist, Esq.

Gregory Joseph, Esq.

John Scriven, Esq.

Neil A. Goldberg, Esq.

Robert S. Peck, Esq.
STATEMENT OF

TRIAL LAWYERS FOR PUBLIC JUSTICE

AND

THE TLPJ FOUNDATION

FOR THE CONFERENCE ON DISCOVERY

OF THE ADVISORY COMMITTEE ON THE CIVIL RULES

SEPTEMBER 4 AND 5, 1997

F. Paul Bland, Jr.

Trial Lawyers for Public Justice

The TLPJ Foundation

1717 Massachusetts Avenue, N.W.

Suite 800

Washington, D.C. 20036

(202) 797-8600

(202) 232-7203 (fax)

E-mail: pbland@TLPJ.org

August 14, 1997
TABLE OF CONTENTS

Page

INTRODUCTION . ...................................... 1

SUM M ARY ........................................... 2

I. NOTWITHSTANDING THE SPECIAL REPORTER'S FOCUS

UPON THE SUPPOSED EXCESS COSTS OF DISCOVERY,

THE MOST SIGNIFICANT FORM OF DISCOVERY ABUSE

IN THE FEDERAL SYSTEM IS STONEWALLING ............. 4

A. There Is Not Sufficient Evidence that Discovery Imposes

Excessive Costs to Justify Sharply Restricting Discovery ........ 4

B. Restricting Discovery Would Undermine and Harm the

Civil Justice System by Effectively Preventing Plaintiffs

With Valid Claims from Receiving Justice .................. 6

C. The Advisory Committee Should Address The Most

Significant Form of Discovery Abuse: Obstruction

and Stonewalling . ............................... 6

H. TLPJ STRONGLY OPPOSES SEVERAL PROPOSALS

DISCUSSED IN THE SPECIAL REPORTER'S MEMORANDUM

ON THE GROUNDS THAT THEY WOULD UNREASONABLY

RESTRICT AND NARROW NECESSARY DISCOVERY .......... 13

A. The Proposals to Narrow the Scope of Discovery As

Defined in Rule 26 Would Greatly Harm the Civil Justice

System ................................. .... 13

B. The Proposal for Judicial Approval for Document Requests

is Unrealistic and Harmful ........................... 15

C. The Proposal to Shift the Expense of Production to the

Requesting Party Would Prevent Consumers and Victims

with Valid Claims from Receiving Justice, and Would Be

Subject to Enormous Abuses .......................... 17

D. The Proposal that Requesting Parties Must Certify that

They Have Read the Requested Documents Perversely

Would Award Improper "Dump Truck" Discovery .......... 19
E. The Proposal to Reduce Judicial Involvement in Discovery

Disputes and to Rely More Heavily Upon "Self-Policing"

Would Lead to and Encourage Discovery Abuse ............. 20

F. The Proposed Rule that The Inadvertent Production of

Privileged Documents Does Not Waive the Claim of Privilege

Is Unnecessary ................................. 21

III. TLPJ Supports Some of the Proposals Already Before the Advisory

Committee that Would Genuinely Reform and Improve the Discovery

Process .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. The Federal Rules Should Clearly Provide that, As Soon

as Litigation is Commenced, Parties Must Preserve and

Retain Documents, Files, and Records that Are Potentially

Discoverable ................................... 22

B. The Federal Rules Should Place Presumptive Time Limits

on Depositions ................................. 23

C. The Growing Trend Towards Procedural Diversity and

Disparity Within the Federal System Should Be Ended ........ .25

D. Federal Judges Should Set Firm Trial Dates Within a Short

Time After the Filing of the Complaint .................. 27

E. Federal Courts Should More Frequently Impose Sanctions

for Discovery Abuse ............................... 28

IV. IN ADDITION TO THE PROPOSALS SET FORTH IN THE

SPECIAL REPORTER'S MEMORANDUM, TLPJ PROPOSES

SIX ADDITIONAL IMPROVEMENTS TO THE FEDERAL

RULES TO DETER AND REDUCE DISCOVERY ABUSE ......... 29

A. The Federal Rules Should Require Counsel and Parties to

Certify that All Properly Demanded Discoverable Documents

that Could Be Located Through a Reasonable Search Have

Been Produced ................................. 29

B. The Federal Rules Should Direct that No Party May Decline

to Respond to a Discovery Request Under Cover of an

Objection, Unless that Party Specifically States that it is Not

Fully Responding to the Request ...................... 30
C. The Federal Rules Should Specifically Require Responding

Parties to Produce Detailed Privilege Logs When They

Advance Privilege Claims ........................... 32

D. The Federal Rules Should Provide Model Interrogatories,

Both With Respect to Certain General Issues and With

Respect to Common Types of Cases, But the Existence

of These Model Interrogatories Should Not Prevent Parties

from Also Crafting A Reasonable Number of Additional

Interrogatories Tailored to the Specific Case ............... 34

E. Rule 26(a)(2), Relating to Expert Witness Disclosures,

Should Not Be Applied to Treating Physicians .............. 36

F. It Should Be Easier to Get a Hearing on Discovery Motions..... 37

CONCLUSION ..................................... 38
INTRODUCTION

Trial Lawyers for Public Justice is a national public interest law firm that specializes

in precedent-setting and socially significant tort and trial litigation and is dedicated to

pursuing justice for the victims of corporate and government abuses. Litigating throughout

the federal and state courts, Trial Lawyers for Public Justice prosecutes cases designed to

advance consumers' and victims' rights, environmental protection and safety, civil rights and

civil liberties, occupational health and employees' rights, the preservation and improvement

of the civil justice system, and the protection of the poor and the powerless.

The TLPJ Foundation is a non-profit charitable and educational membership

organization that supports Trial Lawyers for Public Justice activities and educates the public,

lawyers, and judges about the critical social issues in which we are involved. It currently

has over 1500 members, primarily plaintiff's trial lawyers and law firms, who participate in

formulating the organization's policies and work as cooperating counsel on Trial Lawyers for

Public Justice cases. The TLPJ Foundation's members regularly represent plaintiffs in a

broad range of personal injury, commercial, civil rights, tort, and other cases in the federal

courts. For ease of communication, we will hereafter refer to Trial Lawyers fro Public

Justice and the TLPJ Foundation collectively as "TLPJ."

As part of its efforts to ensure the proper working of the civil justice system, TLPJ is

dedicated to monitoring and commenting upon proposals to change the Federal Rules of Civil

Procedure. In February of this year, for example, TLPJ commented on proposed

amendments to Rule 23. In previous years, TLPJ has also commented upon a number of

other proposals to amend the civil rules, such as recent proposals to amend Rule 26(c).

I
Because the discovery rules govern a crucial part of our civil justice system, TLPJ welcomes

the opportunity to comment upon the proposed changes to the discovery rules collected by

the Special Reporter to the Discovery of the Advisory Committee on the civil rules. TLPJ

thanks the Advisory Committee for inviting TLPJ to participate in this conference.

SUMMARY

This Statement will open with our comments upon some of the ideas and proposals

discussed in the June 2, 1997 memorandum from Richard Marcus, Special Reporter to the

Discovery Subcommittee, to Participants in the Discovery Conference ("the Special

Reporter's Memorandum"). In these comments, we first respectfully take issue with the

overall premises and focus of concern in the Special Reporter's Memorandum. TLPJ

suggests that the most serious and widespread form of discovery abuse is "stonewalling" i.e.,

the willful refusal to respond to proper discovery requests. While the Special Reporter

apparently begins from the premise that discovery imposes excessive costs, we argue that

there is no serious, scholarly empirical work to justify system-wide restrictions upon

discovery. We also point our that restrictions on discovery would prevent many plaintiffs

with strong claims from receiving justice. Finally, we argue that stonewalling is widespread,

and document that responding parties regular withhold documents, destroy evidence, "dump"

tens of thousands of irrelevant and scrambled documents upon their opponents, and refuse to

responsively answer interrogatories.

In Part II of this Statement, we explain that several of the proposals addressed in the

Special Reporter's Memorandum, proposals which seek to narrow and restrict discovery,

would greatly harm the administration of civil justice in the federal system. We take issue

2
with proposals to limit the scope of discovery, to require judicial approval before allowing

parties to request documents, to require requesting parties to pay the fees and costs of

responding parties, and similar proposals aimed at reducing and restricting discovery

practice. These proposals would have the effect of denying any realistic remedy to

consumers and victims with valid claims, by denying needed evidence to plaintiff's. Several

of the proposals would have the effect of encouraging stonewalling, and none of these

proposals address the most serious types of discovery abuse.

In the third part of this statement, we endorse some of the other proposals set forth in

the Special Reporter's Memoranda, including the proposals to require parties not to destroy

potentially discoverable documents; to place presumptive time limits on depositions; to

restore uniformity to the federal courts; and to encourage the more frequent imposition of

discovery sanctions. In TLPJ's view, these proposals would help discourage stonewalling

and related discovery abuses, and would improve the operation of the federal civil justice

process.

Finally, in Part IV below, we suggest a number of additional proposals not mentioned

in the Special Reporter's Memorandum that TLPJ believes would strengthen and improve the

discovery rules, and would discourage stonewalling. The first of these proposals would

require counsel and parties to certify that all properly demanded discoverable documents that

could be located through a reasonable search have been produced. This would clarify and

affirm the discovery obligations of responding parties. TLPJ also proposes that the rules be

amended to forbid "secret partial answers," where parties do not indicate that they are

withholding information as a consequence of their objections. This widespread practice is

3
abusive and often deceptive, and it should be ended. TLPJ further suggests that the rules be

amended to codify the prevailing caselaw requiring privilege logs, since responding parties

routinely assert unsubstantiated and thus improper objections based upon claims of privilege.

TLPJ also urges the Advisory Committee to create model interrogatories in order to

discourage abusive objections to straightforward queries.

I. NOTWITHSTANDING THE SPECIAL REPORTER'S FOCUS UPON THE

SUPPOSED EXCESS COSTS OF DISCOVERY, THE MOST SIGNIFICANT

FORM OF DISCOVERY ABUSE IN THE FEDERAL SYSTEM IS

STONEWALLING

A. There Is Not Sufficient Evidence that Discovery Imposes Excessive Costs to

Justify Sharply Restricting Discovery.

The Special Reporter's Memorandum, and some of the materials attached to that

memorandum, begin with the premise that discovery in the federal civil justice system poses

excessive and unjustified costs upon large institutions, and therefore needs to be restricted.

TLPJ challenges the notion that discovery generally imposes excessive costs on a systemwide basis. Some of the Proposals to restrict discovery set forth in the Special Reporter's

Memorandum have been previously rejected precisely because there was no empirical support

for such premises. The last time the Advisory Committee on the Civil Rules considered the

issue of whether reports of excessive discovery costs justified narrowing the scope of

discovery under Rule 26, it concluded that "we are not satisfied on the present record,

including such empirical studies as have been made, that changes suggested so far would be

of any substantial benefit." Memorandum of Walter R. Mansfield, Chairman, Advisory

Committee on Civil Rules, 85 F.R.D. 538, 542 (1979). TLPJ is aware of no new serious,

scholarly work or rigorous empirical evidence establishing that the costs of discovery exceed

4
its very real benefits, or even establishing the true scope of those costs. Professor Cooper,

the Advisory Committee's Reporter, has written of "aching complaints" about the cost of

discovery, see attachment to the Special Reporter's Memorandum, and this concern animates

all of the comments and proposals set forth in Professor Cooper's memorandum. This sort

of anecdotal evidence, however, does not justify the sort of sweeping system-wide changes to

sharply restrict discovery that are contained in the Special Reporter's Memorandum.

The lack of empirical support for proposals to restrict discovery is particularly

striking in light of the many recent significant changes to federal discovery practice in the

United States. Significant changes to the federal rules were enacted in 1993, and the many

important provisions of the Civil Justice Reform Act of 1990 also have affected the practice

of discovery in the federal courts. TLPJ knows of no extensive scholarly study of the

precise costs and benefits of discovery that has occurred in the wake of these changes.2

Simply put, the parties seeking to limit discovery may have "aching complaints" of harm to

' See also Charles Sorenson, Disclosure Under Federal Rule of Civil Procedure 26(a) --"Much Ado About Nothing?", 46 Hastings L.J. 679, 688 (1995) ("This examination suggests that discovery abuse may not be as overwhelming a problem in terms of litigation cost and delay as it has incessantly been portrayed."); Linda S. Mullenix, Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequenes for Unfounded Rulemaking, 46 Stan. L. Rev. 1393, 1396 (1994) ("There is no strong evidence documenting the alleged massive discovery abuse in the federal courts. The rulemakers never established

the existence of discovery abuse before embarking on their crusade to revamp discovery. Indeed, existing empirical studies challenged the received notion of pervasive discovery

abuse.")

2 See also 6 James Win. Moore et al., Moore's Federal Practice 26.02 (3d. ed.

1997) ("The perception that parties abuse the discovery tools is widely held and is undoubtedly accurate in certain categories of cases. The extent of such abuse is in fact not known. This ignorance reflects both differences over the meaning of abuse and the absence

of empirical data across cases. Given this uncertainty, efforts at reform have not been tailored

and their success, almost by definition, is equally unknown.")

5
their self-interest, but they have not produced the kind of hard evidence that the Advisory

Committee should demand before drastically reducing the scope of discovery allowed to

litigants in the federal courts.

B. Restricting Discovery Would Undermine and Harm the Civil Justice

System by Effectively Preventing Plaintiffs With Valid Claims from

Receiving Justice.

In reality, full and fair discovery is essential to the civil justice system. If discovery

were significantly restricted, that would prevent a great many consumers and victims with

strong claims from receiving justice. While the Special Reporter's Memorandum discusses a

variety of proposals in measured, scholarly language, the proposals to sharply restrict

discovery (addressed below in Part II of this statement) cannot be veneered as merely

"neutral" changes to the rules. These proposals would greatly redound to the benefit of one

side -- and only one side -- in civil litigation: defendants. Plaintiffs have the burden of

proof in our system, and without access to evidence to support each element of their claims,

they will not be able to prevail. Corporate defendants generally have a good deal of

information about their practices and policies, the persons who designed and implemented

those practices and policies, and the reasons behind the practices and policies. Plaintiffs

require this information to go forward. The fundamental reality of the discovery process is

that plaintiffs lack information and need it, while defendants have information and do not

want to give it up. This lends to what we view as the most significant form of discovery

abuses: stonewalling.

C. The Advisory Committee Should Address The Most Significant Form of

Discovery Abuse: Obstruction and Stonewalling.

The discovery process is routinely abused in the federal courts by defendants seeking

6
to avoid legitimate discovery requests. Every day, responding parties, and particularly large

corporations, ignore their discovery obligations under the federal rules of civil procedure. In

our experience, responding parties regularly stonewall, play games (particularly "hide the

pea"), and refuse to fully answer proper discovery requests.

Stonewalling arises, in large part, from two related phenomenons. First, responding

parties have very strong incentives to stonewall. If a party is guilty of serious wrongdoing,

but nearly all of the actual proof of this wrongdoing is in its possession, it faces a powerful

temptation to prevent that proof from ever seeing the light of day. As noted above, many

plaintiffs could never succeed in their actions without access to the defendant's documents,

and nearly all large defendants are quite aware of this reality.

The second factor giving rise to stonewalling is the absence of accountability for

stonewallers. The overwhelming experience of TLPJ and its supporters is that it is often

extremely difficult to get federal judges to address discovery disputes. Many federal judges

have extremely heavy dockets (particularly due to the rapid expansion of federal crimes

within the last decade) and demonstrate very little interest in discovery disputes. Even in

particularly egregious instances of discovery abuse, parties in civil matters must wait a long

time to get a judge's attention.

As a result of these two factors, stonewalling has become a widespread, systemic

problem throughout the federal civil justice system. One study found that one half of 1,500

litigators surveyed believed that unfair and inadequate disclosure of material prior to trial is a

"regular or frequent" problem. Deborah Rhode, Ethical Perspectives on Legal Practice, 37

Stan. L. Rev. 589, 598-99 (1985) (citation omitted). Another careful survey found that

7
"sixty-one percent of the lawyers interviewed complained about some form of evasion."

Wayne D. Brazil, Civil Discovery: Lawyers' Views on Its Effectiveness, Its Principle

Problems and Abuses, Am. B. Found. Res. J. 787, 829 (1980). Then-Professor, now Judge

Brazil added:

It would be difficult to exaggerate the pervasiveness of evasive practices or

their adverse impact on the efficiency and effectiveness ( for information

distribution) of civil discovery. Evasion infects every kind of litigation and

frustrates lawyers in every kind of practice. With the possible exception of the

role of the courts, no aspect of the discovery process stands in greater need of

extensive critical scrutiny.

Id. See also Earl C. Dudley, Discovery Abuse Revisited, 26 U.S.F.L. Rev. 189, 194-95

(1992) ("Common tactics include spuriously narrow constructions of the discovery requests,

frivolous (and frequently undisclosed) withholding of information on privilege grounds, and

deliberately evasive or unresponsive answers to interrogatories or questions at deposition.")

(footnotes omitted). As several other commentators recently put it:

Stonewalling is simply the failure or refusal to provide discoverable

information properly requested by the opposing party. It occurs in many forms, ranging from groundless objections to the actual destruction of evidence. Unfortunately, this type of abuse has reached epidemic proportions in complex tort cases. Practitioners have observed this trend. It also is

apparent from the marked increase in reported cases imposing sanctions for

various forms of stonewalling.

Francis H. Hare, Jr.; James L. Gilbert; Stuart A. Ollanik, Full Disclosure: Combating

Stonewalling and Other Discovery Abuses xxxi (1994). As Ralph Nader and Wesley Smith

have written:

As the cases below suggest, some corporate lawyers routinely make specious objections, withhold documents, reinterpret questions asked of their clients, ignore those parts of questions they would rather not answer, and twist the

common meaning of language to avoid disclosing documents. These tricks

force their adversaries to go to court repeatedly to obtain information to which

8
they are entitled under the law.

Such stonewalling serves three primary purposes: It makes corporate lawyers

a lot of money, it exhausts the legal opposition, and it keeps discoverable

information from being disclosed.

Ralph Nader and Wesley J. Smith, No Contest 102 (1996).

In our experience, stonewalling is particularly widespread with respect to document

requests. Responding parties around the United States routinely refuse to produce

discoverable materials, and routinely interpret what is "discoverable" very narrowly. The

initial response to many requests for production is a series of objections, but no actual

documents. For many responding parties, a document request or document deposition is

viewed not as giving rise to a serious obligation under the rules, but instead as the opening

step in a negotiation. The next step for the requesting party in this type of litigation is the

presentation of a motion to compel. Motions to compel rarely end up in front of the court,

however, either because the requesting party accepts less information than that to which it is

entitled in exchange for avoiding further time and costs in litigating the motion to compel, or

because (after extensive delay and unnecessary expenditure of resources) the requesting party

eventually gets most or all of what it wanted.

Even when those motions succeed in pressuring the responding party to eventually

divulge most of the material requested, parties resisting discovery can still receive substantial

benefits from the practice, because the motions practice wears down their opponents and

brings about substantial delay.3 E.., James E. Butler and Jason L. Crawford, The

3 See Hare, et l, Full Disclosure at 94 ("delay can be nearly as effective in concealing the facts [as evidence destruction or suppression] .... Delay, with its inevitable

consequence of increased expense, is the most common form of discovery abuse.")

9
Boundaries of Zealous Advocacy: Properly Representing Consumers Against Corporations

and their Discovery Tactics, 31:4 Tort & Ins. L.J. 977, 984 (Summer 1996) ("sometimes

defendants produce some responsive . . . documents on an intermittent basis to feign good

faith. The object of the tactic is to harass plaintiffs counsel," and to undermine a coherent

strategy of discovery).

At the same time that many crucial documents are withheld, another common abuse is

the use of "dump truck" discovery. All too often, large companies respond to

straightforward discovery requests by dumping tens or hundreds of thousands of scrambled

documents including a large number of nonresponsive documents, upon the requesting party.

Instead of a sip of water, the requesting party receives the full force of a fire hose in the

face. This form of discovery abuse has become a common experience for TLPJ and its

members. It has also been recognized by commentators. See Hare, et al., Full Disclosure at

117 ("The prevalence of attempts to subvert meaningful discovery by responding to specific

inquiries with volumes of documents -- undifferentiated as to subject matter and with no

meaningful index -- has been well documented. ,,)4; Mark A. Dombroff, Dombroff on Unfair

Tactics § 1.20 at 35 (2d. ed. 1988):

A "shuffled deck" response to a request for production occurs when the

party producing documents them in a format or manner which approximates what occurs after a deck of cards has been shuffled. The documents have been "reorganized", and all original structure or format has been removed.

In a "smoking gun" response, a responding party attempts to hide an incriminating or particularly damaging document in a "boxcar" load of documents and makes the gratuitous offer to permit the requesting party to

4 The footnote accompanying this passage cites 13 illustrative federal cases where

courts recognized (and condemned) this practice of "dump truck discovery.")

10
review all the documents in the load, hoping to intimidate the opponent into

submission.

The Section of Litigation of the American Bar Association has

recognized that "it is apparently not rare for parties deliberately to mix critical

documents with others in the hope of obscuring significance." Report of the

Special Committee for the Study of Discovery Abuse 22 (1977).

In addition, the actual destruction of discoverable evidence is widespread in civil

litigation in the United States. The recently reported jokes of Texaco officials as they stood

around shredding documents offended millions of Americans, but few experienced litigators

were surprised to learn that a large corporate defendant was destroying evidence. See

Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for

Vigorous Judicial Action, 13 Cardozo L. Rev. 793 (1991) ("spoliation is an effective and

growing litigation practice that threatens to undermine the integrity of civil trial process");

Nader and Smith, No Contest at 134-57 (discussing a series of cases -- involving toxic torts,

products liability and medical malpractice -- where defendants destroyed important evidence);

Hare, et al., Full Disclosure at 141 ("Judging from the sheer number of reported cases, the

destruction, alteration, and other spoliation of evidence by a party or prospective party to

litigation have become widespread in the past decade") (footnotes omitted); Butler &

Crawford, The Boundaries of Zealous Advocacy, at 979 ("A manufacturer will often hide,

destroy, or otherwise fail to produce incriminating evidence"); and Stephen Marzen and

Lawrence Solum, "The Law of Professional Responsibility," in Destruction of Evidence 267

(J. Gorelick, S. Marzen & L. Solum, eds, 1989) ("there is substantial evidence that attorney

participation in the destruction of evidence is a frequent occurrence").

11
The experience of TLPJ and its members confirms the judgment of these

commentators that document destruction is widespread. In one recent illustrative TLPJ case,

a consumer deception class action, two days after the complaint was filed TLPJ learned that

one of the defendants in the case (a large, well-known financial institution) had placed

literally dozens of garbage bags of documents in a dumpster. One of the bags was

recovered by an employee of a business neighboring the defendant, who had read about the

suit in a newspaper. The bag proved to be filled with documents related to the case. The

only sanction yet visited upon that defendant for this conduct was the entry of an order

prohibiting further destruction of documents. In our experience, the destruction of

documents in that case was rare only in the sense that it was so easily detected.

It should be noted, moreover, that stonewalling is not limited to document discovery.

In our experience, interrogatories rarely elicit much responsive information, because of

widespread abuses by responding parties. Many lawyers report that the interrogatory has

become a nearly useless discovery device in federal civil litigation. Lawyers almost never

draft interrogatory responses that directly and fully answers a question. Boilerplate

objections possessing only a passing relevance to the interrogatory asked are very common,

and it often appears that interrogatory answers are more the product of cut-and-paste word

processing than serious lawyering.i Nearly every interrogatory that is posed in many cases

is objected to on the supposed grounds that it is overly broad, that responding to it would be

' Numerous commentators have reached the same conclusion as TLPJ in this respect.

Efg., W. Bradley Wendel, Rediscovering Discovery Ethics 78 Marq. L. Rev. 895, 905 (1996)

("Lawyers, fearful of waiving any conceivable objection to a discovery request, respond to

simple interrogatories with a torrent of boilerplate objections and mindless pettifoggery.")

12
burdensome, that its wording cannot be understood, that answering it might reveal the workproduct of the counsel for the responding party, and the like. 6

The foregoing only begins to describe a few of the ways in which responding parties

regularly abuse the discovery process in federal litigation.

In short, in largely focusing upon the perceived costs of discovery, the Special

Reporter's Memorandum has given insufficient attention to the most widespread and serious

form of discovery abuse -- stonewalling. Stonewalling prevents many deserving parties from

receiving justice, imposes great costs upon the system, and constitutes the willful refusal to

comply with the Rules. If the Advisory Committee intends to amend the Federal Rules of

Civil Procedure to combat discovery abuse, it should direct its efforts at preventing

stonewalling.

H. TLPJ STRONGLY OPPOSES SEVERAL PROPOSALS DISCUSSED IN THE

SPECIAL REPORTER'S MEMORANDUM ON THE GROUNDS THAT THEY

WOULD UNREASONABLY RESTRICT AND NARROW NECESSARY

DISCOVERY.

A. The Proposals to Narrow the Scope of Discovery As Defined in Rule 26

Would Greatly Harm the Civil Justice System.

The Special Reporter's Memorandum discusses a proposal to sharply narrow the

scope of permissible discovery under Rule 26, with respect to all discovery devices

Alternatively, the memo discusses a second proposal to limit the scope of discovery solely

with respect to document requests. Under these proposals, discovery would only be

6 This abuse is particularly striking, when one considers that some of the large

institutions that complain the most about the cost of discovery are also often among the worst

offenders in not answering interrogatories, even though interrogatories are often the most costeffective means of obtaining information.

13
It is not entirely clear how the proposed rule would differ from the doctrines

emerging from this caselaw, other than that it appears that the Special Reporter apparently

would like to protect more information than is currently protected. The problem with the

proposal, in large part, is that it is not self-evident what types of production would be truly

"inadvertent." Accordingly, TLPJ suspects that the proposed rule would create a good deal

of litigation as to what the term "inadvertent" means. For example, if counsel for a party

review a document, and decide that it is not privileged, and then later change their mind and

decide to assert a privilege, can the party then assert a claim of privilege and argue that the

original production was "inadvertent"? Such a claim of privilege would almost certainly be

waived under the current caselaw, but perhaps the proposed rule change would permit such a

change of heart.

TLPJ sees no reason to reject a well-developed body of caselaw that wisely balances a

number of relevant factors and replace it with a one-size-fits-all solution sought by some

responding parties.

III. TLPJ Supports Some of the Proposals Already Before the Advisory Committee

that Would Genuinely Reform and Improve the Discovery Process.

A. The Federal Rules Should Clearly Provide that, As Soon as Litigation is

Commenced, Parties Must Preserve and Retain Documents, Files, and

Records that Are Potentially Discoverable.

TLPJ strongly endorses the proposal set forth in the Special Reporter's Memorandum

for an amendment "to limit destruction of potentially discoverable materials." It is

surprising, and deplorable, that there should be a need to amend the Federal Civil Rules of

Procedure to expressly bar the destruction of documents. One would hope that the ethical

22
rules governing attorneys would have been sufficient to eliminate this practice.9

Unfortunately, as noted in Part I-C above, the existing guidelines have frequently failed to

prevent the destruction of discoverable materials.10 Evidence collected by a number of

commentators, as well as the experience of TLPJ and its members, suggests that parties

responding to discovery all too frequently destroy discoverable documents and materials after

a case was initiated.

Accordingly, there is clearly a need to bolster and more firmly articulate the standards

governing such behavior. The Rules Advisory Committee should take a very strong stand

against this most egregious form of discovery abuse. We agree that the Federal Rules should

make it explicitly clear that the destruction of discoverable materials is improper and

sanctionable conduct.

B. The Federal Rules Should Place Presumptive Time Limits on Depositions.

The Special Reporter's Memorandum lists a proposal to place presumptive time limits

on depositions, and references an earlier proposal to cap depositions at six hours. TLPJ

approves of this proposal, with two crucial caveats.

9 Several Federal courts have recognizes that litigants have a duty to preserve evidence that they know or reasonably should know is discoverable, and is either (a) likely to

be requested during discovery; or (b) the subject of a pending discovery request. E±g National Association of Radiation Survivors v. Turnape, 115 F.R.D. 543 (N.D. Cal. 1987); William T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443 (C.D. Cal. 1984).

10 See also Ricardo Cedillo and David Lopez, Document Destruction in Business

Litigation from a Practitioner's Point of View, 20 St. Mary's L.J. 637, 664 (1989) ("All other

things aside, present ethical provisions and federal and state laws unfortunately will not

encourage attorneys to constrain client destructions of evidence or deter lawyers themselves

from participating in destruction and concealment.")

23
rulemaking. District courts throughout the federal system have adopted individual sets of

local rules, and some districts have frequently and repeatedly amended those rules. In

addition, some districts have also imposed a broad variety of additional rules labelled

"Discovery Guidelines" that further regulate discovery practice.

TLPJ does not contend that most or all of the various local rules around the nation are

themselves harmful or bad ideas. Indeed, several of our own proposals for changes to the

federal rules discussed in Part IV, inra are drawn from local rules in different district

courts. Nonetheless, the sheer diversity of discovery procedures has sadly Balkanized the

federal district courts. Practices differ from district to district nearly as much as they differ

from state to state.

In addition, even within many federal district courts, there are often quite wide

variations in the discovery practices permitted or required by individual judges. A good

many U.S. district judges have prepared their own individual sets of rules, and promulgate

them as part of a scheduling order or as a stand-alone set of rules. This spreading practice

creates further diversity in the federal courts, and is yet another step from the ideal of a

largely uniform federal practice.

The Special Reporter's Memorandum suggests that uniformity might be particularly

desirable with respect to the mandatory disclosure provisions added to Rule 26 in 1993.

TLPJ agrees that uniformity is desirable with respect to these provisions, and agrees that

mandatory disclosure should be enacted on a nationwide basis. Nonetheless, we caution the

Rules Advisory Committee not to place too much hope or emphasis on the mandatory

disclosure provisions.

26
In the experience of TLPJ and its members, the mandatory disclosure rules have had

little positive impact upon discovery practice. The vast majority of corporate defendants

interpret their obligations under the disclosure rules so narrowly that remarkably little

information is usually disclosed. While a few TLPJ members have reported good

experience, most reports are discouraging. The provisions have been widely abused, and the

experiment has not been a success. Automatic disclosure is, at best, a complement to full

formal discovery by traditional methods. While we see only limited value to mandatory

disclosure, we do not wish to see it eliminated at time when the thrust of most of the

proposals in the Special Reporter's Memorandum is to restrict and narrow discovery. In a

setting where a number of traditional and significant discovery devices many be sharply

curtailed, TLPJ is loathe to see the discovery provisions limited as well. If the Advisory

Committee is seriously considering acting to restrict document discovery, it should not also

limit the disclosure provisions.

D. Federal Judges Should Set Firm Trial Dates Within a Short Time After the

Filing of the Complaint.

TLPJ also endorses the goal discussed in the Special Reporter's Memorandum of

setting firm trial dates at an early stage of a case. Special Reporter's Memorandum at 5.

Generally speaking, delay in civil litigation harms individual consumer and victim plaintiffs

and redounds to the benefit of corporate defendants. In TLPJ's experience, nothing leads a

defendant to take a case more seriously, or brings them to the bargaining table more quickly,

than the firm prospect of a trial date in the near future. Accordingly, TLPJ endorses the

suggestion in the Special Reporter's Memorandum that district courts set firm trial dates. To

the extent that this procedure gives rise to standardized, reasonable and brief periods for

27
formal discovery, TLPJ endorses those results as well.

These "rocket-docket-style" proposals can only succeed, however, if certain crucial

caveats are recognized. First, district courts must be available to rule on discovery disputes

promptly. Second, district courts must be prepared to adjust the schedule if either party

commits serious discovery abuse. If one party refuses to respond to discovery in a timely

manner, abusive behavior cannot be allowed to compress the discovery period of the other

party. When rocket dockets are inflexibly administered, they can encourage discovery abuse

and stonewalling.

TLPJ had a recent experience, which was by no means unusual, in the Southern

District of Virginia's "rocket docket." In this case, a corporate defendant produced no

documents and responded to no interrogatories until two business days before the scheduled

hearing on a motion to compel. Because of the defendant's supposed busy schedule and the

difficulty of getting the court to schedule a discovery hearing, however, this defendant was

able to delay making any response to written discovery requests until the six month discovery

period was down to the last six weeks. District courts must take care to adjust discovery

periods and trial dates in such circumstances, or responding parties will be given powerful

new incentives to stonewall.

E. Federal Courts Should More Frequently Impose Sanctions for Discovery

Abuse.

One of the issues mentioned in the Special Reporter's Memorandum is "enhanced cost

shifting," referring to the possibility of increasing the frequency with which judges enter

discovery sanctions. TLPJ believes that discovery sanctions should be handed out more

frequently. For a wide variety of reasons, our experience suggests that many judges are

28
reluctant to hand down discovery sanctions. Accordingly, serious discovery abuses --

refusals to answer proper discovery requests, the posing of numerous completely unjustified

and improper objections, and even the destruction and spoliation of evidence -- often go

unpunished in the federal courts. As noted in Part I-C above, this lack of accountability

permits and encourages a good deal of discovery abuse.

IV. IN ADDITION TO THE PROPOSALS SET FORTH IN THE SPECIAL

REPORTER'S MEMORANDUM, TLPJ PROPOSES SIX ADDITIONAL

IMPROVEMENTS TO THE FEDERAL RULES TO DETER AND REDUCE

DISCOVERY ABUSE.

As noted above in Part I, responding parties regularly and routinely ignore their

discovery responsibilities under the Federal Rules of Civil Procedure. There is all too often

a failure of accountability. The following proposals seek to restore accountability to

discovery practice in civil litigation in the federal courts.

A. The Federal Rules Should Require Counsel and Parties to Certify that All

Properly Demanded Discoverable Documents that Could Be Located

Through a Reasonable Search Have Been Produced.

In Part I, above, we discussed the well-documented fact that parties in civil litigation

regularly do not produce (and often destroy) properly requested, discoverable documents.

For the discovery system to work properly, responding parties and counsel must understand

that, if a proper discovery request calls for material that is discoverable, that the responding

party is obliged (1) to conduct a reasonable search for that material, and (2) to produce the

information discovered in that search." Accordingly, the rules should make the obligations

" If a party is not going to fully respond to a discovery request because it believes

the request is objectionable, it should be required to explicitly say that it is not fully

responding in its answer. See Part IV - B, below.

29
of responding parties as clear as possible, and require responding parties and responding

counsel to affirm under oath that they have met those obligations.12 Requiring our

proposed certification under oath by both parties and counsel should help clarify these

obligations to responding parties and make them easier to enforce.

Responding parties should also be required to describe the steps taken to conduct a

"reasonable search." As discovery proceeds, it may become clear that a responding party

has failed to look for documents in a place or places where those documents are very likely

to be found. If that failure is too blatant, a court could use the description of the search to

hold a party responsible. This would surely discourage a good deal of stonewalling,

concealment and discovery abuse.

B. The Federal Rules Should Direct that No Party May Decline to Respond to

a Discovery Request Under Cover of an Objection, Unless that Party Specifically States that it is Not Fully Responding to the Request.

An extremely common form of discovery abuse could be termed the "secret partial

answer." It usually takes the following form: a party responding to a request or

interrogatory sets forth a variety of objections, and then, after some caveat such as "without

waiving this objection," provides some answer. The problem with this approach is that

neither the requesting party nor any reviewing court can determine from such a response

whether the answers that follow the objection are complete answers, or whether the

answering party has chosen to withhold information in reliance upon its objections. All too

12 Improved accountability will also require strengthened judicial enforcement of the

discovery rules. Thus in Part IV-F, below, we urge that steps be taken to make it easier to

get hearings on discovery matter, and in Part III-E, above, we endorse the Special Reporter's suggestion that discovery sanctions should be more frequently entered.

30
often, responding parties choose to make only partial responses, and either withhold

information that is harmful to their case or do not inform their opponents of material they

wish to preserve as a surprise. 3 When (and if) the requesting party learns of these

omissions, the answering party is likely to defend its partial answer on the grounds that the

requesting party should have guessed that information was withheld, in light of the fact that

the answer was made notwithstanding the objection.

A related abuse is initiating a discovery battle to drain an opponent's resources when

there is no underlying information. Responding parties frequently refuse to produce

documents, and then, after an extensive discovery battle, indicate that no such documents

exist. Requiring a party to state up front whether material is genuinely being withheld as a

consequence of an objection would eliminate this abuse as well.

At least one district court has taken steps to address these practices. The United

States District Court for the District of Maryland has enacted Discovery Guidelines, and

Guideline 9(a) states:

A party may object to an interrogatory, document request, or part thereof,

while simultaneously providing partial or incomplete answers to the request. If a partial or incomplete answer is provided, the answering party shall state

the answer is partial or incomplete.

(emphasis added).

TLPJ urges the Advisory Committee to adopt this rule, or some close variant of it,

13 TLPJ's experience that this practice is commonplace has been confirmed by

commentators. ffg, Hare, et i±. Full Disclosure at 89 ("The plaintiff may not challenge the

objection because a response has been given; however, the manufacturer may actually be using the objection to conceal the incomplete nature of its response instead of directly stating that its response is incomplete.")

31
throughout the federal system. TLPJ also urges the adoption of a rule requiring that

responding parties indicate that there are no responsive documents, when that is in fact the

case. If a discovery request is truly objectionable and does not merit a full response, a

responding party should be willing to (and should be required to) say so, so the parties and

the judge can evaluate the issue. If no information exists that is responsive to a discovery

request, the responding party should be willing to say that, too.

C. The Federal Rules Should Specifically Require Responding Parties to

Produce Detailed Privilege Logs When They Advance Privilege Claims.

Before answering written discovery requests (either interrogatories or requests for

production), many responding parties will set out global or "general" objections to every

single request. The most common general objection is a vague invocation of privilege.

Typical of this genre is the following objection recently posed by a defendant in a TLPJ case

involving allegations of consumer deception:

[Defendant] also objects to the plaintiff's Requests for Production to the extent

that they seek information and documents privileged from discovery under the

attorney-client privilege, the work-product doctrine, or otherwise.

This general objection was not elaborated upon with respect to any particular information or

documents said to be privileged. In the experience of TLPJ and its members, this response

is all too common. Parties invoking claims of privilege regularly fail to offer any specifics

to support those claims.

It is true that there is a substantial body of case law demonstrating that global

privilege claims, without supporting specific facts, are insufficient. As one court stated,

"blanket assertions of privilege are decidedly improper," a "fact [that] should no longer be

,news' to a responding party." Eureka Financial Corp v. Hartford Acc. & Indem. Co., 136

32
F.R.D. 179, 182 (E.D. Cal. 1981). The requirements for a privilege log have been

repeatedly set out in the case law. E.., Taylor v Florida Atlantic Univ., 132 F.R.D. 304,

306 (S.D. Fla. 1990) ; Wei v. Bodner, 127 F.R.D. 91, 96 (D.N.J. 1989); Research Institute

for Medicine and Chemistry v. Wisconsin Alumni Research Found., 114 F.R.D. 672, 675

(W.D.Wis. 1987); Petz v. Ethan Allen, Inc., 113 F.R.D. 494, 497 (D. Conn. 1985); In re

Uranium Anti-Trust Liti2., 552 F. Supp. 517 (N.D. Ill. 1982); FTC v. Lukens Steel Co.,

444 F. Supp. 803, 806 (D.D.C. 1977); International Paper Co. v. Fibreboard Corp., 63

F.R.D. 88, 93-94 (D. Del. 1974); Camco, Inc. v. Baker, 45 F.R.D. 384, 387 (S.D. Tex.

1968).

Despite this case law, however, global and supported privilege objections are often

blithely interposed to written discovery requests. Accordingly, some Federal District Courts

have adopted firm local rules to ensure that parties provide proper support for their privilege

claims. In the U.S. District Court for the Southern District of Florida, for example, local

Rule 26.1 (G)(6)(b) provides:

(b) Where a claim of privilege is asserted in objecting to any interrogatory or

document demand, or sub-part thereof, and an answer is not provided on the

basis of such assertion:

(i) The attorney asserting the privilege shall in the objection to the

interrogatory or document demand, or sub-part thereof, identify the

nature of the privilege (including work product) which is being claimed

and if the privilege is being asserted in connection with a claim or

defense governed by state law, indicate the state's privilege rule being

invoked; and

(ii) The following information shall be provided in the objection,

unless divulgence of such information would cause disclosure of the

allegedly privileged information:

(A) For documents: (1) the type of document; (2) general

33
subject matter of the document; (3) the date of the document;

(4) such other information as is sufficient to identify the

document for a subpoena duces tecum, including, where

appropriate, the author of the document, the addressee of the

document, and, where not apparent, the relationship of the

author and addressee to each other;

(B) For oral communications: (1) the name of the person

making the communication and the names of persons present

while the communication was made and, where not apparent,

the relationship of the persons present to the person making the

communication; (2) the date and the place of communication;

(3) the general subject matter of the communication.

In one sense, there is little new in this proposed rule. When the issue has been fully

litigated, federal courts always insist that responding parties provide a privilege log.

Nonetheless, the extremely widespread practice of asserting privilege objections without

providing any log suggests that the current caselaw is not sufficient to enforce compliance

with this important requirement. TLPJ suggests that, if the Federal Rules of Civil Procedure

were amended to make this requirement explicit, then responding parties would feel far more

constrained to meet it, and this abusive discovery practice would occur less often.

D. The Federal Rules Should Provide Model Interrogatories, Both With

Respect to Certain General Issues and With Respect to Common Types of

Cases, But the Existence of These Model Interrogatories Should Not

Prevent Parties from Also Crafting A Reasonable Number of Additional

Interrogatories Tailored to the Specific Case.

Model interrogatories can help address some of the common abuses described in Part

I-C above. Consider, for example, the following interrogatory in an auto tort case:

State how the INCIDENT occurred, giving the speed, direction, and locations

of each vehicle involved:

(a) just before the INCIDENT;

(b) at the time of the INCIDENT;

34
(c) just after the INCIDENT.

In the experience of TLPJ and its members, in federal litigation this interrogatory would be

more likely than not to elicit some or most of the following objections: (1) the interrogatory

is "burdensome"; (2) the interrogatory is "vague"; (3) the interrogatory "cannot be

understood," or is "unclear"; (4) the interrogatory calls for the work-product of the responding

party; (5) the interrogatory is "compound"; (6) the interrogatory is "overbroad"; (7) the

interrogatory exceeds the duties of the party under the Federal Rules; etc. Surprisingly few

parties would simply fully answer this interrogatory. Each of these objections has been raised

against this interrogatory or some version of it, and often by competent lawyers at large, wellknown firms.

The problem with all of this is that there is nothing wrong with the interrogatory; it

should just be answered. All of these objections are improper. No experienced lawyer would

dare to voice ay of these objections in front of a judge in a trial. Yet lawyers nearly always

raise such objections in interrogatory answers.

In California's state courts, however, responding lawyers can not object to and then

ignore this interrogatory with any some hope of impunity, because it is a form interrogatory

(number 20.8) approved by the Judicial Council of California. The California Code provides

that "A party may propound to another party (1) 35 specially prepared interrogatories, and (2)

any additional number of official form interrogatories .... that are relevant to the subject

matter of the pending action." Cal. Civ. Proc. Code § 2030(c). A number of other states,

including Florida and Maryland, have also propounded some standard form interrogatories.

The promulgation of form interrogatories can help strip away many of the improper

35
objections that are routinely set forth to simple interrogatories, and TLPJ members in states

providing such forms report that they have significant value in deterring such objections.

It is important to note, however, that the promulgation of form interrogatories must not

be used to replace the use of individually crafted interrogatories. No team or commission of

attorneys, no matter how experienced or farsighted, could possibly foresee all (or even most)

of the interrogatories that should be asked by competent counsel in a given case. There will

very often be some important point well worth pursuing that relates to the particular facts,

setting and parties in a given case. To attempt to cover all situations in advance would be

presumptuous, and would ignore the role that competent counsel must play in tailoring

discovery requests to a particular set of facts. As noted above, California law provides that

the form interrogatories are available in addition to specially prepared interrogatories. TLPJ

knows of no state whose rules limit the interrogatories that a party may ask exclusively to the

model interrogatories.

E. Rule 26(a)(2), Relating to Expert Witness Disclosures, Should Not Be

Applied to Treating Physicians.

Treating physicians serve a unusual role as fact witnesses and expert witnesses. On

the one hand, they will generally testify about their direct observations of the condition of an

injured party. On the other had, their specialized training and knowledge should allow them

to draw conclusions of a sort that ordinary witnesses may not.

With respect to the detailed written disclosures required by Rule 26(a)(2), TLPJ

suggests that treating physicians should not be treated like other experts are treated. In this

context, they should be treated as fact witnesses.

First, litigation already imposes burdens on the time of treating physicians, and many

36
are already quite reluctant to serve as witnesses in a lawsuit. Courts that require these

physicians to prepare detailed written reports before they can offer opinions merely make

federal litigation even more burdensome to the doctors, and make it even harder for parties to

convince physicians to testify. Many district courts already seek to minimize these burdens

on doctors, encouraging the use of de bene esse depositions so that doctors need not be

inconvenienced by trial schedules. Exempting treating physicians from Rule 26(a)(2), which

some district courts already do in their local rules, would serve the same purpose.

Second, there is no great need for such reports. Traditional discovery devices such as

depositions and reviewing subpoenaed medical records are more than adequate to allow a

party to learn the treating physician's opinions and the bases for those opinions.

F. It Should Be Easier to Get a Hearing on Discovery Motions.

As this statement has related above, many district courts do not closely supervise

discovery. For a variety of reasons (many of which are outside of the control of the district

judges), it is very hard to get any sort of timely hearing on discovery motions throughout

much of the federal system. As was also pointed out above, this lack of supervision has the

unfortunate effect of encouraging broader discovery abuse.

Accordingly, TLPJ urges that the Advisory Committee attempt to fashion steps to

make it easier to have discovery motions heard. This would help return some accountability

to the process of responding to discovery requests, and thus help reduce stonewalling and

discovery abuse.

The Special Reporter's Memorandum states that "the Advisory Committee is aware

that some judges make themselves available by telephone to resolve discovery disputes or

37
provide otherwise accelerated methods for hearing discovery motions . .." Special

Reporter's Memorandum at 6. TLPJ is also familiar with district judges who follow such

practices, and we strongly endorse the suggestion that accelerated dispositions of discovery

disputes be encouraged.

CONCLUSION

Discovery abuse is a widespread reality in federal civil litigation today. Responding

parties regularly withhold information in order to gain an advantage, and they often get away

with this behavior because, in part, the rules are insufficiently firm in several respects.

TLPJ urges the Advisory Committee to take strong steps to address stonewalling, and

to adopt the proposals discussed in Parts III and IV of this statement.

At the same time, TLPJ strongly urges the Advisory Committee not to proceed with

the proposals aimed at restricting discovery discussed in Part II, above. These proposals

would encourage still further stonewalling, and would deny justice to many individual

consumers and victims.

38
"1
i Product

Liability

Advisory

aCouncil

August 18, 1997

Mr. John Rabiej, Chief

Rules Committee Support Office

Federal Judiciary Building

One Columbus Circle, N.E.

Washington, D.C. 20002

Dear Mr. Rabiej:

Enclosed is the Product Liability Advisory Council's submission to the Advisory Committee

on Civil Rules for inclusion in the briefing materials that will be mailed to participants in the September 4-5, 1997 Conference on Discovery at Boston College. By letter dated August 1 th, Professor Richard Marcus requested that we send our submission to the other participants in the bar group panel. We have done so, and have also sent a copy to Professor

Burbank.

We welcome the invitation we received from Judge David F. Levi, on behalf of the Civil Rules Advisory Committee to participate in the Committee's inquiry into possible changes to the rules governing discovery. We appreciate that crafting discovery rules to govern the diversity of litigation before the federal courts is a daunting task. And we are grateful to the Advisory Committee for this chance to share our perspectives with them as they undertake this significant and extraordinarily important mission.

It is important to note that PLAC's comments are specifically relevant to cases in which large volume document production is commonplace. We appreciate that the Advisory Committee must craft rules applicable to all kinds of litigation, including cases in which large scale document discovery is unknown. In the attached materials, we have made a concerted effort to address the specific questions posed to us in Judge Levi's letter, namely

1. "...for the position of your organization on the question of what changes, if

any, should be made to the discovery rules to reduce the cost and delay in

litigation."

2. "Perhaps your organization may be particularly well suited to address the problems associated with large scale document discovery."

1850lCpnta,--,,;jp..v.._.c .. -.. . --.... .. .... .
We hope our comments provide useful insight to the Advisory Committee as it continues to

explore rules changes governing discovery. We understand that the process is a lengthy one

and we look forward to sharing our perspective on these matters when we meet with the

Advisory Committee at Boston College early next month.

Sincer y,

Hugh F. Yo g, Jr.

Executive Director

enclosure

cc: PLAC Executive Committee
r Product

Liability

Advisory

=- Council

Comments of the Product Liability Advisory Council

to

The Advisory Committee on Civil Rules of the

Committee on Rules of Practice and Procedure of the

Judicial Conference of the United States

"Discovery Practice in High Volume Document Discovery Cases"

August 18, 1997
Table of Contents

Introduction and Overview pp. 1-4

Executive Summary pp. 5-6

Specific PLAC Survey Findings pp. 7-11

General Narrative Comments pp. 12-18

Attachments

1. List of Corporate members of the Product Liability Advisory Council

2. Comments of the Honorable Wayne D. Brazil, Magistrate Judge, U.S. District

Court for the Northern District of California. These comments were delivered at a workshop of the Pretrial Practice and Discovery Committee of the ABA Section of

Litigation, held on Monday, August 4, 1997 at the St. Francis Hotel in San

Francisco.

3. Copy of PLAC survey form
Introduction and Overview

What is the Product Liability Advisory Council?

PLAC is a non-profit professional association of product liability defense counsel. PLAC's

corporate members' collectively are parties to numerous personal injury lawsuits every year premised primarily on design defect claims and/or failure to warn claims. The products produced by PLAC's corporate members are diverse--automobiles, trucks, airplanes, drugs, medical devices, chemicals, food and beverage products, personal care products, appliances, tobacco, power tools and

firearms-- to name just a few. Even a cursory examination of the personal injury cases moving through the state and federal court systems in this country will reveal that a significant percentage of them involve injuries associated with the use (and misuse) of PLAC-member company products.

In addition to 125 corporate members, PLAC has more than 300 sustaining members--attorneys in

private practice who are the outside trial and appellate counsel for PLAC's corporate members. By virtue of the expense and risk associated with today's product liability litigation, the private practitioners who defend product liability cases for most large product manufacturers are among the

most experienced and capable defense counsel in the nation.

How do PLAC's members view discovery problems in their product litigation?

PLAC welcomes this opportunity to share our views with the Advisory Committee because our

members are daily participants in the civil litigation process. Our comments and suggestions are not

derived from an academic or theoretical perspective. Quite the contrary, in fact. Our comments are

derived from the world in which the discovery rules are applied in the context of high risk, high visibility, controversial, contentious, and all too often, un-civil litigation practice in courtrooms in

every state and in every federal jurisdiction.

PLAC believes that the Federal Rules of Civil Procedure simply should not be drafted from a

perspective of "one size fits all". One participant in past efforts to reform the discovery rules has

recently observed that while most litigation in federal district courts is comprised of small cases

where less than $100,000 is at stake, it is still important for rules writers to keep in mind the different

litigants who utilize the system2 . Clearly, litigants of relatively small claims, in relatively simple,

'A list of PLAC's corporate members can be found in Attachment 1.

2

Comments of the Honorable Wayne D. Brazil, Magistrate Judge, U.S. District Court for

the Northern District of California. These comments were delivered at a workshop of the Pretrial

1
straightforward cases deserve a set of procedural and evidentiary rules that facilitate "the just, speedy

and inexpensive determination" of their cases. Litigants m large, complex, discovery-intensive cases

deserve no less.

While undoubtedly not envisioned by past authors of Rules amendments, the application of today's

discovery rules (at least in complex, product liability cases) oftentimes has little to do with the search

for relevant evidence to prove a stated cause of action. Instead the rules themselves (or more

precisely, the judicial application of those rules) have created an alternative means of recovery in

totally meritless litigation. The plain truth is that discovery today, in complex product liability cases,

is often a one-way coercive "game" that has as its goal not the fair adjudication of a claim but

instead the coercion of a settlement.

In product litigation virtually all discovery burdens and costs fall on the defendant. And it is not at

all theoretical that the cost of production, particularly of overly expansive, indulgent discovery can

exceed the value of a case.

The present system demands more judicial involvement in discovery disputes in complex cases at

a time when judges are yearning for less. It may be true that in simple cases ajudge's admonition

to "work things out" between the parties is all that is needed. In a simple case, maybe just a little

judicial involvement and awareness is needed.

But what if there is absolutely no incentive for one of the parties to work things out? In the absence

of willing and vigilant judicial participation in the discovery process, and particularly with the

generous notion of "relevance" in Rule 26, much discovery practice in products cases today amounts

to nothing short of a brutal "discovery war".

PLAC's members often deal with a situation where plaintiffs' counsel - particularly when handling

a products case of dubious merit -- will attempt to "win" their cases by bombarding the

manufacturer-defendant with overreaching document requests, which are generally sustained.

Tactically, there are three primary reasons why plaintiffs' attorneys wage discovery war:

1. to coerce an "economic settlement" by forcing a manufacturer to incur attorneys

fees that are dispropdrtionate to the value of the case;

Practice and Discovery Committee of the ABA Section of Litigation, held on Monday, August 4,

1997 at the St. Francis Hotel in San Francisco. Excerpts of Judge Brazil's comments can be

found in Attachment 2.

2
2. to exploit mistakes and omissions in large-scale document productions by seeking outcome-determinative "sanctions" under the guise of the manufacturer

having "withheld" or untimely produced documents; and

3. to "poison" a court's perception of a corporation so as to receive favorable

discretionary rulings on all matters, both discovery and trial related.

There is little incentive for plaintiffs' attorneys to discontinue the strategic manipulation of the

discovery rules. The fact that individual plaintiffs possess few if any documents limits the practical ability of a manufacturer to engage in arms-length negotiation with the plaintiffs' attorneys to agree

on reasonable limits to the scope of discovery. Indeed, the incentive for plaintiffs' attorneys is to escalate this form of discovery abuse for the reasons described above, secure in the belief that the expansive concept of Rule 26 relevancy will effectively insulate them from all but the most

egregious and unethical misconduct.

All of this has had a profoundly negative impact on the legal profession. The level of acrimony, incivility, and malicious motion practice in modem litigation is frequently appalling. And with courts increasingly tired of refereeing contentious discovery disputes, manufacturers face a real

possibility that their answers will be stricken or otherwise sanctioned in a manner that is grossly disproportionate to the alleged mistake or omission.

The PLAC Survey

Information of the kind necessary to respond to Judge Levi's invitation was not something PLAC

had at hand when the invitation was received. In fact detailed information about a particular company's discovery practice is generally closely held and confidential. This is particularly true of information that enumerates the costs associated with discovery, and the internal organization of

corporate legal departments to deal with discovery practice.

In order to gather sufficient information to be responsive to the Advisory Committee's request to address issues associated with large scale document discovery, PLAC designed and administered

a survey to its corporate members? Time available to design and administer the survey, and the

amount of time given to companies to complete the survey was very short. In designing the survey form, large portions of the Federal Judicial Center's survey form were used as templates, sometimes

with little modification.

3 A copy of the survey is Attachment 3.

3
The survey was sent to PLAC's corporate members on June 13, 1997. Most of the survey forms

were received by July 15. A few more were received at the end of July. Because of the sensitive

nature of much of the material in each response, companies were promised confidentiality and

anonymity. In order to compile and evaluate the responses, it was therefore necessary to redact

identifying information before any evaluation of the materials was possible. Summer travel, conflicts

in schedules, and most recently the strike at United Parcel Service all combined to make the

preparation of this submission a rush to the finish line. So what else is new--we are, after all,

lawyers.

We have been mindful of Judge Levi's and Professor Marcus' desire to have materials circulated to

conference participants in advance of the meeting and we have been able to compile these materials

to facilitate their review before the Boston conference. However, we would like to reserve the right

to supplement these materials, and note, too, that PLAC's Executive Committee, while it has had

a chance to review the survey results, has not formally adopted any of the specific recommendations

that its individual member company's have proposed. We will welcome the chance to share our

point of view on specific proposed rules changes as they emerge from the work of the Advisory

Committee.

Of 125 survey forms sent out, 30 were returned. Given the scope of the information sought, and the

need to get various approvals to submit such confidential information to PLAC, we are pleased with

this level of response. We think that the results of our survey are representative of what many, if not

most large manufacturing companies face in products litigation, and are thus revealing in identifying

the scope of some of the problems manufacturing defendants face in large sale document discovery

practice.

4
Executive Summary of the PLAC Survey Responses

Virtually all respondents to the PLAC Survey expressed their overriding concern with two aspects of present discovery practice--overly broad discovery which is permitted by Rule 26, and the lack ofjudicial involvement in or concern with discovery problems and disputes.

1. The scope of discovery in Fed.R.Civ.P. 26(b)(1) is too broad.

The existing rule allows discovery that is too broad. In complex, discovery-intensive product liability cases it encourages "fishing expeditions" that result in huge document production burdens being placed on defendants -- even when the plaintiff has failed to include any discernible theory of

liability or causation in the pleadings.

Possible changes to Rule 26(b)(l) that would narrow the scope of discovery could include deleting from the present rule the language shown lined-through and in [brackets] and adding one of the choices of language shown in boldface italics:

Rule 26(b)(1)

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is

as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the [subject maftr iolvd in tho n-dins acton, ,,thor it rolat, o th ] claim or defense of the

party seeking discovery or the claim or defense of any other party, including the description, nature, custody, condition, and location

of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable

matter. The information sought need not be admissible at the trial if the information sought [appoan rasonable al--lat-d to lad -to the dise, vey of -d-imissiblo e.-,-ed.] (choose one of the alternatives a, b

and cshown below)

a. "is relevant to disputed facts alleged with particularity in the pleadings." (this is same standard used for pre-discovery disclosure

under Rule 26(a)(1)), or

b. "is relevant to a disputed issue framed by the pleadings." or

c. "is otherwise demonstrably relevant to the claims or defenses of the parties."

5
The present scope of discovery is one of two primary factors that have transformed product liability discovery practice into a kind of economic war of attrition that has more to do with coercing settlements than it does with determining the bonafides of causes of action.

2. Judges must involve themselves early in the discovery process and take an active role in

resolving discovery disputes.

The second contributing factor in the growth of abusive discovery practice in complex product liability litigation is the lack ofjudicial participation in it. Simply put, some judges will not control discovery. They will not apply the rules that do exist. Still others truly believe that their admonition to "work things out" is sufficient to control parties to litigation in which hundreds of millions of dollars are at stake, and just the cost of responding to document discovery requests can

cost the producing party in excess of $1,000,000.

These substantial costs of discovery, virtually all of which are borne by defendants in product liability cases are amply demonstrated by the following figures reported by PLAC's members

in their product litigation: in product liability cases where total litigation expenses equaled $227,350,000 disclosure and discovery expenses averaged 58% or $131,863,000 and document production expenses alone averaged 30% or $68205,900.1

Rules can be earnestly and brilliantly crafted. And the changes sought in our civil litigation system by such rules changes can be, and are, well-intentioned. But judges must apply the rules we have for them to be of any consequence whatsoever in resolving the problems associated with discovery practice today under the present set of rules, or tomorrow with whatever rules changes emerge from

the Advisory Committee's deliberations.

4 17 of the 30 survey responses included figures sufficient to produce this compilation.

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Specific PLAC Survey Findings

"One-Way" Discovery

"One -Way" discovery describes the situation where one "side" of a case has all, or virtually all, of

the relevant documents. In a classic products case, the product manufacturer is on the receiving end

of most document requests. By way of contrast, in a lawsuit suit between commercial parties of

comparable size, the ability of each party to "wage discovery war" serves to deter either party from

making overreaching document requests.

Inherent in product litigation is the fact that it is the rare products case where the defendant will not

have substantially more documents than does the plaintiff. In most cases, where the plaintiffs

discovery requests are focused on the alleged product defect and are limited to a reasonable time

period, one way discovery is not an unfair burden but is simply a reality.

However, one-way discovery should not be used for purposes of harassment or to gain an unfair

advantage. Discovery requests which are vague and which are unrelated to a specific claim of defect

are unfairly burdensome. Not infrequently, the requests operate as a fishing expedition where

plaintiff has filed his complaint but clearly has not performed any investigation into the accident and

has no theory of liability. The discovery sought is sought to determine if there is any reason to bring

the lawsuit in the first place.

PLAC Survey

Do you think "one-way discovery" is a problem in your product litigation? 87% say yes]

In the "one-way" discovery examples cited by each of the 30 respondents, defendants in the

aggregate produced a total of 1,131,763 pages of documents compared to a total of only

24,265 pages produced by plaintiffs in the aggregate -- a ratio of nearly 47 to 1.

With respect to overreaching document requests, the Committee might consider proposing the

following rules amendments:

A) An amendment to Rule 34(a) requiring the plaintiff to share the cost of identifying,

retrieving and reviewing documents in an amount (to be determined by the court) that

is consistent with the plaintiff's financial means, thereby providing some incentive

for the plaintiff to undertake a cost-benefit analysis of this discovery requests.

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B) An amendment to Rule 16(b) requiring that the court consider "appropriate

modification or enlargement of any pretrial scheduling order" consistent with the

magnitude of the discovery burden that the plaintiff seeks to impose on the

defendant, which again would require the plaintiff to balance his desire in obtaining

voluminous information with his competing desire to obtain speedy resolution of his

cause of action. The current rule precludes modification of the scheduling order

except upon a defendant's showing of "good cause." The presumption should be

exactly the opposite when a court sustains over broad discovery specifications.

C) An amendment to Rule 34(a) clarifying the scope of third-party documents that may

properly be deemed to be in the "possession, custody, or control" of a manufacturer.

Plaintiffs' counsel frequently abuse the concept of "control" by insisting that a

manufacturer produce documents in the possession of its suppliers, advertising

agencies, and overseas affiliates. Some courts unfortunately take an expansive view

of the word "control" which has contributed to further escalation of this form of

discovery abuse. We recommend amending the rule to delete "control" from the

scope analysis. If, however, a party attempts to divert its documents from discovery

under the amended rule by sending them to another location, then an exception to the

amended rule should be triggered obligating the party to produce the documents.

"Input-Output"

"Input-Output" is a term that refers to the relationship of documents produced in response to

discovery requests from the opposing side, documents copied by the opposing side and documents

introduced at trial.

PLAC Survey

l. Do you think disproportionality is a problem? 83% say yes

With respect to the "input-output" issue of whether the expense and burden of document

production is worth the effort in terms of actual use of the documents at trial, the data from the

14 of the 30 companies who responded with data on this point show that out of a total of

10,158,150 documents produced by defendants before trial, only 6,006 (0.06%) were actually

introduced at trial by plaintiffs.

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Of the following options, which do you think would significantly reduce the "input/output" problem

in your litigation?

Options % choosing this

option

Narrowing the definition of what is discoverable (Rule 26(b)) 66%

Narrowing the definition of what documents are discoverable (Rule 34) 50%

Limiting-or further limiting-the time within which to complete discovery 33%

Increasing court management of discovery 43%

Increasing availability of district or magistrate judges to resolve discovery 36%

disputes

Imposing fee-shifting sanctions more frequently and/or imposing more 43%

severe sanctions for violations of discovery rules or orders

Safe Haven Provision

PLAC Survey

Do you think that once a party has demonstrated that a bonafide attempt 80% say yes was made to locate and disclose documents responding to a document

request (even though relevant documents are subsequently located that

were not initially disclosed) that the Federal Rules should create a "safe

harbor" to shield the party from discovery sanctions?

The federal rules currently require that the party responding to discovery supplement any response

as necessary. The federal rules should provide a "safe harbor" to shield the party from discovery sanctions after a party has made a bonafide attempt to locate and disclose documents regarding a particular document request. After the parties have made a demonstration that an attempt was made

to locate the documents, the federal rules should specifically provide that sanctions cannot be issued.

Such attempt to locate documents could be demonstrated by an affidavit showing that a

knowledgeable company representative originally made a bonafide

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attempt to locate responsive documents by searching all known, logical sources, specific criteria

might include:

1. Documentation of interaction with the client to inquire about the location of the

records

2. Documentation of a systematic review of the documents

3. A demonstration of the ambiguous nature of the requests following efforts to

negotiate the scope of the request

4. Confirmation of the agreement to modify the request, if one exists

5. An affidavit from the client or lawyer attesting to good faith efforts.

General Problems in Disclosure or Discovery

While the PLAC Survey form was designed primarily to elicit comments on costs and problems associated with large scale document discovery, we also asked our members to comment on more general problems. Here is a cursory review of those comments:

1. Initial disclosure

Problem % agree

a-Disclosure is too brief or incomplete 30%

b-Disclosure is excessive 26%

c-Disclosed materials are also requested in discovery 56%

d-Opposing parties fail to supplement or update the disclosures 33%

e-Disclosure occurs only after a motion to compel or an order from the 13%

court

f-Sanctions are imposed for failure to disclose 6%

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2. Document production

Problem 

% agree

a-Requests are vague 76%

b-Requests are not tailored to the type of case 76%

c-Requests are propounded with an ulterior motive76 (imposing undue burden)7%

d-An excessive number of documents are requested 70%

e-Materials provided are excessive or disordered 10%

f-Parties fail to respond in a timely fashion 23%

g-Parties fail to respond adequately 30%

3. Oral depositions

Problem 

% agree

a-There are too many depositions 33%

b-Too much time is taken in some or all depositions 50%

c-Corporate depositions are noticed with an ulterior purpose (harassment) 73%

d-Attorneys coach witnesses during depositions 36%

e-Attorneys improperly instruct witnesses not to answer questions 16%

f-Attorneys act unreasonably to annoy, embarrass, or oppress the 26%

deponent or counsel

4. Expert disclosure

Problem 

% agree

a-Expert disclosure is too brief or incomplete 56%

b-Expert disclosure is too expensive 6%

c-Expert disclosure is too close to the trial date 56%

d-Parties fail to supplement or update their disclosures 40

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General Narrative Comments

Respondents were invited to answer the following question:

If you were the witness before the Civil Rules Advisory Committee in September, what would you say in answer to Judge Levi? What part of the system is broken? How should it be fixed. What discovery rules need changes, and how should they be changed? What would the language of such rules changes look like.

What follows are the most concise of those comments. These comments have been taken verbatim from the surveys received, and have been edited only to redact identifying information in the interest

of anonymity.

Company 1

1. In response to Judge Levi, we believe that PLAC should suggest that Federal Rule 26, which

requires mandatory disclosure, is over broad and burdensome. Too often the rule if abused in large scale document discovery cases. The rule should be changed to require the plaintiffs and defendants

to negotiate and identify common core issues that should be the subject of the mandatory initial discovery. Then, the rule should require the plaintiffs to be limited to thirty (30) interrogatories which could be used to identify any additional documents that may be relevant to the litigation. The

plaintiffs then should be given a limited number of requests for production to seek those specific documents. If the plaintiffs submit a document request that is over broad and all encompassing, rather than specifically identifying the requested documents specific to the product that allegedly caused the harm, then the plaintiff should be made to "show cause" for such an over broad request. Defendants should then be given the opportunity to respond and provide affidavits or evidence as

to the overburdensome nature of the request. If the plaintiff is allowed to pursue the request, then the rules should require that the plaintiffs incur the expense of locating and producing the requested documents in response to the broad request.

2. The discovery rules should be changed in several ways.

First, the definition of relevant discovery should be narrowed to allow only the discovery of relevant evidence. The term "reasonably calculated to lead to the discovery of

admissible evidence" allows fishing expeditions.

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Second, automatic disclosure should be eliminated in favor of an initial discovery

management conference with the court. Discovery rules should be changed to increase

the role of the court in supervising discovery, especially at the beginning. Critical to the

management of discovery is an understanding by the court and the parties of what persons

have knowledge of the relevant facts and the existence and location of the relevant

documents. With that knowledge, the court can then direct the discovery. Requiring an

early discovery conference with the court would accomplish these things.

(1) Both the court and the parties would be forced to learn about the case.

What are the important issues? What type of documents exist and where

are they located? Who are the people most knowledgeable about the case?

(2) The court could then enter orders directing discovery. This direction

would include imposing limitations on discovery, directing toward

discovery certain areas and away from others, and ordering certain

discovery.

The problem with existing discovery, from our view, is that because it is not managed by the court,

the discovery is not effectively limited. The federal "relevance" definition is not an effective

limitation to discovery because it does not allow a court to hear the parties views on the direction

in which the discovery should proceed.

Unlimited and unfocused discovery is simply not workable. Requiring the parties to talk about the

case before the court allows the court to limit and focus the discovery. This will protect against the

wholesale review or production of documents.

3. Insufficient judicial attention fosters misconduct and abuse by parties and their counsel.

The "philosophy of pretrial discovery," rather than ambush is good in my opinion.

Company 2

The legal system in this country has created a burden on companies to forever keep documents that

have been previously produced in discovery. From a pure cost standpoint, it is terribly expensive

to maintain and warehouse such documents. Much, if not all, of the paper could be destroyed under

a document retention policy, but for the requirement that they be kept because the documents have

been previously produced. None of the documents serve any utility to the company beyond

production in litigation.

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Documents that are in daily use by a company are difficult to organize, copy and control for

purposes of production in litigation. Moreover, they mean and represent different things to different

people. For example, engineers use words to mean things quite differently than marketing people,

yet plaintiff's attorneys are permitted to obtain all kinds of documents from all kinds of departments,

for vast time periods and ask the sole designated corporate representative about the documents when

the representative will not understand the purpose, meaning, context, etc. of the documents.

Company 3

In our view, it is not the federal or state rules of civil procedure p_r se, but rather their application which have lead to the inequities of civil discovery in product liability actions. Although federal and

states rules themselves can be rewritten with reform in mind, one must always remember that they

are subject to their application by individual jurists, and also to other constraints and limitations

which can be created by local rules of court which should not, but which often do, take over and

control key issues in discovery (e.g., number and length of depositions and number and length of

various discovery requests).

It will only be through the early, active and aggressive judicial management of discovery in a

lawsuit, and not once a dispute arises, that many of the horror stories concerning discovery sanctions

against corporate defendants can begin to be eliminated. The movement in this country towards

various forms of alternative dispute resolution (ADR) should provide a basis to direct these types of disputes towards that type of a resolution. In our view, not only would the time and cost savings

be significant, but it would also be more predictable.

Company 4

I would ask that the Rules provide for tighter Judicial Control over discovery; particularly document

discovery and that the Rules define more narrowly what documents must be produced. I would also

ask that parties who demonstrate that they've acted in good faith be protected from sanction awards

should their opponent discover a new relevant document. Much of the discovery abuse (documents)

appears to be focused on harassing parties by seeking enormous volumes of documents and by attempting to "catch" a party failing to produce a document. These measures may remove this

harassive element and allow the parties to focus on seeking the truth.

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Company 5

We recently produced over 28,000 engineering documents in a product liability suit. The plaintiff's counsel requested copies of approximately 4,000 of the documents. During trial, 6 were offered.

The document search to obtain the documents exceeded 1,000 hours of engineering and in-house

time, and 1,000 hours of attorney time to review all documents produced. The net result was that

6 documents were offered by plaintiff's counsel at trial. We were fortunate and won the case. A

similar case resulted and the same documents were produced. The plaintiff did NOT use any documents at trial. We won the case.

Limitations have become necessary (unfortunately, because of the abusive nature and misuse of this

trail weapon). Facts are very seldom at issue limiting what is requested. Therefore, the procedure

is in need to limitation to avoid the unfortunate misuse of this tool to "bring defendant companies to their knees" by plaintiffs demanding the omnipotent "any and all" everything that might lead to

discoverable evidence. Judges are reluctant to place limitations on document discovery and

additional rules are required to provide balance. This current right is being misused generally by plaintiff's to extract settlements, not based on the facts of the case, but on increasing the cost to

defend.

1) Put in place strict discovery and expert deadlines. Move the cases to the trial docket.

2) Tell judges that their rulings on discovery disputes are important to litigants. We

can't always "work it out" and plaintiffs are not entitled to free wheeling discovery

from a company. The relevancy rules are vague (perhaps necessarily so) and

contemplate and require relevancy determinations!

Company 6

The system is broken because:

1. Courts are not taking an active role in resolving discovery disputes. Instead, they tell the

parties to "go work things out," but plaintiffs have no incentive to "work things out."

2. Courts do not recognize the tremendous expense and difficulties associated with large

document productions; and

3. Plaintiffs' counsel believe that they have nothing to lose by filing motions for sanctions

alleging discovery abuse by defendants.

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The system can be fixed by:

1. More involvement of District Court judges in discovery matters;

2 Carefully considering defendant's relevancy objections and burdensomeness objections to plaintiffs discovery requests, and splitting the productions costs between the parties; and

3. Providing defendants with attorneys fees associated with responding to plaintiffs' meritless

motions for sanctions.

In addition the following change should be made.

1. Rule 26(b)(5) should be modified to make clear that a privilege log is not due simultaneously with discovery responses, but rather within a reasonable time (depending on the scope of the production) if requested by the opposing party. Further, Rule 26(b)(5) should provide that in the event of additional

privileged documents being located after an initial privilege log is produced, the log may be reasonably supplemented to include the additional documents.

2. Rule 26 should be modified to provide heightened work product protection for computerized litigation support systems. Corporate defendants in complex product liability cases are forced to create databases to efficiently

manage their document productions. Recent decisions allowing plaintiffs to have access to opposing party's litigation support system suggest that a plaintiff may be able to make the requisite showing of "substantial need" merely by demonstrating that the database is "already paid for" and

plaintiffs should not have to incur "duplicative" costs. Such liberal construction of exceptions to work product protection create a disincentive

to assemble litigation support systems and foster inefficiencies during

discovery.

Finally, we believe that courts need to better understand the burdens associated with overly broad and demanding discovery requests. We regularly receive grossly over broad discovery requests, many of which are sustained by the courts. These types of document requests call for the production of documents having nothing to do with the litigation. Moreover, they require a tremendous amount of time and energy to search for, review and copy the irrelevant but responsive documents. Here are

some actual examples of these types of overly broad and demand document requests:

"Please produce all documentation, videotapes, film, audiotapes, still photographs and/or other electronically stored data or information referencing any and all crash testing, either vehicle to vehicle or vehicle to barrier (moving or fixed) in which there

16
is a frontal impact to one or more of the vehicles involved."

"Describe any and all analyses, surveys, studies, tests, investigations, or

examinations done by you, or on your behalf, or reviewed by you, which relate to or

reflect any and all hazards likely to be associated with the use of light trucks,

including information sufficient to locate these documents."

"Identify all testing performed on or behalf of defendant regarding [this type of

vehicle] relating to vehicle stability, wheel and/or wheel axle durability and rollover,

and with regard to each test, identify the persons who conducted such tests, the

documents, photographs and/or videotapes related to such tests, and identify the

persons having custody of such documents."

Again, it bears repeating that all of these requests were upheld by the courts. We believe that our

objections to these types of discovery requests need to be more carefully considered by the courts.

Unfortunately, we are forced by courts over and over gain to respond to these requests as written,

and to invest a significant amount of time and money into the gathering of such documents. In the

end, though, we are generating information that is almost wholly irrelevant and which is rarely used

by plaintiffs or us. Instead, the plaintiffs merely look for mistakes or omissions in the productions and serve the all-too-familiar motions for sanctions or for default judgment. These are the types of

discovery requests which drive litigation costs up so high, waste the resources of the parties and the

courts, and perpetuate the incivility and malicious motion practice that is ubiquitous in today's

litigation environment.

The time has come to recognize plaintiff's discovery abuse as a problem and to do something about

it.

Company 7

To reduce discovery abuse:

1. Require the plaintiff to identify the specific defect at the start of the case (plaintiffs,

of course, should have performed an investigation and should have a theory of defect

before filing suit);

2. Require experts to identify all theories at their depositions and in their reports, and

do not allow new theories to surface at trial;

3. Education of and committment from the judiciary (1) to treat injured plaintiffs and

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corporate defendants fairly and evenhandedly in regard to discovery problems, and

(2) to resolve discovery disputes based on a thorough understanding of the case.

4. A reasonable statute of repose, which would help establish an outside time period for

document requests.

In repeat litigation, documents are circulated among plaintiff's bar. Especially if it involves a

discontinued product, the universe of discovery is finite. Yet, plaintiff's attorneys keep asking for

the same documents over and over again and file sanctions motions if even one document is missing,

even if they have a copy (no prejudice). I would remove the availability of any sanctions unless

plaintiff first submits such a document to defendant and defendant fails to

authenticate it.

Company 8

We believe that Rule 26(b)(2)(ii) does not need to be modified, but instead utilized more by courts. Under

this rule, the courts "shall" limit discovery when "the burden or expense of the proposed discovery outweighs

its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources,

the importance of the issues at stake in the litigation, and the importance of the proposed discovery in

resolving the issues."

This rule clearly requires the courts to limit discovery when the burden outweighs the benefit. However,

rarely do courts attempt to evaluate the benefits of the proposed discovery compared with the burden and

expense of the proposed discovery. Instead, they typically ask the parties to "go work things out" or they

permit discovery, despite the burden and expense.

We believe that courts need to more frequently conduct the cost/benefit analysis and to recognize the

legitimate objections raised by corporate defendants based on burden and expense.

18

Attachment 1

List of Corporate members of the Product Liability Advisory Council
CORPORATE MEMBERS/ PRODUCT LIABILITY ADVISORY COUNCIL, INC.

18-Aug-97

3M Case Corporation

ACRISON, Inc. Caterpillar, Inc.

Allegiance Healthcare Corporation CBI Industries, Inc.

AlliedSignal, Inc. Chrysler Corporation

Aluminum Company of America Ciba-Geigy Corporation

American Automobile Manufacturers Assoc. Clark Material Handling Company

American Brands, Inc. Club Car, Inc.

American Home Products Corporation Coleman Company, Inc., The

American Suzuki Motor Corporation Continental General Tire, Inc.

Andersen Corporation Coors Brewing Company

Anheuser-Busch Companies Corning Incorporated

Atlantic Richfield Company Daewoo Motor America

BASF Corporation Dana Corporation

Baxter International, Inc. Deere & Company

Bayer Corporation Dow Chemical Company, The

Becton-Dickinson & Company Eaton Corporation

Beech Aircraft Corporation Eli Lilly and Company

BIC Corporation Emerson Electric Co.

Black & Decker (U.S.) Inc. Estee Lauder Companies

BMW of North America, Inc. Exxon Corporation, USA

Boeing Company, The FMC Corporation

Bridgestone/Firestone, Inc. Ford Motor Company

Briggs & Stratton Freightliner Corporation

Bristol-Myers Squibb Company Gates Rubber Company, The

Brown-Forman Corporation General Electric Company

Budd Company, The General Motors Corporation

C.R. Bard, Inc. Glaxo Wellcome Co.

I
Goodyear Tire & Rubber Company, The Monsanto Company

Great Dane Trailers, Inc. Motorola, Inc.

Guidant Corporation Navistar International Transportation Corp.

H.B. Fuller Company Nissan North America, Inc.

Harnischfeger Industries Inc. O.F. Mossberg & Sons, Inc.

Heil Company, The Otis Elevator Co.

Hoechst Celanese Chemical Group, Inc. Owens-Corning Fiberglas Corporation

Hoechst Marion Roussel, Inc. PACCAR Inc

Honda North America, Inc. Panasonic Company

Hyundai Motor America Pentair, Inc.

International Paper Company Pfizer Inc.

Isuzu Motors America, Inc. Pharmacia and Upjohn, Inc.

Johnson Controls, Inc. Philip Morris Companies, Inc.

Kaiser Aluminum & Chemical Corporation Porsche Cars North America, Inc.

Kawasaki Motors Corp., U.S.A. Procter & Gamble Co., The

Kolcraft Enterprises, Inc. Raymond Corporation, The

Kraft Foods, Inc. RJ Reynolds Tobacco Company

Loewen Group International, Inc. Rover Group, Ltd.

Lorillard Tobacco Company Schindler Elevator Corp.

Lucent Technologies Inc. Sears, Roebuck and Company

Mack Trucks, Inc. Sherwood, a Division of Harsco Corporation

Maytag Corporation Simon Access-North America

Mazda (North America), Inc. Smith & Nephew Richards, Inc.

Medtronic, Inc. SndtthKline Beecham Corporation

Melroe Company Snap-on Incorporated

Mercedes-Benz of N. America, Inc. Sofamor Danek Group, Inc.

Michelin North America, Inc. State Industries, Inc.

Miller Brewing Company Sturm, Ruger & Co., Inc.

Mitsubishi Motor Sales of America, Inc. Subaru of America

2
Textron Inc.

Thomas Built Buses, Inc.

Toro Company, The

Toshiba America Incorporated

Toyota Motor Sales, USA, Inc.

TRW Inc.

UST(U.S. Tobacco)

Volkswagen of America, Inc.

Volvo Cars of North America, Inc.

Vulcan Materials Company

Westinghouse Electric Corporation

Whirlpool Corporation

Yamaha Motor Corporation, U.S.A.

3
'1

I
Attachment 2

Comments of the Honorable Wayne D. Brazil, Magistrate Judge, U.S. District Court for the Northern District of California. These comments were delivered at a workshop of the Pretrial Practice and Discovery Committee of the ABA Section of Litigation, held on Monday, August 4, .1997 at the St. Francis Hotel in San Francisco.
Magistrate 

What follows below, in boldface text, are the comments of the Honorable Wayne D. Brazil, Judge, U.S. District Court for the Northern District of California. These comments were delivered at a workshop of the Pretrial Practice and Discovery Committee of the ABA Section of Litigation, held on Monday, August 4, 1997 at the St. Francis Hotel in San Francisco. The purpose of the workshop was to discuss the activity of the Civil Rules Advisory Committee in looking at discovery problems, and to place the current effort in historical context.

[bracketed comments relate to text of the PLAC submission]

"...the world of civil discovery is very much invisible. It's not one monolithic whole. What I mean is that there is a big difference between discovery in small and medium sized cases and big cases and we have found that discovery problems in small cases basically weren't substantial. Discovery problems in big cases could be. And I say could be because in some big cases there are some substantial and some cases there weren't."

"[But there's a big difference in those universes and one of the things that rule writers have

were 

to keep constantly in mind is for whom are we writing rules? And at least until 1993 we

What 

always writing rules for everyone. The center of gravity for everyone is a small case. I mean by that is -- I've never seen - now correct me if the Rand Study has something on this - but for my 13+ years of experience sitting in federal court here in San Francisco - a huge range of cases here - the 5th or 6th biggest jurisdiction in the country in terms of population - even in that setting - and Silicon Valley with all those huge sexy class actions, even in that setting - I think the median case in our court is probably $50,000, $60,000, $70,000, $75,000 in real value. Those are the center of litigation gravity. Those are the cases for which national rules must be written - cannot be written primarily or exclusively for huge product liability cases, huge securities cases.]"

"In smaller cases, to bring back the Chicago research, there wasn't enough room - not enough economic incentive and evidentiary room for a whole lot of jockeying or

basically 

manipulation 

what 

and people basically found out what they needed to know - people found out

The 

they needed to know - few medicals or who saw what and settled the case. big cases were a different story - in the big cases some arguably substantial discovery problems in a fairly substantial percentage of big cases. And the problems we put into two simple-minded categories: a) resistance and evasion; b) over discovery on the other. Resistance 

went 

and evasion was at least as big a problem as over discovery. What we did, we out and interviewed all these people in-depth, we had an instrument for interviewing people and we interviewed a huge range of practitioners - little firms, big firms, everything to get some sense of a representative sample and then when we analyzed our results we did some 

modest 

telephone follow-up to make sure we weren't off base. And we emerged with a amount of confidence that what we had was fairly reliable. All opinions were surveyed - none of it "empirical" in the sense that Rand has recently tried."
"And so we had these two major kinds of problems coming up in a fairly a hefty percentage of cases. [And whose to blame -- Whose fault is all of this? The answer -- the judges -- they don't police the system and impose sanctions. They are all" weannies" and "wimps". They are not interested. They don't know that the center of litigation is discovery so they don't give us any service. Huge percentages of lawyers when you asked them open-ended question and closed-ended question of what's the main problem --- the judges -- not us - the judges. And that actually is important because that fed one of the ideas that we a failures in the 1983 amendment process.] Anyway we found lots of other things - a fairly severe level of infection of tactics in discovery, but again mostly in the larger cases. I finished that work right at the time the litigation section then was finishing under Ray Lundquist - I don't how many of you know him or were around when he was doing this - a huge subcommittee of a litigation section who was working on discovery reform in the late 70's. He was one of several leaders of this effort. I finished my work just at the time they were finishing their proposals that went to the advisory committee and eventually tried to get higher. As you may know, in 1980 the litigation section of the ABA made it

very hard pressed to get scope of discovery reduced from what it is now to what it has been since the late 1930's back to either issues or claims and defenses. And the Advisory Committee came within an inch - and I wasn't there but that was my historical read -- they came very close to adopting the view but backed off. And backed off for reasons I think are still very worth of consideration -- and recently cited in a background paper for

this conference Boston conference next month."

"Judge Mansfield, chair of the pertinent committee, and he describes why the committee in 1980 decided not to shrink formally the scope of discovery. There were several reasons one is that he said discovery is really bad in some cases but in most cases it is not bad and that

was the committee's perception even after being heavily lobbied or inputted from the ABA that had a different view but anyway that was the committee's view; the second big thing that stuck out in my mind was Judge Mansfield and some of the other members were concerned about impact that a change in the scope of discovery would have on other

aspects of litigation."

"...I think litigation reform is like dealing with an amoeba - you push and you find something that is a problem and you attack it and you try to fix it and it regroups somewhere else completely intact and what it is that it is regrouping is problems, difficulty, human nature, things not working right, being too expensive - it regroups - it will find

some other place because we are fundamentally competitive creatures. I don't like that, I should have been born a priest in the 13th century, but we are fundamentally competitive creatures so it regroups and more specially what Judge Mansfield was worried about and other members of the committee as well if we change discovery, and if discovery is arguably the center of litigation, people aren't going to accept a change and role over and

go home and say okey now it's skinnier - instead they are going to over plead...."
On

..- j
Attachment 3

Copy of PLAC survey form
@Product

Liability

Advisory "Council

Discovery Abuse Survey

Please designate a contact person (if different from the person shown above) with whom we may discuss your responses or from whom we may gather additional information.

Name:

Phone:

Fax:

1850 Centennial Paik Drive Suite 510• Reston, Virginia 22091 - (703) 264-5300 - Fax (703) 264-5301
Table of Contents

Discovery Abuse Survey

Section One pages 1-4

A. How does your company analyze costs associated with document discovery?

B. Company wide product litigation expenses, and percentages attributable to sub-tasks.

C. Case specific expenses, and percentages attributable to sub-tasks

Section Two pages 5-7

A. "one way discovery"

B. "input/output"

Section Three pages 8-10

A. Problems in disclosure or discovery

B. Court management of/involvment in discovery practice

C. Changes in rules or case management practices

Section Four page 11

Your chance to share anecdotal responses highlighting document discovery abuse

problems and recommendations for rules changes
Section One

A. How does your company analyze costs associated with document

discovery?

Questions 1-4 pertain to document discovery costs and the extent to which your company has the capability to track these specific costs in individual cases, and in the aggregate for your product litigation.

1. Does your company track document discovery costs (as a distinct component of litigation costs) in product litigation?

DYes No

2. Do you require bills for document discovery costs to utilize the ABA Litigation Code Set?

DYes ONo

3. Some other specific code or annotation that identifies document discovery costs by sub-task?

DYes ONo

4. Has your legal department ever analyzed document discovery costs for your product

litigation?

UYes UNo

questions continue on the next page
Questions 5-7 pertain to all kinds of discovery.

5. Does your company differentiate between costs of that discovery which is responsive versus

reactive?

DYes ONo

6. Do you have any information comparing discovery costs to the value of a case?

jYes JNo

7. Does your company compile or track discovery costs by state or region?

DYes LINo

If your answer to any question above (1-7) is "yes", please provide a narrative on a

separate sheet of paper, labeled IA costs

2
B. Company wide product litigation expenses, and percentages

attributable to sub tasks.

1. Please estimate the total product litigation expenses for your company, including such items

as expert witness fees, transcript fees, litigation support fees, and fees for attorneys and

paralegals, but excluding any expenses relating to appeals.

2. Approximately what percentage of the total litigation expenses for your company were

associated with disclosure and discovery activity?

% of the total litigation expenses

3. Approximately what percentage of the total litigation expenses were associated with

document discovery activity?

% of the total litigation expenses

4. Please indicate the approximate percentage of total discovery expenses allocable to each of

these types of discovery. Figures shown should add up to 100%. Include estimates of the

expenses of motions activity in the categories to which the motion pertained.

__ % Meet and confer/discovery planning

___% Initial disclosure of documents and materials by rule or order, or voluntarily

% Expert disclosure of discovery

% Depositions

% Requests for and/or production of documents not disclosed at any initial disclosure

% Interrogatories

% Other (please describe:)

3
C. Case specific expenses, and percentages attributable to sub tasks.

Can you provide PLAC with figures specific to a case, or category of cases, for the following:

1. Total product litigation expenses including such items as expert witness fees, transcript fees,

litigation support fees, and fees for attorneys and paralegals, but excluding any expenses

relating to appeals.

2. Approximately what percentage of the total litigation expenses were associated with

disclosure and discovery activity?

% of the total litigation expenses

3. Approximately what nercentage of the total litigation expenses were associated with

document discovery activity?

% of the total litigation expenses

4. Please indicate the approximate percentage of total discovery expenses allocable to each of

these types of discovery. Figures shown should add up to 100%. Include estimates of the

expenses of motions activity in the categories to which the motion pertained.

% Meet and confer/discovery planning

% Initial disclosure of documents and materials by rule or order, or voluntarily

% Expert disclosure of discovery

% Depositions

% Requests for and/or production of documents not disclosed at any initial disclosure

% Interrogatories

% Expense associated with opposing discovery motions

% Other (please describe):

5. Can you estimate the number of pages produced in any specific product liability case?

How many? Cost of production?

6. For the same case, how many pages of documents were selected by plaintiffs counsel for

copving?

4
Section Two

A. "One way discovery"

This term describes the situation where one "side" of a case has all, or virtually all, of the relevant documents. In a classic products case, the product manufacturer is on the receiving end of most document requests. By way of contrast, in a lawsuit suit between commercial parties of comparable size, the ability of each party to "wage discovery war" serves to deter either party from making overreaching document requests. Not only is there not an incentive for the plaintiff in a products case to limit document requests, there is presently every incentive to make such requests as broad as possible in order to increase the possibility that a manufacturer's failure to produce a relevant document might give rise to the so called "sanctions tort".

We are looking for anecdotal as well as quantitative information about your company's experience with this problem. Please start by answering this question:

I. Do you think "one way discovery" is a problem in your product litigation?

OYes ONo

2. If you can provide quantitative information (nertainin2 to a particular case, or series of cases) please try to answer the following question:

a. Please compare the number of documents your company produced in response to all document discovery requests by plaintiff and the number of documents the plaintiff produced in response to all document requests by you.

# of documents plaintiff produced

# of documents you produced

3. If you can provide anecdotal information, please do so on a separate sheet(s) of paper labeled "one way discovery" and describe your own perspective on this problem as it affects

your company's litigation.

4. In narrative form, would you give us your perspective on the "one way discovery problem"? Can you propose any solutions to it that balance the rights of access to relevant evidence with the economic costs and dangers of overreaching?

5
5. Do you think that once a party has demonstrated that a bonafide attempt was made to locate and disclose documents responding to a document request (even though relevant documents are subsequently located that were not initially disclosed) that the Federal Rules

should create a "safe harbor" to shield the party from discovery sanctions?

(JYes UNo

6. Please list the criteria for the "good faith" showing of compliance with the document request.

7. How would the "safe harbor" provision of the rules be written?

Please answer questions 3-7 on a separate sheet of paper, labeled "one way discovery".

6
B. "Input/Output"

This term refers to the disproportionality of documents requested and documents used. We are looking for anecdotal as well as quantitative information about your company's experience with this problem. Please start by answering this question:

1. Do you think disproportionality is a problem?

UYes ONo

2. If you can provide quantitative information (pertaining to a particular case, or series of cases)

please try to answer the following questions:

Please compare the number of documents produced in response to all document

discovery requests and the following:

a.

# of documents produced

# of documents copied by plaintiff

b.

# of documents produced

# of documents introduced at trial by plaintiff

3. If you can provide anecdotal information, please do so on a separate sheet(s) of paper labeled "input/output" and describe your own perspective on the "input/output" problem in

your litigation.

4. Of the following options, which do you think would significantly reduce the "input/output" problem in your litigation?

ONarrowing the definition of what is discoverable (Rule 26(b)) ONarrowing the definition of what documents are discoverable (Rule 34) OLimiting-or further limiting-the time within which to complete discovery JIncreasing court management of discovery

Qlmposing 

CQIncreasing availability of district or magistrate judges to resolve discovery disputes fee-shifting sanctions more frequently and/or imposing more severe sanctions

for violations of discovery rules or orders QOther changes (specify) (separate sheet of paper labeled "input/output)

7
Section Three

A. Problems in disclosure or discovery

Which, if any, of the following types of problems do you think occur routinely in the product litigation

your company defends?

Please check all that apply.

Initial disclosure

UlDisclosure is too brief or incomplete

ODisclosure is excessive

MlDisclosed materials are also requested in discovery

UOpposing parties fail to supplement or update the disclosures

UDisclosure occurs only after a motion to compel or an order from the court

USanctions are imposed for failure to disclose

QOther (please specify): ( separate sheet of paper labeled 3A initial disclosure)

Document production

ORequests are vague

URequests are not tailored to the type of case

OLRequests are propounded with an ulterior motive (imposing undue burden)

UAn excessive number of documents are requested

UMaterials provided are excessive or disordered

OlParties fail to respond in a timely fashion

UParties fail to respond adequately.

QOther (please specify): (separate sheet of paper labeled 3A document production)

Oral depositions

OThere are too many depositions

UToo much time is taken in some or all depositions

UCorporate depositions are noticed with an ulterior purpose (harassment)

UAttorneys coach witnesses during depositions

QlAttomeys improperly instruct witnesses not to answer questions

QAttorneys act unreasonably to annoy, embarrass, or oppress the deponent or counsel

Q-Other (please specify): (separate sheet of paper labeled 3A oral denositions)

Expert disclosure

QDExpert disclosure is too brief or incomplete

Q:Expert disclosure is too expensive

QlExpert disclosure it too close to the trial date

OlParties fail to supplement or update their disclosures

QOther (please specify): (separate sheet of paper labeled 3A expert disclosure)

Other problems

UIPlease identify any other problems with disclosure or discovery:

(separate sheet of paper labeled 3A othe

8
B. Court management of/involvement in discovery practice

Please indicate whether any of the following problems regarding the courts' management of discovery occur routinely in the product litigation your company defends9

Please check all that applv

Discovery planning and implementation

OThere are no time limits on discovery and such limits are needed

JThe time allowed for discovery is too long OThe time allowed for discovery is too short

QlThe court allows too many extensions of the deadline to complete discovery OThe court allows too many extensions of time to respond to discovery requests UThe court is too rigid about deadlines

QOther (please specify): ( separate sheet of paper labeled 3B discovery nlanning)

Limitations on discovery OThere are insufficient limits on interrogatories and such limits are needed UThere are insufficient limits on depositions and such limits are needed OThere are insufficient limits on document discovery and such limits are needed OThere are insufficient limits on admissions and such limits are needed

ULimits on interrogatories are too lenient

ULimits on interrogatories are too restrictive

ULimits on depositions are too lenient

ULimits on deposition are too restrictive

OLimits on document discovery are too lenient

ULimits on document discovery are too restrictive

ULimits on admissions are too lenient

ULimits on admissions too restrictive

QOther (please specify): ( separate sheet of paper labeledB

Rulings on motions

OThere is no decision maker available to rule on disputes during depositions URulings on discovery motions take too long CIhere are no rulings on discovery motions and such rulings are needed QOther (please specify): ( separate sheet of paper labeled 3D motions

Sanctions

O'There are no rulings on sanctions motions and such rulings are needed

ORulings on sanctions motions take too long UlRulings on sanctions motions are generally too lenient

URulings on sanctions motions are generally too harsh QOther (please specify): ( separate sheet of paper labeled 3D sanctions)

Other problems UPlease identify any other problems with the courts' management of discovery:

(separate sheet of paper labeled 3B othe)

9
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PEPPER, HAMILTON & SCHEETZ LLP

ATTORNEYS AT LAW

1300 NINETEENTH STREET, N W.

WASHINGTON, D.C 20036-1685

(202) 828-1221

MEMORANDUM

TO: Secretary, Advisory Committee on Civil Rules

(For Participants in Discovery Conference)

FROM: Alfred W. Cortese, Jr.

DATE: August 18, 1997

RE: Two Additional Suggested Amendments to the Discovery Rules

This memorandum offers some brief preliminary reflections prompted by the excellent materials recently circulated for the Boston Discovery Conference.

It is likely that among the most common complaints that will be heard at the

Conference is that discovery, particularly "one way" document discovery in complex, high stakes litigation, is unnecessarily burdensome, costly and wasteful and that in many instances discovery is driven by the effort to sanction the adverse party for responding in

"bad faith" rather than to develop information supporting the claims or defenses in the

case.

In an ideal world, perhaps the solution to many of the problems plaguing discovery in modem litigation would be stringent application of the existing rules, particularly rules

such as F.R.C.P. 26 (b)(2). But, that is not the way it has been working. As a result, at

least some discovery rule changes seem warranted. My personal preference would be for

drastic revision of the process based in part on some of the recommendations in Lord

Woolf s report: (1) Greater judicial supervision over the discovery process; (2) Early binding definition of issues which limit the scope of discovery and further proceedings; and (3) limits on document discovery to include production of core information through the Rule 16 (f) process (not mandatory Rule 16(a)(1) disclosure), with additional

discovery available only on a showing of good cause. Accordingly, I urge that the

committee work toward wholesale change by considering the fill range of options

available, including at least the following additional amendments:
1. The American College and many others have made and will make a

forceful case for changing the scope of discovery under Rule 26(b)(1) from "relevant to

the subject matter" to "relevant to the claim or defense...." I fully support such a change and suggest, in order for it to have the desired effect, that it be accompanied by deleting

or amending the last sentence of Rule 26 (b)(1) to focus discovery on information that is

demonstrably relevant to the claim or defense. If deletion of the "reasonably calculated to

lead to discovery" sentence is considered problematic because of a desire to permit discovery, for example, of relevant hearsay information, the sentence could be amended

along the following lines: "The information sought need not be admissible at trial if the

information sought appers reasonably au.-lated to lead to the discovery a, iss..le

evidence is otherwise demonstrably relevant to the claim or defense of any party,

2. Many have suggested that the burden of document discovery should be

reduced. Others have decried the lack of any objective guidance as to what is or is not

producible under the present discovery rules. Thus, in order to improve the determinacy

of the document discovery rules, I would suggest consideration of something in the nature

of a "bright line", presumptive time limit on requests for production of outdated

documents. For example, Rule 34 might be amended to incorporate the following

concept: There is a presumption, which may be rebutted for good cause shown, that

inspection need not be permitted of documents created more than __ years prior to the

transaction or occurrence giving rise to the claim or defense of any party [or prior to

commencement of the action or prior to the period of the applicable statute of

limitations].

Thank you for the opportunity of presenting the above modest "additions"

to the many sound suggestions that will be considered at the Boston Conference.

-2-
This Document is a draft version of a report

Copyright 

that the ABA 

© 

Section of Litigation will publish Fall 1997. 1997 American Bar Association. All rights reserved.

Reprinted with permission.

The Scope Of Discovery

In The Federal Courts

A Survey of Published, Post-1980 Cases From

The The Federal Courts Regarding Scope of Permissible Discovery In Civil Litigation

Prepared By: Nelson Dale Alexander

Kathleen L. Blaner

Arnold B. Calmann

Jon B. Comstock

Ian T. Graham

Lance A. Harke

David E. Harrell, Jr.

Joshua Holmes

Mark A. Johnson

Nikki Lewis

Francis E. Purcell, Jr.

Shalom Stone

T. Joseph Wendt

Joseph Wolfson

Federal Rules Revision Subcommittee Co-Chairs, Kathleen L. Blaner & Lance A. Harke Pretrial Practice and Discovery Committee

Section of Litigation American Bar Association Monograph
TABLE OF CONTENTS

Summary of Scope of Discovery Research.1

A. Research Project Objective..

B. Overview of the Research Parameters.2

C. Overview of Research Results.3

1. Observations . '."...........................3

2. Recommendations.4

D. Discussion of Research Results.5

1. Who Opposed Discovery? .............................. 6

2.- Outcome of Discovery Disputes ........................ 7

3. Disputes Based On Relevancy Or Discretionary Limits ....... 9

E. Conclusions..........................11

II. Summary of The Cases

First C............................................ 13 First Circuit Cases .......................................... 13

Second Circuit Oases.. . . . . . . . . . . . . . . . . . . .2

Third Circuit Cases .......................................... 29

Fourth Circuit Cases ......................................... 53

Fifth Circuit Cases..........................................60

Sixth Circuit Cases".......................................... 71

Seventh Circuit Cases........................................75

-I-
Tenth Circuit Cases.........................................87

Eleventh Circuit ............ ................................ 96

District of Columbia Circuit..................................... 107

The Federal Circuit

and the Court of Federal Claims...............................113

Ill. Index of The Cases.......................................... 119

Exhibits

A. Data Collection Worksheet

B. Analytical Outline

-Il-
I. SUMMARy OF SCOPE OF DISCOVERY RESEARCH

A. RESEARCH PROJECT OBJECTIVE

arm of the Committee 

In early 1996 

on 

the 

Rules 

Advisory Committee on Civil Rules, the civil rulemaking

Conference, announced 

of Practice and Procedure of the U.S. Judicial that it was going to evaluate the need to make changes to the rules governing discovery. The evaluation was undertaken in response to the continuing call for discovery well reform from numerous segments of the bench and bar, as as from members of Congress.' Among the topics that were identified 

was for study- the scope of discovery.2

'See May 17, 1996 Memorandum from Honorable Patrick E. Higginbotham, Chair, Advisory Committee on Civil Rules, to Honorable Alicemarie H. Stotler, Chair, Standing Committee on Rules of 

Committee 

Practice and 

on Civil 

Procedure, 

Rules, 

Report 

U.S. Judicial 

of the Advisory Committee on Civil Rules, p. 2; Advisory Conference, Draft Minutes of the Civil Rules Advisory Committee, 

Conference, 

April 

Discovery 

18-19, 

Reform 

1996, pp. 2-4; see also Advisory Committee on Civil Rules, U.S. Judicial Proposals, October 1996.

'The current scope of discovery was established in 1970 amendments to the Federal Rules of Civil Procedure in Rule 26(b). See Fed. R. Civ. P. 26, Advisory Committee Notes, 1970 Amendment, FED. CIv. JUDICIAL PRO. & RuLEs 136-38 (West 1997 ed.). That Rule defines the scope of discovery as follows:

matter, 

(I) 

not 

In General. Parties may obtain discovery regarding any privileged, which is relevant involved to the subject matter

defense of 

in the pending action, whether it relates to the claim or

any other party, 

the party seeking discovery or to the claim or defense of including condition, the existence, description, nature, custody,

things 

and location of any books, documents, or other tangible

any discoverable 

and the identity 

matter. 

and location of persons having knowledge of The information admissible sought need not be at the trial if the information calculated sought appears reasonably to lead to the discovery of admissible evidence.

alter the 

(2) Limitations. By order or by local rule, the court may

interrogatories 

limits in these rules on the number of depositions and

Rule 30 and the 

and 

number may also limit the length of depositions under

extent of use of 

of requests under Rule 36. The frequency or

these 

the discovery methods otherwise permitted under

determines 

rules and by any local rule shall be limited by the court if it that: i) the discovery sought is unreasonably or duplicative cumulative or is obtainable 

convenient, less 

from some other source that is more burdensome, or less expensive; discovery has had (ii) the party seeking ample opportunity by discovery obtain in the action to the information 

proposed discovery sought; or (iii) the burden or expense of the outweighs the needs of its likely benefit, taking into account the case, the amount in controversy, the parties

(continued...)

-I-
This Subcommittee, 

Practice and Discovery Committee, 

a part 

decided 

of the ABA's Section of Litigation Pretrial to review published federal court cases regarding the scope of discovery has been interpreted 

to evaluate how the standard set forth in Rule 26(b)

help inform deliberations 

and applied on a case-by-case basis. We hoped this effort would about the need for discovery reform and encourage intelligent public debate about the scope of discovery.

B. OVERVIEW OF THE RESEARCH PARAMETERS

thirteen(13) judicial 

We reviewed 

circuits 

approximately 400 published cases from twelve (12) of the that comprise published cases from 1980 

the federal court system. We focused on

and that discussed 

to the present, that were available on LEXIS or Westlaw,

Procedure 26(b). Reviewers 

the scope 

were 

of discovery permissible under Federal Rule of Civil instructed 26(b). Cases that dealt with 

to review all cases that discussed Rule

research analysis. Likewise, 

privileges were disregarded and are not reported in the cases that concerned other aspects of Rule 26, such as 2 6(a)(1) concerning mandatory disclosure or 2

reviewed. The numbers 6(c) regarding protective orders, were not of cases found and reviewed are shown in Table 1 that follows.

TABL 1. UMBR OF CASSB ICI N OR

TOTAL CASES Appellate Court District Court First Circuit 60 10 50

Second Circuit 31 9 22

Third Circuit 74 16 58

Fourth Circuit 19 3 16 Fifth Circuit 35 17 18

Sixth Circuit 20 6 14

Seventh Circuit 32 9 23

Ninth Circuit 35 6 29

Tenth Circuit 19 8 11

2(...continued)

resources, 

the importance 

the importance of the issues at stake in the litigation, and of the proposed discovery in resolving the issues.

-2-
TOTAL CASES Appellate Court District Court Eleventh Circuit 44 11 33 D.C. Circuit 12 1 11

Federal Circuit 19 7 12 Total 400 103 297

Subcommittee members generally each took responsibility and analyzing one or two for reviewing

responsibility for reviewing 

federal judicial circuits. Three individuals divided

Eighth Circuit - was not reviewed 

cases from the Third Circuit. One judicial circuit -- the due to a shortfall of active subcommittee members and time constraints.

Subcommittee members were instructed respective jurisdictions to identify all cases in their that discussed the scope of discovery, including both its substantive and quantitative parameters. Members were given a worksheet complete for each case they to reviewed and were asked to record factual information - regarding the parties, the legal issues, and factual outcomes. A copy of the worksheet is shown as Exhibit A.3

Members also used the same analytical outline to help classify and discuss

be 

cases, 

written 

so that 

in 

each 

a common 

member's analysis and discussion would focus on similar topics and

B. Not all cases are discussed 

format. A copy of the analytical outline is shown as Exhibit individually While we cannot call our 

in the analysis sections for each circuit. research comprehensive thorough examination of 

for all federal courts, it is a very the published opinions in the judicial circuits that were reviewed.

C . O VE R V IEW O F R E S EA R S T ,

1.

Our research suggests the following observations about the current scope of discovery as set forth in Rule 26(b):

3 Worksheets were not completed, or not completed in their entirety, for a small number of cases. This is reflected in some of the charts when the totals shown do not add up to 400. In other instances, the chart totals exceed 400 when more than one response was possible for each case.

-3-
1. More 

discovery, 

discovery 

at least 

disputes are resolved by compelling production of the challenged in part, than by denying it. That result is to be expected light of our finding that courts in

resolves in favor of discovery 

have interpreted Rule 26(b) in a way that usually

Consequently, doubts about whether an item is relevant. our research suggests that when discovery is requested, it is rarely denied altogether.

2. There has been little meaningful judicial refinement of the scope of discovery Rule 26(b) since adoption of the in current formulation 

an ambiguous in 1970. It has remained and indeterminate standard, whose application results discovery decisions in that are highly fact-based and subjective.

3. The indeterminacy of the current standard makes it difficult parameters of the to predict the information that will be discoverable in a given case and it results in inconsistent and even conflicting discovery rulings in similar cases.

4. Inconsistencies 

applied from case 

in 

to 

the way the scope of discovery has been interpreted and case, and court to court, prevent settled expectations litigants from developing about their discovery obligations in particular types of' litigatiofi, and thus actually may encourage continued contentiousness and discovery disputes.

5. One of the most common disputes reflected in the published cases involves discoverability of information the

research, about similar or related actions, products, situations, conduct, dispute was especially 

time periods, employees, or people. This type of common in employment discrimination pattern or method of analysis cases. No clear has emerged consistent results in these cases to help ensure from case to case or circuit to circuit. 6. Courts often place quantitative and temporal limits on the production of otherwise discoverable information when cause for such restriction is shown.

7. Defendants raised twice as many objections to discovery demands as plaintiffs. 8. Courts are most likely to limit or prohibit discovery altogether when it is requested from a non-party to the litigation.

2.

1. Provide more objective, predictable boundaries for the scope of discovery -- a bright line rule or bright line perimeter. For example, discovery could be limited

-4-
to 

of 

cover no more than a fixed number of years prior to the act that is the subject the litigation. Such limits are analogous to statutes of limitations, and would serve similar policy objectives.

2. Improve the determinacy of the standard used to decide whether information is discoverable.

3. Establish disincentives for parties to engage in discovery of information beyond that needed to prepare the case in chief.

D. DISCUSSION OF RESEARCH RESULTS

Our review indicated that courts have interpreted standard broadly. the Rule 26(b)(1)

across provided 

The most far-reaching articulation of the standard that we came

relevancy unless 

that "discovery should ordinarily be allowed under the concept of

upon the subject matter 

it is clear that the information sought can have no possible bearing

684, 686 

of the action." Brunswick Corp. v. Suzuki Motor Co., 96 F.R.D.

Another view 

(E.D. Wis. 1983); accord Finch v. Hercules, Inc., 149 F.R.D. 60 (D.Del. 1993). that sounds a similar note provides that "[wihere relevance the rule is in doubt,

Air Engg, 

indicates that the court should be permissive." Truswal Sys. Corp. v. Hydrodisregards the 

Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987). The Ninth Circuit even

1 pleadings. See Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 9 9 2

pleadings.")(citing 

)(discovery "is 

Oppenheimer 

not limited to only those specific issues raised in the

one procedural Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).4 As authority has noted tongue-in-cheek, "when in doubt, discover."5

current formulation 

Given the strong preference for discovery that courts have read into the

permit at least 

of Rule 26(b), it comes as no surprise that courts almost always some discovery when it has been requested. Cases where discovery has

4

The 1978 U.S. Supreme Court case, Oppenheimer Fund, Inc. v. Sander, 437 U.S. 340 (1978), is 

relied 

used 

on 

as 

heavily 

the primary 

in other 

authority 

circuits 

for defining the scope of discovery in the Ninth Circuit, and is often

discovery case. It was a Rule 

as well. However, Oppenheimer was not a Rule 26(b) scope of

obligation to provide notice of 

23(b)(3) class action and the issues involved had to do with the

Although the Court opined 

the action to missing class members and the methods for doing that.

that decision has been 

about the scope of discovery under Rule 26, it was dicta. Nonetheless, the purported basis for granting very broad discovery rights ever since.

5Arthur R Miller. The Adversary S vstemn Dinosaur or Phoenix 69 Minn. L. Rev. I. 19-22 (1984).

-5-
been requested but denied altogether are very, very rare,6 unless it is requested a non-party from to the litigation.7

1. Who Onvosed Discovery?

When a challenge 

more than twice as likely 

to a discovery request was raised, we found that it was that it would be a defendant who raised it. See Table 2.8

Table 2. Who 0 osed Discove ?

Plaintiff Defendant Non-party,

witness or crossmotions First Circuit 16 386

Second Circuit 6 24 1

Third Circuit* 11 232

Fourth Circuit 7 13 4

Fifth Circuit 9 23 3 Sixth Circuit 6 14 0 Seventh Circuit** 1 11 6

6

See Territorial Court of the Virgin Islands v. Richards, 673 F. Supp. 152, 162 n.10 (D.VI.

issues 

1987), affd, 

are largely 

847 F.2d 

legal); 

108 

English 

(3d Cir.) cert. denied, 488 U.S. 955 (1988) (no discovery warranted when v. Cowell, 117 F.R.D. 132, 136 (C.D. Ill. 1986) (granting motion for protective order and staying further discovery). There also are certain types of cases where the litigants choose to take no discovery at all, such as social security adjudications, veterans claims, and similar 

proceedings. 

matters, 

This 

because there is a complete record already in place from prior administrative report does not consider those types of cases.

7See, e.g., Raphael v. Aetna Casualty & Surety Co., 744 F. Supp. 71 (S.D.N.Y. 1990) (discovery

of criminal investigation materials from lwefren15FRD 

1 D z 97

ofnlinga iues n ate fro m law enforcement officials not permitted in civil suit involving same issues but no law enforcement officials); In re Snyder, 115 F.R.D. 211 CD. Az. 1987) (discovery from research author who was stranger to the litigation was denied).

8

in some instances it was not possible to determine which party initiated the discovery dispute because both sides were seeking discovery and opposing it at the same time. Thus, the numbers in this table do not always add up to the total number of cases that were reviewed in each circuit.

-6-
Table 2. Who O posed Discove ?

Ninth Circuit 5 29 3

Tenth Circuit 7 9 4

Eleventh Circuit 11 27 6

Federal Circuit 3 10 6

D.C. Circuit 1 9 2

Totals 83 230 43 *N.J & Pa. only 43

& ND I oni -Wis. 

as plaintiffs begs 

Our finding that defendants object to discovery more than twice as much

onerous to 

the question of whether a discovery rule that is substantially more

driving principles 

one side of the litigation than the other is a fair, neutral rule. One of the

not advantage or 

behind 

disadvantage 

the civil rules has been that the rules should be neutral and

research 

one side of the V. more than the other. But our

neutral; defendants 

suggests that the scope of discovery, or perhaps discovery generally, is not dispute discovery requests almost three times as often as plaintiffs.

2. Outcome of Discovery Disnute

Opposition 

Our 

to a discovery request, more often than not, was not successful.

request 

research shows that discovery disputes were resolved in favor of denying the in full in only one third of the cases reviewed. See Table 3.

Table 3. Outcome of Discovery Dis utes

Discovery Request Granted in part, Discovery Request Granted denied in part Denied

First Circuit 22 15 21

Second Circuit* 2 4 3

Third Circuit 15 23 10

Fourth Circuit 10 3 6

-7-
Table 3. Outcome of Discovery Disputes

Fifth Circuit 22 4 23

Sixth Circuit 4 6 10

Seventh Circuit 12 5 5

Ninth Circuit 17 9 10

Tenth Circuit 8 3 7

Eleventh Circuit 16 11 15

D.C. Circuit 6 4 2

Federal Circuit 7 5 7

Totals 141(40%) 92(26%) 119(33.8%) *Appellate cases only

or contain any 

The 

particular 

published cases that discussed the scope of discovery did not develop analytical framework that could be used to objectively determine the scope of discovery from case to case. Most discovery disputes were resolved based on highly idiosyncratic factors that are difficult to explain, have little application from case to case, and thus, are indeterminate as rules of decision. Indeed, the cases reviewed recited the standard from Rule 26(b) in almost talismanic fashion, explained that it should be liberally construed, and then went on to a highly subjective

granted. 

analysis that could just as easily conclude that discovery should be granted as not Compare Diabo v. Baystate Medical Center, 147 F.R.D. 6, 11 (D. Mass. 1993) (discovery 

Cross, 

of blood donor's identity permitted) with Ellison v. American Nat'l Red 151 F.R.D. 8, 11 (D.N.H. 1993) (discovery of blood donor's identity denied); compare 

19 9 0

Floyd-Mayers v. American Cab Co., Inc., 130 F.R.D. 278 (D.D.C. )(granting discovery of defendant's financial records for issue of punitive damages) with Skinner v. Aetna Life Insurance, No. 83-0679, slip op. (D.D.C. Feb. 1984) (denying discovery of financial records for issue of punitive damages).

touchstone 

In some cases, stymied courts would refer back to the pleadings as a for determining relevancy. See, e.g., McLaughlin v. McPhail, 707 F.2d 800, 806-07 (4th Cir. 1983); Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408 (M.D.N.C.

F.R.D. 

1992). But that practice was not uniformly followed. See Miller v. Pancucci, 141 292, 296 (C.D. Cal. 1 99 2)(discovery "is not limited to only those specific issues

Wis. 

raised 

19

in 

83

the pleadings."); Brunswick Corp. v. Suzuki Motor Co., 96 F.R.D. 684 (E. D.

measured 

)("relevancy must be construed liberally and with common sense rather than by the precise issues raised by the pleadings .... ." Id. at 686.) Some courts

-8-
based 

Textile 

the 

Workers 

scope of discovery upon the cause of action or statute in question. See, e.g, Pension Fund v Oltremare, 764 F. Supp. 287 (S.D.N.Y. 1989).

3. Disutes Based On Relevancy Or Discretionary Limits

classified as involving 

The issues raised in the discovery disputes we reviewed can be readily

the court 

either the relevancy of the requested information or the need for

information. 

to exercise 

Many 

its discretion to place limits on otherwise relevant, discoverable decisions discussed both relevancy and discretionary limitations.

Table 4. DECISIONS BASED ON

RELEVANCY OR DISCRETIONARY LIMITS

Relevancy Discretionary Limits

First Circuit 12 13

Second Circuit 13 17

Third Circuit- 49 47

Fourth Circuit 10 12

Fifth Circuit 15 20

Sixth Circuit 13 10

Seventh Circuit 13 9

Ninth Circuit 22 16

Tenth Circuit 11 7

Eleventh Circuit 10 14

D.C. Circuit 5 7

Federal Circuit 11 8

184 180

discovery disputes 

One common 

had 

issue that emerged over and over again as the subject of

similar or 

to do with the discovery of information about the occurrence of

seek all 

related events, conduct, people, or products. For example, litigant A would

for the year 

company accident reports. Litigant B would produce accident reports, but only in which litigant A's accident occurred and only for the division of the

-9-
company 

published 

where 

cases provided 

the accident occurred. Litigant A would file a motion to compel. The

these types of 

no neutral rules of decision nor common answers to apply to

with any more 

issues - the results of these disputes could not be predicted in advance

pronounced 

certainty than a toss of the coin. This problem was particularly

Ward & Co., 

in employment discrimination cases. See, e.g., Jackson v. Montgomery 173 F.R.D. 524 (D.Nev. June 18, 199 7

avoid placing )("[I~n Title VI cases, courts should unnecessary Bd. of Educ., 105 F.R.D. 

limitations on discovery.")(citing Robbins v. Camden City 49, 55 (D.N.J. 1985)(citing Trevinoi v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983)).

similar events 

The 

and 

lack of any bright line rule governing the scope of discovery regarding

about 

occurrences seems to reflect a larger policy conflict among courts

lawsuit 

the 

should 

role 

only 

of discovery in civil litigation. Courts that embrace the view that a be filed after it has been determined cognizable complaint that the plaintiff has a legally

or similar matters. The 

are less likely to allow the litigants freedom to delve into related Federal Circuit has best expressed this viewpoint as follows:

Clearly, discovery is allowed to flesh out a pattern of facts already known to a party relating to an issue necessarily in the case. At the other extreme, requested information is not relevant to the 'subject matter involved,' in the pending action if the inquiry is based on the party's mere suspicion

or speculation.

Micro 

Batavia 

Motion, 

Marine 

Inc. 

& 

v. Kane Steel Co., 894 F.2d 1318 (Fed. Cir. 1990); see also Katz v. Sporting Supplies, Inc., 984 F.2d 422 (Fed. Cir. 1993).

determine whether 

On the 

the 

other 

plaintiff 

hand, some courts have viewed discovery as a vehicle to

first place. See Miller 

has a viable legal claim against the defendant in the v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 19 92 not limited )(discovery "is

Suzuki Motor 

to only 

Co., 

those 

96 F.R.D. 

specific issues raised in the pleadings.")Brunswick Corp. v. 684 (E. D. Wis. 1983). Indeed, that interpretation hardly surprising is in light of the U.S. Supreme Court's statement Taylor, 329 U.S. 495 in Hickman v. (1947), that the discovery rules authorize a "fishing expedition" through an opponent's files.

allow plaintiff 

Courts 

to 

holding the latter view of the role of discovery are more likely to explore similar situations product in a product in discovery -- earlier versions of the liability lawsuit; complaints of race discrimination claiming gender discrimination; in a lawsuit

instead of 

nationwide records of accidents at a litigant's factories

e.g., Gile v. 

accident 

United Airlines, 

records only from the plant where the plaintiff was injured. See, Inc., 95 F.3d 492 (7th Cir. 1996) (discovery of other airline

-10-
positions 

728 F.2d 994 

was permitted in pilot's age discrimination case); Duke v. University of Texas,

in other departments 

(5th Cir. 1984) (plaintiff permitted discovery of tenure files for applicants

F.R.D. 44 (M.D.Pa. 19

of 

95

university); Scaturro v. Warren and Sweat Mfg. Co. Inc., 160

repair measures 

)(discovery permitted of information about prior accidents and

F.R.D. 472, 475 (D. 

in 

Mass. 

product liability litigation); Jackson v. Harvard University, 11 1986) (plaintiff permitted discovery of tenure files for other faculty on tenure list and for years other than the present).

discovery practice 

This conflict in views about the basic purpose of discovery pervades

context of the employment 

generally, although we observed the dichotomy most readily in the

conflict exists 

discrimination disputes just discussed. As long as this among federal courts about the appropriate role of discovery, unlikely that the it seems inconsistencies 

have attempted 

in rulings will be resolved. At times various courts to refine the methodology information fell within for determining whether requested

attempted 

the scope of discovery. For example, the Seventh Circuit

instructed 

to 

to 

formulate 

compare 

an analytical framework beyond Rule 26(b) where judges were

denied to 

the hardship to the party seeking discovery if discovery were

e.g., Marrese 

the 

v. 

hardship 

American 

to 

Academy 

the party resisting discovery if discovery were granted. See,

Cir. 1984); of Orthopaedic Surgeons, 726 F.2d 1150, 118 (7th'

1984). The 

see 

Federal 

also Deitchman 

Circuit 

v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 565 (7th Cir. also has attempted courts making discovery to provide additional structure to guide

been accepted 

decisions as explained above. Neither of these approaches has on a regular basis by any other circuit court.

E. -CONCLUIS

legal standards 

One 

that 

goal of our legal system has been the development of clear, precise

so that 

inform individuals about their lawfil entitlements and obligations they can conform their behavior to the substantive clear, brightline law. The importance of rules of civil procedure determine the 

is equally clear, since the procedural rules extent to which the civil justice system operates fairly, neutrally, and efficiently.

The amorphous, of discovery, however, is 

indeterminate standard that currently defines the scope sharply at odds with this ideal. Action to address the flaws in the current discovery standard is needed.

problems we 

Individual 

observed in 

courts 

the cases 

or circuits acting on their own are not likely to solve the

courts have been 

under the current discovery standard. Indeed, the

years 

interpreting and applying the current standard for twenty-seven and no meaningful refinement of the standard has emerged. Thus, we conclude

-II-
that the courts cannot do it alone, and suggest that the most desirable way to improve the clarity, objectivity, predictability, and fairness of the discovery process lies in discovery reform via the Rules Enabling Act process.

Reforms should focus on changes to the discovery rules that would provide clear, objective boundaries for discovery, boundaries based on the needs of the litigants to prepare their existing claims and defenses. With more clear-cut boundaries in place, litigants will be in a better position to predict with a high degree of certainty what their discovery obligation is. A more balanced, neutral discovery obligation also may make discovery less contentious; litigants are more likely to cooperate if they believe the system is not weighted against them. Finally, the discovery rules should be amended to deter discovery in excess of what is necessary to litigate a claim on the

merits.

-12-
Copyright © 1997 American Bar Association. All rights reserved.

Printed in the United States of America

American Bar Association

750 North Lake Shore Drive

Chicago, Illinois 60611-4497

Grateful acknowledgment 

Hector & Davis 

is made to Pepper, Hamilton & Scheetz LLP and Steel for their generous support of this project.

The 

Delegates 

views 

or 

expressed 

the Board 

herein have not been approved by the House of

accordingly should not 

of Governors of the American Bar Association, and be construed as representing American the policy of the Bar Association.

No part of this publication may be reproduced or transmitted means, electronic in any form or by any or mechanical, storage and retrieval including photocopy, recording, or any information system, without the permission of the American Bar Association.

PC:

ISBN:
Discovery Management:

Further Analysis of the

Civil Justice Reform Act Evaluation Data

James S. Kakalik, Deborah R. Hensler,

Daniel McCaffrey, Marian Oshiro,

Nicholas M. Pace, Mary E. Vaiana

DRU-1658-ICJ

September 1997

Prepared for the Advisory Committee on Civil Rules

of the Judicial Conference of the United States

RAND Institute for Civil Justice

This Draft is intended to transmit preliminary results of RAND research It is unreviewed

and unedited Views or conclusions expressed herein are tentative and do not necessarily

represent the policies or opinions of the

sponsor Do not quote or cite this Draft

without permission of the author
RAND - iii - 08/28/97 DRAFT

PREFACE

This draft is intended to transmit preliminary results of RAND research. It is

unreviewed and unedited. Analyses, views and conclusions expressed herein are tentative

and subject to revision. Do not quote this draft without the permission of the author

In 1996, RAND completed the independent evaluation mandated by the Civil Justice

Reform Act of 1990. The four reports that comprise that evaluation are:

Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management

under the Civil Justice Reform Act, RAND, MR-800-ICJ, by James S. Kakalik, Terence

Dunworth, Laural A. Hill, Daniel McCaffrey, Marian Oshiro, Nicholas M. Pace, and

Mary E. Vaiana, 1996. This executive summary summarizes three technical reports

that document RAND's evaluation of the Civil Justice Reform Act (CJRA) of 1990. It

provides an overview of the purpose of the CJRA, the basic design of the evaluation,

the key findings, and their policy implications. It was prepared for the Judicial

Conference of the United States.

The three summarized reports are:

Implementation of the Civil Justice Reform Act in Pilot and Comparison

Districts, RAND, MR-801-ICJ, by James S. Kakalik, Terence Dunworth, Laural A.

Hill, Daniel McCaffrey, Marian Oshiro, Nicholas M. Pace, and Mary E Vaiana, 1996.

This document traces the stages in the implementation of the CJRA in the study

districts, the recommendations of the advisory groups, the plans adopted by the

districts, and the plans actually implemented.

An Evaluation of Judicial Case Management Under the Civil Justice Reform

Act, RAND, MR-802-ICJ, by James S. Kakalik, Terence Dunworth, Laural A. Hill,

Daniel McCaffrey, Marian Oshiro, Nicholas M. Pace, and Mary E. Vaiana, 1996

(hereinafter referred to as "our main evaluation report"). This document presents the

main descriptive and statistical evaluation of how the CJRA case management

principles implemented in the study districts affected cost, time to disposition, and

participants' satisfaction and news of fairness.

An Evaluation of Mediation and Early Neutral Evaluation Under the Civil

Justice Reform Act, RAND, MR-803-ICJ, by James S. Kakahk, Terence Dunworth,

Laura] A. Hill, Daniel McCaffrey, Marian Oshiro, Nicholas M Pace, and Mary E.

Vaiana, 1996 This document discusses the results of an evaluation of mediation and
RAND - iv - 08/28/97 DRAFT

neutral evaluation designed to supplement the alternative dispute resolution

assessment contained in the main CJRA evaluation.

After we completed our main CJRA evaluation, the Advisory Committee on Civil Rules

of the Judicial Conference of the United States asked RAND's Institute for Civil Justice to

conduct further analyses of the Civil Justice Reform Act evaluation data to see if additional

light could be shed on discovery management, to assist the Committee in their consideration

of possible changes in the Federal Rules of Civil Procedure related to discovery. The

Committee also asked the Federal Judicial Center to conduct a major new survey of lawyers

to gather additional information about discovery.

This document is intended for use by those involved with the rule making process and

other policy makers, as well as by litigants, lawyers, judges, and others interested in civil

case discovery management.

The additional RAND analyses reported here are funded in part by a special

contribution from the American Bar Association Section on Litigation and in part by

Institute for Civil Justice core funds which come from a broad range of contributors.

Views and conclusions expressed herein do not necessarily represent the policies or

opinions of the Judicial Conference or the American Bar Association Section on Litigation.

For more information about the Institute for Civil Justice contact.

Dr Deborah Hensler, Director

Institute for Civil Justice

RAND

1700 Main Street, P. 0. Box 2138

Santa Monica, CA 90407-2138

TEL (310) 451-6916

FAX: (310) 451-6979

Internet DeborahHenslei@rand.org

A profile of the Institute for Civil Justice, abstracts of its publications, and ordering

information can be found on RAND's home page on the World Wide Web at

http://www-rand org/

centers/icj/
RAND - v - 08/28/97 DRAFT

CONTENTS

PREFACE iii

T A B L E S ................................................................................................................................. vii

SUMMARY .

BACKGROUND AND SCOPE OF THIS STUDY......................

DESCRIPTIVE INFORMATION ABOUT LAWYER WORK HOURS ON VARIOUS

TYPES OF CASES ...................................................................................... xiii

EVALUATION OF DISCOVERY POLICIES ........................................................... xvii

ACKNOW LEDGMENTS ........................................................................................................ xxi

1. DISCOVERY MANAGEMENT: BACKGROUND AND FRAMEWORK FOR DISCUSSION1

INTRODUCTION.............................................1

OVERVIEW OF THE CJRA ...................................... 1

FEATURES OF THE RAND EVALUATION ........ ...................2

OUTLINE OF THIS REPORT ................................................................................ 6

A BRIEF HISTORY OF EMPIRICAL RESEARCH ON DISCOVERY" .I. ........ 

RELATIONSHIP TO LITIGATION COSTS AND DELAY .............. 6 A BRIEF HISTORY OF DISCOVERY REFORM 9............9

OPTIONS FOR REFORM. ......................................

SOME OBSTACLES TO REFORM.17

A WORD ABOUT THE FUTURE........... . .................. ..... 19

2 DESCRIPTION OF DISCOVERY COSTS AND OTHER INFORMATION FOR VARIOUS

TYPES OF CASES ........................ . .................... 20 CASE CLOSURE POINT.......................................21

HOW LAWYERS SPEND THEIR TIME...............24

CASE COMPLEXITY ..................................................... 26

DISCOVERY DIFFICULTY ..................................... 2

PLAINTIFFS AND DEFENDANTS ATTORNEYS ...................... 30 HOURLY AND CONTINGENT FEE ATTORNEYS .... ................ 30 SIZE OF LAW FIRM OR LEGAL DEPARTMENT ................ ............. 30

SIZE OF MONETARY STAKES ........... ........... 30 NATURE OF SU T ......................... ... :: 34

NAUEOFSI............ ...... ........................ 34 CASES WITH MOST LAWYER WORK HOURS ...................... .34

3. EVALUATION OF VARIOUS DISCOVERY MANAGEMENT POLICIES ................. 38

INTRODUCTION ................................................. 38 EARLY CASE MANAGEMENT AND DISCOVERY PLANNING ...................... 39

EARLY DISCLOSURE .............................. GOOD ................................. 45 FAITH EFFORTS IN RESOLVING DISCOVERY DISPUTES ............... 5

LIMITING INTERROGATORIES.............. ................... 52 . ...... ........ ... ........................... SHORTENING DISCOVERY 52

SUMMARY OF 

CUTOFF TIME ...................................... 55 EFFECTS ON LAWYER WORK HOURS...........58

SUMMARY OF EFFECTS ON TIME TO DISPOSITION ............................ 59

SUMMARY OF EFFECTS ON ATTORNEY SATISFACTION .................... 60

SUMMARY OF EFFECTS ON ATTORNEY VIEWS ON FAIRNESS .......... 61

4 POLICY FINDINGS .............. ......... .......................... 62
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FINDINGS ON EARLY CASE MANAGEMENT AND DISCOVERY PLANNING.. 62

FINDINGS ON EARLY DISCLOSURE .................................................................. 64

FINDINGS ON GOOD FAITH EFFORTS TO RESOLVE DISCOVERY DISPUTES66

FINDINGS ON LIMITING INTERROGATORIES ............................................... 66

FINDINGS ON SHORTENING DISCOVERY CUTOFF TIME ............................ 66

INTERPRETING EFFECTS AND GENERALIZING TO OTHER CASES, JUDGES,

AN D DISTRICTS ......................................................................................... 66

APPENDIX A: DETAILS OF STATISTICAL ANALYSES ................................................. 69

INTROD U CTION ................................................................................................... 69

ANALYSIS OF TIME TO DISPOSITION ............................................................. 72

ANALYSIS OF LAWYER WORK HOURS ............................................................. 84

ANALYSIS OF ATTORNEY SATISFACTION ...................................................... 96

ANALYSIS OF ATTORNEY VIEWS ON FAIRNESS .............................................. 103
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TABLES

Table S.1 Information by Case Closure Point ...................................................................... xiv

Table S.2 How Lawyers Spend their Work Hours: General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days

and with Lawyer Work Hours Reported .................................................................... xv

Table 2.1 Information by Case Closure Point: 1992-93 Sample, Closed General Civil Cases

with Lawyer W ork Hours Reported ............................................................................. 23

Table 2.2 How Lawyers Spend their Work Hours: 1992-93 Sample, General Civil Cases

with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer

W ork Hours Reported ................................................................................................ 25

Table 2.3 Information by Category of Case Complexity: 1992-93 Sample, General Civil

Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with

Lawyer W ork Hours Reported ................................................................................... 27

Table 2.4 Information by Category of Discovery Difficulty: 1992-93 Sample, General Civil

Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with

Lawyer Work Hours Reported ........................................... 29

Table 2 5 Information by Type of Attorney: 1992-93 Sample, General Civil Cases with

Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work

Hours Reported ............... ..................................... 31

Table 2.6 Information by Type of Private Attorney Fee. 1992-93 Sample, General Civil

Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with

Lawyer Work Hours Reported .......................................... 32

Table 2.7 Information by Size of Firm or Legal Department. 1992-93 Sample, General

Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and

with Lawyer W ork Hours Reported ................ ...................................................... 33

Table 2.8 Information by Size of Monetary Stakes: 1992-93 Sample, General Civil Cases

with Issue Joined, Closed with Tnime to Disposition Over 270 Days and with Lawyer

Work Hours Reported ................................................ 35

Table 2.9 Information by Nature of Suit 1992-93 Sample, General Civil Cases with Issue

Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours

Reported .......... . ..... ............ ...... ...... ............................. 36
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Table 2.10 Information by Category of Total Lawyer Work Hours: 1992-93 Sample,

General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days

and with Lawyer Work Hours Reported .............................. 37

Table 3.1 Information by Type of Early Management and Discovery Plan Policy: 1992-93

Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over

270 Days, and with Lawyer Work Hours Reported ................................ 44

Table 3.2 Information by Early Disclosure Policy: 1992-93 Sample, General Civil Cases

with Issue Joined, Closed with Time to Disposition Over 270 Days, and with Lawyer

W ork Hours Reported ............ .... .. .................................... 50

Table 3.3 Information by Interrogatory Limit Policy. 1992-93 Sample, General Civil Cases

with Issue Joined, Closed with Time to Disposition Over 270 Days, and with Lawyer

W ork Hours Reported ................................................................................................. 54

Table 3.4 Information by Shorter and Longer Time to Discovery Cutoff: 1992-93 Sample,

General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days,

and with Lawyer Work Hours Reported ...................................................................... 57

Table A.1 Control Variables Used for Modeling Time to Disposition ................. 74

Table A.2 Policy Variables Used in Modeling Time to Disposition ................................. 78

Table A.3 Model for Time to Disposition: 1992-93 Sample, General Civil Cases with Issue

Joined, with Time to Disposition Over 270 Days ................................. 82

Table A 4 Model for Time to Disposition: Subsets of 1992-93 Sample, General Civil Cases

with Issue Joined, with Time to Disposition Over 270 Days ........ ............. 83

Table A.5 Additional Control Varables Used for Modeling Lawyer Work Hours ............... 88

Table A 6 Model for Lawyer Work Hours: 1992-93 Sample, General Civil Cases with Issue

Joined, Closed with Time to Disposition Over 270 Days ........................... 92

Table A.7 Model for Lawyer Work Hours: Subsets of 1992-93 Sample, General Civil Cases

with Issue Joined, Closed with Time to Disposition Over 270 Days ................ 93

Table A.8 Model for Lawyer Work Hours on Discovery when Greater than Zero: 1992-93

Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over

270 D ays ......................... .. ... .............. ................... ..................................... 9 4 Table A 9 Model for Lawyer Work Hours on Discovery when Greater than Zero: Subsets of

1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to

Disposition Over 270 Days ... . .. .. ... ....................................................... 95

Table A.10 Model for Attorney Satisfaction. 1992-93 Sample, General Civil Cases with

Issue Joined, Closed with Time to Disposition Over 270 Days ...... ............ 101
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Table A.11 Model for Attorney Satisfaction: Subsets of 1992-93 Sample, General Civil Cases

with Issue Joined, Closed with Time to Disposition Over 270 Days ............................ 102

Table A.12 Model for Attorney Views on Fairness: 1992-93 Sample, General Civil Cases

with Issue Joined, Closed with Time to Disposition Over 270 Days ............................ 106
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SUMMARY

Curbing civil discovery abuse has been high on the agenda of the court reform

movement for more than two decades. Concern about excessive and inappropriate discovery

in the federal courts led to amendments to the Federal Rules of Civil Procedure in 1980, in

1983, and again in 1993, contributed to the passage of the Civil Justice Reform Act of 1990,

and stimulated the adoption of local court rules concerning discovery in many federal

jurisdictions. Similar concerns in the state court system have led to the adoption of state

and local court rules regulating discovery, as well as statutory reform in many jurisdictions.

Much of the concern about discovery abuse is based on anecdotal data. Empirical

research has not produced evidence of widespread abuse of discovery. However, because

researchers have focused on the quantity of discovery, rather than its quality, the available

studies do not speak to one central issue in the discovery debate-namely the

appropriateness of discovery for the issues in controversy in individual cases. Further, even

if discovery is appropriate in quantity and quality for the general run of civil litigation, it

may be a legitimate source of public policy concern in particular types of litigation-for

example, high stakes cases and complex litigation.

The study described in this report was undertaken at the request of the Advisory

Committee on Civil Rules of the Judicial Conference of the United States. Based on further

analyses of data assembled in the course of RAND's evaluation of the Civil Justice Reform

Act,1 the study was designed to assist the Committee in their consideration of possible

changes in the Federal Rules of Civil Procedure related to discovery. To that end, we

assembled descriptive information about a random sample of cases, focusing on discovery

We then analyzed the efficacy of the following types of discovery management policies in

reducing lawyer work hours and time to disposition, and the effects of these management

policies on lawyer satisfaction and views on fairness.

* Early case management and discovery planning,

* Early disclosure,

" Good faith efforts in resolving discovery disputes,

* Limiting interrogatones, and

* Shortening discovery cutoff time. 2

'The RAND evaluation of the Civil Justice Reform Act of 1990 was completed in 1996. The results are documented in Kakalik, James S., et al., 1996. 2 Due to lack of sufficient data, we could not evaluate policies limiting the number or

length of depositions, limiting document discovery, or dealing with issues of privilege. We also had insufficient data to evaluate methods lawyers use to manage discovery outside the
RAND - xii - 08/28/97 DRAFT

BACKGROUND AND SCOPE OF THIS STUDY

The Civil Justice Reform Act (CJRA) of 1990 required each federal district court to

develop a plan for civil case management to reduce costs and delay. Ten district courts,

denoted "pilot" district courts, were required to adopt plans that incorporated certain case

management principles through December 1995. The evaluation of the CJRA, which was

mandated in the legislation, focused on the consequences of that pilot program. RAND's

evaluation focused on the 10 pilot districts and 10 other districts selected for comparison.

Together the 20 districts had about 1/3 of the civil caseload in the nation.

Several of the management policies encompassed in the CJRA evaluation focused on

discovery. They included early judicial control of pretrial processes, requiring lawyers to

jointly prepare a discovery-case management plan early in the case, disclosing information

early without formal discovery, requiring good-faith efforts to resolve discovery disputes

before filing motions, and limiting interrogatories and other forms of discovery.

We further evaluated the results of these policies, focusing on general civil cases 3

filed in 1992-93, because the CJRA made substantial changes in how discovery was

managed in some districts. We also focused on cases closed after issue was joined, because

most discovery occurs after that point.

As in the main evaluation, we used both descriptive tabulations and statistical

techniques to assess policy effects In addition in this current study, we evaluated the

management policies when used in various combinations, such as early management used

in combination with discovery plans and early scheduling of a trial date. We also separately

analyzed subsets of cases or lawyers, such as high complexity cases only, high stakes cases

only, contingent fee lawyers only, or tort cases only. For each type of case, data include

time to disposition, lawyer satisfaction with judicial case management, lawyer views on the

fairness ofjudicial case management, total lawyer work hours per litigant, lawyer work

hours on discovery, and the number of discovery motions filed.

We consider lawyer work hours to be the best available measure of how case

management affects litigation costs because it has uniform meaning regardless of attorney

court's purview or to evaluate the quality and appropriateness of discovery on the study

cases.

3n practice, federal district courts split the civil caseload into two categories-those

types of cases that usually receive minimal or no management, and those general civil

litigation cases to which the district's standard case management policies and procedures apply (and which are of primary concern for evaluation of discovery management principles and techniques). Minimal management is usually applied to prisoner cases (other than

death penalty cases), administrative reviews of Social Security cases, bankruptcy appeals, foreclosure, forfeiture and penalty, and debt recovery cases
RAND - xiii - 08/28/97 DRAFT

fee structure or geographic variations in attorney fee rates and can be used consistently for both in-house lawyers and outside counsel. Consequently, in the statistical analyses we use lawyer work hours as our measure of costs. We present information on both total lawyer work hours and lawyer work hours on discovery, and those two measures are highly correlated. However, we think the total is a better measure than the lawyer hours spent on discovery because our interviews suggest that some types of discovery management may reduce discovery hours by shifting lawyer work to other types of activity (disclosure as a substitute for some discovery, or an alternative dispute resolution session as a substitute for

some discovery, for examples.) In addition, lawyers may differ in whether or not they report a given type of work activity as discovery-related (interviewing experts in direct preparation

for trial, for example.)

We note that we are measuring time and cost objectively by using time to disposition and lawyer work hours. Our main evaluation surveys, and some other research studies, also asked for lawyers' subjective opinions about whether time and cost were increased or decreased when a particular case management technique was used. It is important to note that the objective and subjective data do not always agree, and we believe that the objective

data are more reliable.

In our main evaluation, we obtained discovery management policy information at the district level from court documents, local rules, and interviews with judges and clerks in each of the 20 study districts. We gathered discovery management information, case and lawyer characteristics, time to disposition, stakes, cost, lawyer work hours, satisfaction, fairness and other detailed information at the case level from court dockets and from lawyer and judge surveys for 5222 cases filed in 1992-93 after the CJRA was passed. For those 5222 cases, we received survey responses from 67 percent of the judges (3280) and 47

percent of the lawyers (4061 out of 9423 surveyed).

DESCRIPTIVE INFORMATION ABOUT LAWYER WORK HOURS

ON VARIOUS TYPES OF CASES

About a fourth of the general civil cases close before issue is joined, another fourth close after issue is joined and within 270 days after filing, and nearly half close after issue is

joined and more than 270 days after filing

As shown in Table S 1, the likelihood of lawyers working on discovery is very low for

cases that close before issue is joined, and high for cases that last more than 270 days. The

median time lawyers reported spending on discovery for cases with issue joined that close within 270 days is only three hours, whereas the median is 20 hours for those cases that
RAND - xiv - 08/28/97 DRAFT

close more than 270 days after filing. In fact, cases that last more than 270 days require

about three quarters of all total lawyer work time, and about 80 percent of all lawyer work

time on discovery.

Table S.1

Information by Case Closure Point

Variable Case closure point

Before issue After issue joined, After issue joined, joined in 270 days or less over 270 days Percent in category 28 27 45

Median total lawyer 20 35 80

work hours per

litigant

% with zero discovery 72 37 15

work hours

Median lawyer work

hours on discovery 3 20

per litigant

Median percent 0 14 25

discovery hours are

of total lawyer work

hours

% of total lawyer work 13 14 73

hours on all cases

% of discovery lawyer 8 12 80

work hours on all

cases

Overall, lawyer work hours on discovery are zero for 38 percent of general civil cases,

and low for the majority of cases. Discovery is not a pervasive litigation cost problem for the

majority of cases. The empirical data show that any problems that may exist with discovery

are concentrated in a minority of the cases, and the evidence indicates that discovery costs

can be very high in some cases Subjective information from our interviews with lawyers

also suggests that the median or typical case that is not "the problem" It is the minority of

the cases with high discovery costs that generates the anecdotal "parade of horribles" that

dominates much of the debate over discovery rules and discovery case management.
RAND -xv - 08/28/97 DRAFT

Since we are concerned with discovery management policies in this report, we shall

focus the remainder of this summary on these 1624 general civil cases that closed at least

270 days after filing and consumed the vast majority of lawyer work time on discovery. We

developed a general profile of how lawyers spent their time on this category of cases, as

shown in Table S.2.

Table S.2

How Lawyers Spend their Work Hours:

General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Type of Work Average lawyer Percent of total

work hours

per litigant

Trials, including direct preparation for 26 11%

trial

Alternative dispute resolution after 6 3%

filing

Discovery after filing, including motions 83 36%

Motion practice, excluding discovery 36 16%

Other pretrial conferences or talks with 7 3%

judicial officer

Other time worked AFTER filing federal 55 24%

case. on research, investigation,

wnting, talking with parties and

lawyers outside court, or anything

else related to the litigation

All time worked BEFORE filing federal 15 7%

case, in preparation for filing case

Total work hours per litigant 232 100%

Time spent on discovery is moderate for the majority of cases. The average lawyer work hours per litigant is 232, of which an average of 36 percent or 83 hours is spent on

discovery including discovery motions The median discovery hours as a percent of total

lawyer work hours is 25 percent Whether we consider median or average percentages,

discovery accounts for approximately one fourth to one third of total lawyer work hours per litigant for general civil litigation Discovery accounted for less than half the lawyer work

hours in all the subsets of general civil cases that we examined
RAND - xvi - 08/28/97 DRAFT

We looked at various types of cases and lawyers separately and found:

" High complexity cases consume about four times as many median lawyer work

hours as low complexity cases, but the median percentage of total lawyer work

time devoted to discovery is about the same.

Cases in which the difficulty of discovery was reported to be "high" consume

about three times as many total lawyer work hours and five times as many

lawyer work hours on discovery as cases for which the difficulty of discovery was

"low."4 However, even for the cases with "high" difficulty discovery, the median

percentage of the total lawyer work time devoted to discovery is still only about

one third.

There is a significant difference between plaintiffs' and defendants' attorneys in

terms of total work hours. The former reported spending a median of 100 total

work hours per litigant; the latter spent a median of 75. However, these two

groups did not differ significantly in the amount of work time spent on discovery

per litigant.

* We did not find a significant difference between hourly and contingent fee

lawyers in lawyer work hours.

* Attorneys from larger firms (more than 5 attorneys) work significantly more

hours per litigant, in total and on discovery, than their counterparts from smaller

firms; 5 however, the fraction of time they spend on discovery is about the same.

* Higher stakes cases are associated with significantly higher lawyer work hours,

both in total and on discovery, and the fraction of total hours spent on discovery

is higher

" We found no statistically significant difference in lawyer work hours between

tort, contract, or other types of cases. However, we believe the tort and contract

4 Lawyers and judges were asked 'When this litigation began, how would you have rated this case in terms of... difficulty of discovery...." It is possible that some people filling out the survey after the litigation was closed reported greater difficulty of discovery because they knew lawyer work hours were high, rather than their initial view when the litigation began ' These data may reflect some systematic bias because litigants may prefer to hire large firms to handle more complex and more costly cases
RAND - xvii - 08/28/97 DRAFT

categories are too aggregated, with too heterogeneous a composition within each

category, to be meaningful in studying lawyer work hours.6

Finally, we categorized lawyers on cases by their total work hours: bottom 75%,

top 25%, and top 10%. The top 10% had a median of 950 total work hours per litigant, but the median percentage of lawyer work hours spent on discovery was

still only 36 percent.

EVALUATION OF DISCOVERy POLICIES

Findings on Early Case Management and Discovery Planning

In the main CJRA evaluation, we found that early case management predicted significantly reduced time to disposition; coupling early management with setting a trial schedule early predicted significant further time reductions. We further analyzed these two early management and trial scheduling policies, both with and without the requirement for

a discovery plan.

There was little difference in time to disposition with or without a discovery plan if a trial was scheduled early; however, cases closed significantly earlier if discovery planning took place in the absence of an early trial schedule.

[To be inserted here in final report. estimates of differences between not managing early and managing early with and without discovery planning.]

We also examined the consequences of these various policy mixes on subsets of cases. In general, the policies have consistent effects across various types of cases. However, we did find that the 25% most costly cases appear to especially benefit from the early setting of

a trial schedule; indeed, early management of those cases without scheduling a trial date did not significantly reduce their time to disposition. Cases that are high in complexity, high in discovery difficulty, or high in stakes appear to especially benefit from the use of

discovery - case management plans

Our analysis of total lawyer work hours (our measure of costs) further supports the efficacy of requiring discovery - case management plans Early case management reduces time to disposition, but this policy also tends to increase lawyer work hours However, if the district also requires discovery - case management plans in combination with early

management, there is not a significant increase in lawyer work hours.

cases 

6 Smaller, more narrowly defined categories should be studied, but we had too few in our sample to do subcategories within tort, contract and other types of cases in detail,
RAND - xviii - 08/28/97 DRAFT

[To be inserted here in final report: estimates of differences between not managing

early and managing early with and without discovery planning.]

Our interviews suggested reasons why early management may increase lawyer work

hours. Lawyers need to respond to a court's management-for example, talking to the

litigant and to the other lawyers in advance of a conference with the judge, traveling, and

spending time waiting at the courthouse, meeting with the judge, and updating the file after

the conference. In addition, once judicial case management has begun, a discovery cutoff

date has usually been established, and attorneys may feel an obligation to begin discovery. Doing so could shorten time to disposition, but it may also increase lawyer work hours on

cases that were about to settle when the judge began early management. The CJRA data

indicate that cases that are managed early have a higher likelihood of having lawyer hours

spent on discovery.

However, when a district requires discovery - case management plans, the increase

in lawyer work hours associated with early management appears to be offset by benefits

associated with the required planning, and the net effect is no significant increase in lawyer work hours. There are at least two plausible explanations for this outcome. First, the

planning itself may produce the benefit. The requirement that the lawyers jointly meet and

prepare a discovery - case management plan for submission to the court may result in more

efficient litigation with less lawyer work hours. Another plausible explanation is that the

judges in districts that require plans may also manage cases differently and better (in ways that we did not measure) than judges in districts that do not require plans.

When we looked at various subsets of cases, we found no strong evidence that the

effects of early management and discovery planning were restricted to certain types of

cases. Nor did we find that early management, setting a trial schedule early in the case, or

requiring a discovery plan had any statistically significant effect on lawyer satisfaction or

views on fairness.

Findings on Early Disclosure

Our analysis does not support the policy of mandatory early disclosure as a means of significantly reducing lawyer work hours and thereby reducing the costs of litigation, or as a

means of reducing time to disposition. We find that mandatory early disclosure

requirements are not associated with either significantly reduced lawyer work hours or with

significantly reduced time to disposition Some people suggested that if we had looked at

subsets of cases, such as those that were more or less complex or had more or less difficulty

with discovery, we might have found a subset of cases for which this policy was effective
RAND - xix - 08/28/97 DRAFT

We have explored many different subsets of cases, including subsets based on stakes,

complexity, and discovery difficulty. We found no strong evidence that a policy of early mandatory disclosure reduced time to disposition or lawyer work time on any of the subsets

of cases examined.

In districts where early disclosure is voluntary, attorneys who choose it have

significantly lower work hours. However, this result appears to reflect selection bias, i.e.,

these attorneys who voluntarily disclose may be less contentious or may be on less

contentious cases and hence spend fewer total work hours on the case. If early disclosure

were effective in reducing lawyer work time, we would expect to see evidence of this effect

on mandatory disclosure cases too.

One of the difficulties with early disclosure that may help explain its lack of a

significant effect is compliance; lawyers report that when disclosure is done on a mandatory basis, it is full disclosure for about half of the cases and only pro forma disclosure for the

other half

Findings on Good Faith Efforts to Resolve Discovery Disputes

We found no significant relationship between any of the variables studied and

reported good faith efforts to resolve discovery disputes before filing a motion.

Findings on Limiting Interrogatories

Our analysis lends support to the policy of limiting interrogatories as a way to reduce lawyer work hours and thereby reduce litigation costs. There is no statistical evidence that

limiting interrogatories increases litigation costs, and it appears to have significant benefits

for several subsets of cases.

Findings on Shortening Discovery Cutoff Time

Shortening discovery cutoff significantly reduces lawyer work hours and thus litigation costs, and reduces time to case disposition. When we looked at subsets of cases, these significant decreases in lawyer work hours and time to disposition remain in most

instances, with some exceptions such as low complexity cases which are less likely to be

affected by shortening discovery cutoff because they require less discovery.

[To be inserted here in final report. estimates of differences between managing with

shorter and longer discovery cutoff times I
RAND - xx - 08/28/97 DRAFT

Generalizing to Other Cases, Judges, and Districts

Our analysis provides a reasonable estimate of the effects of policy for the cases,

judges, and districts that we observed in the CJRA data. However, it is more difficult to

determine the outcomes of policy if implemented on different cases, or by different judges in

the same or different districts. Judges who choose to implement certain policies and

management procedures may differ from other judges in their basic approach to case

management or in their personalities. These differences could affect the way a policy is

implemented, and, consequently, the policy's effect. For example, enthusiastic managerial

judges may set trial schedules early, require meaningful discovery plans, and work hard on

settlement, thus leading to early case closure or reduced costs; however, having less

enthusiastic non-managerial judges set trial schedules early and require discovery plans

may not engender a similar effect.
RAND - xxi - 08/28/97 DRAFT

ACKNOWLEDGMENTS

This further analysis of the CJRA evaluation data focusing on discovery management is funded in part by a contribution from the American Bar Association Section on Litigation.

We are grateful for their support
RAND -1- 08/28/97 DRAFT

1. DISCOVERY MANAGEMENT:

BACKGROUND AND FRAMEWORK FOR DISCUSSION

INTRODUCTION

The Civil Justice Reform Act (CJRA) of 1990 required each federal district court to develop a plan for civil case management to reduce costs and delay. To provide an empirical basis for assessing new procedures adopted under the act, the legislation also provided for

an independent evaluation. Ten district courts, denoted "pilot" district courts, were required to adopt plans that incorporated certain case management principles through December 1995. The evaluation focused on the consequences of that pilot program. The Judicial Conference and the Administrative Office of the U.S. Courts asked RAND's Institute for Civil Justice to evaluate the implementation and the effects of the CJRA in these districts. The RAND reports on that main evaluation were completed in 1996

and are listed in the preface.

After we completed our main CJRA evaluation, the Advisory Committee on Civil Rules of the Judicial Conference of the United States asked RAND's Institute for Civil

Justice to conduct further analyses of the Civil Justice Reform Act evaluation data to see if additional light could be shed on discovery management, to assist the Committee in their

consideration of possible changes in the Federal Rules of Civil Procedure related to discovery. The Committee also asked the Federal Judicial Center to conduct a major new

survey of lawyers to gather additional information about discovery.

This document contains RAND's further analyses of the CJRA evaluation data,

focusing on chscovery management.

OVERVIEW OF THE CJRA

The CJRA created a pilot program that required ten federal district courts to incorporate certain case management principles into their plans and to consider

incorporating certain other case management techniques. The evaluation included ten other distrcts to permit comparisons; these districts were not required to adopt any of the case

management principles or techniques

The ten pilot districts selected by the Committee on Court Administration and Case Management of the Judicial Conference of the United States were: California (S), Delaware, Georgia (N), New York (S), Oklahoma (W), Pennsylvania (E), Tennessee (W), Texas (S), Utah, and Wisconsin (E) The Judicial Conference, with advice from RAND, also selected
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the following ten comparison districts: Arizona, California (C), Florida (N), Illinois (N),

Indiana (N), Kentucky (E), Kentucky (W), Maryland, New York (E), and Pennsylvania (M).

Using several methods, we confirmed that the pilot and comparison districts are comparable

and adequately represent the range of districts in the United States. Together, the 20 study

districts have about one-third of all federal judges and one-third of all federal case filings.

The Six Case Management Principles

The act directs each pilot district to incorporate the following principles into its plan:

1. Differential case management;

2. Early judicial management;

3. Monitoring and control of complex cases;

4. Encouragement of cost-effective discovery through voluntary

exchanges and cooperative discovery devices;

5. Good-faith efforts to resolve discovery disputes before filing motions; and

6. Referral of appropriate cases to alternative dispute resolution programs.

Pilot districts must incorporate these principles, while other districts may do so.

The Six Case Management Techniques

The act directs each district to consider incorporating the following techniques into its

plan, but no district is required to incorporate them:

1 Joint discovery/case management plan;

2. Party representation at each pretrial conference by an attorney with authority to bind

that party regarding all matters previously identified by the court for discussion at

the conference,

3. Required signature of attorney and party on all requests for discovery extensions or

trial postponements;

4 Early neutral evaluation;

5 Party representatives with authority to bind to be present or available by telephone at

settlement conferences; and

6. Other features that the court considers appropriate.

FEATURES OF THE RAND EVALUATION

The main CJRA evaluation is designed to provide a quantitative and qualitative basis

for assessing how the case management principles and techniques identified in the CJRA

affect litigants' costs (measured in both attorney work hours and money), time to

disposition, participants' satisfaction with the process, views of fairness of the process, and

judge work time reqmred.
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Our main descriptive and statistical evaluation of how the CJRA case management

principles affected cost, time to disposition, and participants' satisfaction and views on

fairness are presented in a RAND Institute for Civil Justice report entitled An Evaluation of Judicial Case Management Under the Civil Justice Reform Act, MR-802-ICJ, by James S.

Kakalik, Terence Dunworth, Laural A. Hill, Daniel McCaffrey, Marian Oshiro, Nicholas M.

Pace, and Mary E. Vaiana, 1996 (hereinafter called "main evaluation report")

Data Sources

The evaluation is based on extensive and detailed case-level data from January 1991

through December 1995. Data sources include:

* Court records;

* Records, reports, and surveys of CJRA advisory groups;

* The districts' cost and delay reduction plans;

* Detailed case processing and docket information on a sample of cases;

* Surveys of judicial officers on their activities, time expenditures, and views of CJRA;

* Mail surveys of attorneys and litigants about costs, time, satisfaction, and views of the

fairness of the process; and

* Interviews in person with judges, court staff, and lawyers in each of the 20 districts.

We used CJRA advisory group reports, documents, and meeting minutes to assess the

advisory group process and findings; we used the districts' plans and proposed local rule

changes to assess what the district said it would do under CJRA; we used the dockets for a

large sample of cases to help us understand what was actually done on cases and when

(such as schedule setting, assignment to management tracks, or referral to ADR); we used

court records to assess the basic characteristics of the cases and court actions, such as

referral to ADR, that were not always on the court docket; we used the judicial surveys on

our sample of cases to get judges' views on whether they had changed how they manage

cases as a result of CJRA; we used extensive mail surveys of thousands of lawyers and

litigants on our sample of cases to get their views on how the case was managed and

information on litigation costs, satisfaction, and views of fairness; and we used extensive

semi-structured interviews with judges, court staff, advisory group members, and lawyers to

better understand both the implementation of CJRA and case management in the districts

before and after CJRA.

In total, more than 10,000 cases were selected for intensive study in the main

evaluation, half closed before CJRA and half filed in 1992-93 after the CJRA was passed

This current report focuses on the sample of 5222 cases filed in 1992-93 after the CJRA was
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passed. For those 5222 cases, we received survey responses from 67 percent of the judges

(3280), from 47 percent of the lawyers (4061 out of 9423 surveyed), and from 13 percent of

the litigants (2264 out of 20272 surveyed). Because of the low litigant response rate, we

were limited in our ability to analyze litigants' hours spent, satisfaction, and views of

fairness.

Analytic Approach

We use both descriptive tabulations and multivariate statistical techniques to analyze

time to disposition, costs, and participants' satisfaction and views of fairness.

We analyze time to disposition, rather than delay, since the latter cannot be defined

without reference to some currently unavailable standard of how long civil cases should take

to resolve.

We present information on litigation cost in the main evaluation, measured in both

monetary and work hour terms. 7 Our reports provide data on monetary costs to litigants,

litigant hours spent, and lawyer work hours spent. However, we consider lawyer work

hours to be the best available measure of how case management affects litigation costs

because it has uniform meaning regardless of attorney fee structure8 or geographic

variations in attorney fee rates and can be used consistently for both in-house lawyers and

outside counsel 9 Consequently, in the statistical analyses we use lawyer work hours as our

measure of costs We present information on both total lawyer work hours and lawyer work

hours on discovery, and those two measures are highly correlated. However, we think the

total is a better measure than the lawyer hours spent on discovery because our interviews

suggest that some types of discovery management may reduce discovery hours by shifting

lawyer work to other types of activity (disclosure as a substitute for some discovery, or an

7 Our main CJRA evaluation included information on total judge work minutes on cases We have not included the judge work minutes in this further analysis of discovery for two reasons. (1) the portion ofjudge work minutes specific to discovery could not be reliably identified within the total judge work minutes; and (2) more importantly, while most judges cooperated with the study and provided their work minutes on each case, some judges did not and this could lead to biased statistical results because we strongly suspect that the choice by judges to cooperate with the judge time study was correlated with the judge's attitude toward and use of case management. 8

Under some fee structures, such as contingent fees, changes in lawyer work hours that may result from changes in court management are not necessarily reflected in the fees

charged to clients.

9 Lawyer work hours do not explicitly capture the "out of pocket" costs of litigation such as filing fees, travel, and investigator or expert witness fees, but those costs typically are less than 10 percent of the total litigation costs. Costs associated with lawyers work constitute the vast majority of total transaction costs.
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alternative dispute resolution session as a substitute for some discovery, for examples.) In addition, lawyers may differ in whether or not they report a given type of work activity as

discovery-related (interviewing experts in direct preparation for trial, for example.)

We note that we are measuring time and cost objectively by using time to disposition and lawyer work hours. Our main evaluation surveys, and some other research studies,

also asked for lawyers' subjective opinions about whether time and cost were increased or

decreased when a particular case management technique was used. It is important to note

that the objective and subjective data do not always agree, and we believe that the objective

data are more reliable.

Our assessment of satisfaction and views of fairness is subjective and drawn from the

results of our surveys. 10

In the main evaluation, we based our assessment of case management policies and

procedures on data from general civil litigation cases 11 with issue joined.12 We also

analyzed the subset of these cases that took longer than nine months to disposition.

In this further evaluation of the CJRA data focusing on discovery management, we

again focus on general civil litigation cases closed after issue is joined. We also focus

exclusively on the post-CJRA portion of the data, those cases filed in 1992-93, because the

CJRA made substantial changes in how discovery was managed in some districts. We also

focus predominantly in our further analyses on the 1624 cases that took longer than nine

months to disposition. About half the general civil cases close after nine months, but they consume about three fourths of all lawyer work hours, and 80 percent of lawyer work hours

spent on discovery.

I

0 Satisfaction and views of fairness were measured by responses to the following questions: How satisfied were you with the court management and procedures for this case for your party or parties? How fair do you think the court management and procedures were for 11 this case for your party or parties? In practice, federal district courts split the civil caseload into two categories-those types of cases that usually receive mimmal or no management, and those general civil litigation cases to which the district's standard case management policies and procedures apply (and which are of primary concern for evaluation of CJRA case management principles and techniques). Mimmal management is usually applied to prisoner cases (other than death penalty cases), administrative reviews of Social Security cases, bankruptcy appeals, 

1

foreclosure, forfeiture and penalty, and debt recovery cases. 2 lssue is considered joined after the defendants have answered the complaint in accordance with F.R Civ P. Rule 12(a) or as mandated otherwise by the court (Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, Volume XI, Statistics Manual, Chapter 5, p. 15, updated as of 1995)
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In this further evaluation of discovery and its management, our methods of statistical

analysis are the same as in the main evaluation, with three major exceptions: (1) we

explicitly evaluate combinations of various management policies (such as early management

used in combination with discovery plans and early scheduling of a trial date, versus early

management used without discovery plans and without early scheduling of a trial date); (2)

we explicitly and separately analyze the data for various categories of cases or lawyers (such

as high complexity cases only, high stakes cases only, contingent fee lawyers only, or tort

cases only); and (3) in addition to our analysis of total lawyer work hours, we also explicitly

analyze lawyer work hours on discovery.

OUTLINE OF THIS REPORT

This report has two dimensions, designed for different audiences. The main text is

intended for policymakers and policy-users and focuses on descriptive information about

discovery, and on discovery management policy evaluation. The extensive appendix, which

focuses on the details of our statistical analyses behind the policy evaluation, is intended for

those who want to know methodological and empirical details of how we reached our

conclusions.

The discussion is organized as follows. In the remainder of Chapter One we provide

more background and a framework for the discovery discussion in the rest of this report. In

Chapter Two we provide descriptive information about discovery and other aspects of

categories of cases defined by level of complexity, level of discovery difficulty, plaintiff or

defendant side of the case, contingent or hourly fee lawyer, size of the law organization in

which the lawyer worked, case stakes, tort or contract or other nature of suit categories, or

the top 25% most costly cases among general civil litigation that has time to disposition over

270 days after filing Chapter Three contains our evaluation of various discovery

management policies, and Chapter Four summarizes our policy findings. The Appendix

provides technical details of our statistical analyses.

A BRIEF HISTORY OF EMPIRICAL RESEARCH ON DISCOVERY AND ITS RELATIONSHIP TO LITIGATION COSTS AND DELAY

Despite the widespread belief that discovery is to blame for much of the delay and

costliness of civil case processing, there has been little empirical data available on the

magnitude of discovery, patterns of use across case types, or direct or indirect costs

associated with discovery or various different discovery management policies. Nor has there
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been much effort in the past to measure the effect of adopting different discovery reforms or

discovery management policies on time to disposition or costs.

In one of the most extensive previous studies, researchers at the Federal Judicial

Center (FJC) selected 3000 civil cases terminated in 1975 from six federal district courts and

examined the extent and pattern of discovery in those cases The FJC researchers found

substantial variation in discovery among cases. Half had no discovery at all; among the

remainder, 20 percent averaged 1.7 requests per case; 60 percent averaged 5 requests per

case and the remaining 20 percent averaged 17 requests per case. The FJC concluded that:

"[D]iscovery abuse, to the extent it exists, does not permeate the vast majority of federal filings. In half the filings, there is no discovery-abusive or otherwise. In the remaining half of the filings, abuse--to the extent that it exists-must be found in the quality of the discovery requests, not in the a since fewer than 5 percent of the filings involved more than ten requests." (emphasis in the original).13

The FJC found that the amount of discovery likely in a case could be predicted based

on knowing "the subject matter of the case, the number of parties, the presence of

counterclaims or cross claims, and, to a lesser extent, the amount in controversy...."14 They

also found significant differences across courts.

In the same study, the FJC also investigated the effects of limiting elapsed time for

discovery on time to disposition and amount of discovery activity. They found that

restricting the amount of time for discovery reduced the overall time to disposition, but

actually increased the amount of discovery, perhaps because attorneys had less time to

carefully consider their discovery options.

A subsequent empirical study of about 1600 cases in federal and state court, the Civil

Litigation Research Project, also found that ". .relatively little discovery occurs in the

ordinary lawsuit. We found no evidence of discovery in over half our cases. Rarely did the

records reveal more than five separate discovery events "15 That same study found that on

average that about 17 percent of lawyer time is devoted to discovery.

More recently, in a study of California's Trial Court Delay Reduction Project, the

National Center for State Courts found that courts that adopted procedures for managing

13 Paul Connolly, Edith Holleman and Michael Kuhlman, Judicial Controls and the Civil Ltigatve Process- Discovery, Federal Judicial Center, 1978, at 35. 14 Paul Connolly, Edith Holleman and Michael Kuhlman, Judicial Controls and the Civil Lti.ative Process. Discovery, Federal Judicial Center, 1978, at iv 15 Trubek, D M., A. Sarat, W Felstiner, H. Kntzer, and J. Grossman, The Costs of Ordinary Litigation, UCLA L.R., Vol. 31, No. 1, October 1983, at p. 90
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pretrial activities, including discovery, achieved significant reductions in case disposition

times.16 Courts that introduced early status conferences (at which various case activities

were scheduled) achieved somewhat greater reductions in average case disposition times,

compared to courts that used rule-based schedules (establishing and monitoring various

check-points in a case's history).17

In the early 1990s, the National Center for State Courts conducted an empirical study of discovery in about 2000 court cases in 5 states. Their findings affirmed those of the

earlier FJC and Civil Litigation Research Project studies. The NCSC found 42 percent of

general civil litigation cases did not have recorded discovery, and that 37 percent of those

with discovery had three or fewer pieces of discovery. 18

Other empirical studies concerning discovery have measured subjective attitudes,

rather than objective case data. A 1986 study of attorneys' attitudes in 12 federal districts

that had adopted local rules limiting the number of interrogatories and requests for

admissions found that a majority approved of these rules. Support for such limits did not

vary by type of practice (size of firm, case specialization, plaintiff versus defendant) or by

degree of litigation experience. 19 A study of federal and state judges conducted by Louis

Harris and Associates in 1987 found that 45 percent of federal judges surveyed, and 34

percent of state judges, cited "abuse of the discovery process" as among the most serious

causes of civil case delay in their courts. 20 One-third of the federal and state judges said

that there were "a lot of problems" with the discovery process in their junsdictions. 21 When

asked what approaches might best solve these problems, federal judges called for changes in

the informal practices of the bar and greater exercise of judicial discretion, rather than

16 Judicial Council of California, Prompt and Fair Justice in the Trial Courts, Vol. 1, Administrative Office of the Courts, 1991, at 1I-5. 17 Judicial Council of California, Prompt and Fair Justice in the Trial Courts, Vol. 1, Administrative Office of the Courts, 1991, at 11-29. 18 Keilitz, S., R.A. Hanson, and H.W.K. Daley, Is Civil Discovery in State Trial

Courts Out of Control?, State Court Journal, Spring 1993. 19 John Shapard and Carroll Seron, Attorneys' Views of Local Rules Limiting Interrogatories, Washington, D.C., Federal Judicial Center, 1986 at v. Based on the attorneys' self-reports of their use of interrogatories in recent cases, the researchers also concluded that in most cases, activity was not actually constrained by the rules, both because the limitations were set high enough so as to not to effectively limit the average case and because a significant fraction of attorneys either ignored the rules or received

formal waivers from the court.

20 Judges' Opinions On Procedural Issues, New York, Louis Hams and Associates, 1987 at 37

21 Judges' Opinions On Procedural Issues, New York, Louis Hams and Associates, 1987 at 39
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further changes in the rules. State judges' opinions on solutions were divided among the

three options (changing informal practices, greater use ofjudicial discretion, and rule

changes). 22

In 1997, the Federal Judicial Center conducted a major new survey of lawyers to

gather additional information about discovery, and the results are forthcoming.

A BRIEF HISTORY OF DISCOVERY REFORM

The modem history of discovery practice began with the adoption of the Federal

Rules of Civil Procedure in 1938. A key element of the philosophy behind those Rules was

"notice" pleading with facts of cases to be developed through discovery. The new Rules

expanded the scope of discovery and relaxed prior limitations on the amount and timing of

discovery. 23 Although the Rules are often cited as laying the basis for contemporary judicial

control over the litigation process,24 in practice they appear to have placed control over the

discovery process predominantly in the attorneys' hands. Indeed, amendments in 1946 and

1970 further relaxed limitations on attorneys' discovery activities. 25

By the mid-1970s, however, confidence in attorneys' abilities to efficiently manage discovery had begun to erode. After the 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (convened by Chief Justice Warren

Burger and known as the Pound Conference), and the issuance of a report on discovery

abuse by an ABA Special Committee that was established as a follow-on to the Conference, 26

support mounted for increasing judicial control over discovery. When dissension within the

bar diluted the force and scope of amendments to the Rules that were adopted in 1980, a

second set of stronger amendments were adopted in 1983 The new amendments prohibited

redundant discovery, required that discovery be proportional to the magnitude of the case,

22 Judges' Opinions On Procedural Issues, New York, Louis Harris and Associates,

1987 at 40 23 Paul Connolly, Edith Holleman and Michael Kuhlman, Judicial Controls and the

Civil Litiatue 

24 Paul Connolly, 

Process: Discovery, Federal Judicial Center, 1978, at 9 Edith Holleman and Michael Kuhlman, Judicial Controls and the Civil Lttzative Process. Discovery, Federal Judicial Center, 1978, at 10. 25 Paul Connolly, Edith Holleman and Michael Kuhlman, Judicial Controls and the Civil Ltigative Process- Discovery, Federal Judicial Center, 1978. The 1970 amendments were intended in part to reduce judicial time spent on managing civil litigation. See Sherman Cohn, "Federal Discovery: A Survey of Local Rules and Practices in View of Proposed Changes to the Federal Rules," 63 Minn L.R. 253 (1979) at 254 26 Edward Cavanagh, 'The August 1, 1983 Amendments to the Federal Rules of Civil Procedures- A Crtical Evaluation and a Proposal for More Effective Discovery Through Local Rules," 30 Villanova L.R 767 (1985) at 778
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and mandated court sanctions for violation of the rules. They also explicitly provided for

judicial discussion of discovery plans at pretrial conferences and for the judge's issuance of

an order scheduling discovery and other pretrial events.27 In the following years, many

federal jurisdictions adopted local court rules limiting the amount and timing of discovery.

Notwithstanding these rule changes, concern about discovery abuse continued

through the 1980s and contributed to the passage of the Civil Justice Reform Act of 1990

(CJRA). That act, a product of a Task Force set up by Senator Joseph Biden to consider

options for reducing delay and costs associated with civil case processing,28 required each

federal district court to submit a plan for improving civil case management. The Act

encouraged courts to consider changes in discovery, including limitations on timing and

amount of discovery and special programs to assist attorneys in better planning discovery

activities.

In December 1993, partially in response to the Civil Justice Reform Act, a number of

changes to the Federal Rules of Civil Procedure were made. Those changes included a

requirement that parties meet and prepare a proposed discovery plan before a scheduling

conference is held or a scheduling order is due, a requirement for disclosure of certain basic

relevant information without waiting for a discovery request, discretionary sanctions for

Rule 11 violations rather than mandatory sanctions, and a limitation on the number of

depositions and interrogatories. Districts were allowed to opt out of some of these changes,

in part to enable them to continue their CJRA mandated cost and delay reduction plans

unchanged

By the late 1970s, many state court systems were experimenting with limitations on

discovery activity. In a survey conducted in 1981, RAND's Institute for Civil Justice found

that 29 states and 23 of the nation's largest metropolitan trial courts had adopted one or

more measures to expedite pretrial discovery, including, using mail and telephone to

expedite pretrial motions processing; requinng attorneys to attempt to settle their discovery

disputes before requesting judicial intervention; assigning parajudicial personnel to hear

discovery motions, limiting the number of interrogatories; limiting the time allowed for

27 Edward Cavanagh, "The August 1, 1983 Amendments to the Federal Rules of Civil

Procedures- A Critical Evaluation and a Proposal for More Effective Discovery Through Local Rules," 30 Villanova L R 767 (1985), at 782-793.

28 See Justice for All. Reducing Costs and Delay in Civil Litigation, Report of the Brookings Task Force on Civil Justice Reform, Washington, D.C., Brookings Institution,

1989
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discovery; holding conferences to schedule discovery; and authorizing sanctions for frivolous

discovery motions.29

For example, California, which had eliminated prior restrictions on discovery in 1957,

reinstated some limitations in the Civil Discovery Act of 1986.30 The Act restricts the

number of special interrogatories to 35, the number of requests for admission to 35 and the

number of depositions of any one witness to one. The act defines discovery abuse and

authorizes sanctions, including monetary fines, for such abuse.3 ' In addition, under the

Trial Court Delay Reduction Act of 1986, some California courts experimented with

schedules for case disposition that mandated completion of discovery by a specified number

of days after case filing, and in other courts, discovery schedules tailored to the specifics of

individual cases were set at judicial status conferences.3 2

OPTIONS FOR REFORM

As a result of ongoing concern about discovery abuse, many federal and state courts

now have in place some sort of limitations on the extent, timing or manner of discovery.

Some federal district courts adopted new procedures for managing discovery as part of their

required plans for reducing civil case delay and expense under the CJRA. In addition, the

Judicial Conference Advisory Committee on the Federal Rules is currently reviewing

proposals for additional modifications in the Federal Rules of Civil Procedure.

The major options for reform can be grouped into seven categories- (1) adopting

standardized rules limiting the scope, amount or timing of discovery activity; (2) mandating

early disclosure of key information; (3) imposing monetary or other sanctions for violation of

court-enunciated practice standards, (4) assisting attorneys in more efficient management of

discovery; (5) cost and fee shifting; (6) closer management of attorneys by clients; and (7)

shifting responsibility for conducting discovery to judges, as is common in some European

systems Below we discuss each of these in turn

29 Patricia Ebener, Jane Wilson-Adler, Molly Selvin and Michael Yesley, Court

Efforts to Reduce Pretrial Delay A National Inventory, Santa Monica, Ca., RAND, 1981 at

30

30 James Kakalik, Molly Selvin and Nicholas Pace, Averting Gridlock: Strategies for Reducing Civil Delay in the Los Angeles Superior Court, Santa Monica, Ca., RAND, 1990, at

89

31 California Civil Procedure Code, Sec's 2016-2036.

32 Judicial Council of Califorma, Prompt and Fair Justice in the Trzal Courts, Vol. 1,

Administrative Office of the Courts, 1991
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Standardized Rules Limiting the Scope, Amount or Timing of Discovery

As indicated by the earlier discussion, the most frequent response to concern about

discovery abuse has been adoption of rules limiting the amount or timing of discovery activity. Limitations on timing appear to have the desired effect of reducing total time to

disposition, but severe restrictions on the elapsed time for pretrial activities are frequently met with opposition from the bar.33 Moreover, limitations on elapsed time for discovery do

not necessarily reduce the magnitude of discovery activity and therefore may have little

effect on discovery costs. Whether imposing limitations on the amount of discovery (e.g., number of interrogatories, number of requests for admission, number or length of depositions, or volume and nature of document requests) has the desired effect of limiting the overall magnitude of discovery activity is unclear. It may be that in order to satisfy attorney concerns about the need for extensive discovery in some cases, courts set these

limits so high as to have little effect on most cases. There is also some evidence that

attorneys can evade these standards with ease, either by simply ignoring them or by obtaining judicial waivers or by switching to some other formal or informal method of

discovery. Numerical limitations also raise the question of how to define a single

interrogatory, deposition, or other request.

Courts may have more success in implementing numerical and time limits when these are coordinated with differentiated case management plans Incorporating numerical

limits on discovery activity into differentiated case management plans may also permit

courts to specify more modest amounts of activity for ordinary cases, while preserving

higher limits for more complex cases.

A relatively new approach to limiting discovery activity is "phased discovery," in which attorneys, on their own, or with the court's assistance, develop plans for sequencing discovery. 34 Sequencing may be by subject matter, party, or type of evidence, and may be prescribed by a broadly applicable rule or on a case-by-case basis. Phased discovery may be

Judicial 

3 

Council 

In its report to the Legislature on the Trial Court Delay Reduction Program, the noted- "Despite bar involvement in planning the programs in all counties and despite the support of a majority of lawyers forjudicial control of the pace of litigation,

Council 

there is substantial discontent among lawyers with the program's operation. Judicial of California, Prompt and Fair Justice in the Trial Courts, Vol. 1, Administrative Office of the Courts, 1991, at 11-4. " "Phased Discovery" is suggested in the Manual for Complex Litigation (Third) (1995) 

Northern 

and 

District 

was advocated for a broad range of civil cases by Judge Robert Peckham of the

Act, American 

of California. See Report of the Task Force on the Civil Justice Reform

Reducing Costs 

Bar Association Litigation Section, July 1992 at 10-15 and Justice for All and Delay in Civil Litigation, Report of the Brookings Task Force on Civil Justice Reform, Washington, D.C., Brookings Institution, 1989, at 20-21.
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linked to specific case milestones-for example, attorneys may be permitted to conduct only

a modest amount of discovery before an early neutral evaluation or an early status

conference is conducted. The goal is to focus parties on those aspects of discovery that are

most helpful to evaluating the case, as early in the litigation process as possible, thereby

contributing to settlement before high litigation costs are incurred.35

The discussion above concerns attempting to control discovery without changing the

general scope of allowable discovery. However, the scope of discovery itself is another major

area for potential reform to limit whatever discovery problems may exist. As recently as

1970, the scope of discovery was expanded by rule change. Subsequent rule changes have

not narrowed the general scope of discovery, but the American College of Trial Lawyers is

currently recommending the amendment of discovery Rule 26(bX1) to narrow the scope and

breadth of civil discovery by changing the language from "...any matter, not privileged,

which is relevant to the subject matter involved in the pending action, whether it relates to

the claim or defense of the party seeking discovery or to the claim or defense of any other

party..." to new language "...any matter, not privileged which is relevant to the claim or

defense of the party seeking discovery or to the claim or defense of any other party...."36

Mandatory Early Disclosure

CJRA brought about substantial change in early disclosure of information without a

formal discovery request. Only one district required it before CJRA;37 after CJRA, all pilot and comparison distrcts in the RAND evaluation adopted one of five approaches providing

either voluntary or mandatory exchange of information by lawyers, sometimes only for

specified types of cases Three pilot and two comparison districts adopted the voluntary

exchange model, which encourages lawyers to cooperate in exchanging information. Three

pilot districts and one comparison district followed a mandatory exchange model for a

limited subset of cases and a voluntary model on other cases. Two pilot districts and one

comparison district required lawyers to mandatorily disclose certain information, including anything bearing significantly on their sides' claims or defenses Two other pilot districts

3 Some jurisdictions have implemented a form of phased discovery, by limiting the amount of discovery permitted prior to court-administered arbitration. See John Barkai and Gene Kassebaum, "The Impact of Discovery Limitations on Cost, Satisfaction and Pace in Court-Annexed Arbitration," undated, at 3

6 Proposal presented to the Judicial Conference Advisory Committee on Civil Rules by the American College of Trial Lawyers, Irvine CA, at a January 16, 1997 Advisory Committee meeting (undated). 37

At least one other district reqmred attorneys to confer before the first pretrial conference to attempt to agree on a scheduling order
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and one other comparison district have a similar mandatory requirement, but they apply it

to all information bearing significantly on both sides' claims or defenses.

After our sample cases were selected, four pilot districts switched from their initial

early disclosure procedure to follow the December 1993 revised F.R.Civ.P. 26(aXl), which

requires the mandatory exchange of information relevant to disputed facts alleged with

particularity in the pleadings, plus information on damages and insurance. Six comparison

districts also are following the revised Rule 26(a)(1). The ten other pilot and comparison

districts have decided to "opt out" and are not following the revised Rule 26(a)(1). Some

districts opted out to retain their pilot program disclosure rules, some of which were more

stringent in their disclosure requirements than the revised Rule 26(aX1).

Sanctions

Increasingly, proposals for restrictions on discovery are accompanied by calls for

monetary or preclusionary sanctions against those who violate the standards. The 1983

amendments to the Federal Rules explicitly authorized sanctions, including attorney fees,

for discovery abuse, as did California's Civil Discovery Act of 1986. Empirical research on

sanctions suggests that courts and individual judges vary considerably in their use of

sanctions. 38 But courts may be becoming more willing to impose sanctions as caseload

pressure increases.

Providing Assistance with Discovery Planning

Courts also are increasingly becoming involved in assisting attorneys in planning

discovery. The 1983 amendments to Rule 16 provided for the inclusion of key discovery

events in the judge's scheduling order to be issued after the pretrial conference. In federal

courts, magistrate judges and special masters have assisted attorneys in managing

discovery in complex litigation. Most federal district courts require that attorneys make a

good faith effort to resolve discovery disputes before filing motions. And the 1993 federal

Rules amendments required that the parties meet and prepare a proposed discovery plan

before a scheduling conference is held or a scheduling order is due, although individual

districts could exempt some or all types of cases from this requirement.

3 The Advisory Committee Notes to the 1983 Amendments to Rule 26 cite this

research as a motivation for making judicial sanctioning authority explicit. But as late as 1988, the GAO found substantial variation in the use of sanctions. See Federal Courts: Pretrial Management of Civil Cases Varied at Selected District Courts, U.S. General

Accounting Office, 1988, at 28-29.
RAND -15- 08/28/97 DRAFT

One relatively new form of mechanism for assisting attorneys in developing discovery

plans is mandatory early neutral evaluation (ENE). First adopted in the Northern District

of California, ENE was conceived by the bench and bar at least in part to help attorneys

identify the issues that are central to their disputes, so that they could focus their pretrial

efforts on these issues. Under the Northern District's plan, an attorney volunteer (the

"neutral") meets with the attorneys and their clients early in the litigation process to discuss

the case. The neutral evaluator then delivers his or her assessment of the case to each side,

along with advice on discovery planning. While ENE may facilitate settlement, its original

objective was to help the attorneys manage discovery more efficiently.

It is important to note that court efforts to assist attorneys in developing more

efficient discovery plans are not cost-free. Unless increased judicial management time

directed towards the pretrial process translates into substantial savings at later pretrial or

trial stages, the net effect on court budgets could be an increase in costs borne by taxpayers.

If this were the case, public policymakers would have to decide whether these increased

costs are justified by cost savings and other benefits to individual and corporate litigants.

Alternatively, turning to attorney-volunteers to assist in discovery management, as is

contemplated in most early neutral evaluation programs, imposes an additional burden on

the bar

Cost and Fee Shifting

Under the "American Rule," each side bears the costs of its own litigation, including

both the costs of initiating discovery of information in its opponent's possession and the costs

of responding to an opponent's requests for information. Under certain circumstances, for

public policy reasons, legislatures have provided for "one-way" cost shifting, permitting

prevailing plaintiffs to recover legal fees from defendants. Federal and state discovery rules

have also provided for limited shifting of discovery costs, in cases where the court finds that

a motion was frivolous or intended for an improper purpose, such as to unnecessarily delay

the proceedings or harass the opposing party Federal Rule 11 states that the court "may"

impose sanctions on inappropriate behavior, by ordering the offending party to pay some or

all of the reasonable expenses incurred by the other side as a result of this behavior,

including attorney fees

Although some of the options outlined above have proved controversial, all involve

modifications in existing court rules or procedures. Two other options for reform require

more extensive rethinking of the civil litigation process one, by rethinking and perhaps, restructuring, the lawyer-client relationship, the other, by redefining the role of the judge.
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Closer Management of Attorneys by Parties

In response to rising legal costs, many large corporations have begun restructuring

their relationships with legal service providers. Eighty percent of Fortune 1000

corporations surveyed by Louis Harris and Associates said that they have brought more of

their legal work in-house in recent years. 39 Bringing work in-house provides an

opportunity for corporations to more closely examine the costs and benefits of litigation

strategies, including discovery. Almost all of the corporate legal officers surveyed by Louis

Harris (95 percent) said they involve in-house counsel in planning strategy on major

matters, and 60 percent said that they require litigation budgets, including resources

allocated for discovery, to be submitted for major work. Almost all of these corporations (98

percent) now require their outside counsel to submit detailed bills.40 These changes in

policies concerning corporate client-outside counsel, relationships have the potential to

heighten corporate parties' attention to the costs (and benefits) of alternative discovery

strategies. However, it may be more difficult for smaller corporations, with fewer resources

for managing their legal services, to implement such policies.

Some critics of discovery allege that some attorneys engage in excessive discovery in

order to run up their bills. Because corporate attorneys typically are paid on an hours and

expenses basis, it is often said that they have an incentive to "keep their meters running."

Some corporations are experimenting with alternative billings practices intended to change

these incentives For example, some corporate legal officers are requesting that outside

counsel charge flat rates for certain cases or for certain litigation activities ("menu billing")

Others are agreeing to fees with contingency factors-sometimes called "premium" billing.41

Because these alternative fee arrangements reduce dependence on hourly billing, they

should reduce the incentives of attorneys to engage in discovery as a means of fee

enhancement

31 Deborah Hensler, "Talking to Each Other or Talking Past Each Other? Corporate Legal Officers' and Outside Counsels' Views on Strategies for Controlling Legal Costs," paper presented at the American Bar Association annual meeting, 1992, at 7. 40 Deborah Hensler, 'Talking to Each Other or Talking Past Each Other? Corporate Legal Officers' and Outside Counsels' Views on Strategies for Controlling Legal Costs," paper presented at the American Bar Association annual meeting, 1992, at 15. "' Deborah Hensler, "Talking to Each Other or Talking Past Each Other? Corporate Legal Officers' and Outside Counsels' Views on Strategies for Controlling Legal Costs," paper presented at the American Bar Association annual meeting, 1992, at 11-14.
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Judicial Discovery

The American civil litigation system relies on an adversarial process to investigate

("discover") and present the facts that are relevant to resolving a dispute. Each side is

assumed to have the incentives to bring out those facts that would support its case. In

principle, if the parties have equal resources and equally skilled representatives, these

incentives should assure that all of the relevant facts are presented to the fact-finder. By

excluding the judge from the investigatory process, the American system also assures that

final judgment on the case will be withheld until all of the appropriate facts have been

developed. The increasing adoption of a "managerial judging" style, including increased

involvement in managing discovery, has affected the judge's role as a purely neutral

umpire. But the American system continues to rely on the parties' attorneys to develop the

facts of the case.

Under European "inquisitorial" systems, the role of the judge in developing the facts

of the case is far greater; indeed, the judge may be wholly responsible for deciding what

issues are central to the dispute, at what stage of the process to hear these issues, and what

evidence should be brought to bear. For example, under the German system, there is no

sharp demarcation between pretrial proceedings and trial: the judge hears the issues in the

order that he or she feels is most likely to assist in resolving the case. The parties'

representatives identify witnesses to appear before the judge, but apparently do not engage

in any extensive pretrial questioning of these witnesses. Nor do they engage in any

extensive investigation of the facts, beyond the information they obtain from their clients.42

Shifting the conduct of discovery to judges in the United States would require a

radical re-thinking of the virtues of the adversarial process; it would also require a rethinking of court organization. But as an alternative to patchwork reforms of discovery,

that inexorably draw the judge deeper into the investigatory process, perhaps without

sufficient evaluation of the larger consequences for civil case disposition, it may be

appropnate to undertake such a systematic re-thinking.

SOME OBSTACLES TO REFORM

One of the obstacles to effective discovery reform has been the failure of reformers to

carefully identify the problem they are seeking to remedy and the sources of that problem

For example, is the problem that there is too much discovery overall, or too much in some

42 Albert Alschuler, "Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier Trial System in Civil Cases," 99 Harv. L. R 1808

(1986) at 1840-1841.
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specific types of cases? If it is the latter, in what types of cases is discovery problematic?

Answering these questions is important because it is difficult to set overall limits on the

quantity of discovery that are both effective for large numbers of cases and do not impair

equity in particular sub-sets of cases.

Is the problem that discovery prolongs litigation, or that it costs too much? If both

are of concern, which matters more? Answering this question is important, because some

mechanisms for limiting the elapsed time for discovery may actually increase the amount of

discovery.

With regard to costs, is the problem that, regardless of its merits, discovery costs too

much, or that the costs are disproportionate to the merits in too many cases? Discovery

might cost too much because lawyers' hourly fees are too high, because lawyers bill too

many hours for discovery activities that could be done more efficiently in less time, or

because lawyers engage in more discovery than is necessary. Court rules may affect the

latter, but court rules alone will not reduce lawyer fees and lawyer hours.

Are the costs that are problematic the direct costs of the litigation (e.g. legal fees) or

the indirect burdens on parties (e.g. employee time spent responding to discovery)? Or are

these costs of equal concern? Limiting burdens on the parties may require very different

strategies than are required to limit direct litigation costs.

Not only has there been insufficient attention to the nature of the problem that needs

to be "fixed," there has also been insufficient attention to the source of the problems.

Understanding the source of the problems is important because without such an

understanding reformers run the risk that the "fixes" they choose will be ineffective For

example, if the absence of sanctions invites excessive discovery and judges have incentives

not to impose sanctions, one cannot fix this problem simply by writing more rules about

sanctions into the code Instead one needs to invest in understanding why judges do not use

the sanctiomng power they already have If attorneys engage in excessive discovery

because they obtain lucrative fees from this practice, it might be more effective for clients to

institute controls on fees-for example, through alternative fee arrangements-than to

include new restnctions on the amount of discovery into the code

Alternatively, if attorneys engage in overly-aggressive discovery because they believe

that is what their clients expect of them, perhaps those clients need to be educated as to the

relationship between their expectations of their counsel and their litigation costs. If the

local legal culture sometimes includes the use of overly-aggressive discovery for strategic

purposes of imposing costs and delay on opposing parties, which may sometimes drive

inappropriate settlements or be a problem for poorer parties, perhaps the local judiciary
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needs to become more actively involved in managing discovery and signaling displeasure

with inappropriate discovery behavior by lawyers and parties.

A WORD ABOUT THE FUTURE

Although we do not know of any major empirical research on the correlation between

the information technology explosion and discovery, it seems reasonable to assume that the

character and magnitude of discovery is shaped in part by the availability of information

technologies. All of us have observed the proliferation of paper and contacts that have

flowed from the availability of paper-copiers, faxes, and electronic communication. New

computer technologies also facilitate the storage and retrieval of information, which can now

be accessed from multiple databases with a relatively few keystrokes. The implications for

discovery are truly mind-boggling. At the same time, many courts, strapped for financial

resources, are still struggling to move into the computer age. Any consideration of discovery

reforms must include an assessment of how new information technologies are likely to affect

lawyers, clients and the courts.
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2. DESCRIPTION OF DISCOVERY COSTS AND OTHER INFORMATION

FOR VARIOUS TYPES OF CASES

Discovery is a major factor influencing both the length and the cost of litigation.

Our main evaluation report contains information about general civil cases in the

aggregate and about litigation costs measured in terms of total lawyer work hours, but there

has been considerable interest expressed in having more detailed information about various

types of cases and about how total lawyer work hours are broken down between discovery

and other types of activities. This chapter addresses those interests.

The data come from our sample of cases filed in 1992-93 after the CJRA was enacted,

and include closed general civil cases for which we had at least one lawyer providing

information. We provide various types of information on each category of case, including

time to disposition, lawyer satisfaction with judicial case management, lawyer views on the

fairness of'judicial case management, total lawyer work hours per litigant, percent of cases

with zero discovery lawyer work hours, lawyer work hours on discovery per litigant, the

fraction of total lawyer work hours devoted to discovery matters, and the number of

discovery motions filed.

The various types of cases on which we provide information here are categorized

separately by.

* Case closure point: before issue joined, after issue joined and closed in 270 days or less

after filing, or after issue joined and closed over 270 days after filing * Case complexity high, medium, or low (highest subjective rating by any lawyer or

judge on the case)

SDiscovery difficulty high medium, or low (highest subjective rating by any lawyer or

judge on the case).

* Type of attorney represented plaintiff or defendant.

• Type of pnvate attorney fee: hourly or contingent (other types of fee structures are not

included here)

* Number of lawyers in firm or legal department of the organization: more than five, or

less

* Monetary stakes over $500,000 or less

* Nature of suit tort, contract, or other

* Category of total lawyer work hours: bottom 75%, top 25%43, or top 10%44.

43 For general civil cases from the CJRA 1992-93 sample with issue joined, that closed with time to disposition over 270 days and had lawyer work hours reported, the top 25% had total lawyer work hours per litigant of more than 188 hours.
RAND -21- 08/28/97 DRAFT

We present information on medians (half the cases have less than the median, and

half have more than the median) as the best available measure of a "typical" case. We also

present information on the average total lawyer work hours and the average discovery lawyer work hours as the best available measure of the expected cost of the average case.

However, we caution that litigation in general is composed of many cases without great

costs, and a small fraction of cases with very high costs. This high cost tail of the

distribution of cases can contain a few really big cases that strongly affect the average, but

not the median. Consequently, when comparing different types of cases the median is a

more stable measure, and too much emphasis should not be placed on interpreting

differences in the averages between subcategories of cases.

CASE CLOSURE POINT

In Table 2.1 we present information by case closure point. Note that about a fourth of

the general civil cases close before issue is joined, about another fourth close after issue is

joined and within 270 days after filing, and nearly half close after issue is joined and more

than 270 days after filing.

About three fourths of the cases that close before issue is joined have no lawyer work

hours spent on discovery and 37 percent of those with issue joined that close within 270

days after filing have no lawyer work hours on discovery However, only 15 percent of those

that close at least 270 days after filing have no discovery costs. The median time lawyers

spend on discovery per litigant for cases with issue joined and closed within 270 days after

filing is only three hours, whereas the median is 20 hours for those cases that close more

than 270 days after filing.

Overall, lawyer work hours per litigant on discovery are zero for 38 percent of general civil cases, and low for the majority of cases. Discovery is not a pervasive litigation cost

problem for the majority of cases The empirical data show that any problems that may

exist with discovery are concentrated in a minority of the cases, and the evidence indicates

that discovery costs can be very high in some cases. Subjective information from our

interviews with lawyers also suggests that the median or typical case that is not "the

problem" It is the minority of the cases with high discovery costs that generates the

anecdotal "parade of hornbles" that dominates much of the debate over discovery rules and

discovery case management.

with 

" For general civil cases from the CJRA 1992-93 sample with issue joined, that closed time to disposition over 270 days and had lawyer work hours reported, the top 25% had total lawyer work hours per litigant of more than 450 hours.
RAND -22- 08/28/97 DRAFT

The nearly half of the cases that close more than 270 days after filing consume about

three quarters of all lawyer work time, and about 80 percent of all lawyer work time on

discovery. Since we are most concerned with discovery management policies in this report,

we shall focus the remainder of the report on these general civil cases that close at least 270

days after filing and consume the vast majority of lawyer work time on discovery.
RAND -23- 08/28/97 DRAFT

Table 2.1

Information by Case Closure Point: 1992-93 Sample, Closed General Civil Cases

with Lawyer Work Hours Reported

Variable Case closure point Before issue After issue joined, Afer issue joined, joined Percent in 270 days or less over 270 days in category 28 27 45

Median days to disposition 122 171 463

% lawyers satisfied with management 65 72 73

% lawyers view management as far 82 89 89

Median total lawyer 20 35 80 work hours per

litigant

Average total lawyer 65 76 232 work hours per

litigant

% with zero discovery

work hours 72 37 15

Median lawyer work hours on discovery 0 3 20

per litigant

Average lawyer work hours on discovery 13 21 83

per litigant

Median percent discovery hours are 0 14 25 of total lawyer

work hours

Average number of discovery motions 0 1 0.3 1.0

on case

% of total lawyer work hours on all cases 13 14 73

% of discovery lawyer work hours on all 8 12 80

cases

Note. Percentages in rows may not add to 100 due to round off and missing data
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HOW LAWYERS SPEND THEIR TIME

In Table 2.2 we present information on how lawyers spend their work hours on

general civil cases that close at least 270 days after filing. The average lawyer work hours

per litigant is 232 hours, of which an average of 36 percent or 83 hours is spent on

discovery, including discovery motions. In Table 2.1 we saw that the median percent

discovery hours are of total lawyer work hours is 25 percent. So, whether we consider

average or median percentages, discovery is about one fourth to one third of total lawyer

work hours per litigant. Discovery accounted for less than half the lawyer work hours in all

the subsets of general civil cases that we examined.
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Table 2.2

How Lawyers Spend their Work Hours:

1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Type of Work Average lawyer Percent of total

work hours

Trials, per litigant including direct preparation for 26 11% trial

Alternative dispute resolution after 6 3%

filing

Discovery after filing, including motions 83 36%

Motion practice, excluding discovery 36 16%

Other pretrial conferences or talks with 7 3%

judicial officer

Other time worked AFTER filing federal 55 24%

case: on research, investigation,

writing, talking with parties and

lawyers outside court, or anything else related to the litigation

All time worked BEFORE filing federal 15 7%

case, in preparation for filing case

Total work hours per litigant 232 100%

Note- Lawyers were asked the following question after case closure: "Approximately 

parties were 

how many of the total number of hours worked for your party or spent on each of the activities listed below? Again do not include activity related to state court, any government administrative proceeding, or appellate litigation." Columns may not sum exactly due to rounding and missing data.
RAND -26- 08/28/97 DRAFT

CASE COMPLEXITY

In Table 2.3 we present information on differences among cases that are of high,

medium, or low complexity, based on the highest subjective complexity rating by any lawyer

or the judge on the case. Note that high complexity cases consume about four times as

many lawyer work hours as low complexity cases, but that the median percentage of the

total lawyer work time that is devoted to discovery is about the same.

We conducted multivariate statistical analyses that included case complexity as a

factor in predicting time to disposition, total lawyer work hours, lawyer work hours on

discovery, lawyer satisfaction and lawyer views of fairness (see Appendix A). Higher

complexity cases take significantly longer to close and require significantly more lawyer

work hours than lower complexity cases, but there is not a significant difference in lawyer

satisfaction or views on fairness ofjudicial case management for cases of different

complexity Overall case complexity was not a significant predictor of lawyer work hours on

discovery, probably because the analysis included discovery difficulty as a highly significant

factor in the prediction of lawyer work hours on discovery.
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Table 2.3

Information by Category of Case Complexity: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Variable Case complexity

Significant High Medium Low difference

shown in

multivariate

Percent in category 23 61 16

Median days to

disposition 594 463 392 Yes

% lawyers satisfied with management 72 73 74 No

% lawyers view management as fair 86 89 91 No

Median total lawyer

work hours per 150 78 40 Yes

litigant

Average total lawyer

work hours per 432 201 62

litigant

% with zero discovery

work hours 12 15 18

Median lawyer work

hours on discovery 42 20 10 No

per litigant

Average lawyer work hours on discovery 147 76 19

per litigant

Median percent

discovery hours are 28 25 27

of total lawyer

work hours

Average number of

discovery motions 1.9 0.8 0 3

on case

Note Percentages in rows may not add to 100 due to round off and missing data
RAND -28- 08128/97 DRAFT

DISCOVERY DIFFICULTY

In Table 2.4 we present information on differences among cases that are of high,

medium, or low discovery difficulty, based on the highest subjective rating by any lawyer or

the judge on the case. 4

5 Not surprisingly, high discovery difficulty cases consume about

three times as many total lawyer work hours and five times as many lawyer work hours on

discovery as low discovery difficulty cases consume. However, the median percentage of the

total lawyer work time that is devoted to discovery on high discovery difficulty cases is still

only 33 percent.

We conducted multivariate statistical analyses that included discovery difficulty as a

factor in predicting time to disposition, total lawyer work hours, lawyer work hours on

discovery, lawyer satisfaction and lawyer views of fairness (see Appendix A). Higher

discovery difficulty cases have significantly higher lawyer work hours, both in total and on

discovery, but there is not a significant difference in lawyer satisfaction or views on fairness

of judicial case management for cases of different discovery difficulty. Discovery difficulty

was not a significant predictor of time to disposition, after the analysis accounted for the

other multiple factors that are significant in predicting time to disposition.

4 5 Lawyers and judges were asked 'When this litigation began, how would you have rated this case in terms of... difficulty of discovery...." It is possible that some people filling out the survey after the litigation was closed reported greater difficulty of discovery because they knew lawyer work hours were high, rather than their initial view when the litigation began.
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Table 2.4

Information by Category of Discovery Difficulty: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Variable Difficulty of discovery

Significant High Medium Low difference

shown in

multivariate

Percent in category 19 53 28

Median days to

disposition 581 465 420 No

% lawyers satisfied

with management 73 72 75 No

% lawyers view

management as fair 86 89 90 No

Median total lawyer

work hours per 140 96 49 Yes

litigant

Average total lawyer

work hours per 503 215 74

litigant

% with zero discovery work hours 8 12 24

Median lawyer work hours on discovery 50 25 9 Yes

per litigant

Average lawyer work hours on discovery 205 73 17

per litigant

Median percent discovery hours are 33 27 20

of total lawyer

work hours

Average number of discovery motions 1.9 1.0 03

on case

Note Percentages in rows may not add to 100 due to round off and missing data
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PLAINTIFFS AND DEFENDANTS ATTORNEYS

In Table 2.5 we present information on differences between plaintiffs and defendants

attorneys. Plaintiffs attorneys reported spending a median of 100 total work hours per litigant, whereas defendants attorneys reported spending a median of 75 total lawyer work

hours per litigant, and the difference is statistically significant. There is not a significant difference between plaintiffs and defendants attorneys on any of the other variables that we

tested.

HOURLY AND CONTINGENT FEE ATTORNEYS

In Table 2.6 we present information on hourly and contingent fee attorneys (other

types of fee structures are not included here because of the limited amount of data we had

about them). We did not find a statistically significant difference between hourly and

contingent fee lawyers in predicting any of the time to disposition, lawyer work hours,

satisfaction, or fairness measures that we analyzed statistically.

SIZE OF LAW FIRM OR LEGAL DEPARTMENT

In Table 2.7 we present information on differences between attorneys based on the

size of the law firm or legal department: more than five or less. Attorneys from larger firms

work significantly more hours per litigant, in total and on discovery, than their counterparts from smaller firms, although the fraction of time they spend on discovery is about the same.

In studying the data, we suspect there may be some systematic bias by litigants in favor of

hinng larger firms to handle the more complex and more costly cases.
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Table 2.5

Information by Type of Attorney: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Variable Type of Attorney

Significant Plaintiff Defendant difference

shown in

multivariate

Percent in category -,analysis? 42 58

Median days to 459 471

disposition

" lawyers satisfied

with management 72 74 No

" lawyers view 8

management as fair 8 89 No

Median total lawyer 100 75 Yes

work hours per

litigant

Average total lawyer 271 204

work hours per

litigant

% with zero discovery 13 16 work hours

Median lawyer work

hours on discovery 20 20 No

per litigant

Average lawyer work

hours on discovery 96 74

per litigant

Median percent

discovery hours are

of total lawyer

work hours

Average number of

discovery motions

on case

Note Percentages in rows may not add to 100 due to round off and missing data
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Table 2.6

Information by Type of Private Attorney Fee:

1992-93 Sample, General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Variable Type of Private Attorney Fee1

Significant Hourly Contingent difference

shown in

multivariate

analysis? Percent in category 56 18

Median days to 46

disposition 0 442

% lawyers satisfied 72 73 No

with management

% lawyers view

management as fair 89 87 No

Median total lawyer 83 95 No

work hours per

litigant

Average total lawyer 269 177

work hours per

litigant

% with zero discovery 15 10

work hours

Median lawyer work

hours on discovery 21 20 No

per litigant

Average lawyer work

hours on discovery 107 46

per litigant

Median percent

discovery hours are 27 27

of total lawyer

work hours

Average number of

discovery motions 1.0 0.9

on case

Types of attorneys and fees not shown in the table include prepaid legal insurance attorneys, government attorneys who were an employee of a party, private attorneys who were full time employees of a party, attorneys with nmxed fee arrangements and attorneys who charged no fee
RAND -08/28/97 DRAFT

Table 2.7

Information by Size of Firm or Legal Department: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Variable Number of Lawyers in Firm or Legal Department

Significant More than five Five or less difference

shown in

multivariate

analysi? Percent in category 68 31

Median days to 4

disposition 60 473

% lawyers satisfied

with management 73 75 No

% lawyers view

management as fair 89 89 No

Median total lawyer 90 66 Yes

work hours per

litigant

Average total lawyer 275 137

work hours per

litigant

% with zero discovery 14 17

work hours

Median lawyer work

hours on discovery 21 15 Yes

per litigant

Average lawyer work

hours on discovery 101 44

per litigant

Median percent 26 25

discovery hours are

of total lawyer

work hours

Average number of

discovery motions 1.0 0.8

on case

Note. Percentages in rows may not add to 100 due to round off and missing data
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SIZE OF MONETARY STAKES

In Table 2.8 we present information based on the size of the monetary stakes, which

we categorized into stakes over or under $500,000 in the table. Our statistical analysis was

conducted on the log of stakes, as described in Appendix A. We found that higher stakes are

associated with significantly higher lawyer work hours and significantly longer time to

disposition, but that stakes are not significantly related to satisfaction or fairness. Even for

cases with stakes over $500,000, the median percentage of lawyer work hours spent on

discovery was only 30 percent.

NATURE OF SUIT

In Table 2.9 we present information by the nature of suit, categorized as tort,

contract, or other. We found no statistically significant difference between those three

categories of cases on any of the time to disposition, lawyer work hours, satisfaction, or

fairness measures. We believe that the tort and contract categories are too aggregated, with

too heterogeneous a composition within each category, to be meaningful in studying lawyer work hours and time to disposition. Smaller, more narrowly defined categories should be

studied, but we had too few cases in our sample to do subcategories within tort, contract and

other types of cases in detail.

CASES WITH MOST LAWYER WORK HOURS

Finally, in Table 2.10 we present information by category of total lawyer work hours:

bottom 75%, top 25%, and top 10% of closed cases. 46 The top categories of the cases with the

most lawyer work hours were obviously significantly more costly, but they did not have

statistically significantly longer time to disposition after other variables such as complexity and stakes were factored into the multivariate analysis. The top 10% had a median of 950

total work hours per litigant, and a median percentage of lawyer work hours spent on

discovery of 36 percent These top categones of the most costly cases in terms of lawyer work hours also had significantly lower lawyer satisfaction with the judicial case

management and a significantly lower percentage of the lawyers who felt the judicial case

management was fair.

46 About 8 percent of our sample of cases remained open at the conclusion of our data collection They are not included in this analysis
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Table 2.8

Information by Size of Monetary Stakes: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Variable Monetary stakes

Significant Over $500,000 $500,000 or less, difference

greater than zero shown in

multivariate

analysis? Percent in category 28 61

Median days to

disposition 537 447 Yes

% lawyers satisfied

with management 68 77 No

% lawyers view

management as fair 89 90 No

Median total lawyer 172 68 Yes

work hours per

litigant

Average total lawyer 483 126 work hours per

litigant

% with zero discovery 9 14

work hours

Median lawyer work

hours on discovery 48 17 Yes

per litigant

Average lawyer work

hours on discovery 190 36

per litigant

Median percent 30 25

discovery hours are

of total lawyer

work hours

Average number of

discovery motions 1.5 0.8

on case

Note Percentages in rows may not add to 100 due to round off and massing data
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Table 2.9

Information by Nature of Suit:

1992-93 Sample, General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days and with Lawyer Work Hours Reported

Variable Nature of suit

Significant Tort Contract Other difference

shown in

multivariate

analysis? Percent in category 26 24 50

Median days to 477 430 477 No

disposition

% lawyers satisfied

with management 76 73 71 No

% lawyers view

management as fair 91 88 88 No

Median total lawyer so 100 70 No work hours per

litigant

Average total lawyer 147 312 239

work hours per

litigant

% with zero discovery 7 15 18

work hours

Median lawyer work

hours on discovery 25 25 17 No

per litigant

Average lawyer work

hours on discovery 48 104 92

per litigant

Median percent

discovery hours are 30 25 25

of total lawyer

work hours

Average number of

discovery motions 1 0 1.0 0.9

on case

Note Percentages in rows may not add to 100 due to round off and missing data
RAND -37- 08/28/97 DRAFT

Table 2.10

Information by Category of Total Lawyer Work Hours: 1992-93 Sample, General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days

and with Lawyer Work Hours Reported

Variable Category of total lawyer work hours

Significant Bottom 75% Top 25% Top 10% difference

shown in

multivariate

Percent analysis? in category 75 25 10

Median days to 44 578 618 No

disposition

% lawyers satisfied

with management 76 64 57 Yes

% lawyers view

management as fair 90 83 75 Yes

Median total lawyer 55 375 950 Yes work hours per

litigant

Average total lawyer 66 730 1452

work hours per

litigant

% with zero discovery 17 6 4

work hours

Median lawyer work

hours on discovery 12 100 300 Yes

per litigant

Average lawyer work

hours on discovery 19 280 601

per litigant

Median percent

discovery hours are

of total lawyer

work hours

Average number of

discovery motions 0 6 2.0 2.8

on case

Note Percentages in rows will not add to 100 due to round off, missing data, and inclusion of top 10% within numbers shown for top 25%.
RAND -38- 08/28/97 DRAFT

3. EVALUATION OF VARIOUS DISCOVERY MANAGEMENT POLICIES

INTRODUCTION

Discovery management policies include the CJRA principles of early and ongoing

judicial control of pretrial processes such as discovery, requiring lawyers to jointly prepare a

discovery - case management plan early in the case, exchanging information early without

formal discovery, requiring good-faith efforts to resolve discovery disputes before filing

motions, and limiting interrogatories and other forms of discovery.47

To conduct this further evaluation of discovery management policies, discovery

management policy information was obtained at the district level from court documents,

local rules, and interviews with judges and clerks in each of the 20 study districts. In

addition, discovery management information was obtained at the case level from over 5000

court dockets and from lawyer surveys for cases filed in 1992-93 after the CJRA was passed.

For each case, we learned when the judge started managing the case, if a trial schedule had

been set, if a discovery schedule had been set, and if so when and how much time was

allowed between the date the schedule was set and the date of discovery cutoff. From the

dockets, we also learned if any discovery motions had been filed However, details of

discovery management at the case level, such as limitations on depositions or requirements

for sequencing of discovery, are usually not recorded on the docket and so were not

available We also surveyed the lawyers on each case to learn how much time they worked

on the case and how much of that work time was devoted to discovery, to learn if early

disclosure of information was made without a formal discovery request, and to learn if good

faith efforts had been made to resolve discovery disputes before a motion was filed.

47For details of each district's CJRA plan and its implementation, see Implementation of the Civil Justice Reform Act in Pilot and Comparison Districts, RAND, MR-801-ICJ, by James S. Kakalik, Terence Dunworth, Laural A. Hill, Daniel McCaffrey, Marian Oshiro, Nicholas M Pace, and Mary E Vajana, 1996
RAND -39- 08/28/97 DRAFT

The remaining five sections of this chapter contain our evaluation of the following five

types of discovery management policies:

" Early case management and discovery planning,

" Early disclosure,

" Good Faith Efforts in Resolving Discovery Disputes,

" Limiting interrogatories, and

" Shortening discovery cutoff time.

Due to lack of sufficient data, we could not evaluate policies limiting the number or

length of depositions, limiting document discovery, or dealing with issues of privilege. We

also had insufficient data to evaluate methods lawyers use to manage discovery outside the

court's purview.

For details of our multivariate statistical analyses, refer to Appendix A.

EARLY CASE MANAGEMENT AND DISCOVERY PLANNING

All of the 20 study courts' CJRA plans accepted the principle of early and ongoing

judicial control of the pretrial process. However, case management styles varied

considerably between districts and between judges in a given district.

Four of the ten pilot districts required that counsel jointly present a discovery -- case

management plan at the initial pretrial conference, and nine of the other pilot and

comparison districts later adopted this management technique after our sample cases were

selected when the December 1993 federal rules changes were made.

In our statistical analyses, we defined early judicial case management as any

schedule, conference, status report, joint plan, or referral to ADR within 180 days of case

filing This definition gives time for nearly all cases to have service and answer or other

appearance of the defendants (which legally can take up to six months), so issue is joined,

and it is appropriate to begin management if the judge wants to do so. We also explored

alternative definitions of "early" using time periods other than six months, with results

similar to those reported here.

Lawyer Work Hours

In our main evaluation report, we estimated a statistically significant increase in

total lawyer work hours from early management. There were no consistent statistically

significant differences for any of the components of early management considered

separately
RAND -40- 08/28/97 DRAFT

Our main evaluation report showed that attorneys shown on the docket to have filed

status reports orjoint discovery - case management plans before day 180 in the life of the

case did not have significantly different work hours than attorneys on cases with other

forms of early management. On the other hand, we found that attorneys from districts with

a policy that required early status reports or joint plans did report statistically significantly

fewer work hours than attorneys from other districts.48

We explored this difference in our findings between case level and district level data

in some depth in our further analysis ofjudicial discovery management policies, and learned

that the case level data are not reliable because of major differences in docketing practices

between districts that require plans or status reports. The dockets that say a discovery plan

was submitted are generally accurate, but the dockets that are silent on the subject of a

discovery plan can mean either no plan was submitted, or a plan was submitted to the court

but that fact was not separately shown on the docket. The case level information on

whether or not a discovery plan had been submitted was dropped from this further study because the docketing practices regarding the submission of those plans or reports was

found to vary markedly between districts, making that case-level variable undesirable for

statistical analyses across districts

In our further analysis ofjudicial discovery management policies, we find that early

management is associated with significantly increased total lawyer work hours if the district

does not require discovery - case management plans. However, early management is not

associated with significantly increased total lawyer work hours if the district requires

discovery - case management plans. This lends strong support for the continuation of a

requirement of discovery - case management planning. That is, it appears that doing early

management without planning increases lawyer work hours, but early management coupled

with planning does not increase lawyer work hours.

[To be inserted here in final report: estimates of differences between not managing

early and managing early with and without discovery planning.]

Our interviews suggested reasons why early management may increase lawyer work

hours Lawyers need to respond to a court's management--for example, talking to the

litigant and to the other lawyers in advance of a conference with the judge, traveling, and

spending time waiting at the courthouse, meeting with the judge, and updating the file after

the conference. In addition, once judicial case management has begun, a discovery cutoff

48 This result holds when we use either the intra-distnct correlation-adjusted or

unadjusted standard errors.
RAND -41- 08/28/97 DRAFT

date has usually been established, and attorneys may feel an obligation to begin discovery.

Doing so could shorten time to disposition, but it may also increase lawyer work hours on

cases that were about to settle when the judge began early management. The CJRA data

indicate that cases that are managed early have a higher likelihood of having lawyer hours

spent on discovery.

However, when a district requires discovery - case management plans, the increase

in lawyer work hours associated with early management appears to be offset by benefits

associated with the required planning, and the net effect is no significant increase in lawyer

work hours. There are at least two plausible explanations for this outcome. First, the

planning itself may produce the benefit. The requirement that the lawyers jointly meet and

prepare a discovery - case management plan for submission to the court may result in more

efficient litigation with less lawyer work hours. Another plausible explanation is that the

judges in districts that require plans may also manage cases differently and better (in ways

that we did not measure) than judges in districts that do not require plans.

When we looked at various subsets of cases, we found no strong evidence that the

effects of early management and discovery planning were systematically concentrated on

certain types of cases based on level of complexity, level of discovery difficulty, plaintiff or

defendant side of the case, contingent or hourly fee lawyer, size of the law organization in

which the lawyer worked, case stakes, tort or contract or other nature of suit categories, or

the top 25% most costly cases among general civil litigation that has time to disposition over

270 days after filing.49

In addition to the further analysis that we did on total lawyer work hours, we also

analyzed lawyer work hours on discovery. The policy implications and findings of statistical

significance emerging from our analysis of lawyer work hours on discovery are very similar

to those from our analysis of total lawyer work hours

Time to Disposition

In our main evaluation report, using only cases with time to disposition over 270

days, we found that early management predicted significantly shorter time to disposition.

We explored the component procedures of early management separately in our main

evaluation report, and fit a separate model for each component This model includes both a

flag for early management as well as a flag for the particular early management procedure

For example, to explore the specific effect of setting a trial schedule prior to the 180th day of

49 These cases had total lawyer work hours per litigant of more than 188 hours
RAND -42- 08/28/97 DRAFT

the case, we fit a model that includes our early management flag and a flag that is 1 if the

case received a trial schedule before day 180 and 0 otherwise. The estimated coefficient for

the trial schedule flag estimates the difference between cases that receive early

management that includes setting the trial schedule and those that receive early

management but do not include setting the trial schedule early. Using this approach we

found that cases where a tnal schedule was set before day 180 had statistically significantly

shorter time to disposition than did cases receiving other types of early management. We

found no statistically significant differences for conferences or mandatory arbitration, and

we had mixed results for schedules in general and status reports or joint discovery-case

management plans. Hence we concluded that there was not strong evidence that this joint

discovery-case management plan policy was an important predictor of time to disposition.

In our further analysis of judicial discovery management policies, we again find a

statistically significant reduction in time to disposition is associated with early management

without setting a trial schedule early, and a significantly larger reduction is associated with

early management that includes setting a trial schedule early. In our further analysis we

considered those two early management and trial scheduling policies used both with and

without a discovery plan requirement, and the results were statistically significant. There

was little difference in time to disposition with or without a discovery plan if a trial was

scheduled early, but cases closed earlier if discovery planning took place in the absence of an

early trial schedule 50 Thus, our further analysis suggests that the requirement of a

discovery - case management plan is beneficial in reducing time to disposition, especially if

a trial schedule is not set early. And we indicated above that the use of discovery plans

appears to have beneficial effects in controlling lawyer work time.

[To be inserted here in final report- estimates of differences between not managing

early and managing early with and without discovery planning.]

Our statistical analysis of subsets of cases does not lead to any suggestions for

focusing these management policies only on certain types of cases. Our statistical results

are consistent for most subsets of cases analyzed, although the top 25% most costly cases

appear to especially benefit from the early setting of a trial schedule (early management of

those top 25% of the costly cases without a trial date scheduled was not associated with

significantly reduced time to disposition) And cases that are high in complexity, high in

1o If we use the standard errors adjusted for intra-district correlation as discussed in

Appendix A, then early management without an early scheduling of a trial and without a

discovery plan does not significantly reduce time to disposition (coefficient = -0.062, p=0.169

for cases that close over 270 days after filing).
RAND -43- 08/28/97 DRAFT

discovery difficulty, or high in stakes appear to especially benefit from the use of discovery -

case management plans.

Attorney Satisfaction

In our main evaluation report, we found no statistically significant effects on attorney

satisfaction for early case management in our model with cases closed over 270 days after

filing. Furthermore we found no statistically significant differences in attorney satisfaction

for cases receiving any of the components of early management (such as requiring a status

report or discovery - case management plan or an early setting of a trial date) compared to

cases not receiving the component.

In our further analysis ofjudicial discovery management policies, we again find no

statistically significant effect on lawyer satisfaction from early management, setting a trial

schedule early in the case, and requiring a discovery plan. We considered those three

policies used in various combinations and did not find any significant difference in

satisfaction, although as noted previously, some of those policies do significantly affect time

to disposition and lawyer work hours.

Our statistical analysis of subsets of cases does not lead to any suggestions for

focusing these management policies on certain types of cases Our statistical results are

consistent for nearly all subsets of cases analyzed, including the top 25% most costly cases.

Attorney Views on Fairness

We find no statistically significant effects for any of the policy variables on attorney

views on fairness.

Information by Type of Early Management and Discovery Plan Policy

Table 3.1 presents information on time to disposition, lawyer work hours, satisfaction,

and views on fairness for cases that were and were not subject to an early management and

joint discovery - case management planning. The numbers in the table, which reflect actual

survey responses from the sample cases, generally corroborate the results of the statistical

analysis. However, we caution that the districts and the cases from those districts differ on

factors other than the policy on early disclosure. Our multivariate analyses adjust for those

other factors, and the bivariate Table 3.1 does not
RAND -44- 08/28/97 DRAFT

Table 3.1

Information by Type of Early Management and Discovery Plan Policy: 1992-93 Sample, General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days,

and with Lawyer Work Hours Reported

Type of early management and discovery plan policy Variable

Early manage, Early manage, Early manage, Early manage, Not early Significant with early with early without early without early manage difference

trial set, with trial set, trial set, with trial set, for policy mandatory without mandatory without shown in

plan policy mandatory plan policy mandatory multivariate

plan policy plan policy analysis? Median days to 448 ass 465 80 526 Significantly

disposition fitr

" lawyers satisfied 75 69 71 73 75 Not a

with management significant

difference % lawyers view 88 89 85 88 90 Not a management as fair significant

difference Median total lawyer 80 100 75 95 60 Significantly work hours per more hours

litigant if no

% with planning zero discovery 3 a 13 15 22

work hours

Median lawyer work 20 30 15 25 10 Significantly hours on discovery more hours

per litigant if no

planning Median percent 31 30 25 29 20 25

discovery hours are

of total lawyer

work hours

Note: Percentages in rows may not add to 100 due to round off and missing data
RAND -45- 08/28/97 DRAFT

EARLY DISCLOSURE

CJRA brought about substantial change in early disclosure among our study districts.

Only one district required it before CJRA;51 after CJRA, all pilot and comparison districts

have adopted one of five approaches providing either voluntary or mandatory exchange of

information by lawyers, sometimes only for specified types of cases. Three pilot and two

comparison districts adopted the voluntary exchange model, which encourages lawyers to

cooperate in exchanging information. Three pilot districts and one comparison district

followed a mandatory exchange model for a limited subset of cases and a voluntary model on

other cases. Two pilot districts and one comparison district required lawyers to mandatorily

disclose certain information, including anything bearing significantly on their sides' claims

or defenses. Two other pilot districts and one other comparison district have a similar

mandatory requirement, but they apply it to all information bearing significantly on both

sides' claims or defenses.

The December 1993 revised F.R.Civ.P. 26(aXl), which requires the mandatory

exchange of information relevant to disputed facts alleged with particularity in the

pleadings plus information on damages and insurance, was implemented after our sample of

cases was selected, and hence can not be evaluated with our CJRA data. After our sample

cases were selected, four pilot districts switched from their initial early disclosure

procedure, and six comparison districts decided to follow the revised Rule 26(a)(1). The ten

other pilot and comparison districts decided to "opt out" and are not following the revised

Rule 26(a)(1). Some districts opted out to retain their pilot program disclosure rules, some

of which were more stringent in their disclosure requirements than the revised Rule

26(a)(1)

RAND's lawyer surveys indicate that when early disclosure was made for cases in the

1992-93 sample, it was "full disclosure" 57 percent of the time, and "pro forma" disclosure 43

percent of the time. For general civil cases with issue joined, lawyers report more disclosure

when it is mandatory (60 percent of the cases in mandatory disclosure districts, versus 45

percent in voluntary disclosure districts and 40 percent in districts with no disclosure

policy). Part of the problem with a mandatory early disclosure requirement is compliance;

lawyers report that when disclosure is done on a mandatory basis , it is full disclosure for 50

percent of the cases and pro forma disclosure for the other half of the cases.

1

At least one other district requred attorneys to confer before the first pretrial conference to attempt to agree on a scheduling order
RAND -46- 08/28/97 DRAFT

When one party does not comply with mandatory early disclosure, the other side's

lawyer may ignore the problem, make a formal discovery request, or file a motion requesting

the court to force compliance. According to our analysis of dockets on over 5,000 cases, and

according to judges we have interviewed in pilot and comparison districts that implemented

their plans in December 1991, such compliance motions are extremely rare. Despite the

dire warnings of critics of early mandatory disclosure, we did not find any explosion of

ancillary litigation and motion practice related to disclosure in any of the pilot or

comparison districts using mandatory disclosure.

Lawyer Work Hours

In our main evaluation report, we found no statistically significant difference in

lawyer work hours between cases where the attorneys reported disclosure of relevant

information and cases where there was no early disclosure. We also found that attorneys

representing cases in districts with a mandatory disclosure policy of any type had work

hours that were not statistically significantly different from hours worked by attorneys in

other districts. We also found that a district policy encouraging voluntary early disclosure

had no statistically significant effect on attorney work hours. We found small and not

statistically significant differences in work hours between lawyers on cases from districts

with a voluntary early disclosure policy compared to lawyers from districts with no general

policy on early disclosure.5 2

In our current analysis ofjudicial discovery management policies, we again find that

mandatory early disclosure requirements are not associated with significantly reduced

lawyer work hours. Some people suggested that if we had looked at subsets of cases, such as

those that were more or less complex or had more or less difficulty with discovery, we might

have found a subset of cases for which this policy was effective. We have explored many different subsets of cases, including subsets based on stakes, complexity, and discovery

difficulty. We found no strong evidence that a policy of early mandatory disclosure reduced

lawyer work time on any of the subsets of cases examined.

However, attorneys who voluntarily choose to do early disclosure, in districts where

such disclosure is voluntary, have significantly lower work hours. It may be that lower

work hours among voluntary disclosing attorneys reflects a type of "choice or selection bias",

i.e, attorneys on cases for which they voluntarily choose to disclose may be less contentious

52 Coefficent=O 236, p=O 129 for cases closed over 270 days after filing.
-106-

RAND 08/28/97 DRAFT

Table A.12

Model for Attorney Views on Fairness:

1992-93 Sample, General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days

Variable Coefficient T-Statistic P-Value

Constant 3.938 3.252 0.001

Policy Variables

Early management, with early setting of trial date, -0.274 -0.605 0.544

and with mandatory planning policy

Early management, with early setting of trial date, -0.256 -0.717 0.473

and without mandatory planning policy Early management, without early setting of trial -0.238 -0.439 0.660

date, and with mandatory planning policy Early management, without early setting of trial -0.204 -0.689 0.490

date, and without mandatory planning policy Early mandatory disclosure policy, and disclosure 0.239 0.706 0.480

was made on this case

Early mandatory disclosure policy, and disclosure 0.521 1.302 0.192

was not made on this case

No early mandatory disclosure policy, and 0.439 1.667 0.095

disclosure was made on this case

Litigants at settlement conf. (district %) 0.008 0.361 0 718

Limits on interrogatories (district) 0.310 1.033 0.301 Days to discovery cutoff (district median) 0.005 1.313 0.189

Continuances (district %) 0.008 0.775 0.438

Magistrate judge activity (district mean) -0.227 -0.515 0.606

Control Variables

Any motion on case -1 066 -2.112 0.034 Discovery motion on case -0.137 -0.586 0557

Case complexity (high) 0 374 0.847 0.396

Case complexity (moderate) 0.257 0.702 0.482 Discovery difficulty (high) -0.237 -0.528 0.596

Discovery difficulty (moderate) -0.248 -0 682 0.494

Difficulty in relations (high) -1.511 -5.039 0.000 Difficulty in relations (moderate) -0.368 -1.181 0.237

Zero or missing stakes on case 0.051 0.159 0.873

Maximum stakes on case (log) -0 001 -0.022 0.981 Missing dispute began after filing -0.429 -1.470 0.141

Dispute began after filing date 0.800 2.719 0.006

Nonmonetary stakes on case -0.278 -1.271 0.203

Total filings per FTE judicial officer -0.005 -2.365 0018

N=1,443
RAND - 105 - 08/28/97 DRAFT

Just as we did for time to disposition and lawyer work hours models, we

again added the following discovery related control variables because of their

hypothetical importance in predicting the outcome variables of interest when

discovery policies are varied.

* Discovery difficulty (high or moderate), and

* Difficulty in relations between the parties and/or lawyers (high or moderate).

Model for Attorney Views on Fairness

Table A.12 gives the results of our model for attorney views on fairness

using the entire sample of general civil cases closed after issue was joined and

more than 270 days after filing, for our 1992-93 sample of filings. Since overall

about 90 percent of attorneys report that they viewed the case management as

fair on general civil cases with issue joined, and since none of the policy variables

used in the overall model shown in Table A.12 are statistically significant, we

chose not to apply the model to subsets of cases. Interpretations of the results for

the discovery management policy variables in the model are provided in Section 3

of this report. The significance of the discovery-related policy variables was the

same whether we used the unadjusted standard errors or adjusted the standard

errors for intra-district correlation

After controlling for policy variables, we find that the presence of a motion,

a dispute that began for a party after the filing date, a high difficulty of relations

between the lawyers and/or parties, and total filings per FTE judicial officer are

statistically significant predictors of reported views on fairness. Of these only the

"dispute began after filing date" vanable predicts a greater probability of viewing

management as fair. Each of the other significant control variables predict a

decreased probability of viewing management as fair
RAND - 104 - 08/28/97 DRAFT?

policy effects. However, because we have relatively few open cases we expect any bias to be small. Hence we feel it better to run our analysis on a set of comparable

data than to mix measures from open and closed cases.

Not only are we missing data from the small fraction of the cases that are

still open, but we are missing data from the approximately 50 percent of

nonresponding attorneys on closed cases. Because nonrespondents and

respondents who skipped our fairness item (approximately 10 percent of the

respondents) provide no data on this outcome, these attorneys are also excluded

from our analysis. We use nonresponse weights to offset possible bias introduced

by nonresponse.

Control and Policy Variables

We used analogous methods to study views on the fairness of case

management as we did in our study of satisfaction with case management. We

explored the effects of specific case management policies and procedures by

measunng their effect on the responses of attorneys from cases that received the

management procedure compared to the responses of attorneys from other cases.

We included attorney, case, and district level characteristics as control variables

in our model so as to control for variation due to factors other than case

management

The control and policy variables considered in our fairness models are the

same variables considered in all our previously discussed models.

In our main evaluation report, our model selection procedure identified the

following as important control variables before accounting for the effects of policy

variables.

" Any motion,

" Discovery motion,

* Case complexity (high or moderate),

* Maximum stakes,

" Dispute began after filing date,

• Nonmonetary stakes, and

* Total filings per FTE judicial officer.

We also include a flag for missing or zero stakes and a flag for missing data

for when the dispute started for this attorney's party or parties.
RAND - 103 - 08/28/97 DRAFT

ANALYSIS OF ATTORNEY VIEWS ON FAIRNESS

In this section we discuss the effects of court management policies and

procedures on attorney views on fairness for general civil cases with issue joined.

Attorney views on fairness serve as a measure of perceived justice in the federal

courts.

We measured views on fairness as a dichotomous (0-1) outcome variable.

Either the lawyer responded that the management was somewhat fair or very fair

(outcome=l) or the lawyer viewed the management as somewhat unfair or very

unfair (outcome=O). We measured attorneys' views on fairness using Item 22

from our Attorney Questionnaire. The attorneys were asked how fair they

thought the "court management and procedures" were for their cases for their

parties. The survey item provided the attorney with four response categories: (1)

very fair; (2) somewhat fair; (3) somewhat unfair; and (4) very unfair. Because we

did not feel that we could clearly interpret differences between a response of very

fair or somewhat fair (or very unfair and somewhat unfair), we dichotomized the

response into fair (very or somewhat) and unfair (very or somewhat). Overall we

found that about 90 percent of attorneys report that they viewed the case

management as fair on general civil cases with issue joined.

Multivariate Logistic Regression Analysis on Attorney Level Data

To explore the effects of policy and control variables on views on fairness,

we fit multivanate logistic regression models using attorney level data. As

discussed above for attorney satisfaction modeling, multivanate logistic

regression is the analog of linear regression for models of data with dichotomous

outcomes. Also, the use of attorney level data allows us to control for attorneylevel characteristics and improves the precision of our estimates of the effects of

policy on views on fairness.

Open Cases and Missing Data

About 8.5 percent of the cases in our 1992-93 sample of general litigation

cases remained open at the end of our data collection For these cases we cannot

obtain a measure of fairness that is comparable to our measure from closed cases.

For this reason we do not include data from such cases in our analysis of views on

fairness. Excluding open cases could lead to bias in our resulting estimates of
-102-

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RAND -101- 08/28/97 DRAFT

Table A.10

Model for Attorney Satisfaction:

1992-93 Sample, General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days

Variable Coefficient T-Statistic P-Value

Constant 1.991 3.196 0.001

Policy Variables

Early management, with early setting of trial date, -0.022 -0.081 0.934

and with mandatory planning policy

Early management, with early setting of trial date, -0.339 -1.532 0.125

and without mandatory planning policy

Early management, without early setting of trial -0.319 -0.963 0.335

date, and with mandatory planning policy

Early management, without early setting of trial -0.248 -1.399 0.161

date, and without mandatory planning policy

Early mandatory disclosure policy, and disclosure -0.086 -0.401 0.687

was made on this case

Early mandatory disclosure policy, and disclosure -0.412 -1.577 0.114

was not made on this case

No early mandatory disclosure policy, and 0.564 3.435 0.000

disclosure was made on this case

Litigants at settlement conf. (district %) -0.015 -1.060 0.288

Limits on interrogatories (district) 0.574 3.115 0.001

Days to discovery cutoff (district median) 0.003 1.244 0.213

Continuances (district %) -0.006 -0.851 0.394

Magistrate judge activity (district mean) 0.936 3.069 0.002

Control Variables

Nature of suit (tort) 0.299 1.733 0.083

Nature of suit (contract) 0.157 0.934 0.350

Five or more motions -0.254 -1.595 0.110

Any pro se litigant 0.865 2.532 0.011

Discovery difficulty (high) 0.268 1.167 0.243

Discovery difficulty (moderate) 0.008 0.049 0.960

Difficulty in relations (high) -0.600 -3.071 0.002

Difficulty in relations (moderate) -0.074 -0.433 0.657

Dispositive motions (district percent) -0.010 -1.285 0.198

Total filings per FTE judicial officer -0.004 -3.217 0.001

N=1,473
RAND -100- 08/28/97 DRAFT

in Section 3 of this report. The significance of the discovery-related policy

variables was the same whether we used the unadjusted standard errors or

adjusted the standard errors for intra-district correlation.

The following control variables remained statistically significant after

including our policy variables in the model:

* Any pro se litigant,

* Difficulty in relations between the parties and/or lawyers (high), and

* Total filings per FTE judicial officer.

We find that districts with a high number of filings per FTE judicial officer

tend to have lower reported satisfaction than do other districts.

Table A.11 summarizes the results for discovery management policy variables when that same model is applied to subsets of the cases based on level of

complexity, level of discovery difficulty, plaintiff or defendant side of the case, contingent or hourly fee lawyer, size of the law organization in which the lawyer worked, case stakes, tort or contract or other nature of suit categories, and the top 25% most costly cases. Interpretations of the results for policy variables in these

models are provided in Section 3 of this report.
RAND -99- 08/28/97 DRAFT

problematic and we use nonresponse weights to offset the possible biasing effects

of nonresponse.

Control and Policy Variables

Our study of satisfaction with case management used methods analogous to

those used in our studies of time to disposition and lawyer work hours. We

explored the effects of specific case management policies and procedures by

comparing the responses of attorneys from cases that were managed using a

particular policy or procedure to the responses of attorneys from other cases. We

used attorney, case, and district variables in the analyses to control for variation

other than case management. The control and policy variables considered in our

satisfaction models are the same variables considered for time to disposition and

lawyer work hours.

In our main evaluation report, our model selection procedure identified the

following as important control variables before accounting for the effects of policy

variables.

* Nature of suit category (tort, contract),

* Five or more motions,

" Any pro se litigants,

* Percentage of cases within district with dispositive motions, and

* Total filings per FTE judicial officer

Just as we did for time to disposition and lawyer work hours models, we

again added the following discovery related control variables because of their

hypothetical importance in predicting the outcome variables of interest when

discovery policies are varied.

* Discovery difficulty (high or moderate), and

* Difficulty in relations between the parties and/or lawyers (high or moderate).

Models for Attorney Satisfaction

Table A.10 gives the results of our model for attorney satisfaction using the

entire sample of general civil cases closed after issue was joined and more than

270 days after filing, for our 1992-93 sample of filings Interpretations of the

results for the discovery management policy variables in the model are provided
-97- 08/28/97 DRAFT

outcomes The results from using all five outcomes were qualitatively very similar to our models with a dichotomous outcome and thus we report only the

results from the latter models.

Multivariate Logistic Regression Analysis on Attorney-Level Data

To estimate the effects of case management policies and procedures on attorney satisfaction, we used multivariate logistic regression models fit to attorney-level data. That is, we used data with one record per each responding attorney from our sample of general civil litigation cases with issue joined. As with lawyer work hours, using attorney-level data allowed us to control for possible attorney characteristics that could affect satisfaction and help explain the variability in the responses, yielding more precise estimates of policy effects. Using only case- or district-level data would not allow for such exact lawyer control variables and would provide less appealing estimates of the policy effects. Because we modeled satisfaction as dichotomous response (1 or 0, where 1 is satisfied and 0 is not), it would have been inappropriate to use linear regression

model 

models, such as the models used for time to disposition and lawyer work hours, to satisfaction. The appropriate model is a logistic regression model. Logistic regression models are analogous to linear regression models, but they account for the dichotomous nature of the outcome being studied.

The coefficients from our logistic regression model have the following interpretation The coefficient represents the log odds-ratio between cases with a policy and cases without, or the log odds-ratio of a single unit change for a predictor (e g., a change of one day in the median days to discovery cutoff). The odds are the ratio of the probability of attorney reporting satisfaction the to probability of attorney reporting dissatisfaction. The odds-ratio is the ratio of the odds for a case with a policy to the odds of a case without a policy. The odds are a standard measure of the relative probability. If the odds are 10-to-i then an attorney on a case with the given set of characteristics is 10 times more likely to be satisfied than dissatisfied with management. The odds ratio tells us how much of an increase (or decrease) in the odds is associated with a given policy. An odds-ratio of one implies that the policy has no effect; an odds-ratio of greater than one implies that the policy increases the odds (and the probability of satisfaction), and an odds-ratio of less than one implies that the policy decreases
RAND -98- 08/28/97 DRAFT

the odds (and the probability of satisfaction). We will interpret an odds-ratio that

is close to one as having a small effect. Odds-ratios between 1.5 and 3 (or 2/3 and

1/3) we will consider moderate, and those greater than 3 (or less than 113) we will

consider large.

The log odds-ratio is the natural logarithm of the odds-ratio. A log oddsratio of 0 corresponds to an odds-ratio of one and implies no effect. Log odds-ratios

around zero will be considered small. We will consider log odds-ratios in the

range of about 0.41 to 1.10 (-0.41 to -1.10) as moderate and log odds-ratios of

greater than 1.10 (less than -1.10) as large. We report the log odds-ratio in our

tables and the odds-ratio can be recovered by exponentiating the reported

coefficient. 73

Open Cases and Missing Data

As discussed above for time to disposition, about 8.5 percent of the general

civil cases in our 1992-93 sample remained open at the conclusion of our data

collection. From these cases we cannot obtain a measure of lawyer satisfaction

that is comparable to our measure from closed cases. An open case has not,

necessarily, received the full array of management procedures that it will receive

before closure. For example, if the case is headed for trial, then any intermediate

measures of satisfaction will not include the lawyers views on satisfaction with

the trial. On the other hand, attorney responses from closed cases will reflect

their assessment of all management policies and procedures applied to the case.

For this reason we do not include data from open cases in our sample when fitting

our satisfaction models. This places some limitations on interpreting our models,

but it does provide us with a comparable measure for all sample cases being

analyzed.

Because we are using attorney responses for this analysis, we are again

missing reported satisfaction from about half the surveyed attorneys because the

attorney did not respond to our survey. However, over 90 percent of responding

attorneys provided us with their news on satisfaction. Missing data could be

73

See Hosmer, D W., and S. Lemeshow, Applied Logistics Regression, John

Wiley & Sons, New York, 1989 for a full discussion on the log odds-ratio.
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RAND -96- 08/28/97 DRAFT

ANALYSIS OF ATTORNEY SATISFACTION

It is important to understand whether discovery case management policies

and procedures affect the participants' perceived satisfaction with case

management and their sense of fairness or justice. Policies and procedures that

have little effect on objective outcomes such as time to disposition or lawyer work

hours might substantially improve subjective outcomes such as perceived

satisfaction and sense of fairness. Hence one might wish to use these policies

even if they do not affect litigation time and costs. Conversely, a procedure that

reduces time to disposition or litigation costs might have such adverse effects on

perceptions of fairness and satisfaction that one might not want to use the

procedure.

To investigate such issues, we explore the effects of management policies

and procedures on attorneys' satisfaction with case management and their

opinions on the fairness of case management. As the professionals who have

repeated contacts with the court system, and who guide disputing parties through

the system, attorneys' views are important. And attorneys are in a good position

to see any beneficial or adverse effects of changes in case management.

It also would be useful to determine the effects of policy on litigant

satisfaction and views on fairness. However, because of the low response rate to

our litigant survey as discussed in Appendix B of our main evaluation report, our

litigant data cannot be assumed to provide accurate unbiased statistical

estimates We prefer to be cautious and believe that our litigant survey data

should not be used for inferential statistical analyses.

We measured attorney satisfaction using Item 21 from our Attorney

Questionnaire which is shown in Appendix J of our main evaluation report. The

attorneys were asked to report their satisfaction with the "court management and

procedures for this case" for their party or parties. The survey item gave the

attorney five response categories: (1) very satisfied; (2) somewhat satisfied; (3)

neutral, (4) somewhat dissatisfied, and (5) very dissatisfied. Because we did not

feel we could clearly interpret differences between the very satisfied and the

somewhat satisfied attorneys we dichotomized the responses into reported

satisfied (very or somewhat) or not reported satisfied (neutral or somewhat or

very dissatisfied). To ensure ourselves that we did not lose too much information

by using only the dichotomous outcome we ran some models using all five
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RAND -94- 08/28/97 DRAFT

Table AS

Model for Lawyer Work Hours on Discovery when Greater than Zero: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days

Variable Coefficient T-Statistic P-Value Constant 0067 0150 0880 Policy Variables Early management, with early setting of trial date, and with -0.040 -0.265 0.791 mandatory planning policy Early management. with early setting of trial date, and without 0.377 3.301 0.001

mandatory planning policy Early management, without early setting of trial date, and with -0.101 -0.568 0.570

mandatory planmng policy Early management without early setting of trial date, and 0.473 4.561 0.000

without mandatory planning policy Early mandatory disclosure policy, and disclosure was made n -0.164 -1.411 0.158

this case Early mandatory disclosure policy, and disclosure was not made -0.182 -1.370 0.171 on this case No early mandatory disclosure policy, and disclosure was made on -0.351 -3.871 0.000

this case Litigants at settlement conf. (district %) 0.003 0.334 0738 Iamits on interrogatories (district) 

Days -0.273 -2.532 0.011 to discovery cutoff (district median) 0.003 2 108 0.035 Continuances (district %) 

Magistrate -0.006 -1.597 0.110 judge activity (district mean) 0.078 0.461 0.645 Control Variables Number of litigants (square root) -1 066 -11 679 0 000 Case type has high avg judicial work 0.186 2.245 0.025 Diversity jurisdiction 0099 1057 0290 Discovery motion 

Any motion 0599 6900 0.000

Any 0 154 1 198 0.231 government party -0203 -1947 0052 Any litigant without an attorney 

Any -0231 -1 989 0.047 pro se litigant -0322 -1745 0081 Case complexity (high) 0176 1.145 0252 Case complexty (moderate) 

Discovery 0021 0194 0846 difficulty (high) 0.720 4 887 0.000 Discovery difficulty (moderate) 

Difficulty 0409 4090 0.000 in relations (ugh) Difficulty 0.024 0 221 0.825 in relations (moderate) -0021 -0253 0801 Zero stakes 

Maximum -0 190 -1 148 0 251 stakes (log) 

Missing 0271 8.791 0000 fee -0401 -2365 0018 Contingent fee 

Government -0208 -1742 0082 attorney 

Missing -0371 -2335 0.020 percent practice federal 

Percent 0.364 1 163 0 245 practice federal 0.007 4879 0000 Missing firm size 0216 1.056 0291 Firm size (square root) 

Defense 0025 2452 0.014 attorney -0031 -0.318 0750 State case -0 324 -3366 0 001

N=907
RAND -91- 08/28/97 DRAFT

unadjusted standard errors or adjusted the standard errors for intra-district

correlation.

The following control variables remained statistically significant after

including our policy variables in the model:

* Number of parties,

* Case type has high average judicial work,

* Discovery motion,

* Any litigant without an attorney

* Government attorney

* Discovery difficulty (high or moderate),

* Maximum stakes,

* Percent practice federal,

" Firm size, and

* State case

While both complexity of the case and discovery difficulty are significant for

predicting total lawyer work hours, when predicting discovery work hours the

discovery difficulty variable has a much larger and significant coefficient while

overall case complexity is not significant.

Table A.9 summarizes the results for discovery management policy

variables when that same model is applied to subsets of the cases based on level of

complexity, level of discovery difficulty, plaintiff or defendant side of the case,

contingent or hourly fee lawyer, size of the law organization in which the lawyer

worked, case stakes, tort or contract or other nature of suit categories, and the top

25% most costly cases in terms of discovery among general civil litigation that has

time to disposition over 270 days after filing 72 Interpretations of the results for

policy variables in these models are provided in Section 3 of this report.

72 These cases had lawyer discovery work hours per litigant of 69 or more

hours.
RAND -92- 08/28/97 DRAFT

Table A.6

Model for Lawyer Work Hours:

1992-93 Sample, General Civil Cases with Issue Joined,

Closed with Time to Disposition Over 270 Days

Variable Coefficient T-Statistic P-Value

Constant 1.386 3.788 0000

Policy Variables

Early management, with early setting of trial date, and with -0016 -0.140 0.889

mandatory planning policy

Early management, with early setting of trial date, and without 0.301 3.096 0.002

mandatory planning policy

Early management, without early setting of trial date, and with 0 006 0.042 0.966

mandatory planning policy

Early management, without early setting of trial date, and 0.349 4.481 0.000

without mandatory planning policy

Early mandatory disclosure policy, and disclosure was made on 0.087 0.890 0.374

this case Early mandatory disclosure policy, and disclosure was not made -0.006 -0.058 0.954

on this case No early mandatory disclosure policy, and disclosure was made on -0.176 -2.438 0.015

this case Litigants at settlement conf. (district %) 0.006 0.901 0.368

Lilts on interrogatoes (district) -0.190 -2.077 0.038

Days to discovery cutoff (district median) 0.003 3.227 0.001

Continuances (district %) -0.007 -2.475 0.013

Magistrate judge activity (district mean) -0.045 -0.324 0.746

Control Variables

Number of litigants (square root) -0972 -13.999 0.000

Case type has high avg judicial work 0 120 1.734 0.083

Diversity jurisdiction 0 136 1.779 0.075

Discovery motion 0.506 7.186 0.000

Any motion 0196 1.922 0055

Any government party -0 145 -1 688 0 091

Any litigant without an attorney -0 208 -2.246 0.025

Any pro se litigant -0.199 -1.300 0 194

Case complexity (high) 0457 3633 0000

Case complexity (moderate) 0 241 2 738 0.006

Discovery difficulty (high) 0373 3218 0001

Discovery difficulty (moderate) 0-205 2 672 0 008

Difficulty in relations (high) 0.138 1.633 0 102

Difficulty in relations (moderate) 0 092 1.300 0.194

Zero stakes -0.279 -2 650 0 008

Maximum stakes (log) 0.234 9516 0000

Missing fee -0.321 -2 175 0 030

Contingent fee -0 097 -0 900 0.368

Government attorney -0417 -3047 0002

Missing percent practice federal 0350 0.827 0408

Percent practice federal 0006 4.646 0000

Missing firm size -0 068 -0.181 0856

Firm size (square root) 0045 6183 0000

Defense attorney -0230 -2 640 0008

State case -0 250 -3 367 0 001

N=1,122
RAND -89- 08/28/97 DRAFT

* Government attorney,

* Percent practice federal,

" Firm size,

* Defense attorney, and

* Number of parties.

In this further analysis of discovery management, we added the following

discovery related control variables because of their hypothetical importance in

predicting the outcome variables of interest when discovery policies are varied.

These two variables were considered to be subsumed under the overall case

complexity variable in the main evaluation report, but our further analysis

revealed them to be potentially significant in their own right even when they are

included in the same model with the overall case complexity variable.

* Discovery difficulty (high or moderate), and

* Difficulty in relations between the parties and/or lawyers (high or moderate).

In our main evaluation report, we also found that some types of fee

structure interacted with some of the other important predictors of lawyer work

hours such as stakes and complexity, but those interactions variables were not

statistically significant when policy variables were added to the model. We have

dropped those interactions from the set of control variables used in this further

analysis of discovery case management, in order to maintain model parsimony by

reducing the number of variables in the model as we explore smaller subsets of

the sample. Two of those subsets explored are contingent fee lawyers and hourly

fee lawyers, so that we could directly explore the effects of policy on those two

different types of fee arrangements.

Models for Lawyer Work Hours

Table A 6 gives the results of our model for total lawyer work hours using

the entire sample of general civil cases closed after issue was joined and more

than 270 days after filing, for our 1992-93 sample of filings Interpretations of

the results for the discovery management policy variables in the model are

provided in Section 3 of this report The significance of the discovery-related

policy variables was the same whether we used the unadjusted standard errors or

adjusted the standard errors for intra-distnct correlation
RAND -90- 08/28/97 DRAFT

The following control variables remained statistically significant after

including our policy variables in the model:

* Number of parties,

* Discovery motion,

* Any litigant without an attorney

* Government attorney

" Case complexity (high or moderate),

* Discovery difficulty (high or moderate),

* Maximum stakes,

* Percent practice federal,

* Firm size,

* Defense attorney, and

* State case

Higher stakes, complexity, and discovery difficulty are all significant

predictors of higher lawyer work hours. There appear to be some economies of

scale, i e., lawyer work hours per litigant decrease as the number of litigants

increases Similarly, cases a related case in state court lead to fewer work hours.

Also in our data we find that defense attorneys and government attorneys report

fewer work hours per litigant than do other attorneys.

Table A.7 summarizes the results for discovery management policy

variables when that same model is applied to subsets of the cases based on level of

complexity, level of discovery difficulty, plaintiff or defendant side of the case,

contingent or hourly fee lawyer, size of the law organization in which the lawyer

worked, case stakes, tort or contract or other nature of suit categories, and the top

25% most costly cases among general civil litigation that has time to disposition

over 270 days after filing. 71 Interpretations of the results for policy variables in

these models are provided in Section 3 of this report.

Table A.8 gives the results of our model for lawyer work hours on

discovery. Interpretations of the results for the discovery management policy

variables in the model are provided in Section 3 of this report The significance of

the discovery-related policy variables was the same whether we used the

71 These cases had total lawyer work hours per litigant of more than 188

hours.
RAND -87- 08/28/97 DRAFT

relationship (fee structure) that cannot be considered characteristics of the case as

a whole.

Even though time to disposition and work hours are moderately correlated,

we did not include time to disposition as a control variable in our model for lawyer

work hours. As we demonstrated above, many of our policy variables are

correlated with time to disposition. Had we included time to disposition in our

model of lawyer work hours, then we would not fully capture the effects of case

management policy on work hours. With time to disposition in the model, indirect

effects, such as the effect of policy on time to disposition that results in effects on

lawyer work hours, would not be captured in our model. We decided to estimate

the "total effect" (both the indirect effect through time to disposition and the

direct effect) of case management policy on lawyer work hours and did not include

time to disposition in our model.

We explored the same policy variables in our models of lawyer work time as

we did in our analysis of time to disposition. These policy variables represent the

important policies and procedures endorsed by the CJRA and are appropriate for

use with all our outcomes.
RAND -88- 08/28/97 DRAFT

Table A.5

Additional Control Variables Used for Modeling Lawyer Work Hours

Attorney Level Variables Description Tenure Years practicing law

Percent practice federal Percentage of practice devoted to federal

district court litigation in past five years Firm size Square root of the number of lawyers in law

office or legal department

Contingent fee Primary fee arrangement was a contingent fee;

1 if contingent fee, 0 otherwise

Government attorney Attorney was a government attorney;

1 if yes, 0 otherwise

Defense attorney Attorney represented a defendant;

1 if yes, 0 otherwise

Number of parties Square root of the number of parties

represented by the attorney in the dispute

In the main evaluation report, our model selection procedure identified the

following as important control variables before accounting for the effects of policy

variables

* No mention of class action on the case docket,70

* Average judicial work level (high),

" Jurisdiction (diversity)

* Discovery motion,

* Any motion,

* Related state case,

" Any government parties,

" Any litigant without an attorney,

* Any pro se litigants,

" Case complexity (high or moderate),

* Maximum stakes,

* Contingent fee,

7 Because there were so few class action cases in our sample and we were

analyzing subsets of the cases that often had no class actions in the subset, we dropped this variable from the list of those used as controls.
RAND -85- 08/28/97 DRAFT

Some attorneys represented multiple clients on the same case, and we

found that work hours grew as a function of the number of litigants the attorney

represented. Hence we modeled attorney work hours per party represented. We

explored both total work hours by the lawyer and hours per party represented by

the lawyer and found qualitatively similar results. However, we had the best

fitting model (no obvious residual lack-of-fit) when we used hours per party

represented and included the square root of the number of parties represented as

a predictor variable to allow for economies of scale.

We include lawyer work hours for attorneys with all types, no matter how

they are paid (e.g., contingent fee, hourly fee, government attorney, and in-house

private organization attorney).69

Our sample distribution of lawyer work hours per party represented was

highly skewed, and it is not appropriate to model highly skewed data using

additive linear regression models. Using exploratory analyses we determined

that by using the natural log of lawyer work hours per party represented we

removed the skew from our data and could fit linear additive models without

obvious lack-of-fit. It is important to note that no attorneys should report zero

hours spent on a case so we could use the natural log transformation on all data

without worrying about transforming zero. When modeling work hours spent on

discovery, we used only lawyers with positive time spent on discovery; the

percentage reporting zero discovery work time is detailed in Section 2 of this

report for various subsets of cases and lawyers

In the remainder of this section we will refer to the natural log of lawyer

work hours per party represented as lawyer work hours.

Open Cases and Missing Data

As discussed above for time to disposition, 8.5 percent of our cases from our

1992-93 general civil litigation sample remained open at the end of our study.

Although we had lawyer responses from a fraction of these open cases, we do not

feel that we should use data from these open cases in explonng the effects of

69

Even if an in-house or government attorney does not "bill" for services, there is still a cost to the litigant incurred for salary, fringe benefits, and overhead and hence the hours worked by those attorneys on litigation are not "free" over the long term, even if some attorneys may currently have slack time.
RAND -86- 08128/97 DRAFT

policy on lawyer work hours. The partial data provided by these open cases

would not be comparable to complete data on closed cases because work hours

tend to be unevenly spent with a potentially major portion of work time coming

near settlement or trial. Also, few of the attorney respondents from open cases

prowded data on work hours. Thus, our models are fit only to data from

respondents from closed cases. This is likely to introduce some bias into our

estimated coefficients, but because we are dealing with only 8.5 percent open

cases, we expect this bias to be limited.

Because lawyer work hours were reported by lawyer survey responses, we

do not have data for all attorneys in the sample. About 50 percent of attorneys

did not respond to our survey. Of responding attorneys, about 75 to 80 percent

provided data on lawyer work hours. Attorneys without reported work hours

were excluded from our sample for the purposes of fitting these models. We used

nonresponse weights in our analysis to offset the effects of differential

nonresponse, as discussed in Appendix B of our main evaluation report.

However, missing information is problematic and could introduce some bias into

our estimates of policy effects.

Control and Policy Variables

Our methodology for modeling the effects of policy and procedures on

lawyer work hours are analogous to those that we use for analyzing time to

disposition We again considered both control variables and policy variables.

Control variables consisted of case, district, and attorney characteristics that

could explain differences in work hours and policy variables measured the district

and case level management policies and procedures. We added some attorney

characteristics to the list of control variables used for time to disposition. The

policy variables used in our analysis of work hours are the same as those used for

modeling time to disposition.

In our search for control variables we considered all the case- and districtlevel controls that we explored in our models for time to disposition (see Table A.1

for details) We also considered additional attorney-level characteristics that we

expected may help explain variation in work hours The additional control

variables we considered are given in Table A 5. The variables are particular

characteristics of the attorney (years in practice) or the attorney-client
-83-

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ANALYSIS OF LAWYER WORK HOURS

Lawyer work hours are our most informative measure of litigation costs,

since they do not need adjustment for interdistrict differences in the hourly fees

and lawyers' salaries paid, and since they are not confounded by differences in the

fee arrangement. For example, contingent fee percentages are not immediately

responsive to differences in judicial management of discovery, but hours worked

by the lawyers may change as a result of such judicial management.

In this section we discuss our analyses of total lawyer work hours on

general civil litigation cases with issue joined that close over 270 days after filing,

and the effects ofjudicial discovery management policies on those hours.

We also provide information on our analyses of lawyer work hours spent on

discovery.

Multivariate Regression Models on Attorney-Level Data

To estimate the effects of policy on lawyer work hours, we used

multivariate regression models fit to attorney-level data. That is, we used data

with one record per each responding attorney from our sample of general

litigation cases with issue joined. Work hours can differ among lawyers within

cases and we use attorney-level characteristics to explain some of this variability

in our model

Our model is analogous to the time to disposition model presented above in

this appendix, except that we now have responses from attorneys within cases.

Since lawyers may represent more than one litigant on a case, and since

some litigants may have more than one lawyer working on the case, it is

necessary to sort out the method of handling these multiple relationships before

describing the analysis

For each litigant on a case, we initially surveyed only one attorney and

asked that one attorney for the number of hours "worked by you and ALL

attorneys for your party or parties on this case". If the first attorney could not

supply information for all attorneys for their party or parties, then we surveyed a

second attorney. If we ended up surveying more than one attorney for a party,

then we combined the two work hour responses into one total work hours varable

before analysis. If we had only partial lawyer work hours for a party, then we did

not include them because we knew they were incomplete.
RAND -81- 08/28/97 DRAFT

Table A4 summarizes the results for discovery management policy

variables when that same model is applied to subsets of the cases based on level of

complexity, level of discovery difficulty, plaintiff or defendant side of the case,

contingent or hourly fee lawyer, size of the law organization in which the lawyer

worked, case stakes, tort or contract or other nature of suit categories, and the top

25% most costly cases among general civil litigation that has time to disposition

over 270 days after filing68. Interpretations of the results for policy variables in

these models are provided in Section 3 of this report.

6 These cases had total lawyer work hours per litigant of more than 188

hours.
RAND -82- 08/28/97 DRAFT

Table A.3

Model for Time to Disposition:

1992-93 Sample, General Civil Cases with Issue Joined,

with Time to Disposition Over 270 Days

Varable Coefficient T-Statistic P-Value

Constant 4.098 30.251 0.000

Policy Variables

Early management, with early setting of trial date, -0.234 -5.174 0.000

and with mandatory planning policy

Early management, with early setting of trial date, -0.257 -6.992 0.000

and without mandatory planning policy Early management, without early setting of trial -0.188 -3.461 0.000

date, and with mandatory planning policy Early management, without early setting of trial -0.061 -2.026 0.042

date, and without mandatory planning policy Early mandatory disclosure policy, and disclosure -0.045 -1.129 0.258

was made on this case

Early mandatory disclosure policy, and disclosure -0.040 -1.067 0.285

was not made on this case

No early mandatory disclosure policy, and -0.037 -1.297 0.194

disclosure was made on this case

Litigants at settlement conf. (district %) -0.009 -4.010 0.000

Limits on interrogatories (district) -0 068 -2.117 0.034

Days to discovery cutoff (district median) 0.002 5.002 0.000

Continuances (district %) -0.002 -1.720 0.085

Magistrate judge activity (district mean) 0.211 4.204 0.000

Control Variables

Class action certified 0.267 2.284 0.022

Case type has moderate avg. judicial work -0.031 -1.093 0.274

Bankruptcy mention 0.241 2.948 0.003

Removed case -0.001 -0026 0.978

Nature of suit (tort) -0.017 -0.572 0.567

Nature of suit (contract) -0.049 -1.333 0.182

Any government parties 0.053 1.912 0.055

Discovery motion 0.139 5 193 0.000

Any motion 0.101 2.593 0.009

Number of lawyers (square root) 0.043 0.969 0.332

Discovery difficulty (high) 0.100 1.878 0.060

Discovery difficulty (moderate) 0 023 0.731 0.464

Discovery difficulty (missing) 0.077 1.037 0.299

Difficulty in relations (high) -0.028 -0.778 0.436

Difficulty in relations (moderate) -0 009 -0.331 0.740

Difficulty in relations (missing) 0 105 1.534 0 124

Case complexity (high) 0.131 2.649 0.008

Case complexity (moderate) 0.001 0037 0 970

Zero stakes -0.064 -1 142 0.253

Maximum stakes (log) 0.034 4.163 0 000

N=1,624
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policy modeling, we did explicitly use the following seven variables that represent

interactions among the discovery-related case management policy variables:

* Early management, with early setting of trial date, and with mandatory

planning policy;

* Early management, with early setting of trial date, and without mandatory planning policy;

* Early management, without early setting of trial date, and with mandatory

planning policy;

* Early management, without early setting of trial date, and without

mandatory planning policy;

* Early mandatory disclosure policy, and disclosure was made on this case;

* Early mandatory disclosure policy, and disclosure was not made on this case;

and

* No early mandatory disclosure policy, and disclosure was made on this case.

Models for Time to Disposition

Table A.3 gives the results of our model for time to disposition using the

entire sample of general civil cases closed after issue was joined and more than

270 days after filing, for our 1992-93 sample of filings. Interpretations of the

results for the discovery management policy variables in the model are provided

in Section 3 of this report. The significance of the discovery-related policy

vanables was the same whether we used the unadjusted standard errors or

adjusted the standard errors for intra-district correlation, with two exceptions

which are discussed in Section 3.

The following control variables remained statistically significant after

including our policy variables in the model. Each of these predictors is positively

correlated with time to disposition.

* Class action certification,

* Bankruptcy mention,

* Discovery motions,

* Any motions,

* Case complexity (high), and

* Maximum stakes.
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We selected these policy variables because they explicitly represent the

principles and techniques that were mentioned in CJRA (for example, a district

policy of mandatory disclosure), or serve as measures of the policies and

procedures mentioned in the Act (for example the particular forms of early

judicial case management that we explored). Each variable is well measured

using our various sources of data. Also each variable pertains to a particular, well

formed hypothesis about the effect of policies and procedures on time to

disposition. We did not pick these variables after exploratory analyses. Rather

we chose each policy variable because it pertained to a particular policy or

procedure of interest that had been hypothesized as a predictor of time to

disposition (and other outcomes).

We were limited in our choice of predictors to those variables that could be

identified via the docket analysis, via explicitly known district policies, or via

information on variables that could be obtained from the attorney surveys and

judge surveys in the 1992-93 sample.

We were further limited because we had only 20 districts and some

procedures were not widely implemented across the districts, for example, a

district policy limiting the number or length of depositions.

For some procedures, we used district averages (or medians) to measure the

effects of the typical use of procedures in the district, thereby avoiding selection

bias that would occur at the case level. For example, we used the district median

days to discovery cutoff to measure the effects of discovery cutoff. We do not use

the case-level measure because we expect that for indiwdual cases discovery

cutoff will be tailored to the needs of the case. After reviewing the cases, a judge

will assign a discovery cutoff that he or she feels is appropriate for the needs of

the case Difficult cases may receive more discovery time and take longer to

settle; straightforward cases may receive less discovery time and require less time

to settle However, this difference in time to disposition may be more a

characteristic of the case than the management. By using the district median, we

hoped to average across the case characteristics that may influence the specific

discovery cutoff and identify districts that typically choose shorter or longer cutoff

times regardless of case characteristics

In our main evaluation report, we did not consider explicitly model

interactions among the policy variables. In this further discovery management
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Table A.2

Policy Variables Used in Modeling Time to Disposition

Variable Description

Early management Case-Level Variables on case Judicial case management (set schedule, hold conference, refer to ADR, require status report orjoint plan) before the 180th day after filing, as

Early reported in docket, I if received early management, 0 otherwise schedule on case Provided a discovery, trial or other schedule before the 180th day after

Early setting of filing, as reported in the docket, I if schedule, 0 otherwise. trial Provide a trial schedule before the 180th day after filing as reported in schedule on case the docket, 1 if schedule, 0 otherwise. Early conference on case Held a conference (status, scheduling, case management, or Rule 16) before the 180th day after filing, as reported in the docket; I if held, 0

otherwise. Early ADR referral on case Cam referred to arbitration, mediation, or neut-al evaluation befiore the 180th day after filing, as reported in the docket; 1 if refihrred, 0

Management otherwise. level Intensity of ease management as reported by the attorney;, 1 if high, 0 otherwise (for ease level analyses this is the highest level reported by

Early disclosure any attorney). of Parties made an early disclosure of relevant information without formal information (shown as discovery request as reported by attorney; 1 if yes for at least one "disclosure on case" in attorney, 0 otherwise

statistical model tables)

discovery 

Good faith effort to resolve Lawyer report of whether good faith effort was made to resolve dispute dispute before before filing discovery motion; 1 if yes for at least one attorney, 0 filing motion otherwise

Cases managed District-Level vanables

percent) 

(district Percent of cases in a district that receive a schedule, a conference, file a status report or plan, or are referred to ADR Cases with trial schedule Percent of cases in a district that receive a trial schedule before the set 

Early early (district percent) 180th day after filing disclosure district District policy on early disclosure For 1991, 1 if district has mandatory policy early disclosure without formal discovery request for any cases, 0 otherwise For 1992-93, 1 if district has mandatory disclosure for general civil litigation, 0 otherwise Joint plan district policy District policy on whether attorneys must prepare a joint discovery or

Litigants case management plan early in the case; 1 if yes, 0 otherwise at settlement Percent of cases in a district with litigants present at settlement conference (district conferences in person or available on the telephone (as reported by the percent) attorney) Limits on interrogatories District policy on limitations on interrogatories, 1 if the district has a (district) policy hmitmng them, 0 otherwise Days to discovery cutoff Median days to discovery cutofffor cases with cutoff in a district

(district median) Continuances (district Percentage of cases in a district that have a continuance, of those cases percent) 

Magistrate that have a schedule set judge activity Number of civil proceedings performed by magistrate judges per civil (district mean) termination in the distnct (e.g, motions, conferences, hearings); the

Judicial Control Over square root of the number was used in the model

(District percent 

Trial Percentage of trials in a district that had firm active judicial control, of firm) those cases for which lawyers reported judicial control of trial was

Note either firm or minimal

management 

we also considered information from the dockets about whether a joint discovery-case plan or status report had been submitted That variable was dropped from this further study 

vary markedly 

because the docketing practices regarding the submission of those plans or reports was found to between districts, making that case-level variable undesirable for statistical analyses across districts
RAND -77- 08/28/97 DRAFT

from missing controls using the remaining predictors in our model. We used

imputed values because the lower response rate on open cases created a

possibility of bias from including missing data flags. Sensitivity analyses run

using only cases without missing data confirmed that our results are robust to

this choice and that any bias is small.

In the main evaluation report, our model selection procedure identified the

following as important control variables, without accounting for the effects of

policy variables:

* Class action certification,

* Average judicial work level (moderate),

* Bankruptcy mention,

* Removed,

* Nature of suit category (tort, contract),

* Any government parties,

* Discovery motions,

* Any motions,

* Number of lawyers,

* Case complexity (high or moderate), and

* Maximum stakes.

In this further analysis of discovery management, we added the following

discovery related control variables because of their a pron expected importance

in predicting the outcome variables of interest when discovery policies are vaned.

These two variables were considered to be subsumed under the overall case

complexity vanable in the main evaluation report, but our further analysis

revealed them to be potentially significant in their own right even when they are

included in the same model with the overall case complexity variable.

* Discovery difficulty (high or moderate), and

* Difficulty in relations between the parties and/or lawyers (high or moderate)

Policy Variables

Table A.2 lists the policy variables we explored in our models for time to

disposition.
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As shown in Table A. 1, our control variables included subjective case-level

predictors, such as stakes and complexity as determined by the attorneys or

judges. The controls also included objective measures such as the jurisdiction,

nature of suit, and presence of a bankruptcy mentioned in the docket. We

included variables such as number of litigants, number of attorneys, and the

presence of motions as additional measures of case complexity. We used a careful

docket analysis to identify each of these measures. Our docket analysis also

provided us with class action status. We included the four case-level motion

variables (Any Dispositive Motions, Any Discovery Motions, Any Motions, and

Five or More Motions) as control variables, even though these variables might be

influenced to some degree by management policies. We reviewed these motion

variables extensively and determined that motions were largely independent of

case management. However, to the extent that motions may be influenced by

policy, the inclusion of these controls could introduce some bias. On the other

hand, motions were one of our better predictors of case complexity and were

important for improving the precision of our estimated effects, and any small bias

introduced may be offset by this increase in precision.

Attorney responses (augmented by litigant and judge responses) supplied

us with case complexity, stakes (value of monetary, presence of nonmonetary),

presence of related cases, fee arrangements, timing of litigant involvement (before

filing, after filing), presence of related state cases, and the presence of

administrative proceedings We derived the remaining variables from the Federal

Courts Integrated Database (IDB).

Several of the candidate control variables that we explored were highly

correlated These included the various measures related to motions (any motions

in case, dispositive, discovery, or five or more motions) and the number of

litigants and attorneys To prevent problems of multi-colinearity we selected the

best predictor of time to disposition from each group and included these in our

models The four motions variables naturally split into two subgroups (many

motions and discovery motions were in one group) and one predictor from each

group was included

Because we used attorney survey responses to generate some of our control

variables and because we had less than perfect attorney response, we were

missing control variables for some cases. In the 1992-93 data, we imputed values
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Table A. (continued)

Variable Description

Related case Attorney or litigant responded that additional time or money was spent on the case because of its effects on other cases; 1 if at least one attorney or litigant said yes, 0 otherwise.

State case Also was state case concerning the same dispute; 1 if at least one attorney or litigant responded that there was a state case, 0

otherwise

Administrative proceeding Also was a federal or state administrative proceeding prior to

filing the cue, 1 if at least one attorney or litigant said yes, 0

otherwise. Any contingent foe attorney Any attorney working for a contingent fee, 1 if at least one

attorney or litigant said yes, 0 otherwise

Any hourly fee attorney Any attorney working for an hourly fee; I if yes, 0 otherwise.

Case complexity Highest level ofews complexity as reported by any lawyer or

judge; 1 in high complex, 2 is medium complex, 3 is low complei. Difficulty of discovery Highest level of difficulty of discovery as reported by any lawyer or judge; 1 is high difficulty, 2 is medium difficulty, 3 is low

difficulty. Difficulty in relations Highest level of difficulty of relations between the parties and/or

lawyers, as reported by any lawyer orjudge; 1 is high difficulty, 2

is medium difficulty, 3 is low difficulty Dispute began after filing date For at least one party the attorney responded that the date the

dispute began was after the filing date; 1 if yes, 0 otherwise. Old dispute For at least one party the attorney responded that the dispute began more than a yer before the filing date, 1 if yes, 0 otherwise

Distnct-Level Variables Judges Number of full-time equivalent judges, including semor judges, in

the district

Judicial officers Number of full-time eqwvalent judicial officers, including judges,

senior judges, and magistrate judges in the district Civil filings Annual Civil filings per FTE judicial officer

Criminal filings Annual Cnminal filings per FTE judicial officer

Total filings Annual Civil plus Criminal filings per FTE judicial officer

Offices Number of geographically different offices in the district

Days to answer Median days to answer for all cases in the district

Percent dispositive motions Percent of cases in the district with a dispositive motion filed on

the docket

Percent discovery motions Percent of cases in the district with a discovery motion filed on the

docket Percent any motions Percent of cases in the district with at least one motion on the

docket, other than attorney appearance-related motions Percent five or more motions Percent of cases in the district with five or more motions on the

docket

Number of motions Median number of motions per case for all cases in the district
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Table A.1

Control Variables Used for Modeling Time to Disposition

Variable Description

Case-Level Variables Class action certification Class action information from the docket; 0 is no mention of class

action, 1 is alleged, 2 is denied, 3 is certified class action Nature of suit category Nature of suit in broad categories; 1 s tort, 2 is contract, 3 is

prisoner, 4 is other.

Average judicial work time category Average judicial work time category for case type; I is high, 2 is (shown as "case type has xxxxx average moderate, 3 is low (See App. A). judicial work" in statistical model tables)

Junsdiction Jurisdiction in federal court, I is US plaindfl 2 is US defendant,

3 is federal question, 4 is diversity. Bankruptcy mention Bankruptcy mentioned in docket for other than bankruptcy

nature of suit cases; 1 if them is a mention, 0 otherwise. Removed case from state court Case was removed from state court; 1 fremoved, 0 otherwise.

Any government parties Any government (local, state or federal) litigant in the case; 1 is

Any government parties, 0 otherwise. Available only in 1992-93 data. private orgainzations Any private organization litigant in the case; 1 is at least one litigant is a private organization, 0 otherwise. Any pro se litigants Any pro se litigant on the case, 1 is at least one pro se litigant, 0

otherwise

Any litigant without an attorney Any litigant without attorney hated in the docket, 1 m at least one litigant without an attorney (not pro se), 0 otherwise Any dispositive motion Any dispositive motion filed on the docket; 1 if there is a motion,

0 otherwise

Discovery motion Any discovery motion filed on the docket, 1 if there is a motion, 0

otherwise

Any motions Any motions filed on the docket (discovery, dispositve, other,

except for those related to appearance of attorney), 1 if there is

at least one motion, 0 otherwise Five or more motions Presence of five or more motions filed on the docket, except

appearance of attorney; 1 if there is at least five motions, 0

otherwise Number of lawyers Number of attorneys involved on the case, counting no more than one per litigant, square root was used in model Number of litigants Number of litigants on the case; square root was used in the

model

Maximum stakes (if zero, shown "zero Natural log of the maximum stakes (best likely or wont likely stakes" in statistical model tables) outcome) reported by any attorney or litigant on the case Nonmonetary stakes Case involved nonmonetary stakes; 1 if at least one attorney or litigant said case involved nonmonetary stakes; 0 otherwise.
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general civil litigation cases with issue joined. We included the open cases in our

time to disposition analyses; however, the presence of open cases required that we

use methods other than Ordinary Least Squares (OLS) regression. In particular,

we used a censored regression approach that estimated the parameters using an

iterative approach. At the first iteration, the parameters were estimated using

only the closed cases. Using these estimates, we predicted the time to disposition

for open cases. Now, using these predictions and the data from the closed cases,

we re-estimated the model parameters. The new estimates provided new

predictions, and the procedure was repeated until convergence.

Time to disposition is a highly skewed variable. To avoid the bias and other

problems associated with skewed data, we used a transformation of time to

disposition. We explored various possible transformations in our preliminary

analyses and determined that the fourth root transformation proved best-i.e.,

had the most symmetric, normal residual errors.

Control Variables

Many characteristics of cases, other than case management policies and

procedures applied to them, affect the time to disposition. We need to control for

such case characteristics when we estimate the effects of policy. Otherwise case

differences that are not controlled for might be partially reflected in policy

variable coefficients This might lead us to make inaccurate conclusions about the

effect of policy. This might occur if the distribution of a control variable differs

between those cases that receive a particular management practice and those that

do not.

Our multivariate analysis accounted for these control variables by

including them in our model so that our regression coefficients represent the

effects of policy after controlling for the case and district characteristics

represented by the control variables However, we had many control variables to

consider and needed to select the best subset of these variables so as to ensure

that we controlled for confounding factors without saturating our model with

umnformative predictors Table A.1 lists the complete set of control variables we

explored for our models of time to disposition. We also considered many other

vanables related to the varables shown in the table and selected the ones that

appeared substantively best for exploration in our models.
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ANALYSIS OF TIME TO DISPOSITION

Time to disposition is defined as the number of days between the first filing of the case and the final disposition of the case in federal district court. If a case

reopens in the same district after disposition, the time to disposition is the time

from the first opening to the last closing, time to disposition is known for all

closed cases and is measured uniformly across all districts.

Multivariate Regression Models on Case-Level Data

To estimate the effects of case management policies and procedures, we

used multivariate regression models fit to case level data where time to

disposition was our outcome and the policy and control variables were our

predictors. Multivariate regression allows us to estimate the unique effects of

each policy variable while controlling for the effect of the other policy and control

variables. 67

Open Cases

Although we followed our 1992-93 sample of cases for over three years, there remained a small percentage of open cases (8.5 percent) in our sample of

67 As discussed in detail in Appendix D of our main evaluation report, one possible shortcoming of this approach is that the standard error estimator is derived under the assumption of the independence of cases. Most likely there is unexplained heterogeneity among districts and this results in correlation among the residual errors from cases within a district. The estimator can be adjusted to allow for correlation among cases within a district by using an alternative estimator for the variance matrix of the outcomes (e.g. time to disposition ). This estimator is again commonly referred to as the Huber correction or a "robust" estimator of standard error because it is appropriate even if the model is

misspecified.

The precision of this correlation-adjusted determined standard error estimator is by the number of districts With only 20 districts, our estimate is relatively imprecise. Thus, we expect that the unadjusted standard errors (unadjusted for intra-district correlation) will tend to underestimate the standard

error of our coefficients, and we also expect that correlation-adjusted estimates might be rather imprecise and lead to variable test statistics. As a compromise, we provide the unadjusted standard errors in the tables given below. However, we note when the significance of our variables changes when we use the correlation adjusted standard errors. For case-level predictors, the bias will tend to be small and the unadjusted standard errors will probably be most appropriate. For district-level variables, the bias could be larger, and more attention should be paid to the adjusted standard errors, even though these could be imprecise.
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Issue is considered joined after the defendants have answered the

complaint in accordance with F.R.Civ.P. Rule 12(a) or as mandated otherwise by

the court " Cases that are not joined usually do not receive judicial case

management, and judicial discovery management policies and procedures are not

relevant to them.

As indicated in Section 2, we focused our analyses on cases that close at

least 270 days after filing because about 80 percent of all lawyer work hours spent

on discovery are devoted to cases that last at least that long. Another reason for

focusing on these cases that last at least 270 days is that this focus eliminates the

statistical problem of endogeneity. In non-statistical terms, if we were to include

cases that close in less than 270 days and before judges have the opportunity to

apply discovery management policies, then the comparison of the outcomes for

cases that are subject to discovery management with cases that are not managed

would be distorted. In fact, if a case closed very early, before it could be managed,

then that case provides little information about the effect of management.

We chose the 270 day cutoff because we defined early management as

occurring within the first 180 days and wanted a window between the periods to

avoid over-interpreting transitional effects following management We found in a

sensitivity analysis, in which we varied the 270 day period, that our main results

were robust with respect to the 270 day cutoff period, and hence we report the

findings using these data

We focused our further analyses of discovery on the post-CJRA sample of

cases filed in 1992-93 because those cases had a much richer set of discovery

management policies in some districts, such as mandatory early disclosure and

mandatory discovery planning.

In the next four major sections of this appendix, we provide the details of

our analyses of the effects of discovery management policies and procedures on

the four primary outcomes.

66

Admimstrative Office of the Umted States Courts (1995), Chapter 5, p. 15
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Control and Policy Variables

In modeling the effects of case management policies and procedures on the

four primary outcomes, we considered two types of predictor variables: control

variables and policy variables.

Control variables consist of case and district characteristics that could

explain differences in case length. For example, we considered case complexity

and stakes as controls in our models. District characteristics thought to possibly

affect our primary outcomes included the number of civil and criminal filings per

judicial officer in the district. A more complete listing of control variables that we

considered is presented later in this appendix.

Policy variables refer to those variables that measure the district case

management policies and the particular case level management procedures

applied to each case. For example, we included variables for whether or not a

case received early management (before the 180th day after filing) and whether or

not the district enacted a mandatory early disclosure policy.

Modeling Effects on General Civil Cases with Issue Joined

As discussed in Section 2, after reviewing the discovery data and the case

management policies and procedures, we concluded that the effects of those

policies and procedures could be best estimated using data from general civil

litigation cases with issue joined that close at least 270 days after case filing. 65

65in practice, federal distnct courts split the civil caseload into two

categones-those types of cases that usually receive minimal or no management,

and those general civil litigation cases to which the district's standard case

management policies and procedures apply. Minimal management categories of

cases are not subject to the scheduling order requirements of Rule 16 of the

Federal Rules of Civil Procedure, for example The defimtion of minimal

management cases varies from district to district based on local rules and local

practice, but minimal management is usually applied to prisoner cases, administrative reviews of Social Security cases, bankruptcy appeals, foreclosure,

forfeiture and penalty, and debt recovery cases. For consistency among districts

in our analysis, we use a uniform definition of minimal management categories of

cases that includes the six categories listed above.

Our primary analyses do not include minimal management types of cases

because in practice almost none of these cases are managed using the discovery management policies and procedures that apply to general civil litigation, and

hence they could not inform our evaluation of discovery policies and procedures.
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APPENDIX A:

DETAILS OF STATISTICAL ANALYSES

INTRODUCTION

Our main descriptive and statistical evaluation of how the CJRA case

management principles affected cost, time to disposition, and participants'

satisfaction and views on fairness are presented in a RAND Institute for Civil

Justice report entitled An Evaluation of Judicial Case Management Under the

Civil Justice Reform Act, MR-802-ICJ, by James S. Kakalik, Terence Dunworth, Laural A. Hill, Daniel McCaffrey, Marian Oshiro, Nicholas M. Pace, and Mary E.

Vaiana, 1996 (hereinafter called "main evaluation report")

Appendixes to that main evaluation report provide extensive details on the

case sample selection design and weighting(App. A), surveys conducted and

nonresponse weighting (App. B), statistical analysis of time to disposition (App. D), statistical analysis of lawyer work hours (App. E), analysis of satisfaction

(App. F), analysis of views on fairness (App. G), and the survey questionnaires

(App I through K).

Because this report's analyses are further statistical analyses that begin where that main report ended and explore discovery management policy variables

in more depth, this appendix repeats only enough information from the main

report to permit understanding the definitions of the variables used in the main

report, and those new variables added to the analyses in this report. Readers are

referred to the above noted appendixes in that main evaluation report if more

details are desired than those presented below

Our evaluation of discovery management policies focuses on estimating their effects on four primary outcomes: (1) time to disposition; (2) total lawyer work hours (and the subset of total lawyer hours devoted to discovery); (3)

attorney satisfaction with the case management; and (4) attorney perceptions of

fairness of the case management.
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control variables. Despite the fact that we have more and better data than have been

available to previous studies, and we have been as careful as possible in constructing our

many models, one must still interpret the results carefully.

We believe that we have provided a reasonable estimate of the effects of policy for the

cases, judges, and districts we observed in our data. It is much more difficult to determine

the effect of the policy if implemented on different cases or by different judges in the same or

different districts.

Judges who choose to implement policies and management procedures often do so at

their discretion. These judges may differ from other judges in their basic approach to case

management or because of personality. These differences between judges could affect the

implementation of policy, and this could change the policy's effect. For example, if

enthusiastic managerial judges currently set trial schedules early and also work hard on

settlement and this leads to early closure, then having less enthusiastic non-managerial

judges setting trial schedules early may not have the same effect that we observed.

Similarly, districts that choose to implement policies and procedures do so because of

the characteristics of the district and the judicial officers. Because policies were not

assigned to cases at random in our data, we cannot fully untangle the relationship between

district characteristics and the use of policies. Hence, it is hard to determine exactly how

the policies will affect time to disposition or lawyer work hours if implemented on a wider

scale.

We stress that statistical models do not show cause and effect. Causation must be

interpreted in light of understanding how the underlying civil justice system that generated

the data operates

Given our understanding of how the civil justice system operates, we believe that the

policies we identified as important predictors of shorter time to disposition or lower lawyer

work hours are likely to reduce time and work hours if implemented, but that our estimated

effect should be treated as an upper bound to the effects that would occur if the policies were

implemented in all districts by all judges for all cases.

We stress that there is a difference between adopting a policy at the district level, and

implementation in practice at the case level. For policy to have an effect on time to

disposition or lawyer work hours, it must not just be adopted "on paper," but it must also be

implemented in practice at the case level Using our attorney-level data, we have estimated

the effect conditional on a policy or procedure actually being implemented.
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FINDINGS ON GOOD FAITH EFFORTS TO RESOLVE DISCOVERY DISPUTES

Our multivariate statistical analysis found no significant relationship between any of

the variables studied and reported good faith effort to resolve discovery disputes before

filing a motion.

FINDINGS ON LIMITING INTERROGATORIES

Our multivanate statistical analysis supports the policy of limiting interrogatories as

a means of significantly limiting lawyer work hours and thereby reducing the costs of

litigation. There is no statistical evidence that interrogatory limitations hurt, and they

appear to help significantly for several subsets of cases.

FINDINGS ON SHORTENING DISCOVERY CUTOFF TIME

Our multivariate statistical analysis supports the policy of shorter times to discovery cutoff as means of significantly limiting lawyer work hours and thereby reducing the costs

of litigation, and as a means of reducing the time to case disposition. When we looked at

subsets of cases, these significant decreases in lawyer work hours and time to disposition

occur for most subsets, with some exceptions such as low complexity and low discovery

difficulty cases (which are unlikely to require as much time for discovery as more complex or

more difficult cases.)

[To be inserted here in final report: estimates of differences between managing with

shorter and longer discovery cutoff times.]

INTERPRETING EFFECTS AND GENERALIZING TO OTHER CASES, JUDGES, AND DISTRICTS

Although these predicted effects discussed in this report serve as a useful gauge of

our statistical model estimates, they might present the temptation to interpret them as the

exact size of a causal effect. That is, one might incorrectly treat these estimates as if

expanding the use of a particular case management procedure will reduce time to

disposition or lawyer work hours a certain amount for each and every new case that

receives the management. This almost assuredly will not happen in exactly the same way. There are reasons why our observed effect might not generalize in exactly the same

way to other cases, judges, or districts

One reason is that the cases in our data that receive the policies might be different

from those that do not receive the policies in some way not accurately measured by our

disclosure has improved the operation of pretrial discovery, if at all. The vast majority of respondents have had little experience with mandatory disclosure "
RAND -65- 08/28/97 DRAFT

RAND's lawyer surveys indicate that when early disclosure was made for cases in the

1992-93 sample, it was "full disclosure" 57 percent of the time, and "pro forma" disclosure 43

percent of the time. For general civil cases with issue joined, lawyers report more disclosure

when it is mandatory (60 percent of the cases in mandatory disclosure districts, versus 45

percent m voluntary disclosure districts and 40 percent in districts with no disclosure

policy). Part of the problem with a mandatory early disclosure requirement is compliance;

lawyers report that when disclosure is done on a mandatory basis , it is full disclosure for 50

percent of the cases and pro forma disclosure for the remaining half of the cases.

Findings from a recent survey of about 1,000 attorneys by the American Bar

Association's Litigation Section were similar to ours: "Analysis of the survey results

suggests that Rule 26(aXl) disclosure has not had a significant impact on federal civil

litigation. To the extent that it has had any measurable effects, most are negative. The

survey provided no evidence that, at the one year mark, disclosure had reduced discovery

costs or delays. Nor do the responses suggest that disclosure has reduced conflict between

adversaries during the discovery process. Consequently, during its first year of

implementation, disclosure has not resulted in the systemic improvements for which its

proponents had hoped "63.64

63Blaner et al. (1996), p. 1

"4The PA(E) advisory group also conducted a survey of about 4,000 lawyers regarding the early mandatory disclosure procedures in that district, with results that were very similar to ours. This district's procedures stay discovery until both sides have completed mandatory disclosure of information likely to "bear significantly on the claims and defenses," plus other items such as names of individuals with information and any insurance Of the 1,000 plus attorneys responding, over 60 percent felt that some rule mandating self-executing disclosure should remain in effect. Judges were 85 percent in favor of such disclosure. When asked about compliance, over 90 percent of lawyers said they themselves had complied more than minimally, and that over two-thirds of their opponents had complied more than minimally (Landis et al., 1996). The NY(E) advisory group also surveyed lawyers regarding early mandatory disclosure for cases filed after the plan was adopted (Wesely et al., 1994, pp. 5-6.) Their annual report indicated: "Survey results at this stage are neither a ringing endorsement,

nor a condemnation, of mandatory disclosure. About half the respondents said that mandatory disclosure improved pretrial discovery, and about half said that there was no change. A majonty also said that mandatory disclosure had made either no contribution or

a slight contnbution to easing the problems of undue cost and unnecessary delay On the other hand, an overwhelming majority said that mandatory disclosure had no negative effects on pretrial discovery." "A majority (55 percent) would make mandatory disclosure a

permanent part of the local rules, and an additional 23 percent would make mandatory disclosure a permanent part of the local rules if modifications were made." "It appears from these data that the parade of horribles predicted by some critics of mandatory disclosure has not come to pass On the other hand, it is not clear the extent to which mandatory
RAND -64- 08/28/97 DRAFT

prepare a discovery - case management plan for submission to the court may result in more

efficient litigation with less lawyer work hours. Another plausible explanation is that the

judges in districts that require plans may also manage cases differently and better (in ways

that we did not measure) than judges in districts that do not require plans.

When we looked at various subsets of cases, we found no strong evidence that the

effects of early management and discovery planning were systematically concentrated on

certain types of cases based on level of complexity, level of discovery difficulty, plaintiff or

defendant side of the case, contingent or hourly fee lawyer, size of the law organization in

which the lawyer worked, case stakes, tort or contract or other nature of suit categories, or

the top 25% most costly cases among general civil litigation that has time to disposition over

270 days after filing.

We find no statistically significant effect on lawyer satisfaction or views on fairness

from early management, setting a trial schedule early in the case, and requiring a discovery

plan

FINDINGS ON EARLY DISCLOSURE

Our multivariate statistical analysis does not support the policy of mandatory early

disclosure as a means of significantly limiting lawyer work hours and thereby reducing the

costs of litigation, or as a means of reducing time to disposition.

Mandatory early disclosure was not associated with significantly reduced lawyer

work hours or time to disposition. Some people suggested that if we had looked at subsets of

cases, such as those that were more or less complex or had more or less difficulty with

discovery, we might have found a subset of cases for which this policy was effective. We

have now explored many different subsets of cases, including subsets based on stakes,

complexity, and discovery difficulty. We found no strong evidence that a policy of early

mandatory disclosure reduced lawyer work time or time to disposition on any of the subsets

of cases examined. However, attorneys who voluntarily choose to do early disclosure, in

districts where such disclosure is voluntary, have significantly lower work hours. It may be

that lower work hours among voluntary disclosing attorneys reflects a type of "choice or

selection bias", i.e., attorneys on cases for which they voluntarily choose to disclose may be

less contentious attorneys or may be on less contentious cases and hence spend fewer total

work hours on the case, but not necessarily because of the early disclosure. If the early

disclosure is effective in reducing lawyer work time, then we would have expected to see

some evidence of the effect on mandatory disclosure cases, not just on cases with voluntary

disclosure.
RAND -63- 08/28/97 DRAFT

Our statistical analysis of subsets of cases does not lead to any suggestions for

focusing these management policies only on certain types of cases. Our statistical results

are consistent for most subsets of cases analyzed, although the top 25% most costly cases 62

appear to especially benefit from the early setting of a trial schedule (early management of

those top 25% of the costly cases without a trial date scheduled did not significantly reduce

their time to disposition). And cases that are high in complexity, high in discovery

difficulty, or high in stakes appear to especially benefit from the use of discovery - case

management plans.

In our analysis ofjudicial discovery management policies, we find that early

management is associated with significantly higher total lawyer work hours if the district

does not require discovery - case management plans. However, early management is not

associated with significantly higher total lawyer work hours if the district requires

discovery - case management plans, and this lends strong support for the continuation of a

requirement of discovery - case management planning. That is, it appears that doing early

management without planning increases lawyer work hours, but early management coupled

with planmng does not increase lawyer work hours.

[To be inserted here in final report: estimates of differences between not managing

early and managing early with and without discovery planning.]

Our interviews suggested reasons why early management may increase lawyer work

hours. Lawyers need to respond to a court's management--for example, talking to the

litigant and to the other lawyers in advance of a conference with the judge, traveling, and

spending time waiting at the courthouse, meeting with the judge, and updating the file after

the conference In addition, once judicial case management has begun, a discovery cutoff

date has usually been established, and attorneys may feel an obligation to begin discovery.

Doing so could shorten time to disposition, but it may also increase lawyer work hours on

cases that were about to settle when the judge began early management. The CJRA data

indicate that cases that are managed early have a higher likelihood of having lawyer hours

spent on discovery

However, when a distrct requires discovery - case management plans, the increase

in lawyer work hours associated with early management appears to be offset by benefits

associated with the reqmred planning, and the net effect is no significant increase in lawyer

work hours There are at least two plausible explanations for this outcome First, the

planning itself may produce the benefit The requirement that the lawyers jointly meet and

2 These cases had total lawyer work hours per litigant of more than 188 hours
RAND -62- 08/28/97 DRAFT

4. POLICY FINDINGS

When judges were asked their opinions about discovery management on the cases in

our 1992-93 sample, the vast majority responded that such management was generally

desirable (96 percent in favor of setting discovery limits; 89 percent in favor of requiring

early disclosure; and 98 percent in favor of good-faith efforts before filing discovery

motions).

When lawyers were asked their opinions on discovery management on those same

cases, a majority responded that such management was generally desirable (86 percent in

favor of setting discovery limits; 71 percent in favor of requiring early disclosure; and 96

percent in favor of good-faith efforts before filing discovery motions).

Given that judges and lawyers are generally favorably inclined toward judicial

management of discovery, and given that discovery is often cited in anecdotes as being a

problem leading to excessive cost and delay, we analyzed the efficacy of various discovery

management policies in reducing lawyer work hours and time to disposition.

FINDINGS ON EARLY CASE MANAGEMENT AND DISCOVERY PLANNING

Our multivariate statistical analysis supports the policy of early management and

early scheduling of a trial date as a means of reducing time to disposition. Our current

analysis also supports the requirement of discovery - case management plans as a means of

reducing the time to disposition, limiting lawyer work hours, and thereby limiting the costs

of litigation in cases that are managed early.

Early management without setting a trial schedule early predicts a statistically

significant reduction in time to disposition, and early management that includes setting a

trial schedule early predicts a significantly larger reduction. We considered those two early

management and trial scheduling policies used both with and without a discovery plan requirement, and the results were statistically significant. There was little difference in

time to disposition with or without a discovery plan ifa trial was scheduled early, but cases

closed significantly earlier if discovery planning took place in the absence of an early trial

schedule Thus, our analysis suggests that the requirement of a discovery - case

management plan is beneficial in reducing time to disposition, especially if a trial schedule

is not set early

[To be inserted here in final report. estimates of differences between not managing

early and managing early with and without discovery planning I
RAND -61- 08/28/97 DRAFT

do early disclosure, in districts where such disclosure is voluntary, are significantly more

satisfied. Since most districts had a voluntary disclosure policy at the time of the study, this

explains the overall finding in our main evaluation report that disclosing attorneys were

more satisfied. It may be that greater satisfaction among voluntary disclosing attorneys reflects a type of "choice or selection bias", i.e., attorneys on cases for which they voluntarily

choose to disclose may be less contentious attorneys or may be on less contentious cases and

hence more satisfied, but not necessarily because of the early disclosure.

Districts with policies of limiting interrogatories again had attorneys who were

significantly more satisfied, but the district median time to discovery cutoff still did not

significantly affect attorney satisfaction even when subsets of cases were analyzed.

Details of our statistical analysis of attorney satisfaction with judicial case

management are presented in Appendix A.

SUMMARY OF EFFECTS ON ATTORNEY VIEWS ON FAIRNESS

In our main evaluation report, we found no consistent statistically significant effects

ofjudicial case management on attorney views on fairness.

In our current analysis of judicial discovery management policies, we find no

statistically significant effects for any of the policy variables on attorney views on fairness.

A very high percentage of attorneys report that case management is fair, about 90

percent There is little variability in our data and it is not surprising that we do not find

statistically significant effects ofjudicial case management on attorney views on fairness.

Details of our statistical analysis of attorney views on fairness are presented in

Appendix A
RAND -60- 08/28/97 DRAFT

discovery planning took place in the absence of an early trial schedule. Thus, our analysis suggests that the requirement of a discovery - case management plan is beneficial in

reducing time to disposition, especially if a trial schedule is not set early.

Our statistical analysis of subsets of cases does not lead to any suggestions for

focusing these management policies only on certain types of cases. Our statistical results

are consistent for most subsets of cases analyzed, although the top 25% most costly cases

appear to especially benefit from the early setting of a trial schedule (early management of

those top 25% of the costly cases without a trial date scheduled did not significantly reduce

their time to disposition). And cases that are high in complexity, high in discovery difficulty, or high in stakes appear to especially benefit from the use of discovery - case

management plans.

Early mandatory disclosure again was not statistically significant, and limiting interrogatories was not consistently significant in predicting reduced time to disposition. Details of our statistical analysis of time to disposition are presented in Appendix A.

SUMMARY OF EFFECTS ON ATTORNEY SATISFACTION

In our main evaluation report, we found that the policies that had the greatest effects

on time to disposition and lawyer work hours-i.e., early management, median days to

discovery cutoff, and setting a trial schedule early in the case-had no statistically significant effect on lawyer satisfaction. Attorneys with cases where early disclosure occurs

report significantly greater satisfaction However, attorneys from districts with a policy of requiring mandatory early disclosure were significantly less likely to report satisfaction

with case management. Districts with policies of limiting interrogatories had attorneys who

were significantly more satisfied, but the district median time to discovery cutoff did not

significantly affect attorney satisfaction.

In our current analysis ofjudicial discovery management policies, we again find no statistically significant effect on lawyer satisfaction from early management, setting a trial schedule early in the case, and requiring a discovery plan. We considered those three

policies used m various combinations and did not find any sigmficant difference in satisfaction, although as noted previously, some of those policies do significantly affect time

to disposition and lawyer work hours

Our current analysis of early disclosure found that attorneys in districts with a mandatory disclosure policy were less satisfied, but their level of satisfaction is not

significantly different from the level of satisfaction for attorneys who do not do early disclosure in voluntary disclosure districts. However, attorneys who voluntarily choose to
RAND -59- 08/28/97 DRAFT

less contentious cases and hence spend fewer total work hours on the case, but not

necessarily because of the early disclosure.

We find a significant reduction in total lawyer work hours in districts with

interrogatory limitations Looking at subsets of cases, the significant reductions appeared

for hourly fee attorneys, defense attorneys, contract cases, and medium complexity cases.

These findings support the policy of limiting interrogatories as a means of limiting lawyer

work hours because there is no statistical evidence that interrogatory limitations hurt, and

they may help for several subsets of cases.

In our current analysis ofjudicial discovery management policies, we again find that

reported total lawyer work hours significantly increase as the number of district median

days to discovery cutoff gets larger. When we looked at subsets of cases, this significant

increase occurs for most subsets, with some exceptions such as low complexity and low

discovery difficulty cases (which are unlikely to require as much time for discovery as more

complex or more difficult cases.)

In addition to the further analysis that we did on total lawyer work hours, we also

analyzed lawyer work hours on discovery. The policy implications and findings of statistical

significance emerging from our analysis of lawyer work hours on discovery are very similar

to those from our analysis of total lawyer work hours.

Details of our statistical analysis of total lawyer work hours and lawyer work hours

on discovery are presented in Appendix A.

SUMMARY OF EFFECTS ON TIME TO DISPOSITION

In our main evaluation report, we found four policies that showed consistent

statistically significant effects on time to disposition: (1) early judicial management; (2)

setting the trial schedule early; (3) reducing discovery cutoff (median days to discovery

cutoff in a district), and (4) having litigants at or available on the telephone for settlement

conferences Other policies and procedures we studied were either not statistically

significant or not consistently significant

In our current analysis of judicial discovery management policies, we again find a

statistically significant reduction in time to disposition from early management without

setting a trial schedule early, and a significantly larger reduction from early management

that includes setting a trial schedule early. We considered those two early management and

trial scheduling policies used both with and without a discovery plan reqirement, and the

results were statistically significant There was little difference in time to disposition with

or without a discovery plan if a trial was scheduled early, but cases closed earlier if
RAND -58- 08128/97 DRAFT

SUMMARY OF EFFECTS ON LAWYER WORK HOURS

In our main evaluation report, our analyses for total lawyer work hours show that

cases with early management tend to require greater work hours and cases from districts

with shorter median discovery cutoff tend to require fewer hours. There were no other

clearly consistent policy variable effects on lawyer work hours per party represented. Thus,

of all the policy variables we investigated as possible predictors of reduced lawyer work

hours, only judicial management of discovery seemed to produce the desired effect.

We found that several attorney and case characteristics were important predictors of

lawyer work hours. These control variables tended to be far better at explaining variance in

lawyer work hours than did the policy variables. For example, of the total variance

explained by our model, about 95 percent was explained by the control variables. This

means that lawyer work hours seem to be driven primarily by factors other than case

management policy. Case stakes and case complexity are the most important predictors of

lawyer work hours, and these two case characteristics alone explained about half of the

variance in our models. In contrast, of the total variance in our time to disposition models,

only about half was explained by the control variables and the other half was explained by

the policy variables.

In our current analysis ofjudicial discovery management policies, we find that early

management is associated with significantly increased total lawyer work hours if the district

does not require discovery - case management plans. However, early management is not

associated with significantly increased total lawyer work hours if the district requires

discovery - case management plans. This lends strong support for the continuation of a

requirement of discovery - case management planning. That is, it appears that doing early

management without planning increases lawyer work hours, but early management coupled

with planning does not increase lawyer work hours.

In our current analysis, we again find that mandatory early disclosure reqmrements

are not associated with significantly reduced lawyer work hours. We have explored many different subsets of cases, including subsets based on stakes, complexity, and discovery

difficulty We found no strong evidence that a policy of early mandatory disclosure reduced

lawyer work time on any of the subsets of cases examined However, attorneys who

voluntarily choose to do early disclosure, in chstricts where such disclosure is voluntary,

have significantly lower work hours It may be that lower work hours among voluntary

disclosing attorneys reflects a type of "choice or selection bias", i.e., attorneys on cases for

which they voluntarily choose to disclose may be less contentious attorneys or may be on
RAND -57- 08/28/97 DRAFT

Table 8.4

Information by Shorter and Longer Time to Discovery Cutoff. 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days, and with Lawyer Work Hours Reported

Variable Category of district

Districts with shorter Districts with longer median Significant median time to discovery time to discovery cutoff difference for cutoff policy shown in

multivariate

Median days to discovery 1n8-2

cutoff in 10 districts 83-177 178-217

Median days to disposition 455 473 Shorter cutoff is

significantly

% faster lawyers management satisfied with 68 fa nt 78 Not a sgnificant

m a n a g m e n td 

% iffe re n c e lawyers view management as fair 87 90 Not a sigmficant

Median difference total lawyer work hours per litigant 83 75 Shorter cutoff is

significantly lower

(not able to see in

this bivanate

% with table) zero discovery work hours 14 15

Median lawyer work hours on discovery 25 16 Shorter cutoff is per litigant significantly lower

(not able to see in

tis bivanate

Median percent discovery table)

hours are of total 28 25

lawyer work hours

Note 

without 

Days to discovery cutoffin district means days from first schedule to first discovery cutoff, consideration of continuances Percentages in rows may not add to 100 due to round off and

missing data
RAND -56- 08/28/97 DRAFT

[To be inserted here in final report: estimates of differences between managing with

shorter and longer discovery cutoff times.]

Attorney Satisfaction

In our main evaluation report, we found no statistically significant relationship

between the district median days to discovery cutoff and attorney satisfaction.

In our current analysis ofjudicial discovery management policies, we again find no

statistically significant relationship between the district median days to discovery cutoff and

attorney satisfaction.

Attorney Views on Fairness

We find no statistically significant effects for any of the policy variables on attorney

views on fairness.

Information on Discovery Cutoff Time Policy

Table 3.4 presents information on time to disposition, lawyer work hours, satisfaction,

and views on fairness for cases from districts with shorter and longer times from discovery

scheduling to cutoff. "Shorter" means the cases in the ten study districts with the shortest

median discovery time to cutoff. The numbers in the table, which reflect actual survey

responses from the sample cases, generally corroborate the results of the statistical analysis.

However, one is not able to see the reduction in lawyer work hours predicted by a policy of

shorter time to discovery cutoff in the bivariate tables, because the distncts and the cases

from those districts differ on factors other than the median time to discovery cutoff. Our

multivanate analyses adjust for those other factors, and the bivariate Table 3.4 does not.
RAND -55- 08/28/97 DRAFT

SHORTENING DISCOVERY CUTOFF TIME

Discovery clearly was subject to more management in 1992-93 after CJRA was

passed. In addition to the new mandatory early disclosure requirements in some districts,

the median district times to discovery cutoff were shortened in some districts. For example, in 1991 the fastest and slowest districts' median days from schedule to discovery cutoff were

100 and 274 days, respectively, for all general civil cases closed after issue was joined. In

1992-93, these medians had fallen to 83 and 217 days, respectively.

Lawyer Work Hours

In our main evaluation report, we found that reported lawyer work hours

significantly decrease as the district median days from the setting of a discovery schedule to

the discovery cutoff date gets shorter.

In our current analysis of'judicial discovery management policies, we again find that

reported total lawyer work hours significantly decrease as the number of district median

days to discovery cutoff gets smaller. When we looked at subsets of cases, this significant decrease occurs for most subsets, with some exceptions such as low complexity and low

discovery difficulty cases (which are unlikely to require as much time for discovery as more

complex or more difficult cases.)

[To be inserted here in final report: estimates of differences between managing with

shorter and longer discovery cutoff times.]

In addition to the further analysis that we did on total lawyer work hours, we also

analyzed lawyer work hours on discovery. The policy implications and findings of statistical

significance emerging from our analysis of lawyer work hours on discovery are very similar

to those from our analysis of total lawyer work hours

Time to Disposition

In our main evaluation report, we found that the district's median days to discovery

cutoff is a statistically significant predictor of time to disposition; shorter cutoff predicts

shorter time to disposition. 61

In our current analysis of judicial discovery management policies, we again find that

the district's median days to discovery cutoff is a statistically significant predictor of time to

disposition. In our analysis of subsets of cases, we find that reducing time to discovery cutoff significantly reduces time to disposition on most subsets of cases analyzed.

61 The statistical significance holds even if we use adjusted standard errors.
RAND -54-

08/28/97 DRAFT

Table 3.3

Information by Interrogatory Limit Policy: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days, and with Lawyer Work Hours Reported

Variable Type ofinterrogatory limitation policy

District policy to No interrogatory lint Significant limit interrogatories policy difference for

policy shown

in multivariate

Median days to disposition 468 455 Not a

significant

" lawyers satisfied difference with management 74 68 Significantly

" lawyers view higher management as fair 88 Not a

significant Median total lawyer difference work hours per 80 66 Significantly litigant lower (not able

to see in this % with zero discovery bivariate table)

work hours 14 19

Median lawyer work hours on discovery 20 

per litigant 15 Sigraficantly

lower (not able

to see in this

Median percent bivariate table) discovery hours are 26 25

of total lawyer

work hours

Note: Percentages in rows may not add to 100 due to round off and missing data
RAND -53- 08/28/97 DRAFT

correlation as discussed in Appendix A.60 Analyses on subsets of cases also showed no

significant effects for nearly all subsets. Consequently, we again conclude that our data

provide almost no evidence of an effect of district policies of limiting interrogatories on time

to disposition.

Attorney Satisfaction

In our main evaluation report, we found no statistically significant effect for a district

policy limiting interrogatories for all cases with issue joined. On the other hand, in our

analysis of cases closed over 270 days after filing, attorneys from districts with a policy of

limiting interrogatories report being significantly more satisfied with case management.

In our current analysis of judicial discovery management policies, we again find that

districts with a policy of limiting interrogatories have attorneys who report significantly

higher satisfaction. This finding also is true for most subsets of cases analyzed, and there is

no indication of a significant negative effect for any subset of cases.

Attorney Views on Fairness

We find no statistically significant effects for any of the policy variables on attorney

views on fairness

Information by Interrogatory Limitation Policy

Table 3 3 presents information on time to disposition, lawyer work hours, satisfaction,

and views on fairness for cases that were and were not subject to a district policy of limiting

the number of interogatories. The numbers in the table, which reflect actual survey

responses from the sample cases, generally corroborate the results of the statistical analysis

However, one is not able to see the reduction in lawyer work hours predicted by a policy of

limiting interrogatones in the bivariate tables, because the districts and the cases from

those districts differ on factors other than the limitation on interrogatories. Our

multivanate analyses adjust for those other factors, and the bivariate Table 3.3 does not

60 Coefficient = - 0 068, p=0 386 for cases that close over 270 days after filing.
RAND -52- 08/28/97 DRAFT

LIMITING INTERROGATORIES

Before CJRA, most districts left court control of the volume of discovery to the judge in each case; CJRA had little effect on this arrangement. Before CJRA, most pilot and

comparison districts had a local rule that limited the number of interrogatories and requests for admission, but none limited the number of depositions and only one limited the time per deposition. After CJRA, one pilot and one comparison district adopted a new limit on

deposition length, and two comparison districts adopted new limits on the number of

depositions. Given the small number of districts who had a policy limiting depositions, we

have insufficient data to evaluate that policy. Hence this section focuses on limits on

interrogatories.

Lawyer Work Hours

In our main evaluation report, a district policy on limiting interrogatories predicted fewer lawyer work hours; however, this difference was not statistically significant.

In our current and more detailed analysis ofjudicial discovery management policies,

we found a significant reduction in total lawyer work hours in districts with interrogatory limitations. Looking at subsets of cases, the significant reductions appeared for hourly fee

attorneys, defense attorneys, contract cases, and medium complexity cases. These findings

support the policy of limiting interrogatories as a means of limiting lawyer work hours

because there is no statistical evidence that interrogatory limitations hurt, and they may

help for several subsets of cases.

In addition to the further analysis that we did on total lawyer work hours, we also

analyzed lawyer work hours on discovery. The policy implications and findings of statistical

significance emerging from our analysis of lawyer work hours on discovery are very similar

to those from our analysis of total lawyer work hours

Time to Disposition

In our main evaluation report, we found that a district policy on limiting interrogatories was not a statistically significant predictor of shorter time to disposition for

cases closed over 270 days after filing Thus we concluded that our data provided almost no

evidence of an effect of district policies of limiting interrogatories on time to disposition.

In our current analysis ofjudicial discovery management policies, we found a significant reduction in time to disposition using unadjusted standard errors, but there was

not a significant reduction when we use the standard errors adjusted for intra-distnct
RAND -51- 08/28/97 DRAFT

GOOD FAITH EFFORTS IN RESOLVING DISCOVERY DISPUTES

All but one district in the study had rules governing this before CJRA; these have

been continued or strengthened.

Lawyer Work Hours

In our main evaluation report, we explored the effects of good faith efforts in

resolving discovery disputes before filing motions using only cases with at least one motion.

We found no statistically significant effects of good faith efforts on work hours among

attorneys from these cases.,5 7 It could be that by restricting our attention to only cases with

motions we miss the helpful effect of good faith effort on avoiding motions; however, the

positive effects we observe (i.e., good faith effort increases work hours, but not significantly)

do not suggest any reduction in work hours from good faith motions.

We did not do any further investigation of this policy in this report.

Time to Disposition

In our main evaluation report, we found no evidence of significant effects on time to

disposition from good faith efforts to resolve discovery disputes before filing motions.

Looking at cases with at least one discovery motion, we found no statistically significant

difference between cases where the attorney reported good faith efforts and other cases.5 8

We did not do any further investigation of this policy in this report.

Attorney Satisfaction

In our main evaluation report, we explored the effects of good faith efforts in

resolving discovery disputes using only cases with at least one motion We found that caselevel reported good faith effort in resolving discovery disputes had no statistically significant

effects on lawyer satisfaction.

Attorney Views on Fairness

We estimated the effects of good faith efforts in resolving discovery disputes using a subsample of cases that had at least one discovery motion in our main evaluation report. Using this sample there was no statistically significant effect for cases with one or more

discovery motions. 59

57 Coefficient = 0.27, p=O 06 for cases closed over 270 days after filing 58 Coefficient = -0.01, p=0.81 for cases closed over 270 days after filing 9 Coefficient = 0.45, p=0. 23 for cases that had time to disposition over 270 days.
RAND -50-

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Table 3.2

Information by Early Disclosure Policy: 1992-93 Sample, General Civil Cases with Issue Joined, Closed with Time to Disposition Over 270 Days, and with Lawyer Work Hours Reported

VariableType of early disclosure policy

Mandatory Mandatory No mandatory No mandatory Significant

policy, 

disclosure 

and 

disclosure disclosure disclosure difference for policy, and policy, and policy, and policy shown in disclosure 

made 

was disclosure was disclosure was disclosure was multivanate

disposition not made made not made 447 477 455 482 Not a significant

% lawyers diffieae satisfied with management 71 63 81 70 Notasiuificant

difference if

mandatory, but

significantly

more satisfied if

voluntarily

% lawyers view disclose

management as fair 87 88 93 85 Not a significant

Median total lawyer 1if ant

work hours per 100 75 73 80 Not a significant litigant difference if mandatory, but

significantly less

if voluntarly % with zero discovery 10 1 16 16 dclose

work hours

Median lawyer work hours on discovery 28 19 15 23 Not a significant

per litigant mandatory, difference if

but

significantly less

if voluntarily Median percent 29 25 25 27 disclose

discovery hours are

of total lawyer

work hours

% of disclosures that

were full rather 50 57

than pro forma

Note. Percentages in rows may not add to 100 due to round off and missing data
RAND -49- 08/28/97 DRAFT

districts and the cases from those districts differ on factors other than the policy on early

disclosure. Our multivariate analyses adjust for those other factors, and the bivariate Table

3.2 does not
RAND 

-48- 08/28/97 DRAFT

Attorney Satisfaction

In our main evaluation 

disclosure 

report, we found a district policy of mandatory early corresponded to statistically significantly lower attorney satisfaction. However, for cases in which the attorneys report the actual early disclosure of information, they also report significantly higher satisfaction than attorneys from other cases. A district policy of voluntary early disclosure 

attorneys, 

is associated with fewer satisfied but our estimated effects are small and not statistically compared signiflcant.6 Our model attorney responses from districts with a policy of voluntary early disclosure responses to the from attorneys from districts with no general policy on early disclosure.

attorneys 

In our current analysis ofjudicial discovery management policies, we again find that

of satisfaction 

from districts with a mandatory disclosure policy are less satisfied, but their level is not significantly different from the level of satisfaction 

not do for attorneys who do early disclosure 

voluntarily 

in voluntary disclosure districts. However, attorneys who choose to do early disclosure, in districts where such disclosure significantly more 

is voluntary, are

time 

satisfied. Since most districts had a voluntary disclosure policy at the of the study, this explains the overall finding in our main evaluation report that disclosing attorneys were more satisfied. 

voluntary 

It may be that greater satisfaction among disclosing attorneys 

cases for which 

reflects a type of "choice or selection bias", i.e., attorneys on

be on 

they voluntarily choose to disclose may be less contentious attorneys or may less contentious cases and hence more satisfied, but not necessarily because of the

early disclosure.

Our statistical analysis of subsets of cases does not lead to any suggestions focusing for these management policies on certain types of cases Our statistical consistent results are for most subsets of cases analyzed, including the top 25% most costly cases.

Attorney Views on Fairness

We find no statistically significant effects for any of the policy variables on attorney views on fairness.

Information by Early Disclosure Policy Table 3.2 presents information on time to disposition, lawyer work hours, satisfaction,

The 

and views on fairness for cases that were and were not subject to an early disclosure policy. numbers in the table, which reflect actual survey responses generally from the sample cases, corroborate the results of the statistical analysis. However, we caution that the

56 Coefficient = -0 070, p=0.835 for cases that close over 270 days after filing.
RAND -47- 08/28/97 DRAFT

attorneys or may be on less contentious cases and hence spend fewer total work hours on

the case, but not necessarily because of the early disclosure.

In addition to the further analysis that we did on total lawyer work hours, we also

analyzed lawyer work hours on discovery. The policy implications and findings of statistical

significance emerging from our analysis of lawyer work hours on discovery are very similar

to those from our analysis of total lawyer work hours.

Time to Disposition

In our main evaluation report, we found no statistically significant difference in time

to disposition between cases from districts that have a policy of mandatory disclosure and

those that do not. Furthermore, in separate model runs we found that cases from districts

with a policy of mandatory disclosure of information bearing on both sides of the case did

not differ significantly in terms of time to disposition from other cases. 53 Also, we found

that cases where the attorneys reported an early disclosure of relevant information were not

statistically significantly different than other cases in terms of time to disposition.5 4 We

also found that a district policy encouraging voluntary early disclosure had no statistically

significant effect on time to disposition. Cases from districts with a voluntary early

disclosure policy were compared to cases from districts with no general policy on early

disclosure. 55

In our current analysis of'judicial discovery management policies, we again find that

early disclosure requirements are not associated with significantly reduced time to

disposition Since some people suggested that if we had looked at subsets of cases, such as

those that were more or less complex or had more or less difficulty with discovery, we might

have found a subset of cases for which this policy was effective. We have explored many

different subsets of cases, including subsets based on stakes, complexity, and discovery

difficulty We found no strong evidence that a policy of early mandatory disclosure

shortened time to disposition on any of the subsets of cases examined.

53 Coefficient =0.04, p=0.37 for cases closing over 270 days after filing. 5 4

We imputed the missing values of our early disclosure variable and found our result

was not sensitive to the particular imputed values.

55 Coefficient =0.045, p=0.416 for cases closed over 270 days after filing. Some districts had policies on early disclosure for a limited number of cases We considered these districts to have no general policy of early disclosure and included them in our comparison group for studying the effects of voluntary and mandatory early disclosure