Editor: What are LCJ's legal reform priorities?
Sinclair: The top two legal reform priorities during the past two years have been in the areas of (1) discovery of electronic information and (2) elimination of junk science in state courts.
Editor: What are the goals of LCJ with respect to e-discovery and how does it implement those goals?
Sinclair: The goals of LCJ are to facilitate procedural reform designed to reduce costs and burdens associated with discovery of electronic evidence commonly associated with class action and complex litigation. LCJ provides the Federal Judicial Conference rulemaking committees with our input in developing new evidentiary rules as part of its overall procedural rules program.
Editor: Fill us in on the Judicial Conference's approval of new e-discovery rules.
Sinclair: On September 20, the Federal Judicial Conference approved new proposed amendments to the Federal Rules of Civil Procedure governing discovery of electronic information. This long awaited action represents a very significant milestone for LCJ which has sought to better inform the Federal Judiciary on the burdens and costs associated with e-discovery.
The LCJ e-discovery program is part of a larger ongoing multiyear effort by LCJ to bring improvements to the federal procedural and evidentiary rules and to ensure that new rules properly address increasingly severe and frequent problems posed by e-discovery in modern litigation. The proposals will now make their way to the U.S. Supreme Court, which will have an opportunity to promulgate the new rules by May 1, 2006.
Editor: What role did LCJ play in this process?
Sinclair: The LCJ e-discovery program demonstrates that the focused efforts of the Corporate America/defense lawyer partnership found in LCJ can help bring about significant change. In reaching this end, LCJ:
(1) Partnered with other organizations including the U.S. Chamber of Commerce Institute of Legal Reform, the Civil Justice Reform Group along with the IADC, DRI and FDCC to establish a broad coalition of corporations, trade associations and the defense bar community, which supported a common e-discovery reform package;
(2) Provided analysis, scholarship and formal comments explaining the critical need for reform on at least six occasions throughout the rulemaking process; and
(3) Presented members of the Advisory Committee with convincing arguments regarding the importance of meaningful e-discovery reform and attended key forums sponsored by the Federal Judicial Conference. It is worthwhile to note that LCJ encouraged its corporate and defense counsel network to provide the Advisory Committee with testimony and formal comments. Almost one half of those individuals testifying at the hearings conducted last year by the Judicial Conference were LCJ witnesses.
Editor: What features of the new rules are of the greatest importance to Corporate America, including LCJ members?
Sinclair: The amendments strike a careful balance among a variety of views and do not solve all problems. As a matter of fact, in some instances, the Committee adopted positions which were not espoused by defense and corporate counsel. Nevertheless, we believe that notwithstanding compromises, the amendments: (1) provide a framework for the parties and the court to give early attention to issues relating to electronic discovery; (2) provide a procedure for asserting privilege after production that is parallel to similar proposals for Rules 16 and 26(f); and require a court order for production of electronic information that is "not reasonably accessible because of undue burden or cost." Finally, under the proposed rules, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good faith operation of an electronic information system.
Editor: What is the next step in getting the amendments approved ?
Sinclair: They will now be forwarded to the U.S. Supreme Court for promulgation. The amendments will become effective on December 1, 2006, unless Congress enacts a law delaying, voiding, or amending them.
Editor: Can we expect similar action at the state level?
Sinclair: If the federal amendments are enacted, we hope that they will be viewed as a model for consideration by the various states in enacting their own e-discovery rule amendments - and we will to the extent possible play a role in this process. As a first step, LCJ will be commenting on proposed new guidelines on e-discovery which have been circulated for public comment by the National Conference of State Courts Working Group.
Editor: Congratulations on this wonderful progress on e-discovery initiatives. Why was LCJ involved?
Sinclair: LCJ was created approximately 15 years ago by a coalition of 15 Fortune 500 corporations and the leadership of the organized national defense bar: DRI, Federation of Defense and Corporate Counsel (FDCC), and the International Association of Defense Counsel (IADC). Corporate members now number 27. Its efforts have also been aided by 52 Associate Members, a group of law firms that partner with corporate counsel by contributing to the support of LCJ, both financially and, when the opportunity arises, by applying their legal talents in support of LCJ's goals. LCJ works closely with the Civil Justice Reform Group and the U.S. Chamber of Commerce.
LCJ's original mission remains unchanged - to forge a more effective alliance between defense trial lawyers and Corporate America in support of civil justice reform designed to "level the litigation playing field." Our initial advocacy work was done primarily in federal and state legislatures. However, more recently, we have found that LCJ is uniquely suited to focusing attention on procedural rules where improvements can be made.
Editor: Walt, how did you get involved in LCJ?
Sinclair: I was appointed as the chair of the IADC's legislative government affairs committee. As such, I was asked to attend the LCJ meetings for the last five or six years. I went through the officer chairs of the IADC and served as its president two years ago. As an officer, you sit on the LCJ board of directors. As a past-president of one of the defense groups, you have the opportunity to be designated by your association to be an LCJ officer. I was elected this year as president of LCJ after serving last year as president-elect.
Editor: Besides e-discovery what are some the other LCJ legal reform initiatives?
Sinclair: A s I mentioned earlier, one of our two top priorities is to encourage states to curtail testimony based on "junk science" in the courtroom. LCJ works with action teams in key states to support procedural and legislative reform, utilizing draft model legislation, position papers and talking points in support of this legislation.
We also continue to support class action reform at the state and federal level. During the December LCJ Membership Meeting in New York, we will have an opportunity to assess how the recently enacted Class Action Fairness Act is working. We believe it has gone far in providing meaningful class action reform by making it easier for corporate defendants to remove class action cases to federal courts, where there is greater opportunity for fairer adjudication of complex legal cases. LCJ was very instrumental in educating judges on the need to support more favorable class action policy as part of its overall class action reform effort. And, its members have encouraged judges to enact more fair and balanced procedural rules at the state level pertaining to class certification.
LCJ continues to be a powerful advocate in protecting the privacy rights of defense litigants. We have worked in a number of states through the years to protect the privacy of sensitive and proprietary information of corporate defendants by preventing legislatures and rule-making bodies from imposing restrictions on court ordered protective orders and confidentiality agreements. LCJ's Privacy Protection Group played the lead role in defeating ATLA sponsored anti-privacy legislation in over 30 states. And it is carefully monitoring and providing a rapid response to oppose ATLA initiatives nationwide.
Editor: Will these be the key topics that will be covered at the December 2005 LCJ Membership Meeting?
Sinclair: Yes, these topics and others will be discussed at the LCJ Membership Meeting on December 12-13 in New York City. Other topics include "Dangers of Attorneys General/Plaintiffs Networking," "Advancing E-Discovery Reform Beyond the Federal Arena," and "Protecting the Attorney Client Privilege."
Editor: Who will be addressing these topics?
Sinclair: This year's meeting is designed to bring together representatives from among America's largest corporations along with the leadership of the national defense bar to address a wide range of civil justice reform topics affecting many industry groups. Confirmed speakers already include:
The Honorable Lee Rosenthal, Chair, Judicial Conference Advisory Committee on Civil Rules;
Chief Justice Myron T. Steele, Delaware Supreme Court;
Justice Nathan Hecht, Texas Supreme Court;
John Hofmeister, President and CEO, Shell Oil Company;
Charles W. Matthews, Jr., Vice President and General Counsel, Exxon Mobil Corporation;
William "Bill" Ide, Former ABA President and Chair, ABA Task Force on the Attorney Client Privilege.
Editor: How can interested parties attend the LCJ meeting?
Sinclair: LCJ is a membership organization but companies who wish to be involved in our legal reform efforts should contact LCJ Executive Director Barry Bauman at 202-429-0045.
Published December 1, 2005.