State Bar recommends new rules, guidelines for federal litigation

June 29, 2012 Brooklyn Eagle Staff

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ALBANY — Responding to burgeoning costs and delays in federal litigation — largely attributed to expanded discovery — the New York State Bar Association is recommending rule changes and new guidelines intended to ease the burden on the federal court system, as well as on litigants.

The recommendations are contained in the "Report of the Special Committee on Discovery and Case Management in Federal Litigation," which was approved by the association's House of Delegates at its June 23 meeting in Cooperstown.

"The increasing use of technologies — including email, text messaging, social media and the cloud — have complicated the discovery process, causing long delays and exorbitant costs in federal litigation. This report presents sensible and practical solutions to this growing crisis," said New York State Bar Association President Seymour W. James Jr. "The State Bar is grateful to the Special Committee on Discovery and Case Management and its chair, Samuel F. Abernethy, for undertaking this critical project."

Speaking on behalf of the committee, Abernethy of New York City (Menaker & Herrmann) said, "I hope these proposals will be carefully considered in the debate about reducing costs and delays associated with litigation in federal courts."

The Committee, created by then-State Bar Association President Stephen P. Younger in 2010, was asked to examine the perceived delays and expense of litigation in federal court and to make recommendations to reduce both. The proposals seek to make the discovery process more efficient and less burdensome and to tie discovery to the procedural developments in the case.

The report examined four key aspects of federal litigation. Specifically:

1. The absence of rules regarding preservation and spoliation in Rules of Civil Procedure:
The report calls for amending the current Federal Rules of Civil Procedure to create a duty to preserve documents; require that reasonable actions be taken to preserve documents; and impose sanctions for violation of preservation duties.

2. The need for early judicial intervention:
The report recommends holding pre-trial conferences within 60 days of initial pleading. At such conferences, discovery and other case management topics should be discussed. Early judicial intervention would foster cooperation among adverse counsel and promote efficiency in completing discovery and resolving issues in litigation, which ultimately leads to less expensive and faster resolutions of disputes.

3. Legal obligations in document production:
The report urges deleting language in a rule that requires mandatory initial production (or listing) of documents, electronically stored information, and tangible items supporting a party's claims or defenses. Instead, the judge should determine if such material should be produced. According to the report, the current obligation to produce this material is of limited value and often fails to produce efficiency in the discovery process, especially in complex litigation.

4. Reducing the burden of discovery:
Finally, to reduce the burden of reviewing documents for privilege or work-product protection — especially electronically stored information — and then having to create a privilege log that often receives little attention from the adversary, the report proposes eight guidelines for practitioners to simplify the process and make it more efficient.