Editor: Why is it that Lawyers for Civil Justice (LCJ) is able to attract high-level judges and renowned speakers to its meetings as you did recently at your Washington, DC May meeting?
Marchetti: For LCJ, these annual meetings represent an exchange of ideas, and our guest speakers share their own views on the most current issues in civil justice reform and interact with our members. May's meeting had an exciting array of guest speakers including prominent judges, state attorneys general, acclaimed scholars and authors. Some of our special guests included Texas Supreme Court Chief Justice Wallace Jefferson, U.S. Court of Appeals for the D.C. Circuit Judge Douglas Ginsburg, Colorado Attorney General John Suthers, Indiana Attorney General Greg Zoeller, Author and Professor of Law and Public Policy at Northwestern University Martin Redish and Cato Institute Senior Fellow and Author Walter Olson. Each of these individuals has made an enormous contribution to legal reform, and our meetings are a chance for experts to provide LCJ members with the most current information on civil justice issues and to speak with defense bar leaders and representatives from around the country.
Editor: What are the most important civil justice reform initiatives LCJ will undertake in 2011?
Marchetti: LCJ has a very full agenda for 2011, but two of our main initiatives are reforming the Federal Rules of Civil Procedure and minimizing the costs and burdens of electronic discovery at the state level. Regarding the FRCP, LCJ would like to achieve meaningful rule amendments in four core areas: preservation, pleadings, discovery and cost allocation. We've already seen some progress in those areas. For example, a subcommittee of the Advisory Committee on Civil Rules has proposed rule language in three of LCJ's focus areas - consideration of a "reasonable certainty" trigger standard; specific limits on scope, subject matter and time of preservation; and, possible alternative standards for sanctions concerning the willful, intentional, prejudicial loss of information.
The beauty of LCJ is that it was able to galvanize its members at an early stage of the process by forming a series for working groups, each of which provided contributions to LCJ's formal comment which was first put forward in our White Paper on reforming the Federal Rules and then submitted at the Duke University Conference in May to emphasize the need for reform.
Then, we were able to work with our members to gather data on litigation costs which we submitted to the Rules Committee. Following that, we worked with our members who provided us with anecdotal data and experiences that demonstrate the disproportionate cost of discovery relative to the value of the case in which the expense was incurred.
We are grateful that the Rules Committee has given thoughtful consideration to our defense viewpoint on these issues.
Editor: What about the State E-discovery Program? Is it still a major priority of LCJ as well?
Marchetti: Yes. LCJ is continuing its State E-discovery Program, and we are delighted that Marc Williams of Nelson Mullins in Charleston, West Virginia will be co-chairing this project with a corporate representative who will be designated soon. The project is designed to address the fact that e-discovery has become a heavy burden on corporations conducting business in America. The program prioritizes state reform efforts and targets state reform in a more systematic way to better leverage the resources of the defense organizations with those of the corporate community.
LCJ's extensive state network of defense trial counsel will work with LCJ corporate members and staff and with interested ally organizations and industry sponsors to pursue a systematic three-part State E-Discovery Program that further advances the goals of minimizing e-discovery costs and burdens to defendant corporations while harmonizing state laws to the greatest extent possible with progress made at the federal level.
There are three components to this program: (1) Information collection - development, circulation, and tabulation of a nationwide survey of defense lawyers to identify potential rulemaking and legislative needs and opportunities in each state; (2) Evaluation - analyze survey results, set priorities, and identify attorneys (both in-house and outside counsel) who could be instrumental in developing a specific action plan for key states; and, (3) Action - designate and manage teams of lawyers and other experts to advocate enactment of favorable rules in top priority states.
The project will rely on action teams in each of the priority states which will be responsible for supporting rule reform in those same states. LCJ has a long history of utilizing state action teams for this type of project, and we're excited at the prospects for 2011.
Editor: Why does LCJ work to achieve procedural rule reform at both the federal and state levels? Would LCJ accomplish more by focusing its efforts in a single arena?
Marchetti: It's important to remember that there is a relationship between state rules and the federal rules. There's a synergy between federal and state rulemaking, and LCJ wants to ensure that good rule reform which is enacted at either level is fully considered by the other. Otherwise, our approach would be less effective and, in many ways, incomplete. And, I think that, historically, LCJ has been successful at initiating rule change at both levels. So, the consensus is it makes the most sense to continue on in that respect, and this year's agenda definitely reflects that intention.
A good example of this is LCJ's prior successful work that contributed to the adoption of the recently enacted federal Rule 502 pertaining to inadvertent disclosure of privileged information. And, prior to that, as far back as 1995, LCJ began focusing on e-discovery at the federal level. Many of the beneficial rule changes which occurred in those efforts have been transferred to the states.
Editor: You have outlined two very beneficial rulemaking projects at the federal and state level. Is LCJ still involved in federal legislation as well?
Marchetti: LCJ has a long history of supporting reasonable federal and state legislative initiatives. One of those that is most important to our members is LCJ's project on protective orders which is designed to ensure the judges maintain the authority to issue protective orders and seal settlement agreements. For many years, LCJ has been at the vanguard of opposing anti-protective orders legislation at both the federal and state level. This year we are actively working to oppose S. 623, the so called Sunshine in Litigation Act.
This legislative effort is important to our members because both protective orders and sealing agreements are used to protect the proprietary information exchanged as part of the discovery process. In recent years, LCJ has worked closely with an array of other organizations, including the ABA and the Federal Judicial Conference Rules Committee to oppose the federal protective orders bill. Editor: What about your background best qualifies you to lead LCJ as it continues its mission to improve the civil justice system?
Marchetti: As an attorney with 34 years of experience representing large corporations, not-for-profits, and charitable organizations, I hope to bring some of my experience and expertise developed over those years to LCJ in my role as President. In my representation of major corporations as well as small businesses, which are the lifeblood of our economy, I've seen the crippling effect litigation and, in particular, excessive and overbroad discovery demands, have on these entities. The tremendous expense of not only monetary but personnel and other resources, at times, have a crippling effect on the day-to-day business of a company. I, along with other defense counsel, in our collaboration with our corporate partners in LCJ do not want to eliminate litigation. However, my and their experience can provide the "up close and personal" experiences we have had in our litigation experience with the hope of convincing judges and legislatures, both federal and state, that a level playing field is essential not only for the preservation of our civil justice system but for developing a strong economy.
I also served as President of the International Association of Defense Counsel whose members consist of attorneys in over 35 countries. In viewing their civil justice system, particularly as it relates to discovery, I see the tremendous disadvantage U.S. companies have in trying to compete with companies abroad who are "subsidized" by a more limited litigation process. Further, I have served on the Board of Directors for the Defense Research Institute, the Association for Defense Trial Attorneys and in various capacities at a number of national and local defense organizations, which also allow me to benefit from the experiences of other very experienced attorneys.
I also work very closely with many not-for-profit and religious organizations. These organizations are not equipped either financially or staff-wise to deal with litigation. Burdensome litigation and discovery requires them to divert their very limited resources needed to deliver services to a multitude of needy persons and causes. A more effective civil justice system will allow them to serve the underserved and the most needy of our society.
Editor: What is your vision for LCJ's future?
Marchetti: LCJ is uniquely positioned to have a tremendous impact on our civil justice system. For almost 25 years, the partnership between defense counsel and our Corporate Members allows LCJ and its various committees to have the very best resources available to educate and inform our legislatures and judicial committees. I hope LCJ continues to build on its excellent track record of achieving civil justice reform.
It's important that LCJ continues to mobilize defense and corporate counsel nationwide in its efforts to curb certain excesses and trends various groups are promoting within our judicial system. LCJ can be a powerful force not only at the federal level but as importantly on the state level. Ultimately, through LCJ, I hope to raise the awareness among defense counsel, corporate America, and the general public just how important our civil justice system is and the need to be ever vigilant and prevent excesses which seek to destroy that system we treasure.
Published May 31, 2011.
