News & Updates

This week, January 8-9, 2015, the Committee on Rules of Practice and Procedure will meet in Phoenix, Arizona. The December 2, 2014, Report from the Advisory Committee on Civil Rules notes that substantial time has been given to "exploring the possibilities of enhancing rules reform by means of pilot projects that put possible new rules into actual practice," and supplemental resources for the meeting suggest that discussion of pilot projects will only continue.

One of the current proposed amendments to the Federal Rules of Civil Procedure addresses preservation of electronically stored information (ESI). The new proposed Rule 37(e) provides a safe harbor against penalties if a party has taken “reasonable steps” to preserve the ESI. Tom Allman, a retired General Counsel and current Adjunct Professor who frequently writes and speaks on this topic, has written an article discussing the “reasonable steps” language and its implications.

In 2014, we have continued to see a rise in the number of, and interest in, alternative processes designed to provide a more streamlined approach to the pretrial and trial process. While these programs are known by many different names, they all focus on increasing access to our civil justice system. Given the number of programs that have been implemented nationwide, and their diversity, we have updated our chart of these programs, which catalogs their unique elements.

In November, IAALS convened a group of senior in-house counsel and corporate management from around the country to discuss discovery and the challenges of preservation and production. The convening focused on the proposed federal amendments to Rule 37(e) and the realities companies face on a daily basis, providing an opportunity for attendees to talk to their peers about current practices, challenges, and solutions, for both small and large companies.

Last week, IAALS met with the other members and staff of the Conference of Chief Justices Civil Justice Improvements committee for its second plenary meeting in Washington D.C. The meeting was followed by the National Center for State Court’s Judicial Excellence Events, and culminated in an award ceremony where Chief Justice John Roberts presented the William Rehnquist Award to Kansas Judge Steve Leben, a close friend of IAALS, at the Supreme Court.

Discovery in the United States is much more broad than other common law countries. While such differences in approach pose challenges in terms of cross-border discovery, our recent report, Allocating the Costs of Discovery: Lessons Learned at Home and Abroad, highlights the lessons to be learned for those at home by looking to more reasonable and proportionate discovery methods used abroad.

On October 10, 2014, I will be in Albuquerque to attend and present at a seminar that will discuss the question: “Can Summary Jury Trials Revive a Declining Civil Jury System?” As part of our Rule One Initiative, we have gathered a lot of valuable information about short, summary, and expedited programs around the country. I encourage those who are interested in learning more about these programs to start with these materials.

After reviewing the public comments, and making some changes in response, the Iowa Supreme Court has approved a new expedited civil action rule (ECA rule) and a package of new rules and amendments collectively referred to as “the discovery amendments.” The changes will take effect January 1, 2015, as Iowa weeks to “significantly reduce litigation time and cost, while increasing access to justice."

On Tuesday, September 16, the Judicial Conference of the United States forwarded the proposed rule amendments to the Supreme Court with the recommendation that they be adopted. The announcement recognized that these amendments represent “significant” proposals designed to promote the just, speedy, and inexpensive resolution of civil cases. The Supreme Court has until May 1, 2015 to consider the amendments.

The Colorado Supreme Court has extended the Colorado Civil Access Pilot Project (CAPP) for another six months, through June 30, 2015. The pilot project, which was originally schedule to run through December 31, 2013, had already been extended for an additional year to provide the court with more data and a detailed evaluation of the pilot. IAALS' evaluation of CAPP is now complete, and we will be releasing a final report in the coming weeks.

Over the last seven years, we have focused much of our time and effort on ways to improve the effectiveness of discovery, due in large part to the expanding world of electronically stored information. In our new report, we review the laws in the United States and other countries and provide examples of, and analogies to, various cost allocation models. One of the key takeaways is the importance of proportionality.

The latest round of proposed amendments published for comment appear to be just housekeeping measures, and therefore are not nearly as significant as the proposed amendments that were published for comment last August. These newest proposals include a clarifying amendment to Rule 4, removal of service by electronic means from the types of service for which three additional days are added to the time period under Rule 6, and a housekeeping amendment to Rule 82.

In a recent opinion issuing discovery sanctions, a federal district court judge in the Northern District of Iowa denounced modern discovery practice in the United States. Judge Mark W. Bennett began the opinion with a reference to Hamlet, and then went on to discuss the current state of discovery, how it is too often “mired in obstructionism,” and how such inappropriate conduct is “born of a warped view of zealous advocacy.”

In an age where much of the evidence presented in American courtrooms is never printed or available in a paper format, it is essential that judges understand the unique challenges that electronically stored information creates, both for litigants and the court. In June 2014, IAALS and the NJC co-hosting Fundamentals of E-Discovery for State Court Judges, a free webcast that judges can still access for CLE credit.

At its meeting last week, the Judicial Conference’s Committee on Rules of Practice and Procedure approved the proposed amendments to the Federal Rules of Civil Procedure, as recommended by the Advisory Committee on Rules of Civil Procedure. The approved amendments will be reviewed by the Judicial Conference of the United States and, if approved, will move to the U.S. Supreme Court for a review and vote before May 1, 2015.

In advance of this week's Standing Committee meeting on May 29 and 30, the Advisory Committee on Civil Rules has drafted a new Committee Note to accompany its newly revised proposed Rule 37(e). This is another step forward in the long process of adopting revisions to the Federal Rules of Civil Procedure. The Note provides additional insight into the new rule's "reasonable steps to preserve" language.

A recent blog post, penned by former Judge Steven I. Platt, argues for implementing a short, summary, and expedited civil jury trial process in Maryland. There continues to be great interest in these programs, which generally involve a simplified pretrial process and a shortened, expedited trial, and multiple jurisdictions around the country are considering implementing them. As these programs continue to grow in popularity, we recommend several resources.

A national conversation is ongoing about the future of our civil justice system, and research is being conducted on the litigation process by a number of individuals and organizations. To help make sense of the latest research and to bring it down to a manageable size, we have created a new report that synthesizes the relevant empirical research conducted by a variety of organizations and individuals.

On June 11, 2014, IAALS and the NJC will co-host a webcast for state court judges at no cost. This webcast will enable judges to: adjudicate disputes involving ESI, including the identification, preservation, search, review, production, and admission of ESI; apply ESI terminology such as metadata and native format correctly; and use resources developed by IAALS to assist state court judges in effectively handling e-discovery.

In 2010, the U.S. District Court for the Western District of Pennsylvania established an E-Discovery Special Masters Pilot Program with the goal of developing an approved list of special masters to assist with monitoring electronic discovery compliance, narrowing and facilitating resolution of e-discovery disputes, and providing reports and recommendations to the judge, as necessary. A recent article from Law Technology News highlights the successes of the program.