León Cosgrove

Judicial Oversight of Discovery in the Amended Federal Rules of Civil Procedure

By: Ellen Ross Belfer

Judge's Bench and gavelAmendments to the Federal Rules of Civil Procedure relating to discovery and electronic discovery became effective on December 1, 2015. A number of lawyers and law firm websites have outlined and discussed the amended language regarding proportionality, party cooperation, and judicial oversight in discovery. This piece will discuss the Rule 16 amendments on judicial oversight and their likelihood of success, given that the amendments do not actually require increased judicial oversight of the discovery process.


BACKGROUND

The amendment process dates to 2010, when the Advisory Committee organized the Duke Conference to explore the current costs of civil litigation, particularly discovery, and to discuss possible solutions. The Duke Conference looked at empirical data and heard from judges, practitioners, and academics on the state of the civil discovery system. Three concrete initiatives emerged to revise the existing rules: proportionality in discovery, more cooperation among the parties, and early judicial case management. While the three are interconnected, I will focus the discussion here on judicial case management.

Widespread agreement came out of the Duke Conference that early and active judicial management resolves cases faster, fairer, and cheaper. In its Committee Notes, the Advisory Committee counsels that district and magistrate judges “must be considerably more involved in managing each case from the outset, to tailor the motions practice and shape the discovery to the reasonable needs of the case.

The empirical data gathered in preparation for the Duke Conference supports this sentiment: 72% of practitioners responding to an ABA Survey believed that early intervention by judges helps limit discovery and 73% believed that when the court gets involved early and stays involved, clients are more satisfied with the results. Yet, 60% of respondents also believed that judges do not enforce mechanisms to limit discovery.


RULE 16 AMENDMENTS

The Advisory Committee hoped that its changes to Rule 16 will get judges to manage cases early and actively. However, the rule changes do not actually require that the court confer with the parties at the outset of the case. Rather, if the court does choose to hold a case management conference, the Advisory Committee amended Rule 16 so that such conference is a “direct simultaneous communication” between the parties and the court. The rule change deleted previous language allowing a conference to be held “by telephone, mail, or other means.” The Committee Notes direct that “[t]he conference may be held in person, by telephone, or by more sophisticated electronic means.” Moreover, to encourage judges to manage a case early on in the litigation, Rule 16 was also amended to move up the time for holding a scheduling conference by thirty days.**

The Rule 16 amendments also add three issues that may be addressed in a case management order: (1) the preservation of ESI, (2) Federal Rule of Evidence 502 agreements, and (3) whether to require a pre-motion conference with the court before the filing of discovery motions. Because issues involving the preservation of ESI and the Federal Rule of Evidence 502 are becoming more important in today’s litigation environment, the Committee wanted to encourage the courts and parties to address them early. The Advisory Committee likewise wanted to encourage pre-motion conferences because many judges have found these conferences to be an effective tool in resolving discovery disputes quickly and inexpensively.


THE NEW 2015 AMENDMENTS DO NOT DO ENOUGH TO PROMOTE JUDICIAL OVERSIGHT

The major failure of the new amendments is that they do not actually require judges to be any more involved in cases than they already are. The amendments merely lay out options to judges, and this is simply not enough.

The permissive nature of Rule 16 has prevented it from being used to adequately manage discovery. So, instead of simply adding to the list of judicial tools in the Rule 16 arsenal, the new 2015 amendments should have focused on giving Rule 16 some teeth. An initial judicial case management conference with the lawyers, face-to-face, should be required in every case. This initial conference should address all the issues that were or should have been addressed in the parties’ Rule 26(f) conference, particularly those relating to discovery. And a thorough discovery plan (that includes the role of ESI) should be addressed in every case management order.

Some of these same recommendations were made by the American College of Trial Lawyers (ACTL) Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS) in its report to the Duke Conference. Indeed, 67% of respondents to the ACTL/IIALS Survey agreed that case management conferences inform the court about the issues in the case and 53% thought that such conferences identified and narrowed the issues. Yet, more than 20% of the respondents reported that such conferences are not regularly held.


OBJECTIONS TO REQUIRING MORE JUDICIAL OVERSIGHT

Regular case management conferences, beyond the initial conference, would help the court stay on top of factual issues in discovery and achieve proportionality. Some criticize the use of proportionality as a basis for the scope of discovery because implementing proportionality requires significant familiarity with each case. But requiring involvement by the judge in discovery issues at the outset will give the judge the factual foundation necessary to make proportionality-enhancing rulings on fact-intensive discovery issues.

Some also argue that the permissive nature of Rule 16 reflects the need for flexibility in case management by judges with differing styles and in cases with differing needs. But virtually every civil case involves discovery to some extent, and requiring that the court address the pertinent discovery issues and implement a plan to deal with those issues does not undermine the need for flexibility. Moreover, continuing conferences throughout the life of a case, with all parties before the court, will ensure that a discovery plan stays tailored to the specific needs of the case.


CAN EDUCATING THE JUDICIARY INCREASE JUDICIAL OVERSIGHT?

Maybe simply educating the judiciary on the benefits of hands-on case management will bring about the needed change. The Federal Judicial Center recently published a new Benchbook for federal district court judges and magistrates that includes a new comprehensive chapter on judicial case management. [Federal Judicial Center at 189-204.] The Benchbook makes recommendations similar to those outlined above, but they are still only recommendations.

For instance, the Benchbook advises that a face-to-face case management conference with the lawyers is more valuable than only reviewing the parties’ Rule 26(f) report. A written report cannot substitute for “a live dialogue in which a judge asks questions, probes behind the parties’ representations, and fills in gaps.” This is true even if the parties have no pending disputes because “the conference often reveals information and issues not apparent to the parties or the judge in the submissions.”

The Benchbook also gives specific suggestions for addressing discovery issues through the use of case management conferences. For instance, it discusses proportionality, electronic discovery, preservation of discoverable information, and resolving discovery disputes. Proportionality in discovery may be managed by: (a) limiting the number of depositions (or their length), interrogatories, requests for production, and/or requests for admission; (b) focusing first on particular issues that are most important to resolving the case; (c) phasing discovery to initially focus on sources most readily available and/or most likely to yield key information; (d) limiting the number of custodians and sources of information to be searched; (e) delaying contention interrogatories until the end of the case, after discovery is substantially completed; and (f) otherwise modifying the type, amount, or timing of discovery.


JUDICIAL SUPERVISION SHOULD BE REQUIRED

For those judges who can see the benefits of diving into the trenches of discovery and getting their hands dirty, the Benchbook is a great resource. But the many judges whose preferred approach to case management is still party-managed discovery can easily ignore these suggestions. Indeed, 76% of respondents to the ABA Survey did not believe judges invoke discovery limitations on their own (and 60% did not believe judges enforce any limitations).

To these “hold-out” judges, discovery is a contest between lawyers with judges getting involved only if absolutely necessary. But by the time the court involves itself, the damage has already been done. At this point, all cooperation has broken down and the parties come to court loaded with motions to compel. This is the path to continually increasing discovery costs and burdens. And, unfortunately, the new 2015 rule amendments do nothing to require hold-out judges to become involved earlier or more consistently. Based on everything we have seen so far, there is no reason to expect that the desired judicial behavior will come about until the Federal Rules of Civil Procedure are amended to require it.

** A judge must issue a scheduling order within the earlier of 90 days after any defendant has been served with the complaint (reduced from the current 120 days) or 60 days after any defendant has appeared (reduced from the current 90 days). Another rule amendment that is intended to get cases moving more quickly is Rule 4(m), which shortens the time to serve a summons and complaint from 120 days to 90 days.

 

Ellen BelferEllen Ross Belfer, of counsel at León Cosgrove LLC, focuses her practice on complex commercial litigation in federal and state courts nationwide.