I had the opportunity to attend LegalTech New York 2010 and, in addition to witnessing the launch of our new product WestlawNext, I have been attending some of the sessions at the conference.
Since so much of this show focuses on discovery, the Federal Rules of Civil Procedure that affect discovery (especially e-discovery) loom large here in New York during LegalTech.
As a principal attorney editor for West, my team in Rochester, New York handles a number of treatises and practice guides involving litigation and the Federal Rules of Civil Procedure (and e-discovery for that matter). So I attended the session titled Amending the Federal Rules of Civil Procedure, outlining recent movements to overhaul the FRCP and the federal rulemaking process to deal with some of the issues and the soaring costs of litigation in federal courts.
By closely following these developments, I hope to find some innovative ways to address the debate as it unfolds and help customers to understand and participate in this important debate.
The panel for the session included the Hon. John Koeltl, Southern District of New York (and also member of the Advisory Committee on the Federal Rules of Civil Procedure); Tom Allman, editor of the Sedona Principles and former General Counsel BASF; Al Cortese, Counsel for Lawyers for Civil Justice and Manager, Cortes PLLC; and Amor A. Esteban, of Shook, Hardy and Bacon. The panel was moderated by Patrick Oot, General Counsel of the eDiscovery Institute.
The main pain points driving the push to amend the FRCP have their source, in part, with the 2006 amendments to the Rules, which declined to clearly set out the scope of the obligation to preserve documents and other materials subject to discovery in a matter, but instead focused on sanctions for failure to preserve.
Coupled with the incredible growth of electronic stored information and e-discovery, confusion and unpredictability have reigned, resulting in a major increase in spoliation of evidence and unintentional failures to preserve discovery materials. Parties responding to discovery requests just do not know whether their obligation efforts have been satisfied until after the judge before whom they are appearing has reviewed them. This leads parties to overcompensate by spending considerable resources in preserving everything, resulting in productions of large amounts of redundant materials and spiraling discovery costs. There is additional controversy surrounding the Rules on pleading standards under Rule 8 in the light of recent Supreme Court rulings in Iqbal and Twombly.
These and other issues have caused groups like the American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System to call for sweeping changes to the Rules that could, according to the ACTL Web site, “one day underpin the transformation of civil procedure in federal and state systems throughout the United States.”
The LegalTech panel discussed a conference that is being planned by the Federal Judicial Conference at which law professors, judges, practitioners and clients will meet to discuss the successes and failures of the FRCP in meeting these and the other challenges of today’s federal litigation. This 2010 Litigation Review Conference is scheduled to be held at Duke Law School on May 10-11, 2010. The Judicial Conference’s Committee on Rules of Practice and Procedure has placed the draft agenda for this meeting online.
Our West authors are deeply involved in these efforts.
One of the panelists noted that Arthur Miller, co-author of Federal Practice and Procedure, has contributed a paper and will lead a panel at the conference on pleadings and dispositive motions.
Steven S. Gensler, author of Federal Rules of Civil Procedure, Rules and Commentary, is on the Advisory Committee on the Federal Rules of Civil Procedure and on the Conference Planning Committee.
Posted by Greg Bell in:
In Practice | Practice trends |
