Lawyers For Civil Justice (LCJ), Goals And Achievements

Gallivan: Please start the discussion by talking about why U.S. corporations need and support civil justice reform.

Mason: For corporations conducting business in America, the soaring cost of litigation has become a heavy burden. Litigation costs are in fact so high that some American companies may soon be unable to compete effectively in the global marketplace.

Lawyers for Civil Justice (LCJ) is addressing this issue head on. As a partnership of leading corporate counsel and defense bar practitioners, LCJ forges alliances among its members and leverages the strength of those alliances to help restore and maintain balance in the civil justice system. By uniting the business and defense bar communities in propelling reasonable reform initiatives, LCJ protects the interests of America’s corporations and delivers tremendous returns to its member defense litigants.

LCJ membership provides organizations with an amplified voice in civil justice reform and strengthens ongoing civil justice programs, which will save millions in defense costs.

Gallivan: Please outline some of the specific reforms LCJ is seeking, particularly with respect to e-discovery.

Mason: LCJ is leading efforts to improve the Federal Rules of Civil Procedure in four key areas: pleadings, limited discovery, preservation and cost allocation.

With regard to pleadings, LCJ supports implementing heightened pleading “plausibility” standards that would change the legal system’s “plead nothing, discover everything” approach to litigation. For discovery, LCJ is striking at the heart of overly broad discovery practices by encouraging the limitation of discovery and e-discovery to relevant, material information. And regarding preservation, LCJ advocates adopting preservation rules that limit the scope of preservation obligations, that define the triggering of preservation duties and that permit spoliation sanctions based only on willful destruction of information. In addition, LCJ seeks rule amendments that require each party to pay the costs of the discovery it seeks.

Gallivan: How about e-discovery reform at the state level?

Williams: LCJ’s State E-discovery Program is a program that is essential to improving the quality of justice at the state level. Through the use of nationwide surveys and state-specific action teams, LCJ has gathered valuable information from its member lawyers who face tremendous e-discovery challenges. They are on the front lines in defending their clients who find e-discovery requests so painfully burdensome and expensive. As both associate members of LCJ and counsel to some of the largest American manufacturers, they can also act as effective advocates of more favorable e-discovery laws in key states.

Gallivan: How does the upcoming November 29-30 LCJ meeting in New York City bring the important issues you’ve described to the forefront of the legal reform landscape?

Mason: Each of our meetings is integral to supporting the ongoing overall LCJ program, but this upcoming meeting will have special significance because it commemorates our 25th anniversary and 25 years of success in civil justice reform. It is unusual for an organization of our size to consistently attract such high-caliber speakers, but just consider who will be at this meeting. Confirmed speakers already include The Honorable Jonathan Lippman, Chief Judge of the State of New York, Chief Judge of the New York State Court of Appeals; The Honorable Judge Paul W. Grimm, Chief Magistrate Judge, U.S. District Court for the District of Maryland, Member, Advisory Committee on Civil Rules; The Honorable John G. Koeltl, Judge, U.S. District Court for the Southern District of New York, Member, Advisory Committee on Civil Rules; The Honorable Rebecca Love Kourlis, Former Colorado Supreme Court Justice; and The Honorable Paul D. Clement, Former Solicitor General of the United States.

The meeting also features leading corporate general and senior counsel from among large Fortune 500 Corporations. These include Jeffrey W. Jackson, Senior Vice President and General Counsel, State Farm Mutual Automobile Insurance Company; Timothy A. Pratt, Executive Vice President, Chief Administrative Officer, General Counsel and Secretary, Boston Scientific Corporation; John W. O’Tuel, Assistant General Counsel, GlaxoSmithKline; Jonathan M. Palmer, Senior Attorney, Microsoft Corporation; Michael Harrington, General Counsel Designate, Eli Lilly and Company, and many more.

Gallivan: LCJ had achieved successful outcomes on many fronts over the past 25 years. Can you give us some highlights?

Williams: LCJ’s advocacy has resulted in many significant reforms in the legislative and rulemaking arenas. With this track record as evidence of its effectiveness, LCJ is able to develop support for the following “consensus initiatives” that unite our membership.

• For more than 20 years, LCJ has been at the forefront of the opposition to anti-protective order legislation in Congress and the states – legislation that would have unnecessarily obliterated corporate defendants’ fundamental privacy and property rights. The most recent example was the defeat of provisions to restrict protective orders in legislation in 2011 related to the legislation titled “Securing Protections for the Injured from Limitations on Liability Act.”

• LCJ engaged directly with federal rule makers to reform Rule 23’s application to mass tort and complex cases by permitting permissive interlocutory appeals of certification decisions and by improving the rule’s provisions on standards and guidelines for class-action settlements.

• LCJ worked closely with the Judicial Conference’s Standing Committee on Rules of Practice and Procedure and Advisory Committee on Rules of Evidence to craft and recommend to Congress the new Federal Rule of Evidence 502 to prevent the unwarranted disclosure of information subject to the attorney-client privilege or the work-product doctrine. Congress enacted Rule 502 into law in 2008.

• LCJ initiated and led the successful effort to amend the Federal Rules of Civil Procedure to govern discovery of electronically stored information. The amendments, effective December 1, 2006, included two provisions that would not have been adopted without LCJ’s advocacy. Amended Rule 26(b)(2) requires good cause for discovery of electronic information that is not reasonably accessible. New Rule 37(f) provides a safe harbor from court-ordered sanctions for destruction of information as a result of the good-faith, routine operation of a computer system.

• LCJ successfully advocated adoption of significant amendments to the Federal Rules of Civil Procedure that narrowed the scope of discovery, including limiting attorney-managed discovery and disclosures to information that supports the party’s claims or defenses, and emphasizing proportionality. These amendments were effective December 1, 2000.

• LCJ supported the Advisory Committee on Rules of Evidence in rewriting Rules 701, 702 and 703 governing the admissibility and bases of expert testimony, including incorporating Daubert and Kumho Tire standards. After the revisions were adopted, LCJ turned its focus to enacting improved versions of those reforms in many key states.

• LCJ actively and successfully supported passage of broad-based tort reform legislation in many states, including reform of joint and several liability and punitive damages standards.

• LCJ engaged defense and corporate counsel in nationwide efforts to reduce the burdens and costs associated with intrusive electronic discovery, resulting in more balanced state and federal rules and state laws that improve upon the federal e-discovery reforms by incorporating a safer safe harbor, cost shifting, enforcement of proportional, two-tiered discovery, and other improvements.

• LCJ mobilized the corporate and defense bar in the successful effort to amend the Federal Rules of Civil Procedure to restore the mandatory nature of the grant of summary judgment in Rule 56 and to address issues related to expert reports and communications under Rule 26. The amendments were effective December 1, 2010.

Gallivan: LCJ members include senior corporate counsel of some of the nation’s leading companies and experienced practitioners from the nationally organized defense bar – DRI (Voice of the Defense Bar), the Federation of Defense & Corporate Counsel (FDCC) and the International Association of Defense Counsel (IADC). I would like to continue the discussion with some remarks from LCJ corporate counsel members Jeff Jackson and Tom Hill. Please talk about how LCJ is driving the process of civil justice reform in partnership with corporations.

Jackson: LCJ’s combined membership of corporate counsel and defense attorneys makes it a uniquely effective driver of civil justice reform. When a state legislature proposes legislation impacting civil justice issues, LCJ can mobilize local defense attorneys to testify about the appropriateness of the legislation. When the Federal Judicial Conference’s Civil Rules Advisory Committee discusses amending the Federal Rules of Civil Procedure to deal with electronic discovery, LCJ is able to mobilize corporate counsel nationwide to submit comments to ensure that the Committee understands the business point of view.

Although LCJ represents an independent voice of the defense bar, it has been a powerful ally in many state and federal legislative and rulemaking initiatives and deserves the strong support of the business community. The experienced defense practitioners involved in LCJ have focused their energy on enacting meaningful class action reform, adopting rules and legislation that will ingrain Daubert standards into state law, and protecting the privacy rights of defendant corporations that are frequently victimized by open-ended discovery.

We could probably spend a lot of time talking about the value of LCJ as a corporate member and why companies should be active in LCJ. First and foremost, LCJ represents a unique blend of the best of the best in the defense trial bar. What better place to learn, be educated and help try to change some of the imbalances that exist in the civil justice arena?

Second, selfishly, and now I’m talking to those corporate folks who have litigation backgrounds or who are responsible for litigation in their companies, there is no better place to find outstanding trial lawyers, in my opinion, than the Lawyers for Civil Justice. Third, there is a collaborative atmosphere in this organization, which I learned from and makes me more effective as an in-house lawyer for my organization.

Every time I leave an LCJ meeting, I have a sense of renewed purpose. That renewed purpose comes from conversations with our outside counsel who attend. It comes from my conversations with the corporate members as well. What it says to me is that we can never stop working on ways to improve the civil justice system.

Hill: Since its inception, LCJ has always been an organization that blends private practitioners with corporate practitioners to make sure that a wholesome and holistic view of legislative reform is in place. They worked on class action reform and general civil justice reform and, in my mind, always worked on good public policy.

Recently, LCJ has taken a very high-profile position in civil justice reform at the federal level, primarily in discovery. The electronic discovery work that the organization has put forth in the last couple of years has been top-notch. It’s been well received by the federal judiciary. It recognizes the complexities of the matter. It addresses both pre-litigation issues and post-litigation issues, again from a common-sense approach. And I think without that involvement, we would not be as far along as we are.

When my colleagues from other companies call me and want to get involved in civil justice reform, at the top of my list is LCJ because of exactly what I’ve said before. They blend the common-sense application of the civil rules of justice reform with a business perspective. And it’s a broad-based organization, so their business perspective is, again, good public policy.