Civil discovery rule changes described by @swlaw attorney

“No (More) Fishing” may be one way to describe changes to federal discovery rules.

­­As you likely know, important changes were recently made to the Federal Rules of Civil Procedure, including changes in the discovery realm, captured in Rule 26.

In late January, Snell & Wilmer partner Mitch Klein wrote about the amendments, particularly in regard to environmental and natural resource litigation.

He is some of what he said in his well-written blog post:

“Previously, parties were entitled to conduct discovery regarding anything that might be ‘reasonably calculated’ to lead to relevant and admissible evidence. In practice, this led to some parties deposing witnesses and subpoenaing documents with only a tenuous relationship to the real issues of the case. This kind of behavior caused significant costs and delays in litigation.”

Snell & Wilmer partner Mitch Klein

Snell & Wilmer partner Mitch Klein

“In environmental and national resource litigation, abusive discovery conduct typically results from parties without any real evidence looking for some (fishing expeditions), deep-pocketed parties trying to overwhelm their adversaries under a pile of documents and/or multiple and lengthy depositions, or parties who have no real idea what they were doing and are trying to figure it out along the way.”

“The new rule now requires an analysis of ‘proportionality.’ Rather than seeking everything but the kitchen sink, a party conducting discovery has an obligation to show why the discovery is reasonable under the facts and circumstances of the case.”

You should read the whole thing here.

Of course, I’ve been around long enough to know there’s more than one way to look at rule changes. And when I see phrases like “abusive discovery,” “fishing expeditions,” and “everything but the kitchen sink,” I would guess at least a few lawyers would want to characterize things differently.

So today I wonder:

  1. Should we cover this topic in Arizona Attorney Magazine? and
  2. How would you describe the discovery rule changes? As Mitch did, or otherwise?

Write to me at arizona.attorney@azbar.org.

Pile of documents stack up high waiting to be managed

Needles and haystacks are often a metaphor for civil discovery.

lawyers meeting

If meet-and-confer rules work for discovery motions, why not use them for all dispositive motions?

Before the month of July fades away, I wanted to point to some terrific content in the soon-to-be-not-current Arizona Attorney Magazine.

Today, I point you toward an article that challenges the courts to consider a new approach to non-discovery motions.

In the article, Judge Douglas Gerlach (Superior Court for Maricopa County) and Eugene Cohen begin by describing the benefits that have flowed from Arizona’s revised approach to discovery.

So if Arizona’s legal profession is pleased at what we call “the Zlaket Rules” have done for discovery, why don’t we require meet-and-confer rules of lawyers even beyond discovery?

Here’s how they open their article:

“By rule, many jurisdictions require lawyers to meet-and-confer with their counterparts, and to so certify, before filing a discovery motion. This requirement has not solved all problems that accompany discovery disputes, but it has reduced the frequency and scope of discovery-related litigation, as well as the time and expense associated with those efforts.”

“This article suggests that the adoption of a similar rule for dispositive motions will produce the same benefits. Indeed, the cost-savings for litigants and the reduced burden on the courts will likely be more substantial than the savings that the discovery rule has produced. Because Arizona would be the first jurisdiction to adopt (or at least try) the proposed rule, there are no empirical data to support that conclusion. However, substantial anecdotal support, based on the authors’ professional experience and discussions with others, suggests strongly that the advantages of such an approach far outweigh any drawbacks (if, indeed, there are any drawbacks). At the very least, a pilot program to test the proposal would clearly seem warranted.”

Read the complete article here.

What do you think? Should the courts adopt such a rule? Would it improve law practice? Would it improve your ability to assess a case’s value?

What is it about eDiscovery that packs the education halls?

I wonder this as I prepare to head out to yet another offering on the esoteric topic, this one at the Sandra Day O’Connor College of Law at ASU. It is a three-day affair, which starts today, and it features what appear to be terrific panels and a noteworthy keynote. More on all that in a minute.

First, though, I return to my question: Why am I—and many other lawyers—eager to hear about eDiscovery? After all these years of sessions and panels and speakers on the subject, don’t we have eDiscovery fatigue?

Part of the answer, I think, goes back to Marketing 101. Other areas of law manage to get along by labeling their elements with workaday words: Will. Contract. Crime.

But long ago, a few trial lawyers sat in a room and thought: What should we call that period of time in which we wrestle over documents and files? A generation later, associates worldwide deem it “drudgery” or “document hell.” But around that original table of esquires, a light bulb lit up: How about … “Discovery”!

A regular Ponce de Leon, those lawyers. So forever after, stacks of Bankers Boxes are not merely a felled forest made rectangle. They represent a journey, a quest—discovery.

Of course, the D word may enliven law practice, but it doesn’t put keisters in the seats at a CLE. For that, you need something else. And in regard to eDiscovery, it’s the old standby: fear.

Fear? Well, yes.

What I mean is, once you’ve been in law practice for a fair amount of time, you develop an expertise. You can spot issues, recall seminal law and trust your judgment and experience to make educated calculations. That is true among all lawyers, even trial lawyers when it comes to discovery.

But eDiscovery? That is a wiggly little creature. We think we’ve got it pinned down, but then a new development arises, as we can see in this scenario featuring an associate and a partner:

A: “Whew, I’ve gathered and indexed all of the files off the server. Done!”

P: “Did you remember to do the same with the emails?”

A: “Yep.”

P: “Including the deleted emails, and those residing on the secondary and tertiary servers?”

Less sure now.

A: “Um, yes.”

P: “And the applications that our client may have in the cloud. Did you index those?”

Panic in the eyes.

A: “I think so.”

P: “How about the thumb drives that our client handed out at four national conferences? And the transcripts and video from their 19 podcasts? The newsletters they distributed on Skype? The tweets that the summer interns may have foisted on the world? And don’t forget the company CEO’s holographic message to shareholders. You did capture all that data using the most recently accepted technological methods, haven’t you? Hey, why are you weeping?

(No associates were harmed in the making of this scenario.)

Judge John Facciola

The ASU Law School’s Center for Law, Science & Innovation knows your pain. And that is why their keynote speaker is ideally chosen. And why that speaker knows precisely what to talk about: the risks of being uneducated on the topic of eDiscovery.

That’s right. Judge John M. Facciola understands that the keynote’s job is not to provide the nuts and bolts that other panelists will offer up. Instead, his keynote topic hits lawyers right where they are most cringeworthy: competency. And, of course, the risks inherent in not being fully competent in this rapidly changing area of law practice.

The speaker is a Magistrate Judge for the U.S. District Court for the District of Columbia, and his keynote title is “Competency in eDiscovery: An Ethical Dilemma and Cooperation Among Litigants.”

Here is the school’s description of Judge Facciola and his presentation:

The Honorable John M. Facciola, one of the foremost jurists and educators in eDiscovery and the author of several heralded opinions including Peskoff v. Faber, United States v. O’Keefe, and Equity Analytics, LLC v. Lundin, will start the program with a fascinating keynote address that explores the ethical implications involved in violating perhaps the most basic rule of professional responsibility—competency.

Judge Facciola’s address on competency will be discussed in relation to the:

  • Developing law of sanctions with a focus on the present state of the law prospects of rule changes
  • Judicial involvement and movement of government agencies toward transparency and cooperation
  • New developments in the criminal law re eDiscovery
  • New federal judicial regime of enforcing the obligation to meet and confer
  • Whether the adversarial model of discovery is giving way to a new cooperative process

    Josh Abbott

Time to refresh your competence. You may read more about the conference and register here.

More on the Center for Law, Science & Innovation is here.

And congratulations to Josh Abbott, Executive Director at the Center, for staging what looks to be a great event. I’ll report back later on the judge’s address to attendees.

An intriguing post was published today over at the Wall Street Journal Law Blog. (Haven’t bookmarked it yet? What are you waiting for?)

In it, reporter Joe Palazzolo examines a unique company structure and muses on the issue of “When a Company Sounds Suspiciously Like a Law Firm.” The companies are legal staffing firms.

As Palazzolo notes, many of these firms go so far as to tout the depth of experience and legal expertise available to customers (clients?). And if they do that, “And if they’re not law firms, then the question is this: What services can they provide without violating regulations that prohibit them from practicing law?”

The question is not a hypothetical one. He points out that a regulatory committee of the D.C. Court of Appeals—the District’s equivalent of a state high court—has drafted an opinion on the matter (“Applicability of Rule 49 to Discovery Services Companies”). You can read it here.

What do you think of the situation? Do you see similar activities in Arizona that give you pause?