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November 2009

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This article is in the news archives --- for current news go to the Third Branch News.


FJC Survey: Lawyers Evaluate Discovery in Civil Cases

Most attorneys who represent plaintiffs or defendants in civil cases agree that “the procedures employed in the federal courts are generally fair,” but they have varying views about how well discovery—the pretrial exchange of evidentiary information—works, a survey conducted by the Federal Judicial Center (FJC) shows.

The national case-based survey was conducted in May and June 2009, and generated responses from nearly 2,400 lawyers about their experiences in recently closed cases. Its results are contained in a preliminary report the FJC submitted to the Judicial Conference Advisory Committee on Civil Rules. The report focuses on discovery activities, including electronic discovery issues related to electronically stored information (ESI), case management, litigation costs, and, more generally, the Federal Rules of Civil Procedure.

Among survey respondents, a majority disagreed with the statement that “discovery is abused in almost every case in federal court,” said the report, available on the FJC’s website, at www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf.

The types of discovery most commonly reported were interrogatories and requests for production of documents, followed by initial disclosures and informal exchanges of documents.

More than 60 percent of respondents reported that disclosure and discovery generated the “right amount” of information, and more than half reported that the costs of discovery were the “right amount” in proportion to their clients’ stakes in the cases.

When asked whether the Rules should be revised to limit electronic discovery specifically, respondents who represent primarily plaintiffs tended to disagree and those who represent primarily defendants tended to agree. Attorneys who represent plaintiffs and defendants about equally were opposed to limiting discovery in general, but divided about evenly on the specific question of limiting electronic discovery.

The survey found that, in the majority of cases involving requests for ESI, both sides of the litigation made such requests. Another finding: ESI disputes were not very common.

A majority of respondents, no matter whom they represented, supported revising the Rules to enforce discovery obligations more effectively. Respondents also seemed relatively satisfied with current levels of judicial case management in the federal courts.

In half the cases in which some discovery occurred, plaintiff attorneys reported that their clients’ discovery costs represented no more than 1.6 percent of the clients’ stakes in the case, and defendant attorneys reported that their clients’ discovery costs represented no more than 3.3 percent of their clients’ stakes.

In less than 5 percent of the cases with some reported discovery costs, plaintiff attorneys said discovery costs exceeded 25 percent of clients’ stakes. The comparable figure for defendant attorneys was higher—in 5 percent of cases, they reported discovery costs exceeding 30.5 percent of the clients’ stakes.

U.S. District Judge Mark Kravitz (D. Conn.) had requested in late 2008 that the FJC conduct research to support a May 2010 conference on civil litigation planned by the Advisory Committee on Civil Rules, which he chairs. The conference will be held at Duke University.

Kravitz indicated that the committee’s priority is “to examine the costs of discovery and to identify successes and problems related to electronic discovery under the revised rules.”

The FJC will issue another report in March 2010, which will include further analyses of the cost of litigation.