Editor: Lawyers for Civil Justice (LCJ) works to improve the civil justice system. What do you see as cause for reform?
Martin: There are many reasons to reform the civil justice system, some of which have become even more apparent in recent years. The costs and burdens of electronic discovery, for example, are skyrocketing. In the past, LCJ improved the 2000 Discovery and 2006 E-Discovery Amendments by limiting the scope of attorney-managed discovery, rationalizing pre-discovery disclosure, and reemphasizing judicial authority to require payment of discovery costs. But costs are still rising at a rapid rate, and, as a result, companies in America find it increasingly difficult to compete in the global marketplace.
Editor: What are some of the major accomplishments from this year?
Martin: LCJ has had a lot of successes this year in promoting reform of the Federal Rules of Civil Procedure and more. At the center of this activity is LCJ's ability to establish a dialogue with judges and other members of the Federal Civil Rules Advisory Committee on needed rules reforms. We also enlisted such strong participation in the Duke Conference that it enabled us to explain why more fundamental rule revisions are needed in order to achieve balance in our civil justice system.
We have maintained our record of successfully opposing efforts by some members of Congress to restrict protective orders and produced some outstanding scholarly articles and comments on various topics related to our FRCP initiative. For example, LCJ recently submitted an additional comment to the Rules Committee that incorporates each of the Duke Conference consensus preservation elements into specific proposed rule language. Many of the issues and positions, which LCJ raised over a year ago at the Duke Conference, have now gained broader acceptance among legal scholars and others - largely because of LCJ's work.
LCJ also began its State E-discovery initiative, which will systematically identify areas of rule-making opportunities in the states. Specific state reforms include the following: mandating that courts may order discovery of electronic information that is not reasonably accessible only for good cause; providing a safe harbor from court-ordered sanctions for destruction of information as a result of the good faith, routine operation of a computer system, unless the party intentionally or recklessly violated a preservation order; establishing predictable, consistent standards for protection against waiver of the attorney-client privilege and work product immunity in connection with the production of electronically stored information.
Finally, LCJ continued to support efforts to oppose legislation that restricts the discretion of judges to issue protective orders and seal settlement agreements.
Editor: Did you participate personally in some of the LCJ initiatives?
Martin: Yes. I found it particularly gratifying to attend the Duke Conference. I also attended a subcommittee meeting about issues related to Rule 45 on behalf of LCJ while I served as President. The Civil Rules Advisory Committee approved proposed Rule 45 amendments for public comment at its April meeting. The proposed Rule 45 amendments recommended to the Standing Committee conform to those LCJ has advocated and include reversal of the Vioxx Rule and maintenance of the 100 mile rule for subpoenas commanding trial appearances as in the noteworthy Big Lots case, while confirming nationwide service of process. The Committee will indicate a clear preference for maintaining the 100 mile rule, but will also circulate an alternative proposal that incorporates the Vioxx Rule. LCJ submitted a brief letter comment to the Committee confirming its prior positions which were adopted at the meeting. The Standing Committee will consider the recommendation for public comment at its June meeting and if approval is given, as is likely, the proposed amendments will be published for comment in August and considered for adoption at the 2012 Spring and Summer meetings respectively of the Advisory and Standing Committees.
Editor: Why is it important that the defense bar be represented?
Martin: In order to ensure that the civil justice system is as fair and balanced as possible, it's vital that the defense bar have representation. Before LCJ was formed in 1987 by the leadership of the organized defense bar and with the financial support of several Fortune 500 companies, there was very little opportunity for defense bar input in civil justice reform, although the need was recognized as far back as the mid eighties. Yet many defense trial lawyers specialize in the defense of those defendants who have been sued for money damages.
These attorneys have a unique opportunity to view the recent developments in the civil justice system, which have caused an alarming increase in the overall cost of compensating for personal injuries or civil wrongs.Collectively, these lawyers who make up the defense bar represent major corporations and more than 20,000 civil defense lawyers throughout the country, and it's very important that such a substantial group has adequate representation in the field.
In a broader sense, though, I think that LCJ strengthens the partnership between the defense bar and corporate communities. I find it's important to emphasize that both of them have a common purpose - and that's improving our nation's civil justice system. LCJ has a way of uniting its allies on civil justice reform in a common purpose.
Editor: Why is LCJ membership valuable to individual defense lawyers?
Martin: Operating in the heart of the nation's capital for more than 20 years, LCJ has developed tremendous advocacy capability. With members in every state, LCJ is able to track and respond to important developments in rules and legislation and facilitate quick reactions to changes in the political landscape. Maybe the most important fact, though, is that LCJ members have access to the resources provided by its extensive network of volunteers. Our members work together and individually to achieve reform through official testimony, formal comments, white papers, briefs and much more.
When you consider the size of the LCJ, its record of achievement is really remarkable. Part of the reason is that it has remained focused on key issues of importance.
Editor: How can our corporate counsel readers join LCJ in promoting civil justice reform?
Martin: Law firms are invited to apply to join LCJ by contacting LCJ Executive Director Barry Bauman. Interested defense lawyers can call the Washington office at 202-429-0045 or email Barry Bauman at [email protected].
Published May 31, 2011.
