Discovering a better way: The need for effective civil litigation reform

Duke Law Journal

Volumn 60, Issue 3, 2010, Pages 547-596

  Beisner, John H ^a  

^a NONE

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EID: 78650431591     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (254)

1. Judge Paul V. Niemeyer, Chair, Advisory Comm. on the Fed. Rules of Civil Procedure, Comments at the Roscoe Pound Institute 1999 Forum for State Court Judges (July 14, 1999), in ROSCOE POUND INST., CONTROVERSIES SURROUNDING DISCOVERY AND ITS EFFECT ON THE COURTS: REPORT OF THE 1999 FORUM FOR STATE COURT JUDGES 33, 33 (1999), available at http://www.poundinstitute.org/images/1999ForumReport.pdf.
2. Drafters of the initial Federal Rules of Civil Procedure believed that the discovery process would not only encourage parties to settle but also help litigants reach a just outcome by making all relevant evidence available to both sides. See Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique of Proposals for Change, 30 VAND. L. REV. 1295, 1301-03 (1978) (noting that the framers of the Federal Rules of Civil Procedure intended the rules to increase disclosure of information, thereby reducing the adversarial nature of trial preparation).
3. William W Schwarzer, The Federal Rules, The Adversary Process, and Discovery Reform, 50 U. PITT. L. REV. 701, 703 (1989) (asserting that the framers of the Federal Rules of Civil Procedure aimed to encourage settlements and the just resolution of disputes by creating a "procedural framework... free of surprise and technical encumbrance").
4. Griffin D. Bell, Chilton Davis Varner & Hugh Q. Gottschalk, Automatic Disclosure in Discovery-The Rush to Reform, 27 GA. L. REV. 1, 2 (1992) ("Scholars, litigators, judges, and, more recently, even politicians have joined in unusual consensus to urge that reform of the discovery process is needed.").
5. Id. at 11 ("[Discovery] has become the focal point of litigation instead of a means to an end.").
6. See H.R. REP. NO. 104-369, at 37 (1995) (Conf. Rep.) (stating that "discovery cost accounts for roughly 80 percent of total litigation costs in securities fraud cases").
7. Thomas E. Willging, Donna Stienstra, John Shapard & Dean Miletich, An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C.L. REV. 525, 547-48 & tbl.4 (1997) ("Among attorneys reporting discovery expenses, the proportion of litigation expenses attributable to discovery is typically fairly close to 50 [percent].... Half estimated that discovery accounted for 25 [percent] to 70 [percent] of litigation expenses.").
8. Judicial Conference Adopts Rules Changes, Confronts Projected Budget Shortfalls, THIRD BRANCH, Oct. 1999, at 2-3 ("Discovery represents 50 percent of the litigation costs in the average case and up to 90 percent of the litigation costs in cases in which it is actively used.").
9. Louis Harris & Assocs., Judges' Opinions on Procedural Issues: A Survey of State and Federal Trial Judges Who Spend at Least Half Their Time on General Civil Cases, 69 B.U.L. REV. 731, 733 (1989) (polling two hundred federal and eight hundred state judges, and finding that many judges believed that discovery abuse "is the most important cause of delays in litigation and of excessive costs").
10. The growing call for discovery reform was addressed at the 1976 Pound Conference, convened at the request of Chief Justice Burger to assess growing problems in litigation. The Conference's final report observed that "[w]ild fishing expeditions... seem to be the norm," and lamented the "[u]nnecessary intrusions into the privacy of the individual, high costs to the litigants, and correspondingly unfair use of the discovery process as a lever toward settlement" that had come to characterize the American legal system. William H. Erickson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century, 76 F.R.D. 277, 288 (1978). Two years later, in 1978, the Advisory Committee for the Federal Rules of Civil Procedure discussed refining the scope of discovery in civil litigation. See FED. R. CIV. P. 26 advisory committee's note to 1980 amendment (noting that abuses of discovery led, in part, to the 1980 Amendments to Rule 26, which required parties to participate in discovery conferences).
11. See FED. R. CIV. P. 26 (listing amendment dates).
12. George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?.
13. RICH. J.L. & TECH. 10, ¶ 1 (2007), http://jolt.richmond.edu/v13i3/article10.pdf (recognizing that the increasing volume and scope of information have stressed the litigation system and are making searching through discovery prohibitively expensive).
14. In re Intel Corp. Microprocessor Antitrust Litig., 258 F.R.D. 280, 283 (D. Del. 2008).
15. Kenneth J. Withers, The Real Cost of Virtual Discovery, FED. DISCOVERY NEWS, Feb. 2001, at 3, 3.
16. see also Henry S. Noyes, Good Cause Is Bad Medicine for the New E-Discovery Rules, 21 HARV. J.L. & TECH. 49, 67-68 (2007) ("[E]-discovery is more time-consuming, more burdensome, and more costly than conventional discovery.").
17. Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 DUKE L.J. 561, 592 (2001) ("[E]lectronic discovery can be predicted, as a general matter, to give rise to burdens and expense that are of a completely different magnitude from those encountered in traditional discovery.").
18. AM. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., FINAL REPORT ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM 9 (2009), available at http://www.du.edu/legalinstitute/pubs/ACTLIAALSFinal Report Revised 4-15-09.pdf.
19. During the nearly three-decade period before electronic discovery became commonplace in 1998, a total of 3,128 cases involved "discovery disputes." By contrast, 7,207 such cases have arisen since 1999, based on a search of Westlaw's ALLFEDS database performed on April 14, 2010. The search updates a search first performed by Professor John S. Beckerman.
20. See John S. Beckerman, Confronting Civil Discovery's Fatal Flaws, 84 MINN. L. REV. 505, 508 (2000). Professor Beckerman notes that his figures could potentially be overstated because he made no effort to exclude criminal cases or cases in which the phrase "discovery dispute" is mentioned only in passing (for example, "this case was free of any discovery disputes"). Id. at 508 n.12. I have not attempted to correct for this potential flaw. Professor Beckerman justifies his approach by opining that "judges would rarely include the words 'discovery dispute' in a reported opinion unless pretrial litigation actually contained a discovery dispute that the judge thought noteworthy." Id.
21. The English rule, in contrast, requires the losing party to bear the legal costs of the prevailing party. BLACK'S LAW DICTIONARY 609 (8th ed. 2004).
22. In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2008).
23. (noting that "the United States has become a litigious society in which the courts are being asked to resolve an almost incomprehensible spectrum of problems").
24. OR. R. CIV. P. 18A.
25. OR. R. CIV. P. 45F.
26. INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., CIVIL CASE PROCESSING IN THE OREGON COURTS: AN ANALYSIS OF MULTNOMAH COUNTY 15-16 (2010) (proposing that the stricter limits on discovery in Oregon explain why, out of 495 cases, "only 54 motions concerning any aspect of discovery were observed").
27. See Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Discovery Rules, 39 B.C.L. REV. 691, 694 (1998) ("Historically, discovery had been extremely limited in both England and the United States."). Professor Subrin explains that the notion of discovery was incongruous with early common law, which viewed litigation "not as a rational quest for truth, but rather a method by which society could determine which side God took to be truthful or just." Id. at 694-95.
28. The Field Code was drafted by David Dudley Field for New York and subsequently adopted by other states. Distrustful of authority-particularly the unelected judiciary-and intent on protecting the privacy of individuals against unnecessary intrusion, the Field Code provided for extremely limited discovery. Id. at 696.
29. By 1928, twenty-eight of the forty-eight states had adopted the Field Code. See CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 19-20 (1928). Federal courts generally followed the Field Code as well. Under the Conformity Act of 1872, federal courts were obligated to hew "as near as may be" to the civil procedure rules of the state in which they were located. Act of June 1, 1872 (Conformity Act), ch. 255, §§ 5-6, 17 Stat. 196, 197 (repealed 1948).
30. (stating that the Conformity Act of 1872 was the initial target of criticism for proponents of a uniform set of procedural rules for civil cases in law).
31. Geoffrey C. Hazard, Jr., Discovery Vices and Trans-Substantive Virtues in the Federal Rules of Civil Procedure, 137 U. PA. L. REV. 2237, 2241 (1989) ("Under the [Field] codes, a plaintiff could not even get into discovery unless she could independently substantiate such suspicions, for substantiation had to be manifested in a complaint that stated 'facts.'").
32. (asserting that under the Field Code, pleadings were used to, among other purposes, "eliminate... factual issues and to focus on the controversy").
33. Stephen N. Subrin, David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision, 6 LAW & HIST. REV. 311, 332 (1988) ("The Field Code eliminated equitable bills of discovery, and interrogatories as part of the equitable bill.").
34. Seymour Moskowitz, Rediscovering Discovery: State Procedural Rules and the Level Playing Field, 54 RUTGERS L. REV. 595, 601 (2002) (stating that under the Field codes, plaintiffs had "little opportunity to examine documents that might be relevant and useful, use depositions, interrogatories, or other tools of information gathering to facilitate the proof of an existing or new theory of the case").
35. (asserting that the depositions permitted by the Code were "in lieu of calling the adverse party at the trial, and subject to the same rules of examination as at trial" and that a "pretrial deposition... was to be before a judge, who would rule on evidence objections" (internal quotation marks omitted)). The few federal statutes permitting depositions, however, were designed only to preserve the testimony of witnesses who could not appear at trial, rather than to uncover new information. At the time, a federal statute, 28 U.S.C. § 639 (1934), permitted depositions de bene esse, but only when the witness resided more than one hundred miles from the court, was at sea or about to leave the United States, or was old or infirm. Subrin, A second federal statute, 28 U.S.C. § 644 (1934), permitted depositions dedimus potestatem, which could be taken only upon a showing that it was (i) necessary to avoid the failure or delay of justice, (ii) the witness was beyond the reach of the court's process, (iii) the deposition could not be taken de bene esse, and (iv) the deposition was requested in good faith and not for discovery purposes. (citing 6 MOORE'S FEDERAL PRACTICE § 26 app. 100 (3d ed. 1997)).
36. Carpenter v. Winn, 221 U.S. 533 (1911).
37. Id. at 540. The Massachusetts Supreme Court articulated a similar disdain for discovery: "This is what Lord Hardwicke termed a 'fishing bill,' to enable the plaintiff to learn whether he may sue his judgment against Kingsbury, and levy on the land, with prospect of success.... As a bill of discovery only, we think it cannot be maintained." Fiske v. Slack, 38 Mass. (21 Pick.) 361, 364, 366 (1838) (citations omitted).
38. (discussing the evolution of the federal discovery rules to permit more frequent use of interrogation through the taking of depositions).
39. Depositions were the sole discovery permitted in cases at law-aside from a bill of particulars. Depositions were also available in equity, but only upon a showing of "good and exceptional cause" for departing from the general rule that pretrial discovery was not permitted. Id. at 699 (citing FED. R. EQ. 47 (repealed 1938), in GEORGE FREDERICK RUSH, EQUITY PLEADING AND PRACTICE 221 (1913)).
40. William W Schwarzer, Slaying the Monsters of Cost and Delay: Would Disclosure Be More Effective than Discovery?, 74 JUDICATURE 178, 178 (1991) ("Discovery was intended to provide each side with all relevant information about the case to help bring about settlement or, if not, avoid trial by ambush.").
41. (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
42. ("[The drafters'] purpose was to bring about the just, speedy and inexpensive determination of every action.").
43. see also Kathleen L. Blaner, Alfred W. Cortese, Jr. & Donald H. Green, Federal Discovery: Crown Jewel or Curse?, LITIGATION, Summer 1998, at 8, 8 ("Discovery was considered a crown jewel because it sought to open the courts to all elements of society. The drafters saw an imbalance of power between the wealthy and the poor. By mandating a full exchange of information, the drafters thought that they could help less powerful litigants prove their legal claims and thus redress the imbalance.").
44. See Edson R. Sunderland, Discovery Before Trial Under the New Federal Rules, 15 TENN. L. REV. 737, 737-38 (1939) (explaining that another problem with the prediscovery era was that even when the pleadings accurately revealed the parties' exact positions, they did not reveal the nature or source of the proof that would be offered in support).
45. Maurice Rosenberg & Warren R. King, Curbing Discovery Abuse in Civil Litigation: Enough Is Enough, 1981 BYU L. REV. 579, 581.
46. See John M. Wunderlich, Note, Tellabs v. Makor Issues & Rights, Ltd.: The Weighing Game, 39 LOY. U. CHI. L.J. 613, 657 (2008) ("[E]ven before the Federal Rules of Civil Procedure... were enacted, many feared that excessive discovery would allow plaintiffs to blackmail corporate defendants.").
47. (quoting GEORGE RAGLAND, JR., DISCOVERY BEFORE TRIAL 100-01 (1932)).
48. The new discovery tools included depositions upon oral examination, depositions upon written examination, interrogatories to parties, requests for production of documents and things and entry upon land for inspection and other purposes, physical and mental examinations of persons, and requests for admission. FED. R. CIV. P. 30-36.
49. The Federal Rules essentially made available all discovery tools then in existence, which no state had done at that time. See id. ("[A]t the time Sunderland drafted what became the federal discovery rules, no one state allowed the total panoply of devices."). Yet the Federal Rules also included significant limits. For example, documents could be examined only upon a court order, and a showing of good cause was necessary for the production of documents under the original Rule 34. Moskowitz.
50. Jonathan M. Redgrave & Ted. S. Hiser, The Information Age, Part I: Fishing in the Ocean, A Critical Examination of Discovery in the Electronic Age, 2 SEDONA CONF. J. 195, 199 (2001). Parties were therefore barred from seeking hearsay evidence during depositions. E.g., Maryland ex rel. Montvila v. Pan-Am. Bus Lines, Inc., 1 F.R.D. 213, 214-15 (D. Md. 1940).
51. Poppino v. Jones Store Co., 1 F.R.D. 215, 217 (W.D. Mo. 1940).
52. Rose Silk Mills, Inc. v. Ins. Co. of N. Am., 29 F. Supp. 504, 505-06 (S.D.N.Y. 1939).
53. See, e.g., Poppino, 1 F.R.D. at 218 ("[M]ay [a plaintiff] obtain from his adversary not only that evidence which will aid him to make out his case, but also that evidence which his adversary might use to make out his defense? We shall be surprised if it shall ever be ruled that the Supreme Court had any such revolutionary purpose. Nothing of that kind could be accomplished by the old bill of discovery. The function of the bill of discovery was limited to discovering what would aid the party seeking discovery in making out his case or his defense.").
54. See Kulich v. Murray, 28 F. Supp. 675, 676 (S.D.N.Y. 1939) (denying a motion to vacate a deposition made on the grounds that the plaintiff had already "availed himself of every pretrial proceeding under the new Federal Rules of Civil Procedure").
55. Hickman v. Taylor, 329 U.S. 495 (1947).
56. See, e.g., Reed v. Swift & Co., 11 F.R.D. 273, 274 (W.D. Mo. 1951) ("It is much more desirable to allow discovery of facts which may prove to be irrelevant and immaterial than to deny discovery which may bring to light facts which are more material to the issues than any facts theretofore known.").
57. Glick v. McKesson & Robbins, Inc., 10 F.R.D. 477, 479 (W.D. Mo. 1950) ("It is no valid objection to interrogatories propounded under Rule 33... to merely state that they are irrelevant to the issues.... [T]he relevancy of interrogatories is to be determined by their relevancy to the proceedings and subject-matter and not relevancy to the issues in an action.").
58. See Richard L. Marcus, Discovery Containment Redux, 39 B.C.L. REV. 747, 749 (1998) ("Party-controlled discovery reached its high-water mark in the 1970 amendments in terms of rule provisions.").
59. ("Discovery reached its greatest expanse in 1970, when the rulemakers consolidated many aspects of the discovery rules and revamped Rule 26 to serve as a general guide to discovery.").
60. (noting that the "courts were not yet an instrument for social change" when the Federal Rules were drafted). As one expert noted, "[T]he drafters [of the Federal Rules] would be amazed at how immense many cases now become and how prominent a role discovery plays in that process.".
61. See Ishra Solieman, Note, Born Osama: Muslim-American Employment Discrimination, 51 ARIZ. L. REV. 1069, 1079-80 (2009) ("Since the passage of the Civil Rights Act in 1964, employment-discrimination cases have been on the rise. During the 1990s, federal court filings increased three-fold, accounting for nearly 10% of the cases filed in federal district courts." (footnote omitted)).
62. see also Robert L. Carter, The Federal Rules of Civil Procedure as a Vindicator of Civil Rights, 137 U. PA. L. REV. 2179, 2180-81 n.12 (1989) (noting that Judge Richard Posner has theorized that expanding civil rights litigation was part, but not all, of the reason federal caseloads ballooned after 1960).
63. (identifying equal rights legislation as one cause of expanding caseloads).
64. See Stuart Taylor Jr., A Quiet Crisis in the Courts, LEGAL TIMES, Jan. 20, 1992, at 23, 23 ("The courts have been deluged by criminal trials and appeals, in large part because harsh penalties have increased defendants' incentives to go to trial rather than plead guilty. The new sentencing process is so complex and hypertechnical that it takes judges roughly 25 percent more time than before."). In an interview, Federal District Judge Jack B. Weinstein opined that the increasing criminal caseload made it "very difficult for any judge to find the time to try civil cases.".
65. Kenneth P. Nolan, Weinstein on the Courts, LITIGATION, Spring 1992, at 24, 24.
66. See Patrick Higginbotham, Foreword, 49 ALA. L. REV. 1, 4 (1997) ("Congress has elected to use the private suit, private attorneys-general as an enforcing mechanism for the antitrust laws, the securities laws, environmental laws, civil rights and more.").
67. See generally Order Prescribing Amendments to the Rules of Civil Procedure for the U.S. District Courts, 398 U.S. 977 (1970) (detailing the Supreme Court's 1970 Amendments to the Federal Rules of Civil Procedure).
68. FED. R. CIV. P. 26 advisory committee's note to 1970 amendment.
69. The growing dissatisfaction with the discovery process in the 1960s and 1970s is evidenced by the significant increase in the literature on the subject of discovery and the number of conferences, reports, symposia, meetings, or studies devoted solely or primarily to the issue of discovery problems. E.g., Wayne D. Brazil, Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 AM. B. FOUND. RES. J. 787.
70. Wayne D. Brazil, Improving Judicial Controls over the Pretrial Development of Civil Actions: Model Rules for Case Management and Sanctions, 1981 AM. B. FOUND. RES. J. 873.
71. Wayne D. Brazil, Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 AM. B. FOUND. RES. J. 217 [hereinafter Brazil, Views from the Front Lines].
72. David L. Shapiro, Some Problems of Discovery in an Adversary System, 63 MINN. L. REV. 1055 (1979).
73. David S. Walker, Professionalism and Procedure: Notes on an Empirical Study, 38 DRAKE L. REV. 759 (1988-89).
74. Note, Federal Discovery Rules: Effects of the 1970 Amendments, 8 COLUM. J.L. & SOC. PROBS. 623 (1972).
75. James S. Kakalik, Deborah R. Hensler, Daniel McCaffrey, Marian Oshiro, Nicholas M. Pace & Mary E. Vaina, RAND Inst. for Civil Justice, Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B.C.L. REV. 613, 624 (1998).
76. See PATRICIA A. EBENER, RAND INST. FOR CIVIL JUSTICE, COURT EFFORTS TO REDUCE PRETRIAL DELAY: A NATIONAL INVENTORY 30 (1981) ("[C]ontrolling the pace of discovery is an increasingly common objective of court management, and courts have placed limits both on the scope of discovery and the time allowed for it."). This survey found that twenty-nine states and twenty-three of the nation's largest metropolitan trial courts had implemented reforms to expedite pretrial discovery, including using mail and telephone to expedite pretrial motions, requiring attorneys to attempt to settle their discovery disputes before requesting judicial intervention, delegating resolution of discovery motions to parajudicial employees, limiting the number of interrogatories, limiting the time allowed for discovery, holding conferences to schedule discovery, and authorizing sanctions for frivolous discovery motions. Id.
77. See generally ABA Section of Litig., Second Report of the Special Committee for the Study of Discovery Abuse, 92 F.R.D. 137 (1980) (examining the problem of discovery abuse).
78. Edward D. Cavanaugh, The August 1, 1983 Amendments to the Federal Rules of Civil Procedure: A Critical Evaluation and a Proposal for More Effective Discovery Through Local Rules, 30 VILL. L. REV. 767, 779-81 (1985). The 1983 Amendments prohibited redundant discovery, required that discovery be proportional to the magnitude of the case, and mandated court sanctions for violation of the rules. Id. at 788-90. They also explicitly provided for judicial discussion of discovery plans at pretrial conferences and for the issuance of an order scheduling discovery and other pretrial events. Id. at 782, 785.
79. Civil Justice Reform Act of 1990 (CJRA), Pub L. No. 101-650, 104 Stat. 5089 (codified as amended at 28 U.S.C. §§ 471-482 (2006)). According to the legislative history underlying the CJRA, the purpose behind the Act was "to promote for all citizens-rich or poor, individual or corporation, plaintiff or defendant-the just, speedy, and inexpensive resolution of civil disputes in our Nation's federal courts." S. REP. NO. 101-416, at 1 (1990), reprinted in 1990 U.S.C.C.A.N. 6802, 6804. Under the Act, each U.S. district court was required to implement a Civil Justice Expense and Delay Reduction Plan under the direction of an advisory group. Id. at 13, reprinted in 1990 U.S.C.C.A.N. at 6817. The plans served four purposes: (1) to "aid in the resolution of civil cases on the merits"; (2) to "monitor discovery"; (3) to "enhance litigation management"; and (4) to "assure the just, speedy, and inexpensive resolutions of civil matters.".
80. Lisa J. Trembly, Mandatory Disclosure: A Historical Review of the Adoption of Rule 26 and an Examination of the Events That Have Transpired Since Its Adoption, 21 SETON HALL LEGIS. J. 425, 434 (1997).
81. The CJRA spawned a number of reforms, including mediation and arbitration in civil cases. See Stephanie B. Goldberg, Rand-ly Criticized: Congressional Court Fix Had Little Effect on Cost and Delay, A.B.A.J., Apr. 1997, at 14, 14-16 (describing a study evaluating reforms spawned by the CJRA). Other reforms adopted by district court judges included automatic disclosure and limits on the number of interrogatories and depositions.
82. Carl Tobias, Silver Linings in Federal Civil Justice Reform, 59 BROOK. L. REV. 857, 867 (1993). Although some have questioned whether the CJRA-inspired reforms reduced the cost or time associated with civil discovery, the combination of methods, such as setting trial dates early and having judges manage cases upon filing, was effective in reducing the amount of time needed to dispose of cases.
83. Order Prescribing Amendments to the Federal Rules of Civil Procedure, 507 U.S. 1089, 1125 (1993).
84. See Charles W. Sorenson, Jr., Disclosure Under Federal Rule of Civil Procedure 26(a)-"Much Ado About Nothing?," 46 HASTINGS L.J. 679, 701 (1995) ("Interestingly, the claims of discovery abuse and the types of abuse claimed seem to have remained relatively constant over time, even though there have been several amendments to the discovery rules designed specifically to cure certain types of abuse.").
85. See Douglas L. Rogers, A Search for Balance in the Discovery of ESI Since December 1, 2006, 14 RICH. J.L. & TECH. 8, ¶ 1 (2008), http://jolt.richmond.edu/v14i3/article8.pdf ("An explosion in the amount and discovery of electronically stored information (ESI) threatens to clog the federal court system and make judicial determination of the substantive merits of disputes an endangered species.").
86. See Mia Mazza, Emmalena K. Quesada & Ashley L. Sternberg, In Pursuit of FRCP 1: Creative Approaches to Cutting and Shifting the Costs of Discovery of Electronically Stored Information, 13 RICH. J.L. & TECH. 11, ¶ 2 (2007), http.://jolt.richmond.edu/v13i3/article11.pdf ("Advances in computer software and hardware...have greatly increased the ability to generate, replicate, circulate, and accumulate electronic information.").
87. 88. INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., ELECTRONIC DISCOVERY: A VIEW FROM THE FRONT LINES 5 (2008) (citing PETER LYMAN & HAL R. VARIAN, HOW MUCH INFORMATION? 2003, at 1 (2003), http://www2.sims.berkeley.edu/research/projects/how-muchinfo-2003/printable_report.pdf), available at http://www.du.edu/legalinstitute/pubs/EDiscovery-FrontLines.pdf.
88. (noting that "[p]robably close to 100 billion emails are sent daily").
89. Press Release, LiveOffice, LiveOffice Survey Reveals Organizations Are Unprepared for E-Discovery Requests (June 25, 2007), http://www.marketwire.com/mw/rel_us_print.jsp?id=745509.
90. Gene J. Koprowski, Instant Messaging Grew by Nearly 20 Percent in 2005, TECHNEWSWORLD (Nov. 10, 2005), http://www.technewsworld.com/story/47270.html.
91. Letter from Charles A. Beach, Coordinator, Corp. Litig., ExxonMobil Corp., to Peter G. McCabe, Secretary, Comm. on Rules of Practice and Procedure 2 (Feb. 11, 2005), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/e-discovery/04-CV-002.pdf.
92. Among other things, electronic data must be subjected to a process known as deduplication, in which identical copies of documents are removed prior to review. This process can greatly reduce review costs.
93. See INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., THE EMERGING CHALLENGE OF ELECTRONIC DISCOVERY: STRATEGIES FOR AMERICAN BUSINESSES 3 (2008), available at http://www.du.edu/legalinstitute/pubs/EDiscovery-Strategies.pdf (noting that "much of the information on the backup tapes is difficult to recover, meaning it must be specially processed or translated before it can be used").
94. CRAIG BALL, WHAT JUDGES SHOULD KNOW ABOUT DISCOVERY FROM BACKUP TAPES 2 (2007), available at http://www.craigball.com/What_Judges_Should_Know_About_Discovery_from_Backup_Tapes-corrected.pdf.
95. Sarah A.L. Phillips, Comment, Discoverability of Electronic Data Under the Proposed Amendments to the Federal Rules of Civil Procedure: How Effective Are Proposed Protections for "Not Reasonably Accessible" Data?, 83 N.C.L. REV. 984, 991 (2005).
96. See Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 425 (S.D.N.Y. 2002) ("If the emails on all of the back-up tapes were produced instead of a sample of eight sessions, the total cost would mushroom to almost $9,750,000.").
97. INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., Businesses often find that older data cannot be easily retrieved because they were created with software that is no longer in production or are stored on media that is no longer supported by the manufacturer. Restoring this type of data is a laborious and expensive process. Id.
98. FED. R. CIV. P. 26(f) advisory committee's note to 2006 amendment.
99. See Stephanie Raposo, Quick! Tell Us What KUTGW Means, WALL ST. J., Aug. 5, 2009, at D1 ("In many offices, a working knowledge of text-speak is becoming de rigueur.").
100. ("Thus, it is not surprising that lawyers and those to whom they delegate search tasks may not be particularly good at ferreting out responsive information through the use of simple keyword search terms."). These abbreviations also complicate the process of locating relevant documents in the first instance, as keyword searches may not incorporate these key terms.
101. Ann G. Fort, Mandatory E-Discovery: Compliance Can Create David and Goliath Issues, Reminiscent of the Early Days of Sarbanes-Oxley, DAILY REP., Mar. 19, 2007, at 13.
102. INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.
103. LAWYERS FOR CIVIL JUSTICE, CIVIL JUSTICE REFORM GRP. & U.S. CHAMBER INST. FOR LEGAL REFORM, LITIGATION COST SURVEY OF MAJOR COMPANIES 3 (2010), available at http://civilconference.uscourts.gov (follow "Empirical Research, Pt. 2" hyperlink; then follow "Litigation Cost Survey of Major Companies" hyperlink).
104. (estimating that "new stored information grew about 30% a year between 1999 and 2002").
105. George Socha & Tom Gelbmann, Mining for Gold, LAW TECH. NEWS (Aug. 1, 2008), http://www.law.com/jsp/lawtechnologynews/PubArticleLTNC.jsp?id=1202435497600&Mining_for_Gold&hbxlogin=1#.
106. JAMES N. DERTOUZOS, NICHOLAS M. PACE & ROBERT H. ANDERSON, RAND INST. FOR CIVIL JUSTICE, THE LEGAL AND ECONOMIC IMPLICATIONS OF ELECTRONIC DISCOVERY: OPTIONS FOR FUTURE RESEARCH 3 (2008), available at http://www.rand.org/pubs/occasional_papers/2008/RAND_OP183.pdf.
107. When Supreme Court Justice Breyer was informed at a conference several years ago that discovery in a routine case might cost $4 million, he remarked, "We can't do that.... If it really costs millions of dollars, then you're going to drive out of the litigation system people who ought to be there." Daniel Fisher, The Data Explosion: Lawyers Charge a Lot for Discovery and Aren't Even Very Good at It. That Spells Opportunity for H5, FORBES, Oct. 1, 2007, at 72, 73.
108. Ken Withers, When E-Mail Explodes, SAN DIEGO LAW., Nov.-Dec. 2008, at 36, 37.
109. John H. Jessen, Special Issues Involving Electronic Discovery, 9 KAN. J.L. & PUB. POL'Y 425, 428 (2000).
110. See id. ¶ 1 (noting that "it is becoming prohibitively expensive for lawyers even to search through information").
111. As the Sedona Conference Working Group on Electronic Document Retention and Production notes, Neither the users who created the data nor information technology personnel are necessarily aware of the existence and locations of the copies. For instance, a word processing file may reside concurrently on an individual's hard drive, in a networkshared folder, as an attachment to an email, on a backup tape, in an internet cache, and on portable media such as a CD or floppy disk. Furthermore, the location of particular electronic files typically is determined not by their substantive content, but by the software with which they were created, making organized retention and review of those documents difficult. SEDONA CONFERENCE WORKING GRP. ON ELEC. DOCUMENT RETENTION & PROD., THE SEDONA PRINCIPLES: SECOND EDITION: BEST PRACTICES RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION 2 n.5 (2007), available at http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP_2nd_ed_607.pdf.
112. see also Ross Chaffin, Comment, The Growth of Cost-Shifting in Response to the Rising Cost and Importance of Computerized Data in Litigation, 59 OKLA. L. REV. 115, 123 (2006) (noting that, thanks to email, it is entirely possible that documents and correspondence may reside in "unexpected" places).
113. See INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., ("Even information you know you have-such as emails-may be more challenging to produce because discovery requests frequently seek even slightly different copies of the same document, and the ability to forward email easily often makes it difficult to determine how many copies exist.").
114. See, e.g., Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 469-72 (S.D.N.Y. 2010) (discussing cases involving sanctions for nonproduction of evidence). See generally Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 DUKE L.J. 789 (2010) (discussing sanctions for e-discovery violations).
115. Qualcomm, Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7), vacated in part, No. 05CV1958-RMB (BLM), 2008 WL 638108 (S.D. Cal. Mar. 5, 2008).
116. See, e.g., Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216-17 (S.D.N.Y. 2003) ("The authority to sanction parties for spoliation arises jointly under the Federal Rules of Civil Procedure and the court's own inherent powers.... The duty to preserve attached at the time that litigation was reasonably anticipated.").
117. Thomas Y. Allman, Managing Preservation Obligations After the 2006 Federal EDiscovery Amendments, 13 RICH. J.L. & TECH. 9, ¶ 7 (2007), http://jolt.richmond.edu/v13i3/article9.pdf.
118. See id. ("[R]outine business processes are often designed to free up storage space for other uses without any intent to impede the preservation of potential evidence for use in discovery.").
119. "Metadata, commonly described as 'data about data,' is defined as 'information describing the history, tracking, or management of an electronic document.'" Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (quoting FED. R. CIV. P. 26(f) advisory committee's note to 2006 amendment). Metadata can reveal "how, when and by whom [a document] was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information)." SEDONA CONFERENCE WORKING GRP. ON BEST PRACTICES FOR ELEC. DOCUMENT RETENTION & PROD., THE SEDONA GUIDELINES: BEST PRACTICE GUIDELINES & COMMENTARY FOR MANAGING INFORMATION & RECORDS IN THE ELECTRONIC AGE app. F at 94 (2005), available at http://www.thesedonaconference.org/content/miscFiles/TSG9_05.pdf.
120. When a user deletes a file, the document remains on the computer's hard drive until the space it occupies is needed for another document. See SHARON D. NELSON, BRUCE A. OLSON & JOHN W. SIMEK, THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK 293 (2006).
121. Kenneth Starr's team discovered "the infamous 'talking points' document" on Monica Lewinsky's computer even though she had deleted it. Shira A. Scheindlin & Jeffrey Rebkin, Electronic Discovery in Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C.L. REV. 327, 329 (2000).
122. Notably, a document's metadata can be destroyed merely by opening or accessing the document. See SEDONA CONFERENCE WORKING GRP. ON BEST PRACTICES FOR ELEC. DOCUMENT RETENTION & PROD.
123. Letter from Charles A. Beach to Peter G. McCabe.
124. Thomas Y. Allman, The Need for Federal Standards Regarding Electronic Discovery, 68 DEF. COUNS. J. 206, 206 (2001).
125. INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.
126. Arthur L. Smith, Responding to the "E-Discovery Alarm," BUS. L. TODAY, Sept.-Oct. 2007, at 27, 28.
127. INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., (citing James Powell, IT Dangerously Unprepared for E-Discovery, Survey Shows, ENTERPRISE SYS. (Mar. 30, 2009), http://esj.com/articles/2007/03/20/it-dangerously-unprepared-for-ediscoverysurvey-shows.aspx).
128. Although the 2006 Amendments to the Federal Rules of Civil Procedure created a safe harbor that precludes sanctions for electronic documents lost or destroyed through ordinary or good-faith computer use, courts have rarely invoked this provision and have construed it narrowly when they do. See id. at 12 ("In practice, however, the 'safe harbor' is vague and difficult to work with, and consequently has rarely driven the courts' spoliation and sanctions analysis. Some courts have warned that the 'safe harbor' addresses only rule-based sanctions; courts still retain inherent powers to impose sanctions for the loss of [electronically stored information]." (footnote omitted)).
129. Id. at 21. The risk that electronic discovery will be used as a weapon is particularly acute in cases such as employment disputes, in which the plaintiff possesses virtually no discoverable information. Id. at 23.
130. See Linda S. Mullenix, Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking, 46 STAN. L. REV. 1393, 1398-99 (1994) (characterizing American "litigiousness" and "discovery abuse" as a myth that is largely attributable to misinformation disseminated by the media).
131. Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 DUKE L.J. 765, 787 (2010) (agreeing with the "'myth' characterization").
132. ("In light of the attention discovery abuse has received for the last thirty years or so and the efforts that have been made to control abuse, the intractability and persistence of the abuse claims suggest either that the partisan incentives to engage in discovery abuse are very strong or that perhaps many abusive discovery practices identified by commentators and judges are not really considered abusive by a large number of lawyers.").
133. Peggy E. Bruggman, Reducing the Costs of Civil Litigation: Discovery Reform, PUB. L. RESEARCH INST. (1995), http://w3.uchastings.edu/plri/fal95tex/discov.html (describing the findings of a 1978 Federal Judicial Center study, as affirmed by a 1990-93 study by the National Center of State Courts, that showed "that discovery abuse is not as prevalent as is otherwise assumed").
134. Amelia F. Burroughs, Comment, Mythed It Again: The Myth of Discovery Abuse and Federal Rule of Civil Procedure 26(b)(1), 33 MCGEORGE L. REV. 75, 91-92 (2001) (disputing that the empirical data on discovery rates in civil cases and resources expended on discovery adequately support a clear finding of discovery abuse).
135. Studies conducted by the Federal Judicial Center are an example. E.g., PAUL R. CONNOLLY, EDITH A. HOLLEMAN & MICHAEL J. KUHLMAN, FED. JUDICIAL CTR., JUDICIAL CONTROLS AND THE CIVIL LITIGATIVE PROCESS: DISCOVERY (1978), available at http://www.fjc.gov/public/pdf.nsf/lookup/jcclpdis.pdf/$file/jcclpdis.pdf (reporting the results of a 1978 Federal Judicial Center study).
136. Judith A. McKenna & Elizabeth C. Wiggins, Empirical Research on Civil Discovery, 39 B.C.L. REV. 785, 800 (1998) (reviewing various economic and behavioral studies on discovery and commenting that "[i]n the vast majority of cases, discovery appears to be the self-executing system the rules contemplate").
137. (arguing that "the 1978 [Federal Judicial Center] study is important because it found that discovery abuse was not a serious problem and consequently ended contemporaneous efforts to amend the discovery rules").
138. (relying on the FJC study and concluding that "discovery and overall litigation costs were largely proportionate to stakes, and that the stakes in a case were the single best predictor of overall costs").
139. ("[D]iscovery abuse, to the extent it exists, does not permeate the vast majority of federal filings." (quoting CONNOLLY ET AL.
140. Indeed, a 2009 study by the Federal Judicial Center confirms that litigation costs "were higher in cases with electronic discovery... and in cases with more reported types of discovery." EMERY G. LEE III & THOMAS E. WILLGING, FED. JUDICIAL CTR., NATIONAL, CASE-BASED CIVIL RULES SURVEY: PRELIMINARY REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES 2, 35-37 (2009), available at http://www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf (reporting the results of a 2009 Federal Judicial Center study).
141. Indeed, the Federal Judicial Center has acknowledged as much and has launched a new study of the impact of electronic documents on the discovery process. See Letter from Judge Mark R. Kravitz, Chair, Judicial Conference Advisory Comm. for Civil Rules, to the Members of the ABA Litig. Section (July 21, 2009), available at http://www.abanet.org/litigation/survey/0709-FederalJudicialCenter.html (requesting Section members to respond to a questionnaire on civil litigation, particularly discovery, in the federal courts).
142. AM. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.
143. AM. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., INTERIM REPORT ON THE JOINT PROJECT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND THE INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM app. A at A-4 (2008) (emphasis added), available at http://www.actl.com/AM/TemplateRedirect.cfm?template=/cm/ContentDisplay.cfm&ContentID=3650.
144. AM. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.
145. AM. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.
146. (internal quotation marks omitted).
147. LAWYERS FOR CIVIL JUSTICE ET AL.
148. See FULBRIGHT & JAWORSKI LLP, THIRD ANNUAL LITIGATION TRENDS SURVEY FINDINGS 18 (2006), available at http://www.fulbright.com/mediaroom/files/2006/Fulbrights ThirdAnnualLitigationTrendsSurveyFindings.pdf (reporting that 81 percent of 422 international companies surveyed felt that they were not "well-prepared" for electronic discovery issues).
149. Robert H. Thornburg, Electronic Discovery in Florida, FLA. B.J., Oct. 2006, at 34, 34.
150. Leigh Jones, Faced with Data Explosion, Firms Tap Temp Attorneys, NAT'L L.J. (Oct. 14, 2005), http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1128947761813.
151. See COUNCIL OF ECON. ADVISERS, WHO PAYS FOR TORT LIABILITY CLAIMS? AN ECONOMIC ANALYSIS OF THE U.S. TORT LIABILITY SYSTEM 13 (2002), available at http://www.heartland.org/custom/semod_policybot/pdf/13266.pdf (reasoning that litigation costs will "ultimately be borne by individuals through job loss or a reduction in wages (workers), [or] an increase in consumer prices (consumers)").
152. LAWYERS FOR CIVIL JUSTICE ET AL.
153. See Richard K. Herrman, Vincent J. Poppiti & David K. Sheppard, Managing Discovery in a Digital Age: A Guide to Electronic Discovery in the District of Delaware, 8 DEL. L. REV. 75, 75 (2005) ("Discovery traditionally proves to be the most expensive aspect of litigation.").
154. (using the term "litigation tax" because "[t]o the extent that tort claims are economically excessive, they act like a tax on individuals and firms").
155. See John Engler & Lawrence J. McQuillan, Op-Ed., Limiting Lawsuit Abuses Lowers Costs from Litigation, Creates Jobs in Long Run, DETROIT NEWS, May 14, 2008, at 15A ("Fear of lawsuits... causes companies to withhold beneficial products from markets....").
156. FIN. ACCOUNTING STANDARDS BD., STATEMENT OF FINANCIAL ACCOUNTING STANDARD NO. 5: ACCOUNTING FOR CONTINGENCIES ¶ 8 (1975). Under this standard, a company must create a litigation loss reserve if a loss is "probable" and the amount of the expected loss is material and reasonably estimable. Id.
157. See Ruthie Ackerman, Hutchinson Hit by Litigation Charge, FORBES (Jan. 30, 2008, 6:30 PM ET), http://www.forbes.com/2008/01/30/hutchinson-technology-diskdrive-marketsequity-cx-ra-0130markets27.html (reporting that Hutchinson posted a $2.5 million charge to settle class-action litigation).
158. Steven E.F. Brown, Lawsuit Settlement Pushes McKesson to $20M Loss, S.F. BUS. TIMES (Jan. 26, 2009), http.://sanfrancisco.bizjournals.com/sanfrancisco/stories/2009/01/26/daily12.html (reporting that McKesson Corp. took a $493 million charge to settle pending litigation and create a reserve against future claims).
159. Sherri Begin Welch, Kelly Services Blames Litigation Charge for 3Q Loss, CRAIN'S DETROIT BUS. (Nov. 14, 2008, 2:46 PM), http://www.crainsdetroit.com/article/20081114/FREE/811149958 (noting that absent the $22.5 million litigation charge, Kelly Services's CEO said the company would have had a small quarterly profit).
160. Xerox Posts Loss on Litigation Charge, L.A. TIMES, Apr. 18, 2008, at 4 (reporting that Xerox took a $491 million charge to cover the costs of a lawsuit).
161. See Ted Frank, A Stimulus You Can Believe In, THE AMERICAN (May 29, 2009), http://www.american.com/archive/2009/may-2009/a-stimulus-you-can-believe-in ("The direct costs to the United States of tort litigation are $252 billion a year, 1.8 percent of GNP, twice that of a typical industrialized nation.").
162. TILLINGHAST, TOWERS PERRIN, 2006 UPDATE ON U.S. TORT COST TRENDS 5 (2006), available at http://www.towersperrin.com/tp/getwebcachedoc?webc=TILL/USA/2006/200611/Tort_2006_FINAL.pdf.
163. U.S. DEP'T OF COMMERCE, THE U.S. LITIGATION ENVIRONMENT AND FOREIGN DIRECT INVESTMENT: SUPPORTING U.S. COMPETITIVENESS BY REDUCING LEGAL COSTS AND UNCERTAINTY 1 (2008), available at http://www.locationusa.com/USDepartmentOfCommerce/pdf/litigationFDI.pdf.
164. Id. at 4. Lord Leonard Hoffman, explaining why even the United Kingdom has lower tort costs than the United States, identifies several reasons-namely, "no punitive damages, limits on pain and suffering, no contingency fees, loser pays, no juries in most civil cases, and a trial bar with almost no political influence." Id.
165. (noting survey data indicating that the litigation environment "is likely to impact important business decisions... such as where to locate or do business" and describing studies showing international investor concerns with the U.S. legal environment).
166. Philip Howard, Beyond Tort Reform, N.Y. SUN, Feb. 5, 2007, at 9 ("Foreign companies are being scared away in part... by soaring costs of American law.").
167. MICHAEL R. BLOOMBERG & CHARLES E. SCHUMER, SUSTAINING NEW YORK'S AND THE US' GLOBAL FINANCIAL SERVICES LEADERSHIP 75-77 (2006), available at http://www.nyc.gov/html/om/pdf/ny_report_final.pdf.
168. FED. R. CIV. P. 26(b)(1) (1993) (amended 2000) (emphasis added).
169. See Order Prescribing Amendments to the Federal Rules of Civil Procedure, 529 U.S. 1155, 1165 (1999) (amending Rule 26(b)(1) to create a two-tiered discovery system).
170. FED. R. CIV. P. 26(b)(1) (2000) (amended 2006) (emphasis added).
171. Id. advisory committee's note to 2000 amendment.
172. Peter J. Beshar & Kathryn E. Nealon, Changing the Federal Rules of Civil Procedure, N.Y.L.J., Dec. 1, 2000, at 1.
173. FED. R. CIV. P. 26(a)(1) (2000) (amended 2006) & advisory committee's note to 2000 amendment.
174. See id. advisory committee's note to 2000 amendment (explaining that initial disclosure obligation issues unrelated to expert witness testimony have "been narrowed to identification of witnesses and documents that the disclosing party may use to support its claims or defenses").
175. In one sense, this should come as no surprise, given that the drafters of these amendments "determined expressly not to review the question of discovery abuse." Memorandum from Judge Paul V. Niemeyer, Chair, Advisory Comm. on Civil Rules, to Judge Anthony J. Scirica, Chair, Comm. on Rules of Practice and Procedure (May 11, 1999), 192 F.R.D. 354, 357 (2000).
176. see also AM. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., (noting that two-thirds of respondents believe that the amendments to the Federal Rules between 1976 and 2006 have not remedied the problem of discovery abuse).
177. See Ronald J. Hedges, A View from the Bench and the Trenches: A Critical Appraisal of Some Proposed Amendments to the Federal Rules of Civil Procedure, 227 F.R.D. 123, 126 (2005) ("What has been my experience with the concept of bifurcated discovery under the 2000 amendment? (1) Attorneys do not as a general rule attempt to limit discovery to that which is relevant to a claim or defense; and (2) attorneys do not as a general rule address the existence of good cause, either to argue for broader discovery as Rule 26(b)(1) contemplates or to counter such arguments."); ("[D]espite the 2000 amendments, the Rule has been ignored."); ("Instead, many lower courts have acknowledged the 2000 amendments but have interpreted them as having changed nothing.").
178. Thomas D. Rowe, Jr., A Square Peg in a Round Hole? The 2000 Limitation on the Scope of Federal Civil Discovery, 69 TENN. L. REV. 13, 24-25 (2001) ("First, in nearly all instances it appears that the outcomes would have been the same under either version of the rule; indeed, it is striking how little the courts' opinions reflect any apparent serious effort by parties who are resisting discovery to make anything out of this new and perhaps still unfamiliar scope definition.").
179. Thompson v. Dep't of Hous. & Urban Dev., 199 F.R.D. 168, 172 (D. Md. 2001).
180. ("[The amendment] offers no assistance in determining what constitutes 'good cause' that should be sufficient for a judge to justify granting discovery relevant to the subject matter of the action rather than simply to the claims and defenses of the parties.").
181. See Saket v. Am. Airlines, Inc., No. 02 C 3453, 2003 WL 685385, at *2 (N.D. Ill. Feb. 28, 2003) ("The Federal Rules of Civil Procedure contemplate liberal discovery, and 'relevancy' under Rule 26 is extremely broad."); Richmond v. UPS Serv. Parts Logistics, No. IP01-1412-CK/H, 2002 WL 745588, at *2 (S.D. Ind. Apr. 25, 2002) ("The implementation of amended Rule 26 did not necessarily impact the so called 'liberal discovery' standard as evidenced by cases interpreting the post-amendment rule."); World Wrestling Fed'n Entm't, Inc. v. William Morris Agency, Inc., 204 F.R.D. 263, 265 n.1 (S.D.N.Y. 2001) ("The amendments to Rule 26(b)(1) do not dramatically alter the scope of discovery...."); ("[D]espite the 2000 amendments, the Rule has been ignored."). But see United States ex rel. Stewart v. Louisiana Clinic, No. Civ.A. 99-1767, 2003 WL 21283944, at *8 (E.D. La. June 4, 2003) (emphasizing that the 2000 Amendments to Rule 26(b)(1) narrowed the scope of discovery).
182. Johnson Matthey, Inc. v. Research Corp., No. 01 CIV.8115(MBM)(FM), 2002 WL 31235717, at *2 (S.D.N.Y. Oct. 3, 2002) (upholding the denial of a discovery request and distinguishing a case allowing broad discovery on the ground that the 2000 Amendments to Rule 26(b)(1) had narrowed the scope of discovery).
183. Hill v. Motel 6, 205 F.R.D. 490, 492-93 (S.D. Ohio 2001) (emphasizing that after the 2000 Amendments, "Rule 26(b)(1) now focuses discovery on the actual claims and defenses at issue in the case" and denying a discovery request because the documents sought would have been relevant only to a discriminatory-impact claim, not to the plaintiff's discriminatory-treatment claim).
184. In Sheldon v. Vermonty, 204 F.R.D. 679 (D. Kan. 2001), for example, an individual plaintiff sought discovery from the broker defendants in a securities fraud suit seeking proceeds data for a six-year period. Id. at 688-89. The defendants, however, argued the only relevant time period was the one year when the plaintiff contemplated and purchased the stock. Id. at 689. Ruling in favor of the plaintiff, the court declared its understanding of the scope of discovery in light of the new standard: "Relevancy is broadly construed, and... discovery should be allowed unless it is clear that the information sought can have no possible bearing on the claim or defense of a party." Id. (emphasis omitted and added) (internal quotation marks omitted). Similarly, in Bryant v. Farmers Insurance Co., No. 01-02390-CM, 2002 WL 1796045 (D. Kan. July 31, 2002), the plaintiff in an age and gender discrimination suit sought disciplinary and audit information regarding not only the supervisor in question, but also other supervisors and employees. Id. at *3. Rejecting the defendant's claims that the requests were overbroad and not limited in scope, the court stated that relevancy is established "under the amended rule if there is any possibility that the information sought may be relevant." Id. at *2 (emphasis added).
185. FED. R. CIV. P. 11(b)(3) (emphasis added).
186. See, e.g., CIVIL RULES ADVISORY COMM., JUDICIAL CONFERENCE OF THE U.S., SUMMARY OF PUBLIC COMMENTS-PRELIMINARY DRAFT OF PROPOSED AMENDMENTS: CIVIL RULES REGARDING DISCOVERY 90 (1998-99), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Summary_CV_Comments_1998_1999.pdf ("[This change] will...put pressure on lawyers to assert thin or borderline frivolous claims or defenses.... Under the current rules plaintiff would file a breach of contract suit and take discovery about the possibility of fraud. Under the amended rule, one is pushing the plaintiff's lawyer into treading close to the Rule 11 line to file a fraud claim as a predicate for discovery.").
187. See Christopher Frost, Note, The Sound and the Fury or the Sound of Silence?: Evaluating the Pre-Amendment Predictions and Post-Amendment Effects of the Discovery Scope-Narrowing Language in the 2000 Amendments to Federal Rule of Civil Procedure 26(b)(1), 37 GA. L. REV. 1039, 1071 (2003) (demonstrating that a plaintiff could use the goodcause provision to overcome a defendant's relevancy-based challenge to an overbroad discovery request).
188. See Anderson v. Hale, No. 00 C 2021, 2001 WL 503045, at *3 (N.D. Ill. May 10, 2001) ("The minimal showings of relevance and admissibility hardly pose much of an obstacle for an inquiring party to overcome, even considering the recent amendment to Rule 26(b)(1).").
189. Thompson v. Dep't of Hous. & Urban Dev., 199 F.R.D. 168, 172 (D. Md. 2001) (warning counsel that taking a "rigid view of the narrowed scope of discovery... would run counter to the underlying purpose of the rule changes"). In Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496 (S.D. Ind. 2003), the court granted subject-matter discovery without a meaningful discussion of how the requesting party demonstrated good cause. Id. at 500-02. Instead, the court highlighted that the 2000 rule change, "while meaningful, [was] not dramatic, and broad discovery remains the norm." Id. at 500.
190. See Edward D. Cavanaugh, Twombly, the Federal Rules of Civil Procedure and the Courts, 82 ST. JOHN'S L. REV. 877, 886 (2008) (noting that mandatory automatic disclosure "never fulfilled its potential").
191. Michael J. Wagner, Too Much, Too Costly, Too Soon? The Automatic Disclosure Amendments to Federal Rule of Civil Procedure 26, 29 TORT & INS. L.J. 468, 477 (1994) (internal quotation marks omitted).
192. REPORT OF THE JUDICIAL CONFERENCE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE 22-28 (2005), available at http://federalevidence.com/pdf/FRE_Amendments/2006Amendments/ST09-2005.pdf.
193. See Order Prescribing Amendments to the Federal Rules of Civil Procedure, 547 U.S. 1233, 1242 (2006) (amending Rule 26(b)(1) to create a two-tiered "proportional" discovery system).
194. FED. R. CIV. P. 26(b)(2)(B).
195. Legacy systems are older computer systems not connected to an entity's current computer network.
196. FED. R. CIV. P. 26(b)(2)(B). The Advisory Committee's notes include several examples of data that are not reasonably accessible, including information stored only for disasterrecovery purposes-for example, backup tapes-legacy data, and information that was deleted and is retrievable only with forensic techniques. Id. 26(b)(2) advisory committee's note to 2006 amendment.
197. Id. 26(b)(2) advisory committee's note to 2006 amendment.
198. FED. R. CIV. P. 37(e).
199. FED. R. CIV. P. 26(b)(5)(B).
200. (noting the lack of studies on the effects of the 2006 Amendments and proposing options for further research).
201. See Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 DUKE L.J. 889, 905 (2009) ("[T]he main problem with [the 2006 Amendments] is not that they are old news. Rather, the problem is that such limits [referring to the 2006 Amendment's cost-benefit proportionality approach] never have worked terribly well and appear unlikely to work well for e-discovery.").
202. Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 YALE L.J. POCKET PART 167, 181 (2006), http://thepocketpart.org/images/pdfs/82.pdf (describing the need to consider the "human costs" of discovery requests).
203. See Linnen v. A.H. Robins Co., No. 97-2307, 1999 WL 462015, at *6 (Mass. Super. Ct. June 16, 1999) ("To permit a corporation... to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.").
204. see also Kaufman v. Kinko's, Inc., No. 18894-NC, 2002 WL 32123851, at *2 (Del. Ch. Apr. 16, 2002) ("Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored.").
205. Gregory P. Joseph, Federal Litigation-Where Did It Go off Track?, LITIGATION, Summer 2008, at 62.
206. (noting that only thirty federal court decisions have cited the safe harbor provision between its promulgation on December 1, 2006, and January 1, 2010-and of those, only "approximately two cases per year have met its requirements").
207. ("[D]espite the sweeping nature of these changes [referring to the 2006 Amendments], even some of the most ardent proponents of the new rules (typically from the corporate community) argue that they do not go far enough.").
208. Richard L. Marcus, E-Discovery & Beyond: Toward Brave New World or 1984?, 25 REV. LITIG. 633, 660 (2006) ("[The 2006 Amendments] should contribute to the handling of this form of discovery, but they will hardly revolutionize it. Indeed, one strong objection to adopting several of them was that they don't really add a great deal to the current rules.").
209. ("Despite the protective language proposed for addition to Rule 26(b)(2), the amendment offers electronic data identified as not reasonably accessible no greater protection from discovery than the current version of the Rule provides because the good cause requirement in the proposed amendment is not strict enough.").
210. (describing several factors that incentivize discovery abuse).
211. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).
212. ABA SECTION OF LITIG., CIVIL DISCOVERY STANDARDS (2004), available at http://www.abanet.org/litigation/discoverystandards/2004civildiscoverystandards.pdf. These factorsinclude A. The burden and expense of the discovery, considering among other factors the total cost of production...compared to the amount in controversy; B. The need for the discovery, including the benefit to the requesting party and the availability of the information from other sources; C. The complexity of the case and the importance of the issues; D. The need to protect the attorney-client privilege or attorney work product...; E. The need to protect trade secrets, proprietary, or confidential information; F. Whether the information or the software needed to access it is proprietary or constitutes confidential business information; G. The breadth of the discovery request; H. Whether efforts have been made to confine initial production to tranches or subsets of potentially responsive data;... J. Whether the requesting party has offered to pay some or all of the discovery expenses; K. The relative ability of each party to control costs and its incentive to do so; L. The resources of each party as compared to the total cost of production; M. Whether responding to the request would impose the burden or expense of acquiring or creating software to retrieve potentially responsive electronic data or otherwise require the responding party to render inaccessible electronic information accessible, where the responding party would not do so in the ordinary course of its day-to-day use of the information;... O. Whether the responding party stores electronic information in a manner that is designed to make discovery impracticable or needlessly costly or burdensome in pending or future litigation, and [is] not justified by any legitimate personal, business, or other non-litigation-related reasons; and P. Whether the responding party has deleted, discarded or erased electronic information after litigation was commenced or after the responding party was aware that litigation was probable.... Id. standards 29b.iv.A-P.
213. Disaster-recovery systems are systems designed to deal with and prevent IT downtime.
214. See TEX. R. CIV. P. 196.4 (requiring the party who makes unreasonable discovery requests to pay for the discovery).
215. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978) (noting that "the presumption is that the responding party must bear the expense of complying with discovery requests").
216. See Abraham D. Sofaer, Sanctioning Attorneys for Discovery Abuse Under the New Federal Rules: On the Limited Utility of Punishment, 57 ST. JOHN'S L. REV. 680, 726 (1983) ("[A] party can have as much discovery as it wants by paying only the costs of seeking that discovery; the costs of compliance are generally borne without recompense by the opposing party.").
217. CPR 44.3(2) (U.K.) ("If the court decides to make an order about costs... the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party...."); CPR 44.4(1) (U.K.) (establishing that the court will not "allow costs which have been unreasonably incurred or are unreasonable in amount").
218. See Thomas D. Rowe, Jr., American Law Institute Study on Paths to a "Better Way": Litigation, Alternatives, and Accommodation, 1989 DUKE L.J. 824, 887 ("No one should be too surprised that in a society with fairly strong emphasis on easy access to the courts, the virtually unique American rule, particularly its aspect that denies recovery to prevailing defendants, has retained fairly strong roots."). The author articulates several negative effects of the English rule, including that it "may excessively discourage the pressing of plausible but not clearly winning claims, particularly when the prospective plaintiffs are strongly risk averse." Id. at 888. The author notes that "[t]his effect is especially likely to fall heavily on middle class people with something to lose but not so many assets that they can tolerably afford to lose much." Id.
219. see also Paul D. Carrington, Renovating Discovery, 49 ALA. L. REV. 51, 66 (1997) ("The demerit of this English rule in its application to final judgments is that it unduly chills the assertion of claims and defenses.").
220. (noting that the disadvantages of the English rule in the broader litigation context would be an advantage in the discovery context, helping to discourage discovery disputes).
221. AM. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.
222. See id. (noting that the parties' obligation to "preserve all material that may prove relevant during a civil action, including electronic information.... is very difficult, if not impossible... in an environment in which litigants maintain enormous stores of electronic records").
223. In fact, a number of district courts have adopted local rules requiring the parties to discuss preservation issues. See, e.g., Default Standard for Discovery of Electronic Documents ("E-Discovery"), DIST. OF DEL., U.S. DIST. COURT, http://www.ded.uscourts.gov/Announce/HotPage21.htm (last visited Nov. 3, 2010) (establishing default standards for discovery of electronic documents when parties were unable to proceed on a consensual basis).
224. SEDONA CONFERENCE WORKING GRP. ON ELEC. DOCUMENT RETENTION & PROD.
225. The Federal Rules make clear that a party can move for a protective order to clarify its preservation obligations. See FED. R. CIV. P. 26(b)(2)(B) ("On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost."). My proposal would shift the burden to the requesting party to demonstrate a need for preserving otherwise inaccessible data, rather than requiring parties to preserve all potentially relevant information unless and until they can convince the court that the cost and burden of doing so are unwarranted.
226. As the Managing Director of the Sedona Conference noted in a recent article, [E]lectronically stored information can easily be rendered inaccessible though negligence, unfamiliarity of custodians with computer technology, or routine operations of computers and networks. The simple act of opening a file on a computer changes the information in the "date last accessed" field of that file's metadata, creates or overwrites various system files, and may change substantive information in the file itself. Computers are configured to run routine maintenance and "clean up" functions that will change or overwrite electronically stored information. Networks are configured to eliminate files that have not been accessed for a reasonable period of time, or automatically delete the oldest emails in a user's email box. Disaster recovery backup tapes regularly create electronically stored information by copying it from the computer hard drives, and regularly are recycled, thus destroying that information. Halting these routine operations in response to a "legal hold" may be difficult, impossible, unduly costly or unduly burdensome. Kenneth J. Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 NW. J. TECH. & INTELL. PROP. 171, 189 (2006).
227. For example, in Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005), an unfair trade practices case, the Tenth Circuit reversed the trial court's dismissal of the plaintiff's Lanham Act claims based on the plaintiff's failure to produce a database maintained by a nonparty contractor. Id. at 736-37. The Tenth Circuit held that the trial court's order compelling production would have resulted in substantial difficulties, such as purchasing a mainframe computer or paying the contractor close to $30 million for an archive of the database. Id. at 739. The circuit court held that given these circumstances, the plaintiff's duties were unclear regarding the preservation and production of the nonparty's database, and the violation of the order was not willful. Id. at 739-40.
228. FED. R. CIV. P. 37(e).
229. CAL. CIV. PROC. CODE § 1985.8(l)(1) (West 2009). Unlike the federal rule, the California safe harbor provision is not limited to parties. See id. ("Absent exceptional circumstances, the court shall not impose sanctions on a subpoenaed person or any attorney of a subpoenaed person for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.").
230. (noting that historically "the degree of prejudice to the requesting party's case due to the non-producing party's loss of the data" was "an important element in the judge's analysis").
231. Private Securities Litigation Reform Act of 1995 (PSLRA), Pub. L. No. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 and 18 U.S.C.).
232. Richard H. Walker & J. Gordon Seymour, Recent Judicial and Legislative Developments Affecting the Private Securities Fraud Class Action, 40 ARIZ. L. REV. 1003, 1023 (1998).
233. At congressional hearings debating the PSLRA, reform proponents alleged that nearly every stock price decline greater than 10% resulted in a strike suit.... [Public accounting firms] contended that "entrepreneurial lawyers" would find a publicly traded company with a red flag financial issue, such as a 10% drop in stock value, and name the auditing firm to the lawsuit for their 'deep pockets,' rather than blameworthiness. Lead plaintiff's counsel would then make voluminous discovery requests that were so expensive to comply with that it made sense economically to settle the lawsuit rather than protract litigation. Brian S. Sommer, The PSLRA Decade of Decadence: Improving Balance in the Private Securities Litigation Arena with a Screening Panel Approach, 44 WASHBURN L.J. 413, 421-23 (2005) (footnotes omitted).
234. H.R. REP. NO. 104-369, at 37 (1995) (Conf. Rep.).
235. See 15 U.S.C. § 78u-4(b)(3)(B) (2006) (automatically staying discovery except when the judge finds it necessary to preserve evidence or to prevent undue prejudice to a party).
236. see also Jeffrey T. Cook, Recrafting the Jurisdictional Framework for Private Rights of Action Under the Federal Securities Laws, 55 AM. U. L. REV. 621, 635 (2006) (noting that the purpose of the mandatory stay provision is "to reduce the costs of meritless actions").
237. Richard H. Walker, David M. Levine & Adam C. Pritchard, The New Securities Class Action: Federal Obstacles, State Detours, 39 ARIZ. L. REV. 641, 665 (1997).
238. See Dae Hwan Chung, Introduction to South Korea's New Securities-Related Class Action, 30 IOWA J. CORP. L. 165, 177 (2004) (noting that the PSLRA "stay provision has had a great effect on curbing frivolous claims").
239. see also Walter C. Somol, Dredging the Safe Harbor for Forward-Looking Statements-An Analysis of the Private Securities Litigation Reform Act's Safe Harbor for Forward-Looking Statements, 32 SUFFOLK U. L. REV. 265, 297-98 (1998) (explaining that one of the "positive effects" of the PSLRA is that "companies... resist filing meritless claims").
240. S.G. Cowen Sec. Corp. v. U.S. Dist. Court, 189 F.3d 909, 912 (9th Cir. 1999) (quoting Medhekar v. U.S. Dist. Court, 99 F.3d 325, 328 (9th Cir. 1996)).
241. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
242. Id. at 558-59 (noting that the defendants faced the prospect of having to produce "reams and gigabytes of business records" in the event that the motion to dismiss was denied).
243. See Tostado v. Citibank (S.D.), N.A., No. SA-09-CV-549-XR, 2009 WL 4774771, at *1 (W.D. Tex. Dec. 11, 2009) (granting the defendant's motion to stay discovery pending adjudication of a motion to dismiss).
244. West v. Johnson, No. C08-5741RJB, 2009 WL 2163565, at *1 (W.D. Wash. July 16, 2009) ("A short stay of discovery is appropriate until a decision can be made on the various Defendants' motions to dismiss....").
245. Allmond v. City of Jacksonville, No. 3:07-cv-1139-J-33TEM, 2008 WL 2704426, at *2 (M.D. Fla. July 8, 2008) (granting a motion to stay discovery pending a ruling on a motion to dismiss because "upon cursory glance of Defendants' motions to dismiss the resolution of the motions could dispose of the entire case").
246. Port Dock & Stone Corp. v. Oldcastle Ne., Inc., No. 05-4294 DRH ETB, 2006 WL 897996, at *1-2 (E.D.N.Y. Mar. 31, 2006) (granting the defendants' motion to stay discovery pending resolution of a motion to dismiss when defendants "raise[d] substantial issues with regard to the viability of plaintiffs' complaint").
247. Howse v. Atkinson, No. 04-2341 GTV DJW, 2005 WL 994572, at *1-2 (D. Kan. Apr. 27, 2005) (granting a motion to stay discovery pending a ruling on a motion to dismiss raising issues related to immunity defenses).
248. see also Twombly, 550 U.S. at 563 n.8 (recognizing that courts must carefully scrutinize motions to dismiss because "before proceeding to discovery, a complaint must allege facts suggestive of illegal conduct").
249. Thompson v. Ret. Plan for Emps. of S.C. Johnson & Sons, Inc., No. 07-CV-1047, 2008 WL 4964714, at *10 (E.D. Wis. Nov. 14, 2008).
250. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 268 (2004) (Breyer, J., dissenting) (noting the high costs of discovery and discovery-related abuse).
251. see also TASK FORCE ON CIVIL JUSTICE REFORM, BROOKINGS INST., JUSTICE FOR ALL: REDUCING COSTS AND DELAY IN CIVIL LITIGATION 6-7 (1989) (estimating that 60 percent of litigation costs in federal cases can be attributed to discovery and abuse of the discovery process).
252. See Janet Novack, Control/Alt/Discover, FORBES, Jan. 13, 1997, at 60, 60 ("[T]he more common problem is that companies are having to spend long hours and big dollars culling and retrieving data....").
253. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975).
254. ("[Attorneys would] demand[] that an opponent produce his income tax returns to capitalize on fears that disclosure of income could lead to difficulties with the government or a spouse, explor[e] politically sensitive subjects in suits against public agencies or officials to capitalize on fears of political repercussions, inquir[e] into the dating habits of a separated spouse or threaten[] to depose the third member of a relationship whose triangularity would best be kept secret, and focus[] discovery probes on arguably illegal and clearly embarrassing corporate 'contributions' to foreign governments or officials.").