STATE BAR RECOMMENDS NEW RULES AND GUIDELINES TO HELP
REDUCE COSTS AND DELAYS IN FEDERAL LITIGATION
Focus is on making discovery more
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
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 Legal Aid Society of New York).
“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.
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. The proposed rules provide guidance in an area now complicated
by electronically stored information.
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
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.