The House Judiciary Subcommittee on the Constitution convened its hearing on "The Costs and Burdens of Civil Discovery" on Tuesday, Dec. 13, to address whether amendments to the Federal Rules of Civil Procedure (FRCP) are needed to ameliorate what the corporate legal community considers to be excessive costs and burdens of e-discovery. In the end, the consensus of the participating members was that the question is being actively studied by the Federal Judicial Conference's Civil Rules Advisory Committee, so there is no reason for Congress to involve itself at this time.
In his opening statement, Chair Trent Franks stated that the current discovery rules "appear to fall short" of the goal of encouraging the just, speedy, and inexpensive resolution of disputes envisioned by FRCP 1. "Costs are increasing because the discovery rules are too vague," Franks said, and the "[v]ague standards and harsh sanctions leave parties no choice but to preserve excessive amounts of data."
Rep. Jerrold Nadler, D-N.Y., opened his statement with the observation that the title of the hearing did not "even remotely acknowledge" the critical role discovery plays in uncovering facts so that cases can be resolved on the merits. While acknowledging that electronic data discovery poses new challenges and burdens to litigants, Nadler pointed out that electronic data has also "proven particularly valuable in uncovering critical evidence and improving accountability," and that "we should not lose sight of the tremendous benefits of discovery in our focus on its alleged costs and burdens." Nadler also read from a letter submitted to the subcommittee by the Civil Rules Advisory Committee, which urged the subcommittee "to allow the Rules Committees to continue their consideration of these issues through the thorough, deliberate, and time-tested procedure Congress created in the Rules Enabling Act."
Next up, Rep. John Conyers, D-Mich., pointedly asked Franks why no members of the advisory committee had been invited to testify at the hearing. When Franks responded that some judges on the Advisory Committee believed it was more appropriate for that committee to convey its position by letter, as opposed to appearing before the Congressional subcommittee, Conyers quipped that "apparently, their letter may not have been as persuasive upon you as they had hoped it would because you determined to continue the hearing anyway." Conyers then noted that less than one-tenth of 1 percent of federal cases involve the level of discovery costs that were subject of the hearing, "which suggests that this hearing may be based on some corporation insistence that they be heard about this matter" rather than a genuine need to consider rules changes.
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Source: law.com
By: Henry Kelston
In his opening statement, Chair Trent Franks stated that the current discovery rules "appear to fall short" of the goal of encouraging the just, speedy, and inexpensive resolution of disputes envisioned by FRCP 1. "Costs are increasing because the discovery rules are too vague," Franks said, and the "[v]ague standards and harsh sanctions leave parties no choice but to preserve excessive amounts of data."
Rep. Jerrold Nadler, D-N.Y., opened his statement with the observation that the title of the hearing did not "even remotely acknowledge" the critical role discovery plays in uncovering facts so that cases can be resolved on the merits. While acknowledging that electronic data discovery poses new challenges and burdens to litigants, Nadler pointed out that electronic data has also "proven particularly valuable in uncovering critical evidence and improving accountability," and that "we should not lose sight of the tremendous benefits of discovery in our focus on its alleged costs and burdens." Nadler also read from a letter submitted to the subcommittee by the Civil Rules Advisory Committee, which urged the subcommittee "to allow the Rules Committees to continue their consideration of these issues through the thorough, deliberate, and time-tested procedure Congress created in the Rules Enabling Act."
Next up, Rep. John Conyers, D-Mich., pointedly asked Franks why no members of the advisory committee had been invited to testify at the hearing. When Franks responded that some judges on the Advisory Committee believed it was more appropriate for that committee to convey its position by letter, as opposed to appearing before the Congressional subcommittee, Conyers quipped that "apparently, their letter may not have been as persuasive upon you as they had hoped it would because you determined to continue the hearing anyway." Conyers then noted that less than one-tenth of 1 percent of federal cases involve the level of discovery costs that were subject of the hearing, "which suggests that this hearing may be based on some corporation insistence that they be heard about this matter" rather than a genuine need to consider rules changes.
To Continue Reading: Click Here
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Source: law.com
By: Henry Kelston
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