Long-gestistating discovery amendments to the Federal Rules of Civil Procedure went into effect last week, but the waiting is far from over. What remains to be seen, and what will no doubt take years to assess, is whether the amendments -- focused on proportionality and cooperation -- will have the impact their makers intend, and what other measures may be necessary to promote "just, speedy and inexpensive" resolutions amid a frightening acceleration of data growth.
In this interview with Logikcull, US District Judge David Campbell, who chaired the committee responsible for writing the amendments, addresses how the rule changes will prospectively change legal practice in US courts; misconceptions that have emerged in early analysis of the rules; and what the legal system must do to ensure that the goal of more efficient, less expensive litigation is achieved. Over the course of this conversation, Judge Campbell also discusses the ability of predictive coding to deliver on its initial promise, the education gap among practitioners, and his concerns related to the high cost of e-discovery.
Readers who are familiar with the rule-making process should skip ahead to the second question below. Part two is here.
Logikcull: Take us through the rules-making process of these last few years and, if you can, highlight for us the points of contention and how the committee worked to get over those hurdles.
Hon. David Campbell: The process started in May of 2010, when our committee sponsored a conference that was attended by about 200 judges and lawyers and academics around the country, and from all ends of the spectrum in terms of philosophical and ideological views, for the purpose of examining how civil litigation was working in federal courts. That conference concluded that we don’t need to scrap our system and start over, but that there are improvements that need to be made.
"[WE] CONCLUDE THAT WE DON'T NEED TO SCRAP OUR SYSTEM AND START OVER, BUT THAT THERE ARE IMPROVEMENTS THAT NEED TO BE MADE."
We took ideas generated at the conference and, over the next several years, attempted to put them into rule language. Everything we did as a committee is public -- as you probably know, we have to have a public process. So all of our meetings were open to the public. The minutes of our meetings are available through the uscourts.gov website. Over the course of a series of meetings and work done by subcommittees, we crafted the rule amendments that became effective on December 1.
Along the way, we also held what we called “mini conferences” where we would invite about 25 lawyers — usually lawyers, sometimes judges, but both plaintiff and defendant — to focus on a specific draft rule or issue that we were reaching a conclusion on to make sure we were getting the best information in formulating it.
We then put the whole proposed set of rule amendments out for public comment for a six month period. We received over 2,300 written comments. We held three hearings around the country that were packed. We could have 40 witnesses in every hearing and we had 40 witnesses in every one. We had 120 witness in all. We then took that commentary and revised the rules somewhat and they went through the Standing Committee, the Judicial Conference, the Supreme Court and then Congress had an opportunity to act — to disapprove them — and did not do so.
Logikcull: And what about the areas of contention?
Campbell: I would say the biggest point of disagreement in the rules amendments was a proposal we included in our published version, but not in the final version. And that was a set of amendments that would have established presumptive limits on kinds of discovery. It would have reduced the presumptive number of depositions from 10 to five. It would have reduced the time for depositions from seven hours to six hours. It would have reduced the limit on interrogatories. It would have put a limit on the number of requests for admissions.
Our intent in proposing that was to identify presumptive limits — not hard ceilings. But we heard much concern that those would become hard ceilings in some courts and before some judges, and would handicap parties’ abilities to get the evidence they needed. So we ultimately decided not to adopt those. After the public comment period, we withdrew them.
There was [also a] lot of interest in proportionality. We made some amendments to the Rule 26(b)(1) language after the public comment period, and we addressed a number of concerns in the committee notes so that judges would understand our intent and address concerns people have.
There was a lot of interest in Rule 37(e) and we actually significantly re-crafted that after the public comment process in a way we felt was consistent with the public comment process. So I would say those were the areas that drew the greatest attention.
Logikcull: I want to clarify something you mentioned right up front. You said you met in 2010 to decide whether “the system needed to be scrapped entirely.” Was that something that was actually on the table?
Campbell: No. It wasn’t a conference to ask “do we need to scrap the system?” But about every 20 or 25 years, the Civil Rules Committee sponsors a conference like this to take a hard look at how civil litigation is working in federal courts. So it would certainly be appropriate for someone to come and say “it’s not working and we need a different system.” Nobody said that. Everybody seemed to think that we have a good system that works well, but there was pretty widespread agreement that it takes too long and costs too much and there are other issues, such as ESI which we’ll talk about, that were raising their heads. So my point was that we have a good system, but it can be improved — and that’s what we’ve intended to do in these amendments.
"EVERYBODY SEEMED TO THINK THAT WE HAVE A GOOD SYSTEM THAT WORKS WELL, BUT THERE WAS PRETTY WIDESPREAD AGREEMENT THAT IT TAKES TOO LONG AND COSTS TOO MUCH."
Logikcull: From a practical, day-to-day standpoint, what do you think attorneys most need to know about these new changes?
Campbell: Well, there are a number of them and I won’t, obviously, try to mention all of them. Our hope is that these amendments — along with some other steps that we’re going to take that I think you and I will talk about later — our hope is that they will result in judges becoming more active case managers and judges intervening earlier in the cases to take control of them (See Rules 4 and 16). And we hope that lawyers will invite that from judges so that lawyers who are litigating in federal court will see their cases managed more actively and earlier.
I think the proportionality change to Rule 26(b)(1) will affect most cases, because most cases involve discovery and that’s obviously a change to the discovery rule. I think that the changes to Rule 34 — which, as you know, concerns document requests — will affect the everyday work of lawyers because lots of lawyers are doing Rule 34 responses, and we’ve changed the requirements for those responses…
Logikcull: To get rid of boilerplate objections…
Campbell: Yeah, and to require parties to state whether they’re withholding information when they’re making an objection; and to require parties to state when they’ll produce documents and not just say “they’ll be produced in due course” followed by eight months of no action, which sometimes happens.
And in cases where a loss of ESI has occurred, Rule 37(e) will be important. That is not a rule that applies in most cases, but in those that it does, it will be an important change.
"RULE 34 REQUIRES TO STATE WHEN THEY'LL PRODUCE DOCUMENTS AND NOT JUST SAY 'THEY'LL BE PRODUCED IN DUE COURSE' FOLLOWED BY EIGHT MONTHS OF NO ACTION."
Logikcull: So let’s talk about proportionality. There’s obviously been a lot of discussion about how that language has been moved up in Rule 26. What some have said has hovered under the radar a little bit is the removal of the language that allowed courts to expand the scope of discovery to “subject matter” in the case. The new rule now limits discovery to that which is relevant to parties’ claims and defenses. That appears, at least, to be a pretty substantial limitation in scope — in some cases, at least. Is that your feeling?
Campbell: No it’s not. I will tell you that in almost 13 years on the federal district court bench, I have never once had a party come to me and say, “I would like to expand discovery to include the subject matter of the case, and I can show good cause.” When we were looking at Rule 26, we not only asked all of the judges who were on the committee, but the judges on the standing committee and lawyers and others at these mini-conferences if they had ever seen it used, and we didn’t get a single example.
So I understand that in reading the rule it may look like a significant change, but I think the reality is that it has not been used in discovery and that people rightly focus on evidence relevant to the claims and defenses, which is still in the rule.
Logikcull: Let’s turn to Rule 37(e), which as you mentioned has been the subject of a lot of debate and discussion. It was revised fairly late in the process from what the previous draft said (Note: See slides 12 and 13). And we should preface this by saying that the rule that exists now is a complete rewrite of what existed before. I’m curious to hear from you what the impetus was for the change from the most recent draft of the rule to the current version.
Campbell: The rule up until December 1, as you know, was fairly limited in scope and simply protected parties who had information systems that deleted information in their routine, good-faith operation. At that conference that we held in 2010, there was a panel of judges and lawyers who unanimously and strongly asked the Civil Rules Committee to write a rule dealing with the preservation and loss of electronically stored information. They did so because there was a split in the circuits and there was uncertainty in some circuits as to what standards applied when information was lost. There were lots of entities — hospitals, schools, corporations — saying that they were spending millions of dollars over-preserving out of fear that they would be sanctioned if anything was lost.
So this panel asked us to write a rule and we worked very hard for a couple of years to come up with the kind of comprehensive rule that would identify the date when your duty to preserve was triggered, and how much stuff you need to preserve and for how long, and what can happen when you lose it. And we couldn’t write a rule that comprehensively covered all of those subjects, and yet would apply fairly to the wide variety of cases in federal court.
"THERE WERE LOTS OF ENTITIES SAYING THAT THEY WERE SPENDING MILLIONS OF DOLLARS OVER-PRESERVING OUT OF FEAR THAT THEY WOULD BE SANCTIONED IF ANYTHING WAS LOST."
And so we stepped back and decided to take a more modest approach, and that was to address the question of what happens when information is lost — what can a court do? We produced a draft that went through this multi-meeting process and mini conference process that I mentioned, and was put out for public comment. On the basis of the public comments, we concluded there were problems with that draft. So we went to work revising it and revised it to the version that is now effective.
So you’re right that it occurred late in the process if you look at the five-year history of this. But the point at which it occurred was after we received those 2,300 written comments and information from 120 witnesses, plus other submissions that people made to the committee. And we were persuaded that further changes were needed. The version that has now become effective we felt addressed the concerns that were raised in the public comment process.
Logikcull: The amended Rule 37(e) demands a showing that the allegedly offending party acted with an “intent to deprive.” It appears to limit the court’s authority to impose the most severe sanctions unless that showing is made. Is that your sense of the rule? Am I correct in saying that?
Campbell: That’s not my sense of the rule and let me explain why. As you know, Rule 37(e)(1) under the new version of the rule allows a court upon finding prejudice to another party from a loss of ESI to impose measures no greater than necessary to cure the prejudice. We view that, as a committee, as a broad grant of discretion to trial judges to craft remedies that will cure prejudice. There’s a number of kinds of measures a judge could take — some of which are addressed in the rule note. In fact, the rule note says that the range of measures a judge can take under (e)(1) is quite broad, but it might include things such as allowing discovery of substitute evidence or requiring the party that lost the information to restore backup tapes or permitting additional witnesses or barring a particular kind of evidence that cannot fairly be rebutted because the information was lost. It might include striking a defense — for instance, an affirmative defense that cannot be rebutted. It might include allowing the parties to argue to the jury, without the court giving an adverse inference instruction, [about the impact of] the loss of the information and how a party’s been prejudiced.
None of that requires a finding that a party intended to deprive the opponent of the information. So we view that as a fairly broad remedial power that courts have. You are correct that the most severe sanctions of an adverse inference instruction or entering a default judgment or dismissing a case are available under this rule — subpart (e)(2) — only upon a finding that the party acted with the intent to deprive the opponent of the use of the evidence at trial. But again, that, to us, is limited to these most severe sanctions and the reality I think is, from reviewing cases, those severe sanctions are not imposed very often, even under the old regime where courts would look to inherent authority.
As told to Robert Hilson, a director at Logikcull. He can be reached at email@example.com.