Civil Justice Playbook: To Change the Discovery Culture, Take It One Case at a Time

Discussions of civil justice reform often take place at a 30,000-foot level, with broad conversations about making our legal system more efficient, navigable and affordable. While we at IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, strive to bring those conversations down to ground level with practical and implementable solutions for improving the legal system, we can be as guilty as anyone. Take, for example, discovery. Although topics such as proportionality and case management are highly influenced by the facts of the case and the particular judge, they are often discussed in generalities. The question is, how can we improve discovery in a very specific and practical way? One answer: focus on case-specific initial disclosures.

At the 2010 Conference on Civil Litigation at Duke University, sponsored by the Judicial Conference Advisory Committee on Civil Rules, the fundamental question of restructuring federal litigation as we know it was discussed by 200 attendees, including judges from federal and state courts; plaintiff, defense and public interest lawyers; corporate and government in-house counsel; and academics. Lofty stuff. While the conference concluded that such a restructuring was not necessary, attendees did determine that our legal system needs improvement, including more cooperation by the parties, proportionality in discovery and early active judicial case management. It is true that much of the discussion was at the 30,000-foot level, but there were also recommendations for specific action. One such suggestion that had widespread support was the idea of employing case-type-specific “pattern discovery” as a possible way to address unnecessary cost and delay in litigation.

Following the Duke Conference, IAALS facilitated the development of a set of protocols for use in employment cases – the Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Employment Protocols). These Employment Protocols were developed by a nationwide balanced committee of attorneys with experience on the plaintiff or defense side of employment actions. The Employment Protocols were published as a pilot project by the Federal Judicial Center in 2011. Today, approximately 75 federal district courts around the country, including all of the judges in the Districts of Connecticut and Oregon, have adopted the Employment Protocols.

An Opportunity to Evaluate the Specific Impact

One of the benefits of on-the-ground reforms is that they provide an opportunity to evaluate the specific impact of a change. The FJC issued a formal evaluation of its pilot project in October 2015 that cited several key findings, including less motions activity in the pilot compared to similar non-pilot cases. Discovery motions were reduced by half – a significant finding if one considers the cost and delay associated with such motions. Motions to dismiss and motions for summary judgment were also less likely to be filed, and the rate of settlement increased.

Given this success, IAALS recently facilitated the development of a second set of Initial Discovery Protocols for Fair Labor Standards Act Cases Not Pleaded as Collective Actions (FLSA Protocols). Like the Employment Protocols, the FLSA Protocols were developed by a balanced national committee of attorneys, this time with expertise in FLSA cases. The protocols were released by the FJC in January 2018.

Both sets of protocols work the same way. They are accompanied by a standing order that judges can enter in individual employment and FLSA cases. They also create a new category of information exchange, replacing initial disclosures with a specific list of documents and information to be exchanged by both parties within 30 days of the defendant’s responsive pleading or motion. For example, the FLSA Protocols require defendants to produce time and pay records. Plaintiffs must share their own documents recording time worked and wages or other compensation paid. The discovery must be produced automatically and is not subject to objections except for the reasons under Rule 26(b)(2)(B) (not reasonably accessible) or on grounds of privilege or work product.

The committee debated at length before arriving at a final compromise list of documents to be initially exchanged in every case. The goal is very concrete: to focus the disputed issues, streamline the discovery process and minimize opportunities for gamesmanship. The parties know the exact documents and information to be exchanged as part of the initial disclosures in every case, taking out the debate at the initial disclosure stage about what is relevant and proportional. Those debates no longer need to occur in every case. Instead, the parties can exchange their documents and then focus on the specific issues in the case, as well as the appropriate path to resolution, be it settlement or additional tailored discovery. This is good business for both the parties and the court.

A Nationwide Movement

The case-specific initial discovery protocols are part of a larger movement around the country toward initial disclosures. The goal is to flip the discovery paradigm from a world where all facts are discoverable to a world where discovery is tailored to the specific needs of the case. By requiring the parties to respond to specific initial disclosures early in the case, the overall cost and delay of civil litigation should be reduced. The federal courts are testing this premise through a new Mandatory Initial Disclosure Pilot Project (MIDP), implemented thus far in the Arizona and Northern Illinois U.S. District Courts. The standing order in the MIDP cases requires the parties to exchange “requested information as to facts that are relevant to the parties’ claims or defenses, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims or defenses.”

These reform efforts are not limited to federal court. Along with general initial disclosures, Utah has adopted specific initial disclosures for certain case types, including domestic relations (Utah R. Civ. P. 26.1), personal injury (Rule 26.2) and unlawful detainer actions (Rule 26.3). Like the employment and FLSA protocols, the Utah rule replaces initial disclosures under Rule 26 with an enumerated list of disclosures for both sides. The list of specific disclosures was developed by the bar with the goal of identifying and disclosing the key facts early in the case and streamlining the discovery process.

While case-type initial disclosures are not feasible for every case, for employment and FLSA cases, the protocols are changing the paradigm to an early and efficient exchange of information. The use of the protocols also provides an opportunity for empirical research on the effectiveness of specific disclosures. We are an evidence-based profession, and empirical research can play an important role in gaining widespread support for reforms. In addition, these protocols have been developed by attorneys working across the aisle to improve the process for all, resulting in greater buy-in from the legal profession as a whole. The protocols also have the support of the judges, who see the impact directly.

Since the Duke Conference, Chief Judge Lee H. Rosenthal of the Southern District of Texas has been a key supporter of the protocols, and she has played a significant role in facilitating their development. Having implemented the protocols last fall, she notes that the consistent response from lawyers is, “I like them; they save me time; they save me effort.” There is also efficiency from the court’s perspective, she adds: “I don’t have to reinvent the wheel in every case or figure out where the wheel is.”

How do you take a nebulous concept like the discovery culture in the United States and make significant inroads toward change? One answer: Take it one case type at a time.

Rebecca Love Kourlis is the executive director of IAALS, the Institute for the Advancement of the American Legal System. She has dedicated her career, both in and out of the courts, to ensuring that the system provides justice for all. She served Colorado’s judiciary for nearly two decades, first as a trial court judge and then as a justice of the Colorado Supreme Court, before stepping down in 2006 to establish IAALS. Reach her at [email protected].

Brittany Kauffman is the director of IAALS’ Rule One Initiative, which seeks to improve the civil justice process to achieve the goals of a more “just, speedy and inexpensive” system in our federal and state courts. In her current position, she works with committees and jurisdictions around the country, assists in developing and disseminating recommendations, undertakes national outreach and advocacy and provides legal and empirical research and analysis. She joined IAALS in 2012 after having practiced for eight years with Arnold & Porter LLP. Reach her at [email protected].

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