While Burdensome, Voluminous Discovery is En Vogue, We May Have Forgotten How the Rules Protect Us From Engaging in It
Older lawyers often speak of a time where discovery meant that both sides would trade the relevant documents, often without requests even being made, and then conduct several depositions of key witnesses. Then, in short order, summary judgment was argued, and cases that survived were tried soon thereafter (so soon thereafter, that courts enacted local rules requiring summary judgment motions be filed a certain number of days before trial to give the judge time to consider them).
Then, the advent of mega-law firms, the billable hour, malpractice claims, electronic documents, and unlimited document storage (both electronically and in warehouses full of boxes), in addition to several other external factors, led to a paradigm shift in litigation. Document discovery was no longer a mere gateway to the decisional process; it became the single most time-consuming, expensive, and contentious aspect of any litigation. At first, attorneys reacted strongly against the trend toward broader requests for production, but, over time, after several court decisions that allowed for the broader discovery, they grew accustomed to it. Then, it slowly became an expectation of litigation, an inevitable result of filing a lawsuit.
The new economy, however, dictates new rules. Lawyers are now being asked to get things done for less. Much like home sellers are having trouble adjusting to the new home pricing, lawyers are having trouble adjusting to the new litigation world. Numerous “solutions” have been introduced into the market. Law firms have begun employing more contract attorneys to participate in the document discovery process – they represented a cheaper labor source and if used correctly, also represented a higher profit margin. A cottage industry of document discovery services and software has arisen, promising automated review and new efficiencies. Some firms are even outsourcing document review to workers in other countries.
These “solutions” all had one thing in common, they each assumed that the now generally accepted document discovery practice was a given, and that any solution must operate in that world. This article will explore whether that is a false premise. Has the document discovery pendulum swung too far, and is it time for a correction the other way? Do the rules allow (or even require) more circumscribed, manageable discovery? Should we stop looking for and paying for “solutions” that mask the problem, and look for actual solutions to the problem? In short, the answer is yes. As it turns out, the Federal Rules of Civil Procedure and Federal Rules of Evidence provide all the solutions we need. Now, it’s just up to us to use them.
Rule 26 of the Federal Rules of Civil Procedure is the starting point for discovery in federal courts.
Rule 26(a) covers required initial disclosures, disclosure of expert testimony, and pretrial disclosures. Rule 26(b) describes, generally, the scope and limits of discovery. Rule 26(c) governs protective orders. Rule 26(f) provides for a conference of the parties and a discovery plan.
Rule 26(a) – Required Discovery
Rule 26(a) lays out the required initial disclosures in all federal lawsuits (certain cases are exempt from Rule 26(a), but for the sake of brevity and because the exempted cases represent a minority of litigation this article will not explore them). Rule 26(a)(1)(A) requires the following disclosures:
1) name, address, and telephone number of “each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses[;]”
2) a copy or description by category and location, of all documents and electronically stored information that “the disclosing party has in its possession, custody, or control and may use to support its claims or defenses[;];”
3) a computation of each category of damages claimed by the disclosing party, along with the documents that support the computation, including anything bearing on the nature or extent of injuries suffered;
4) any insurance agreement that may provide for payment of any award of damages.
Rule 26(a)(1)(B) requires that the above-named initial disclosures be made at or within 14 days after the parties’ Rule 26(f) conference, unless a different time is set by the court or agreed to by the parties. Interestingly, Rule 26(a)(1)(E) anticipates (or, more accurately reacts to) certain excuses a lawyer may use to avoid making these initial disclosures. It states that a party is not excused from making the disclosures “because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.”
Rule 26(a)(2) provides for the discovery surrounding expert witnesses. Rule 26(a)(2)(A)-(B) requires parties to disclose the identity and a report for any witness it intends to call as an expert. Rule 26(a)(2)(D) requires that this disclosure occur in accordance with a scheduling order or, at least, 90 days before the trial date for initial experts and 30 days before trial for rebuttal experts.
Rule 26(a)(3) governs pretrial disclosures and requires parties to disclose: 1) the identity of any witness it may call (whose names should appear in the Rule 26(a)(1) disclosure); 2) deposition designations of deposition testimony that will be introduced; and 3) the identification of each document or other exhibit expected to be offered at trial (each of which should appear in the Rule 26(a)(2) disclosure).
Rule 26(e)(1)(A) requires a party to supplement the Rule 26(a) disclosures (and interrogatories, requests for production, and requests for admission) in a timely manner “if the party learns that in some material respect the disclosure or response is incomplete or incorrect[.]”
Before moving on to the scope of discovery, it is worth noting how much discovery Rule 26(a)(1) requires within 14 days of the Rule 26(f) conference – which, here in the Middle District of Tennessee, typically happens within 90 days of the filing of the complaint. In my experience, parties tend not to take initial disclosures very seriously, and rely more upon doing their own discovery. Rule 26(a) is a powerful tool that can shorten the written/document discovery process. Attorneys should hold opposing parties’ feet to the fire with these initial disclosures. While parties are obligated to supplement them, attorneys should make it a point to check in with the other party to see if supplementation is appropriate/required. Parties should also not hesitate to make objections at summary judgment or trial to the use of documents not turned over pursuant to Rule 26(a) (unless, of course, it was turned over in response to another discovery request). Affirmative use of Rule 26(a) can save significant expense by both shortening the discovery process, focusing a litigant’s future requests, and saving the time it takes to request all of the information required.
Rule 26(b) – The Scope and Limits of Discovery
By the time a litigant starts to think about the scope and limits of discovery, he/she should have already received every relevant document to the other party’s claims and/or defenses and the identity of every relevant witness from the opposing party (subject to supplementation). Rule 26(b)(1) defines the scope and limits of additional discovery. It states that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense.” The rule further states that “[r]elevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” This broad standard for the scope of discovery is, however, limited by Rule 26(b)(2)(C).
Rule 26(b)(2)(C) states that a court, on its own or upon motion of a party, must limit the frequency or extent of discovery if it determines that:
1) “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;”
2) “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or”
3) “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”
Rule 26(b)(2)(A) allows courts to limit the number of depositions and interrogatories, as well as the length of depositions. Most courts have adopted local rules using this authority.
Rule 26(b)(2)(B) states that a party need not provide electronically stored information from sources “that the party identifies as not reasonably accessible because of undue burden or cost[.]”
Rule 26(b), much like Rule 26(a), if used correctly, can save significant costs. While Rule 26(b)(1) defines the scope of discovery as the well-known and broad, “any relevant information reasonably calculated to lead to discoverable information” standard, Rule 26(b)(2)(C) recognizes that the broad standard should be limited in certain cases. Rule 26(b)(2)(C) affirmatively allows a court to limit discovery based on a cost/benefit analysis. It requires courts in cases with less in controversy or with a party that has limited resources to limit discovery. This, of course, is not carte blanche to withhold important discovery, but it is an excellent resource to limit broad requests or ask a court to whittle a broad request to a narrower one. Rule 26(b)(2)(C) is an invaluable resource that attorneys should use to keep costs down.
Rule 26(c) – Protective Orders
While often used for reasons not related to burden and expense, Rule 26(c) does allow for parties to obtain a protective order limiting or forbidding discovery “to protect a party or person for annoyance, embarrassment, oppression, or undue burden or expense[.]” Again, Rule 26(c) is most often used for other reasons, but parties could use it in conjunction with Rule 26(b)(2)(C) to limit discovery from certain persons or upon certain topics.
Rule 26(f) – Conference of the Parties
Rule 26(f) requires a conference of the parties. Pursuant to Rule 26(f)(2), the parties must consider the nature of the claims and defenses, as well as the possibility of settlement; make or arrange to make Rule 26(a) disclosures; discuss preservation issues; and develop a discovery plan.
Pursuant to Rule 26(f)(3), the resulting discovery plan must contain:
1) any changes to the timing required by Rule 26(a), including a statement of when the initial disclosures will be made;
2) the subjects upon which discovery is needed and when that discovery should be completed;
3) any issues related to electronically stored information;
4) any privilege issues;
5) any limitations that should be placed on discovery; and
6) any protective orders or future conferences with the court.
Rule 26(f) provides another important discovery tool. Parties can get any possible discovery issues before the court at the outset and on one occasion instead of filing numerous discovery motions throughout the process.
The changing attitudes toward discovery over the past 30 years have led to attorneys today accepting the idea that discovery must be almost unlimited, expensive, and time consuming. The Federal Rules of Civil Procedure, however, provide otherwise. The issue today is not about changing rules, but rather about changing minds and attitudes. We need to rethink the assumptions we have become accustomed to making.
There are certainly cases that will require either producing or reviewing hundreds of thousands of documents, or both. I have spent many consecutive long weeks in warehouses, with boxes everywhere, or in front of a computer reviewing electronic documents. Some cases require that, and in those cases, the rules allow for it.
But, we as lawyers need to understand that there are many cases in which it is not required, and in which we need to actively seek to keep the discovery costs down through the use of Rule 26. Instead of conceding that litigation will be cost-prohibitive, with proper use of Rule 26 (and the cooperation of the courts), we can provide clients access to the courts and a full and fair hearing.
By Will Helou