Technology, Not Rules Changes, Is Answer to E-Discovery Costs, Arthur Miller Tells Senate Panel

Miller Testimony

Arthur Miller testifying this week.

In a post here last April, we discussed proposed changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality and to standardize sanctions. A preliminary draft of those rule changes has now been posted for public comment, with the commend period closing on Feb. 15. Before they could take effect, the rules would have to be approved by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court. If the rules make it through all those hurdles, then they would take effect unless Congress acts to reject or modify them. Given how far the process still has to go, it was notable that a subcommittee of the U.S. Senate Committee on the Judiciary convened a hearing this week on the proposed rules package. The hearing, held Nov. 5 before the Subcommittee on Bankruptcy and the Courts, sought to address the question: “Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?” In his opening statement, the subcommittee chair, U.S. Sen. Christopher Coons (D-Del), the former general counsel of Delaware-based W.L. Gore & Associates, made clear his opposition to the proposed changes, suggesting that they would do little to stem litigation costs while restricting the rights of plaintiffs in smaller cases.

Studies cited by the Judicial Conference note that discovery costs are not a problem in the majority of cases, and that discovery is a problem in a, quote “worrisome” number of cases. In those cases where discovery costs are a problem, which is to say that they are, quote “out of proportion,” to the needs of the case, it tends to be in cases that are high stakes, highly complex, or highly contentious. In these cases, presumptive discovery limits are likely to be of no impact at all. In smaller cases, however, presumptive limits are likely to play a normative role, restricting the ability of the plaintiff in a small case to take needed depositions from a defendant who holds all of the information relevant to a fair lending or employment discrimination claim.

Three witnesses testified at the hearing, two against the proposed changes and one in favor:

  • Arthur R. Miller, professor at New York University School of Law and longtime Harvard Law School professor, who Sen. Coons introduced as “the nation’s foremost expert on civil procedure.” Miller opposed the changes.
  • Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. Ifill opposed the changes.
  • Andrew Pincus, partner with the law firm Mayer Brown LLP. Pincus supported the changes.

Miller presented a prepared statement in which he attacked the continuing erosion of the Federal Rules of Civil Procedure since their promulgation in 1938. Originally intended to promote the resolution of civil disputes on their merits, the FRCP has been amended and interpreted to create “a series of procedural stop signs,” Miller said, bringing the courts to the point where “the ability of a citizen to get a meaningful day in federal court is now in question.” The proposed e-discovery changes “would magnify these limitations” without any empiric justification, Miller argued. He was particularly critical of the changes regarding proportionality:

[T]he proposed amendment to Rule 26(b)(1) represents a threat to the jugular of the  discovery regime as we have known it. It would replace the longstanding principle that the scope of discovery embraces anything that is relevant to a claim or defense with dual requirements—note the use of the conjunctive “and” in the proposal—that the material sought be  both relevant and proportionate according to five criteria that are both subjective and fact dependent. The Advisory Committee Note makes it clear that the proponent of discovery must show the request’s relevance and proportionality. This is a dramatic reduction in the scope of discovery.

In his statement, Miller took issue with the argument that electronically stored information has created a crisis in discovery, asserting that defense interests have advanced this position in order to justify limits on discovery. “Once again one hears Chicken Little crying that the sky is falling. It is not.”

Miller: Technology is the Solution

Miller is a compelling speaker, but my ears perked up their highest when he responded to a question by Sen. Richard Blumenthal (D-Conn). If the problem of rising costs is being driven by e-discovery, Sen. Blumenthal asked, then why not limit any revisions to e-discovery? Miller’s answer suggested that the remedy for rising costs is not rules changes at all, but technology:

On electronic discovery, it is so frightening to everyone, but I think that fear is clouding our thinking about it. There is every reason to believe – and some district judges have already drunk the Kool-Aid – that there are technological solutions to electronic discovery – not real solutions, but ways to use artificial intelligence, highly sophisticated programming and analytics, really to bring the costs of electronic discovery way down from what our first generation experience is.

Also testifying in opposition to the proposed changes was the NAACP’s Sherrilyn Ifill, who argued that they would undermine the ability of many Americans, and especially plaintiffs in civil rights cases, to obtain relief through the federal courts. In her prepared statement, she was particularly critical of the proposed proportionality rule:

[I]f a litigant determines, in its own estimation, that a discovery request is not “proportional” to the needs of the case, it can refuse to provide the requested discovery. The Advisory Committee’s proposal represents a sea-change in the manner in which discovery is conducted in litigation. The amendment would wholly impede the ability of plaintiffs in civil rights actions to 0btain necessary and vital discovery.

As did Miller, Ifill criticized the lack of empirical evidence supporting the proposed changes. “We are not aware of any empirical evidence suggesting that civil rights cases are categorically prone to having exorbitant discovery costs,” she said. “Certainly, that has not been our experience in litigating civil rights cases for decades.” Mayer Brown’s Andrew Pincus was the sole defender of the proposed changes, arguing that they are necessary to control the exponential growth in discovery-related litigation costs. With respect to proportionality, Pincus’s formal statement called the proposed changes “a modest alteration in the rules designed to focus additional attention on a legal standard that already exists.” He was critical of those who question the need for the change:

Does anyone seriously believe that significant discovery burdens should be imposed on a party even when that discovery is disproportional to the needs of the case, considering not just the amount at issue but also the importance of the issues, the importance of the discovery to resolving those issues, and whether the burden outweighs the benefit? The only basis for such a conclusion would be the view that every plaintiff in every case is entitled to the full range of permissible discovery – even if the demand cannot be justified on any rational basis.

In the remainder of his testimony, Pincus walked through a point-by-point analysis of each of the proposed changes, speaking in favor of each of them. If you are interested in seeing the entire tw0-hour hearing, including the questions and answers that followed the formal testimony, you can watch a webcast here.

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About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors Law.com's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.