Did “One Size Fits All” Ever Really Work? Posted By Daniel Kaiser, Esq. on August 24, 2009
The Final Report on the Joint Project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and The Institute for the Advancement of the American Legal System (IAALS)
Change is in the air. On March 20, 2009, an eighteen-month collaboration between the ACTL and the IAALS came to fruition through their joint-release of 29 Principles─marking the launch of a new nationwide 
movement to reform both federal and state rules of civil procedure. The Report includes Proposed Principles touching on eDiscovery (see specifically Principles 12 – 18), and in the coming months these two organizations, together with contributing members of the top echelon of the American and Canadian Trial bar, will be working to assist the implementation of these Principles into pilot projects in the U.S. civil justice system.
Flagging inefficiencies, disproportionate costs and delays, the Final Report emphasizes that the civil justice system is “in serious need of repair,” and that “[t]he traditional ‘one size fits all’ application of uniform rules to all cases . . . no longer works.” Many of us are left to wonder if, in fact, it ever really worked. We can watch for these 29 Principles, together with the Sedona Principles, to be instrumental in the retooling of the rules of civil procedure across the United States.
- A complete list of the 29 Proposed Principles follows:
- The “one size fits all” approach of the current federal and most state rules is useful in many cases but rulemakers should have the flexibility to create different sets of rules for certain types of cases so that they can be resolved more expeditiously and efficiently.
- Notice pleading should be replaced by fact-based pleading. Pleadings should set forth with particularity all of the material facts that are known to the pleading party to establish the pleading party’s claims or affirmative defenses.
- A new summary procedure should be developed by which parties can submit applications for determination of enumerated matters (such as rights that are dependent on the interpretation of a contract) on pleadings and affidavits or other evidentiary materials without triggering an automatic right to discovery or trial or any of the other provisions of the current procedural rules.
- Proportionality should be the most important principle applied to all discovery.
- Shortly after the commencement of litigation, each party should produce all reasonably available nonprivileged, non-work product documents and things that may be used to support that party’s claims, counterclaims or defenses.
- Discovery in general and document discovery in particular should be limited to documents or information that would enable a party to prove or disprove a claim or defense or enable a party to impeach a witness.
- There should be early disclosure of prospective trial witnesses.
- After the initial disclosures are made, only limited additional discovery should be permitted. Once that limited discovery is completed, no more should be allowed absent agreement or a court order, which should be made only upon a showing of good cause and proportionality.
- All facts are not necessarily subject to discovery.
- Courts should consider staying discovery in appropriate cases until after a motion to dismiss is decided.
- Discovery relating to damages should be treated differently.
- Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of its cost among the parties.
- Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens.
- The obligation to preserve electronically-stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation; however, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
- Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes.
- Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness.
- The cost of preserving, collecting and reviewing electronically-stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases.
- In order to contain the expense of electronic discovery and to carry out the Principle of Proportionality, judges should have access to, and attorneys practicing civil litigation should be encouraged to attend, technical workshops where they can obtain a full understanding of the complexity of the electronic storage and retrieval of documents.
- Requests for admissions and contention interrogatories should be limited by the Principle of Proportionality. They should be used sparingly, if at all.
- Experts should be required to furnish a written report setting forth their opinions, and the reasons for them, and their trial testimony should be strictly limited to the contents of their report. Except in extraordinary cases, only one expert witness per party should be permitted for any given issue.
- A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.
- Initial pretrial conferences should be held as soon as possible in all cases and subsequent status conferences should be held when necessary, either on the request of a party or on the court’s own initiative.
- At the first pretrial conference, the court should set a realistic date for completion of discovery and a realistic trial date and should stick to them, absent extraordinary circumstances.
- Parties should be required to confer early and often about discovery and, especially in complex cases, to make periodic reports of those conferences to the court.
- Courts are encouraged to raise the possibility of mediation or other form of alternative dispute resolution early in appropriate cases. Courts should have the power to order it in appropriate cases at the appropriate time, unless all parties agree otherwise. Mediation of issues (as opposed to the entire case) may also be appropriate.
- The parties and the courts should give greater priority to the resolution of motions that will advance the case more quickly to trial or resolution.
- All issues to be tried should be identified early.
- These Principles call for greater involvement by judges. Where judicial resources are in short supply, they should be increased.
- Trial judges should be familiar with trial practice by experience, judicial education or training and more training programs should be made available to judges.
The full text of this final report can be found here.
As a practice tip it is important to keep in mind that these are, at present, Proposed Principles. Yet change is in the air, and this just might be a peek into the not-too-distant future of the American system of civil justice.
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