No one with any interest in the US Federal Rules of Civil Procedure could be unaware of the debates which have been going on about the costs of civil litigation and, in particular, of discovery. A conference is being held on May 10 and 11 at Duke Law School, Durham, NC to consider new empirical research by the Federal Judicial Centre and other data and papers prepared by lawyers, judges and academics.
Chief US Magistrate Judge Paul Grimm kindly tipped me off today that the materials for the conference are available on a public website which contains a mass of material relevant to the discussions.
Judge Grimm is amongst those taking part in a discussion called Issues with the current state of discovery: is there really excessive discovery, and if so, what are the possible solutions? I doubt that anyone will argue with the proposition that discovery in US courts has become excessive. Coming up with possible solutions will be a challenge – but if (as I surmise) no-one will support the status quo, there must be room for change.
Magistrate Judge David Waxse is amongst those on a panel called Judicial management of the litigation process: is the solution to excessive cost and delay greater judicial involvement? Active management by judges was a key new feature of the new Civil Procedure Rules for England & Wales in 1999. One of Lord Justice Jackson’s repeated observations in his recent Report on Litigation Costs was that judges have been insufficiently active in managing cases, specifically in relation to disclosure. His recommended “menu option” in his proposed new Rule 31.5A is intended to focus the minds of parties and judges on the full range of options available to them by removing the present default of standard disclosure. His only express recommendation in relation to electronic disclosure itself was for substantial education for both lawyers and judges. It comes as a constant source of surprise to English judges and lawyers that many of their US counterparts are similarly in need of education on electronic discovery and are in a similar state of denial on the subject.
Magistrate Judge John Facciola is amongst those discussing the topic e-Discovery: discussion of the cost benefit analysis of the discovery and the degree to which the new rules are working or not. Amongst those also taking part in this discussion is Judge Shira Scheindlin of Pension Committee fame.
Judge Facciola has described this round of debate as a “once in a generation opportunity” to consider what rules are appropriate for the conduct of litigation.
Those attending the London IQPC Information Retention and E-Disclosure Management Summit on 17-19 May will have an opportunity to hear Judge Grimm, Judge Facciola and Judge Elizabeth LaPorte from the US on a panel with Lord Justice Jackson, Senior Master Whitaker and HHJ Simon Brown QC. The Moderator is Patrick Burke of Guidance Software, and my role will be to explain briefly why it is important that judges and others with an interest in the disclosure / discovery rules should talk to each other and exchange views from different jurisdictional standpoints. I could make my point by simply reading out the titles of the sessions referred to above – those same subjects are as critical in England & Wales as they are in the US.