Dec 19, 2011
A group of LCJ members and allies supporting procedural rule reform gathered on Capitol Hill last Tuesday for a hearing conducted by the House Judiciary Subcommittee on the Constitution to examine the need for meaningful amendments to the Federal Rules of Civil Procedure.
A group of LCJ members and allies supporting procedural rule reform gathered on Capitol Hill last Tuesday for a hearing conducted by the House Judiciary Subcommittee on the Constitution to examine the need for meaningful amendments to the Federal Rules of Civil Procedure. The hearing was a significant milestone for LCJ and its allies as well as a historical “first” in that Congress examined “The Costs and Burdens of Civil Discovery.” The Subcommittee considered testimony that American businesses are spending billions of dollars on unnecessary litigation costs when they might otherwise use that money to help stimulate the U.S. economy and better compete in the global economy.
Subcommittee Chair Trent Franks opened the hearing by pointing out that the legal system places unreasonable costs and burdens on litigants and that the Federal Rules have failed to deliver on the promises of Rule 1 – the “just, speedy, and inexpensive determination of every action. The present system is “inefficient and costs more money than is needed to do justice,” Mr. Franks said.
Mr. Franks also saluted the efforts of the Judicial Conference Rules Committee in considering amendments to the Rules, adding that “today’s hearing is part of the same effort – to create a better civil discovery system” and expressing his hope that the hearing helps return the Rules to the purposes of Rule 1. Democrats on the Committee also agreed that a second hearing might be in order when the Rules Committee issues its recommendations.
In her testimony to the Subcommittee, Former Colorado Supreme Court Justice Rebecca Love Kourlis stated that the legal system is in serious need of repair, noting that it has become “expensive,” ‘inaccessible,” and “mistrusted.”
“The FRCP neither create predictability and consistency nor serve justice, efficiency and cost-effectiveness,” said Ms. Kourlis, now Executive Director of the University of Denver Institute for the Advancement of the American Legal System. “Accordingly, they must be changed: both with respect to e-discovery and preservation, and also more broadly—to serve all litigants and potential litigants.” Litigation costs are so great, according to Ms. Kourlis, that they are now impacting access to the courts.
LCJ member Thomas H. Hill, Associate General Counsel, Environmental Litigation & Legal Policy for General Electric Company, who also testified, said reform should be implemented now.
“Many issues need to be addressed, including the inter-relationship and scope of pleadings and discovery, developing standards for preserving documents to ensure a fair, just and balanced legal system… and addressing costs with a view toward how these issues impact our civil justice system,” he said.
Mr. Hill’s testimony focused on the fact that unnecessary information preservation is a detriment to the U.S. economy because, “in this difficult economic period, the significant resources currently wasted on over-preservation would be better allocated to creating jobs and growing our economy.” Litigants are now faced with the challenge of preserving enormous amounts of digital information - sometimes tens or hundreds of millions of digital documents – and, according to Mr. Hill, there are currently no clear rules or even consistent guidance as to when or how this information should be preserved.
“Rules that made sense when discovery involved boxes of documents that measured in the thousands of pages are not helpful in determining our obligations regarding the preservation and production of terabytes worth of documents,” Mr. Hill said. “A single terabyte is the equivalent of about 500 million pages,” or nearly 25,000 bankers’ boxes full of documents.
Mr. Franks also commented on the difficulty of preserving digital information, noting that in 2010 the “data explosion” generated more information than could be stored in 7.4 million Libraries of Congress.
With the Advisory Committee on Civil Rules scheduled to meet in March, 2012 to discuss different options for procedural rule reforms, supporters of an improved legal system welcomed Congress’ efforts to, as Mr. Franks said, “identify rules and regulations that impose undue costs and burden that cost American jobs.”
“We’re very pleased that Congress was able to hear from experts who know very well the kinds of problems plaguing our legal system and are also familiar with the pragmatic, rule-based solutions that we and others so strongly support,” said LCJ President Gino Marchetti. “Discovery and preservation rule reform is critical to the maintenance of a fair and efficient legal system as well as to the health of the U.S. economy.”
LCJ has been at the forefront of efforts to enact meaningful procedural rule reform and has consistently advocated practical rule-based solutions that would alleviate the costs and burdens of the current litigation paradigm of imprecise pleadings; overbroad and inefficient discovery; unclear and inconsistent preservation requirements; and the unbalanced allocation of costs, which undermines the “just, speedy and inexpensive” determination of actions.
Studies and papers by distinguished academics support the need for such reforms. For example, a recent preliminary study submitted at the hearing by Professor William H. J. Hubbard of the University of Chicago Law School concluded that “…companies could save billions of dollars with new Rules clarifying the events triggering the duty to preserve, the scope of preservation, and the standards for sanctions.”
Mr. Franks said he was hopeful, “even optimistic” that the Rules Committee will recommend enacting rule reforms to address concerns discussed at the hearing. Such reforms would enable corporations in the U.S. to devote further financial resources to job creation and more productive, economic uses.
Witness testimonies are available in full on the Subcommittee on the Constitution’s Hearing Website
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