SPECIAL MASTERS A Different Answer to a Perennial Problem - Merril Hirsh
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SPECIAL MASTERS
A Different Answer to a Perennial Problem
By Merril Hirsh, James M. Rhodes, and Karl Bayer
F
or decades, thoughtful drafters have amended rules with a view toward reducing
the costs of civil litigation: Meet and confer requirements; limiting, for example,
the number of interrogatories or the length of deposition; requiring signatures;
imposing sanctions for discovery abuse; and providing electronic (“e”) discovery rules.1
You’d think that with so many solutions to a longstanding and important problem,
we would be on to other problems by now. But, as Judge Lee Rosenthal, former chair of
the Advisory Committee on Civil Rules, noted: “[S]ince their inception in 1938, the
rules of discovery have been revised with what some view as distressing frequency. And
yet the rulemakers continue to hear that the rules are inadequate to control discovery
costs and burdens.”2
Published in The Judges' Journal, Volume 55, Number 2, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Below, we suggest that for all the fine it is mistaken to amend rules generally clients,” seems to be the problem,9 it may
efforts made to amend the rules, to solve because the data suggest that “complex, also suggest that when more is at stake,
the problem of overlitigation, we need to high stakes litigation, handled by big firms the dispute is more likely to be handled
do something else: Amend the process with corporate clients, are the cases most counterproductively.
to incentivize efficient litigation by likely to involve the kind of problematic Nor does saying that costs are propor-
employing significantly more intensive discovery that skews the discovery debate.”5 tional to stakes and complexity tell you that
case management than judges and mag- Look more closely, and the two camps’ cost is something potential parties can afford
istrate judges currently have the resources ideas converge on several important points. to pay. These days, it is not unusual for large
to provide. Make special masters not a rare First, they appear not to be so much dis- complex cases to use scores or even hundreds
exception to the normal process of com- agreeing over the problem as looking at of timekeepers and involve scores of millions
plex civil litigation but a normal part of different parts of the elephant. Both agree of dollars in fees, including seven- or even
complex litigation. Instead of using special that many judges, lawyers, and parties eight-figure expenses for e-discovery alone.
masters ad hoc (when a judge perceives report from experience that civil litigation With numbers this large, even large corpora-
unusual circumstances warrant appoint- is too expensive and damages our efforts to tions have to think twice before they take a
ment) and post hoc (after things have obtain justice. The Advisory Committee case to judgment. Nor are the complexity and
gotten so bad that the problems are dif- on Federal Rules relates that “[a]lmost half” stakes of a case necessarily tied to the parties’
ficult for anyone to solve), bring them in of plaintiff and defense respondents to a ability to pay for them. As Magistrate Judge
regularly at the outset and maintain a ros- survey of ACTL Fellows “believed that dis- John Facciola recently noted, the high cost
ter of special masters chosen through a covery is abused in almost every case.”6 Ask of civil litigation has made the federal courts
vetting process, trained to manage the liti- for examples, and what you hear is not rea-
gation, and monitored and evaluated to sonable differences over how to conduct
Merril Hirsh is a
confirm how well they are accomplishing discovery but sheer waste. As Judge Mark
partner in Troutman
it. Instead of attempting to define options Bennett has written, “Plaintiffs’ counsel
Sanders LLP and
within the scope of general rules, tailor often ask for so much irrelevant informa-
has practiced for
the approach to the disputes involved. tion that they would have no idea what to
over 33 years in
Because what is past is prologue, we do with it if they received it”; while not to
litigation in courts
begin by looking at prior studies on to what be outdone, “[t]heir overbroad discovery
in over 40 states
extent litigation is inefficient and why. requests are inevitably met with every
and in alternative
equally silly and impermissible boilerplate
dispute resolution.
Inefficient Litigation: Warring objection known to humankind.”7
He can be reached at merril.hirsh@
Camps that Find Peace Saying that discovery costs are propor-
troutmansanders.com.
There is healthy room for disagreement tional to the case’s stakes and complexity
over whether and how much to blame does not mean that all of these observers are James M. Rhodes is
the rules for causing or failing to prevent delusional or make obvious waste efficient. admitted to practice
civil litigation from being too expensive As Lee and Willging recognize, empirical in the states of
and protracted. Some, such as the Ameri- statistics can “shed some light” on a judg- New York and Texas
can College of Trial Lawyers (ACTL) and ment by telling you how much people are and is a litigator,
the Institute for the Advancement of the spending or how much they are spending independent
American Legal System (IAALS), argue relative to variables, but statistics do not arbitrator, and
that prior amendments have led to a sit- tell you whether they should be spending mediator with 50
uation where “discovery can cost far too so much.8 In fact, even if it were true that years of experience
much and can become an end in itself,” the amount at stake in litigation explained with the U.S. Justice Department and in
and they have cited as typical views that 100 percent of the variation in the cost private practice. He can be reached at
call e-discovery a “morass” and prior rule of discovery (and, of course, it does not), jamesmrhodes@me.com.
amendments a “nightmare.”3 it would not tell you what portion of the Karl Bayer, a
Others, such as Emery Lee III and amount spent on any case is necessary. It mediator, arbitrator,
Thomas Willging, argue that this view, could be, for example, that as cases approach and court master for
however strongly and widely held, is mis- “bet the company” levels, there is less con- 20 years in Austin,
taken because what statistics we have trol over the expense and, concomitantly, Texas, has issued
suggest that it is not the rules that drive much more waste when compared to litiga- over 50 reports and
the costs but rather that costs are propor- tion that is “lean and mean” (or, perhaps, recommendations.
tional (and, therefore, correlated) to the “lean and cooperative”). Indeed, statistics He can be reached at
amount at stake and the complexity of the suggesting that “complex, high stakes liti- karl@karlbayer.com.
case.4 Or they urge (also strenuously) that gation, handled by big firms with corporate
Spring 2016 • The
Judges’ Journal 27
Published in The Judges' Journal, Volume 55, Number 2, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.“inaccessible to the middle class” and, unless magnify pain or delay reckoning. But what Judge Frank Maas commented, civil trials
things change soon, “the vast majority of makes the problem of litigation cost par- have “gone the way of the dodo bird,” thus
Americans will never step inside a federal ticularly insidious is that you do not need eliminating the necessity for lawyers to
court no matter how just or meritorious their to ascribe bad motives to the participants focus on identifying the evidence needed
claims may be.”10 to see how our incentives are currently to prove their case at trial.17 Judge Bennett
Second, at this point, both camps gen- disserving our expressed goal of just, fair, calls discovery abuses “the mark of ‘litiga-
erally agree that regardless of whether rules and efficient resolution of disputes. tors’—water cooler Clarence Darrows,
are the problem, they have not been the Look at our current incentives. To begin paper-pushing paper tigers who seldom, if
solution. ACTL-IAALS’s recent follow-up with, we (for good reason) tell lawyers in ever, try cases.”18
agrees that “rules reform without a change the words of the old ethics cannons to Moreover, because the vast majority of
in culture will not be effective.”11 Their rec- defend their clients “zealously within the civil cases settle, the effectiveness of these
ommendations take the form primarily of bounds of law.” But the boundaries we set strategies is rarely tested by a final decision.
“Principles.”12 Lee and Willging suggest are inherently vague and debatable and, The cost of the process itself encourages
that gamesmanship may limit the effective- because we value parties having access to parties to settle regardless of merits and
does not often identify efforts as counter-
productive. Just as real estate lawyers put
the word “enfeoff” in deeds not because
Make special masters not a rare they know what it means, but because law-
yers have done that since the Middle Ages,
exception to the normal process of litigators do not want to risk going without
methods everyone seems to use, at least
complex civil litigation but a normal until someone gives them a reason not to.
You do not have to ascribe bad motives
part of complex litigation. to see how these incentives push the pro-
cess, and the envelope, toward broader
discovery and greater expense and why (for
all the hard work) rules have not by them-
selves solved the problem. Rules change
the terms of engagement, not necessarily
ness of rules or that rules simply may not information, necessarily expansive. There the incentives themselves. Limit the num-
be the “the actual drivers of cost.”13 Either is a tension here: You cannot make lawyers ber of interrogatories and lawyers argue
way, the message is to look to other solu- pledge to defend their clients to the death over how to count them (subparts, com-
tions besides rules. and then expect to gain traction by mas, etc.) or whether to grant leave to
Both camps also agree that “the ‘one size admonishing them not to overdo it. If cir- increase the number. Limit the number of
fits all’ approach to litigation does not cumstances encourage lawyers to overdo hours for depositions and you incentivize
work,”14 and it is a mistake to make general discovery (and attending disputes), then we the defending side to go into the four cor-
amendments based on problems that are should not be surprised when they do that. ners to have as little asked as possible.
particular to some instances and not to oth- Our system is also a victim of lawyers’ Worse, well-intentioned procedures can
ers.15 Accordingly, both camps would seem admirable desire not to prejudice clients by increase the incentive to be unreasonable.
to subscribe to ACTL-IAALS Principle No. missing something. We expect that lawyers For decades, courts have required parties
2 that “[t]he ‘one size fits all’ approach of the will wake up at night in a cold sweat about to “meet and confer” before they can bring
current federal and most state rules should the information they failed to request, not matters to the court’s attention. The logic
be discouraged. Case management should the requests they made in overabundance seems unassailable: 97 percent of ACTL
allow for flexibility to create different sets of of caution. survey respondents say that “when all
rules and protocols for certain types of cases Then add that, because it has been so counsel are collaborative and professional,
so that all cases can be resolved expedi- long since civil cases routinely went to trial, the case costs the client less.”19
tiously and efficiently.”16 there are now legions of lawyers at impres- The problem, as ACTL-IAALS reports
sive firms who have little or no trial in the very next sentence, is that “[u]nfor-
The Problem Is Not Just Culture, experience and learned at the feet of others tunately,” notwithstanding decades of
but Incentives who also had little or no trial experience. meeting and conferring, “cooperation does
If one size does not fit all, what does? It is What lawyers have learned to do well is not often occur.”20 Requiring lawyers to meet
easy to assume that litigation is too expen- assemble massive staff and apply them to and confer does not necessarily incentivize
sive because lawyers run up costs or that discovery so that no stone, pebble, or grain them to be cooperative. To the contrary—
parties want costs to increase so as to of sand remains unturned. As Magistrate in practice, it can encourage lawyers to be
28 The
Judges’ Journal • Vol. 55 No. 2
Published in The Judges' Journal, Volume 55, Number 2, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.unreasonable in the first instance because It is good to divorce the ethical obliga- If we do not want “one size fits all” for
they know that nothing can go to court tion to represent clients zealously from the complex cases, have someone there in com-
without the other side having to negotiate. seeming need to be unreasonable and to plex cases who can tailor the procedures.
Decades ago, parties frequently filed dis- admonish them to be reasonable.21 But For example, if you want to deal with
covery requests and responses with the admonishing lawyers to play nice is no more e-discovery, then have the decision maker
court. It is understandable why courts elim- effective than it is with children. We can- armed with technical expertise. To their
inated that practice: All the clerks’ offices not expect lawyers to be reasonable when credit, some judges and magistrate judges
in the world could not house all that paper, they perceive that the system rewards being have developed expertise in e-discovery
and it is hard to picture many judges leap- unreasonable: The RLs of the world risk and have worked to develop both rules and
ing at their in-boxes to read the Third-Party having virtue be its own (and only) reward. protocols for e-discovery. And the Seventh
Plaintiff’s Third Supplemental Objections Circuit’s Electronic Discovery Pilot Pro-
and Responses to Third-Party Defendant’s A Solution Requires Not Just gram, which brings e-discovery experts into
Fourth Set of Contention Interrogatories. Rules, but Resources the committees that design protocols, is an
But when courts stopped having discovery True virtue, like integrity, may well be important step.24
filed, they confirmed what was already true: “doing the right thing even when no one But we cannot expect every judge or
Parties are supposed to conduct discovery is watching.”22 But to incentivize virtuous magistrate judge to be a technology expert,
between themselves, confer about disagree- conduct, we need to be watching. Serve and efforts to resolve the problem by rule or
ments between themselves, and bother the discovery and the responses not only on protocol have inherent limitations. Tech-
court only when they cannot play nice adversaries but also a neutral, who will nology changes every week. It is difficult
enough together. schedule a call to discuss the reasonable- enough to keep up with the latest advance
In practice, this process can punish law- ness of the parties’ requests or responses sheets much less pore over every new soft-
yers for acting reasonably. Imagine (and we before the parties disagree. Under this sys- ware upgrade. Technological expertise
do not have to; we see it every day) that an tem, three things happen: allows you not just to address e-discovery
unreasonable lawyer (UL) knows that the problems but to craft solutions. For example,
adversary is a “reasonable lawyer” (RL). UL 1. Lawyers are incentivized to be rea- e-discovery experts can suggest ways to find
sends unreasonable discovery demands sonable in the first place. No lawyer information that seems inaccessible; balance
knowing that RL will send only reasonable really wants to look unreasonable in the costs and benefits of collections from
ones. UL makes as many objections and as front of a decision maker. Perhaps legacy data systems; and establish a protocol
few responses as possible knowing that RL before asking for the sun, the moon, for leveraging technology-assisted review
will provide limited objections and reason- and the stars, think about whether including e-mail threading, search term fil-
able responses. UL now has the responses, you really need Alpha Centauri. tering, or predictive coding. These experts
can schedule depositions, and can use the 2. If they are unreasonable, they do could also offer creative solutions to resolve
material in motions (all the while threaten- not gain by it. disputes, such as semi-automated privilege
ing in terrorem to demand the full 3. The lawyers get an answer logs, categorical logs or indices, or the pro-
unreasonable responses). In most courts, RL quickly—before they waste time duction of database export reports in lieu of
at best has to go through the meet-and-con- on objections, letters, counter-let- e-mails for establishing facts.
fer process, file a motion to compel, get the ters, and recriminations. Could the parties themselves save hun-
motion fully briefed, attend a hearing, and dreds of thousands (or millions) of dollars
await a decision that in some courts could Don’t just tell lawyers that they should by agreeing to all this themselves? Perhaps.
take months. Who would you rather be? not ask argumentative or unfair deposition But not if e-discovery is a fight for suprem-
When disputes come to the court’s atten- questions or make speaking objections or acy. Like the prisoners’ dilemma, the fact
tion only after objections, letters, improper instructions not to answer. Tell that efficient process benefits everyone does
counter-letters and recriminations, the pro- them that a decision maker will actually be not mean that either side will agree to it.
cess resembles a parent trying to make peace available for a telephone call, or, if necessary, You need a neutral to enforce the parties’
between finger-pointing children. The court be there in person to rule on objections. As higher self-interest.
is more likely to blame both children . . . er Judge William Schwarzer and Lynn Pasahow This type of tight case management is
. . . lawyers than to have the time and incli- note, when counsel know that the decision extremely time consuming and certainly not
nation to sort out who did what to whom or maker will actually take telephone calls from free, but the potential returns are enormous.
to head off the next fight. And if courts are depositions, “[t]he mere fact the judge is If we invest $1 million in managing a mas-
busy (which, of course, they are) and the readily accessible tends to cause attorneys sive complex case, we can potentially save
motion remains undecided, the dispute fes- to act more reasonably at depositions and the parties $10 million or more. Indeed, if
ters and grows, with both sides assuming forgo objectionable conduct, or at least to case management incentivizes lawyers to be
theirs is the correct position as they begin become more reasonable once a call to the reasonable, then the investment in case
the next discovery fight. judge is inevitable.”23 management will reduce the need for it:
Spring 2016 • The
Judges’ Journal 29
Published in The Judges' Journal, Volume 55, Number 2, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Lawyers will have fewer disputes and waste appoint a master only to” perform spec- require disqualification of a judge under 28
less time (the court’s and each other’s). ified functions, including “(C) address U.S.C. § 455.” Rule 53(b)(1) says that
Just because a case could involve many pretrial and posttrial matters that cannot “[b]efore appointing a master, the court
millions of dollars in legal fees, however, be effectively and timely addressed by an must give the parties notice and an oppor-
does not mean that judges and magistrate available district judge or magistrate judge tunity to be heard” and that “[a]ny party
judges have $1 million to invest in manag- of the district.” While this language seems may suggest candidates for appointment.”
ing it. It is no criticism of the bench to broad enough to permit appointment of By maintaining a roster of special mas-
recognize that very few judges and magis- special masters in a class of complex cases ters, judges and court staff can provide
trate judges have the time to provide this that outstrip judicial resources to man- quality assurance. They can establish a
level of hands-on case management. age, the traditional thinking has been selection process, training and review, and
ACTL-IAALS’s “Principles” (though more “that appointment of a master must be a means of assessing the work of special
modest than the hands-on control we dis- the exception and not the rule.”26 masters to make sure that they are improv-
cuss here) “call for greater involvement by However, the reason for making special ing the situation. They can link them to
judges” and urge “[w]here judicial resources masters the exception is precisely the rea- e-discovery expertise.
are in short supply, they should be son now to use them in complex cases. The Having a regular process can also facili-
increased.”25 But saying it does not make it 2003 Advisory Committee Notes explain tate regular study. Observe and evaluate
happen. With courts in some places closed that “[t]he need to pay compensation is a special masters. Do a test project (like those
one day a week for insufficient funding, substantial reason for care in appointing of the Federal Judicial Center) comparing
judicial vacancies, an enormous caseload, private persons as masters,” especially cases litigated with and without special
and priorities for criminal trials, it is not because parties may have uneven ability to masters to determine whether resolutions
reasonable to expect that judges or magis- pay.27 If, however, special masters pay for are less expensive. Develop working rela-
trate judges will have the resources to themselves by reducing the cost of complex tionships among the bar, the court, and the
perform the type of hands-on case man- litigation, it makes the process more fair, special masters so that the process is both
agement necessary to change the incentives not less. predictable in advance and evaluable in
in the process. Making the process more regular also retrospect.
Nor, critical as case management is to makes the case management effort more On the other hand, what is new is also
justice, is this type of case management the effective and less expensive. Now, with lim- in some sense old. Some state courts have
best and highest use of judicial time. As ited exceptions, special masters are brought programs that are somewhat closer to this
frustrations like those expressed by Judge into cases both ad hoc and post hoc. Most model, at least in particular areas. For
Bennett and Magistrate Judge Maas reflect, likely, a special master will be retained if example, some trial courts in California
very few judges or magistrate judges believe something has gone wrong—as a sanction have standing rules for appointing special
that they were called to the bench in order against a party that has failed to comply masters in particular types of cases—such
to herd cats. Nor should they. They should with discovery, or as a way of monitoring as construction or domestic disputes.28
be able to focus on case adjudication, not a remedy imposed for wrongdoing, or as a Moreover, both federal and state courts
on this type of case management. pox on both houses to deal with discovery already routinely use neutrals as a means
This puts our judicial system in a disputes that have already led judges and of addressing their caseload. Years ago,
conundrum. We could all save time man- magistrate judges to throw up their hands. judges spoke about settlement in far more
aging cases if we took more time away from It isn’t that special masters cannot help hushed terms. Now, there has been an
other judicial functions to manage cases. in those situations. They can. But coming explosion in the use of court-based alterna-
in to try to pick up the pieces that parties tive dispute resolution programs, primarily
Special Masters Can Do This have worked to shatter is not an occasion mediation.29 Civil litigators advise their cli-
Courts should make a dramatically broader where anyone is likely to shine. And as liti- ents to expect that they will need to discuss
use of special masters in complex cases to gants never know whether they will be settlement or attend mediation. At pretrial
perform the hands-on case management under the tighter control of a special mas- conferences, it is routine for judges to dis-
that controls costs. In some senses, this is ter, they cannot know that someone will cuss Rule 16(c)(2)(I), involving appropriate
a significant change from the way we use be watching. action on “settling the case.”
special masters. For example, Federal Rule Another apparent difference with cur- It could be equally routine to discuss
of Civil Procedure 53 has long discussed rent practice is that most courts do not Rule 16(c)(2)(H) (“referring matters to a
the appointment of special masters, but maintain rosters of special masters. Rule 53 magistrate judge or a master”) and (P) “facili-
literally the rule is not so much an autho- says very little about how special masters tating in other ways the just, speedy and
rization to appoint special masters as it is are to be chosen. Rule 53(a)(2) says that, inexpensive disposition of the action.” Iden-
a limitation on the inherent ability to do absent disclosure and consent, the master tify at the outset complex cases that can
so. Rule 53(a)(1) specifies that, “[u]nless “must not have a relationship to the par- benefit from tight case management, con-
a statute provides otherwise, a court may ties, attorneys, action, or court that would vince parties that this is likely to save them
30 The
Judges’ Journal • Vol. 55 No. 2
Published in The Judges' Journal, Volume 55, Number 2, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.time and money, and make sure it works by and the parties to secure the just, speedy, and Observation No. 1) (2015) [hereinafter Promise
carefully selecting masters to perform a regu- inexpensive determination of every action and & Progress], available at http://iaals.du.edu/sites/
lar service and evaluate their work. proceeding.” default/files/documents/publications/report_on_
This may seem like a tall order. But, in 2. Lee H. Rosenthal, From Rules of Procedure to progress_and_promise.pdf.
fact, most of the facilities for doing this How Lawyers Litigate: ’Twixt the Cup and the Lip, 12. Id. at 4–28.
already exist. Substitute “mediator” for 87 Denv. U. L. Rev. 227, 228 (2010). See also, 13. Lee & Willging, supra note 2, at 783.
“special master” and many courts do have e.g., Emery C. Lee III & Thomas E. Willging, 14. Promise & Progress, supra note 11, at 3
rosters; they do have training, observations, Defining the Problem of Cost in Federal Civil Liti- (General Observation No. 3).
evaluations, and surveys. These days, most gation, 60 Duke L.J. 765, 766–69 (2010) (many 15. Mullenix, supra note 5, at 686 (“If com-
courts have directed admirable energy to argue that the 1976 National Conference on plex litigation is the source of more problematic
doing agreement among litigants. By form- the Causes of Popular Dissatisfaction with the discovery practice, then rule reform ought to be
ing a committee to recommend guidelines Administration of Justice, 1997 Boston College tailored to the universe of this particular litiga-
to facilitate more efficient use of special conference, and the 1980, 1983, 1993, 2000, and tion that inspires complaint.”).
masters, the Judicial Division can help 2006 rule revisions all failed to curtail the expan- 16. Promise & Progress, supra note 11, at 4. See
courts to do disagreement too. n siveness of discovery). also Corina Gerety, Trial Bench Views: IAALS Report
3. See, e.g., Final Report on the Joint Proj- on Findings from a National Survey on Civil Procedure,
The views expressed in this article are the ect of the American College of Trial Lawyers 32 Pace L. Rev. 301, 303 (2012) (7 percent of state
authors and not the views of any firm or office Task Force on Discovery and the Institute and federal trial judge respondents in a 2010 survey
with which they have been associated or any for the Advancement of the American Legal agreed that the “civil justice system works well for
client. The authors wish to thank Candice C. System 2, 14–15 (rev. Apr. 15, 2009), available at certain types of cases but not others”).
Shang, George Washington University Law http://www.actl.com/Content/NavigationMenu/ 17. Gottehrer, supra note 10.
School, ’16, for her assistance in the research Publications/AllPublications/default.htm. See also 18. Bennett, supra note 7, at 6.
and drafting of this article. Stephen N. Subrin, Fishing Expeditions Allowed: 19. Promise & Progress, supra note 11, at 11.
The Historical Background of the 1938 Federal Dis- 20. Id.
Endnotes covery Rules, 39 B.C. L. Rev. 691, 706–07 (1998); 21. See, e.g., id. at 11 (discussing Seventh
1. See, for example, Fed. R. Civ. P. 26 advisory Richard L. Marcus, Discovery Containment Redux, Circuit’s Electronic Discovery Pilot Program’s
committee note on the amendments in: 39 B.C. L. Rev. 747, 752–53 (1998) (describing Principle 1.02 that “[a]n attorney’s zealous rep-
1980: “[t]here has been widespread criticism rising opposition to broad discovery). resentation of a client is not compromised by
of abuse of discovery”; 4. See, e.g., Lee & Willging, supra note 2, at conducting discovery in a cooperative manner”).
1983: the “first element of the standard, Rule 769–76; Charles Silver, Does Civil Justice Cost Too 22. The quote is attributed to author C.S. Lewis.
26(b)(1)(i), is designed to minimize redun- Much?, 80 Tex. L. Rev. 2073, 2074 (2002). 23. See William W. Schwarzer & Lynn H.
dancy in discovery and encourage attorneys to 5. Linda S. Mullenix, The Pervasive Myth of Pasahow, Civil Discovery: A Guide to Effi-
be sensitive to the comparative costs of differ- Pervasive Discovery Abuse: The Sequel, 39 B.C. cient Practice 139 (1989).
ent methods of securing information”; Rule 26(g) L. Rev. 683, 685 (1998). See id. at 689 (“[T]he 24. See Promise & Progress, supra note 11,
“provides a deterrent to both excessive discovery Advisory Committee will further amend the dis- Appendix A at xii–xiii (describing the program).
and evasion”; covery rules—even if this is neither necessary nor 25. Id. at 14 (Principle 10).
1993: “A major purpose of the revision is to desirable—because it is in the nature of bureau- 26. Fed. R. Civ. P. 53 advisory committee note
accelerate the exchange of basic information cracy that committees, once called into existence, on 2003 amendment.
about the case and to eliminate the paper work do something. Max Weber probably said that, 27. Id.
involved in requesting such information, and the someplace.”). 28. See, e.g., San Mateo County Local
rule should be applied in a manner to achieve 6. Judicial Conference Report, supra note 2, Court Rules, Division VIII.
those objectives”; Rules Appendix at B-6 (emphasis added). 29. The Alternative Dispute Resolution Act
2006: Rule 26(b)(2) is amended to address 7. Hon. Mark W. Bennett, Reflections on Judi- of 1998, 28 U.S.C. §§ 651–58, required each of
issues raised by difficulties in locating, retrieving, cial Regrets, 41 Litig. 5, 6 (Winter 2015). the 94 federal districts to “authorize” use of ADR
and providing discovery of some electronically 8. Lee & Willging, supra note 2, at 770–71. in civil cases. As of 2004, 63 districts authorized
stored information and to regulate discovery from 9. Mullenix, supra note 5, at 685. mediation; 28 some form of nonbinding arbitra-
sources “that are accessible only by incurring sub- 10. Gail Gottehrer, Judges Panel: What’s Wrong tion; and 23 early neutral evaluation. Thomas J.
stantial burdens or costs.” with Discovery? Top Magistrate Judges Analyze Stipanowich, Arbitration and the “Vanishing Trial”:
2015: Amendments that, among other things, E-Discovery Problems at Driven Inc. Panel, Law The Growth and Impact of “Alternative Dispute Res-
expressly limit discovery to be “proportional to Tech. News (Feb. 9, 2015). olution,” 1 J. Empirical Legal Stud. 843, 849
the needs of the case”; clarify when sanctions are 11. Am. Coll. of Trial Lawyers & Inst. (2004). As long ago as 1990, it was estimated that
appropriate for failure to preserve e-discovery; and for the Advancement of the Am. Legal more than 1,200 ADR programs were being oper-
specify that the rules not only be “construed,” but Sys., Reforming Our Civil Justice System: ated by or in conjunction with state courts. Id.
also “administered, and employed by the court A Report on Promise & Progress 3 (General
Spring 2016 • The
Judges’ Journal 31
Published in The Judges' Journal, Volume 55, Number 2, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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