News & Updates

With the new year comes reflections on the past, and predictions for the future. This is equally true in the world of e-discovery, and there are many commentators around the country who are taking this opportunity to reflect on the highlights of 2014 and make predictions for 2015. As for our predictions? We know changing the way the civil justice system operates is a function of changing Rules, case flow management procedures, and culture.

Discovery in litigation can be complicated and expensive, and electronic discovery is no exception. The preservation and production of electronically stored information presents ample opportunities for complication and expense. To provide education for judges tackling these issues, IAALS and the National Judicial College will co-host a webcast on February 18, 2015, at no cost for state court judges.

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.

Three Colorado jurists who were identified as outstanding case managers in Working Smarter, Not Harder: How Excellent Judges Manage Cases have shared their expanded views of successful practices in an article for The Colorado Lawyer. The judges cover some of the more practical suggestions they have for fellow judges, as well as attorneys.

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.

The call for cooperation in legal disputes is on its way to being enshrined within the Federal Rules of Civil Procedure in a more meaningful way. Several years ago, the Sedona Conference®’s Cooperation Proclamation called for greater cooperation between litigants in dealing with discovery matters. The idea calls for attorneys not to compromise their duty to be zealous advocates, but to strive for balance with their other duty as an officer of the court.

IAALS is pleased to announce the release of our final evaluation results for the Colorado Civil Access Pilot Project (CAPP), the state's experiment with new court procedures. As a whole, CAPP has succeeded in achieving many of its intended effects and the evaluation provides a rich source of information for rulemakers and decision-makers around the country.

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.

IAALS would like to congratulate Kansas Court of Appeals Judge Steve Leben on being named the 2014 recipient of the William H. Rehnquist Award for Judicial Excellence. The National Center for State Courts Rehnquist award is presented annually to a state court judge who embodies judicial excellence, integrity, fairness, and professional ethics. Judge Leben is a close friend of IAALS, and his impact has been felt across much of our work.

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.”

This week, IAALS Executive Director Rebecca Love Kourlis penned an article for the ABA Journal’s The New Normal, which focuses on how the litigation process is being remade. Kourlis walks down the road that reforms in the civil justice system have taken so far, in an effort to make the civil justice system more accessible, less costly, less time-consuming, and more responsive to the needs of the public.

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.