Report: Electronic Discovery Should Be Proportionate to Controversy
How can lawsuits be resolved more quickly and at less cost? Two groups offering solutions suggest that discovery—including electronic discovery—needs to be proportionate to the amount in controversy and importance of the issues.
The groups devised proposed rules for experiments in civil justice reform after a survey of the American College of Trial Lawyers found that 65 percent of its responding members believe the system does not guarantee “just, speedy and inexpensive determination of every action.”
“The nation’s civil justice system is too expensive, too cumbersome and takes too long,” said a report by the ACTL and the Institute for the Advancement of the American Legal System at the University of Denver. “As a result, the price of justice is high and access is being compromised. Small to mid-sized cases that should be filed are not filed because they fail a reasonable cost/benefit analysis; cases that are brought often settle principally because of costs, not merits. Civil jury trials are disappearing.”
The report, “21st Century Civil Justice System: A Roadmap for Reform,” (PDF) details several new ideas that could be used as pilot projects by court systems.
There is a longstanding notion that parties are entitled to discover all facts, without limit, unless and until a court says otherwise, according to the report. “It is the purpose of these [pilot project rules] that the default be changed—all facts are not necessarily subject to discovery.”
Courts should make a “proportionality assessment” that weighs the need for discovery against the needs of the case, the amount in controversy, parties’ resources, and complexity and importance of the issues, the report says.
The BLT: The Blog of Legal Times writes about another proposed rule on responses to pleadings. It reads: “Any statement of fact that is not specifically denied in any responsive pleading is deemed admitted. General denials are not permitted and a denial that is based on the lack of knowledge or information must be so pleaded.”
Another proposal would allow discovery, with court approval, before a lawsuit is even filed. Currently some states allow pre-complaint discovery, but it is not allowed in the federal rules.
