IAALS has focused much of its time and effort over the last decade on ways to improve the effectiveness of discovery—with the ultimate goal of ensuring an accessible system for all. IAALS is contributing to the national conversation, monitoring and supporting related efforts around the country, and leading reform.
There has been a focused effort to address the problems with civil litigation, dating back to the 2010 Conference on Civil Litigation at Duke Law School and culminating in significant amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015. On the state side, state pilot projects and rule reform efforts have paved the way for innovation in discovery practices. The Conference of Chief Justices has been a leader in creating a blue-ribbon committee to develop recommendations for reform, building off the pilot experiences and evaluations, and ultimately culminating in a call to action for reform that was adopted by resolution of the Chiefs in 2016.
These efforts have focused in large part on the cost and delay related to discovery, and how the discovery process could be made more efficient and proportional. The discovery of electronically stored information (ESI) intensifies the advantages and disadvantages of our traditional discovery process, while also intensifying the need for a more efficient and proportional process. Discovery continues to play a central role in federal pilot projects and state civil justice reform efforts.
IAALS formerly housed this work under its Rule One Initiative until 2018.
On December 1, 2015, significant amendments to the Federal Rules of Civil Procedure went into effect focused on cooperation, proportionality, and early active judicial case management. A new Rule 37(e) addressing sanctions related to the failure to preserve electronically stored information was also included. The amendments represent the culmination of many years of effort by the Standing Committee on Rules of Practice and Procedure, the Advisory Committee on Federal Rules of Civil Procedure, and many others around the country who have worked in support of these amendments designed to promote the just, speedy, and inexpensive resolution of civil cases.
We recognize that it took much hard work to get this far, but to achieve the full impact of these reforms it ultimately comes down to implementation and education—of the bench and the bar.
States have been leaders and innovators in discovery reform efforts across the country. Many of the pilot project efforts launched from IAALS work with the ACTL Task Force on Discovery and Civil Justice and proposed pilot project rules, including Colorado, Massachusetts, Iowa, Minnesota, and New Hampshire. Utah implemented statewide rule changes that implemented initial disclosures and tiered discovery. The experiences from these projects, and their evaluations, have inspired reform at a nationwide level on both the federal and state front.
- Colorado Civil Access Pilot Project
- Colorado Adopts 2015 Federal Rule Amendments
- Minnesota: Civil Justice Reform Task Force Leads to Rule Changes
- Iowa Supreme Court Task Force for Civil Justice Reform
- Utah Rules of Civil Procedure
- New Hampshire Proportional Discovery/Automatic Disclosure Pilot Rules Project
- Massachusetts Business Litigation Session Pilot Project
- Massachusetts Amendments to Civil Discovery
Discovery in litigation can be complicated and expensive, and electronic discovery is no exception. The discovery of electronically stored information (ESI) often intensifies both the advantages and disadvantages of our traditional discovery process. Today, electronically stored information impacts litigation from small cases to large, and the challenges and opportunities posed by electronic discovery cannot be ignored.
- Model Order: E-Discovery by Judge Grimm
- Model Order: E-Discovery in Patent Cases by Federal Circuit Advisory Council
- Webcast: Fundamentals of E-Discovery for State Court Judges
- Webcast: E-Discovery Sanctions & Spoliation: What a Judge Needs to Know
- District of Delaware: Default Standard for Discovery, Including Discovery of ESI
- District of Oregon: Local Rule Amendments Adopt Model Patent Order, Employment Protocols
- Florida: Rules of Civil Procedure Addressing Electronic Discovery
- Northern District of California: Guidelines for the Discovery of Electronically Stored Information
- Pennsylvania: Amended Discovery Rules
- Seventh Circuit Electronic Discovery Pilot Program
- Texas: Model Order Regarding E-Discovery in Patent Cases
- Western District of Pennsylvania: E-Discovery Special Masters Pilot Program