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Parties split on federal rules of civil procedure

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Proposed changes to the federal rules of civil procedure would have a far-reaching impact on the justice system, but not everyone is convinced it would be for the better.

The proposed amendments call for:


  • Establishing "a clear national standard" under which companies could be punished for discarding information if they did it to hamper litigation;
  • Narrowing the scope of discovery to focus on the claims and defenses of each case, rather than throwing a wide net in hopes it will lead to admissible evidence; and
  • Requiring the party requesting discovery to pay the costs associated with gathering the information, theoretically ensuring that, because they're picking up the tab, they'll request only the information they actually need and thus eliminate the temptation to make overly broad requests that would impose hefty costs on the other side and potentially coerce a settlement.


While critics insist the changes would tilt the rules in favor of defendants, Jackson Kelly's Jill McIntyre contends they actually would improve the administration of justice.

McIntyre said limiting the scope of discovery would help rein in costs.

"Ever since people have begun to keep records of their transactions electronically rather than on paper, and since every motion and activity is tracked electronically whether they wish it to be or not, there's been an explosion of evidence that could be relevant and admissible in trial," she said. "The proliferation caused the cost of discovery to go up and up and up. 

"It's no longer cost-effective to discover everything about a case; there's just too much information."

McIntyre, who traveled to Phoenix last month at the request of Lawyers for Civil Justice to testify at a public hearing on the proposed changes, said the changes would apply only to the federal rules of civil procedure. West Virginia has its own rules, though she points out they are modeled after the federal rules.

"This is not an effort by the federal judiciary to keep important information from litigants," she said. "It's simply an effort to control what's being done so cases can proceed on the merits of the issue rather than on the cost of discovery."

What happens all too often now is that the cost of discovery becomes "so overwhelming and expensive" that defendants give up "and take settlements based on the cost of discovery rather than based it on the value of their claim," she said.

"Typically, if somebody has a personal injury we look at how much work they've lost, how much pain and suffering they've incurred and verdicts are rendered based on those issues," she said. "But when the cost of discovery takes over a case and decisions made by litigants are based on the cost of discovery, you never get to those issues. 

"People give up or take less than they would have ... just to avoid discovery. You never get to final resolution on the merits."

The Rules Advisory Committee also has suggested making the proportionality requirement that is already on the books more prominent "to hopefully encourage courts and litigants to pay more attention to (it)."

Proportionality is designed to balance the benefits of discovery derived by one party with the other party's burden to provide the information.

McIntyre said lawyers and courts "haven't always paid close enough attention to the rule as it exists," so the committee suggests shifting the wording to making "proportionality" more prominent.

The other major change under consideration would better define the circumstances under which sanctions are imposed by the court for spoliation of evidence "that can so easily occur in the electronic world," she said.

"It occurs pretty frequently, both by accident and automatic deletion and overriding," she said. "The way the law reads now there are very severe penalties that go with destruction of evidence."

Given how much information is being stored electronically nowadays, data preservation costs can be exorbitant. Deciding what must be retained and what can safely be deleted is crucial, and mistakes can be costly.

While the court ultimately determines whether reasonable steps were taken to protect information, McIntyre said in some instances, "parties are being sanctioned even though they took reasonable steps to protect information and even though what was lost was not material to the case."

The committee's proposal would "reorient" how spoliation is applied to more clearly define the circumstances in which sanctions are warranted.

McIntyre concedes not everyone in the legal community is a fan.

"A lot of folks who have commented on the rules think the changes are unduly harsh on their clients, but others argue that across-the-board application is warranted," she said.

Among those critics is Michael Lucas of Carter & Lucas in Pikeville, Ky., who insists the system works as it is.

"There is no need to narrow discovery more," Lucas, who is licensed in both West Virginia and Kentucky, said in written comments submitted to the committee. "The courts already have authority to narrow discovery that is overreaching and burdensome. however, the artificial limitation on discovery, as proposed, would only further complicate and extend motion practice — placing a further drain on already limited judicial resources and at the expense of the parties."

Likewise, Frederick B. Goldsmith of Goldsmith & Ogrodowski of Pittsburgh wrote that he and his partner "are strongly against each of these proposed changes and see them each as drastic measures which would grossly and unfairly tilt the playing field to favor corporations and insurers, to the detriment of legitimate claimants."

"... Any thought that plaintiffs' counsel employ discovery needlessly or to harass defense interests is ridiculous and conceptually baseless," Goldsmith wrote, pointing out that excessive discovery would drive their costs up as well, since every document must be reviewed and, in many cases, sent to an expert who charges by the hour. "It would make no sense for us to advance costs for such unnecessary review of documents or perusal of deposition transcripts of insignificant witnesses, nor to burden our clients with such unnecessary expenses once a case is favorably resolved."

Goldsmith argues the proposed changes "threaten to make the federal courts a one-sided, biased in their favor, place of refuge where defendants can go to avoid having to be exposed to the appropriate and reasonable discovery mechanisms that will allow the light of day to shine on their conduct."

McIntyre, however, insists the proposals are important, "not just for our clients, but for the administration of justice across the board, for both sides."

"When I was in law school, 90 percent of civil cases were settled before trial," she said. "The number is above 95 percent now, and I believe the numbers increased because of the cost of discovery. 

"I think people are settling based on procedural costs and risk rather than what the injuries are worth."