Pilot program aimed at reining in discovery

As pitch men, the three speakers had an impressive pedigree: Judges Margaret R. Hinkle, Stephen E. Neel and Judith A. Fabricant, the leaders of the Business Litigation Session in Boston. Appearing at a seminar for in-house counsel sponsored by the Massachusetts Bar Association, they were trying to sell an experimental approach to discovery that they hope will streamline the often onerous process.

“It is a very radical departure,” Hinkle said of the pilot project, “but we hope it will serve our common goals of a speedy, less expensive resolution of matters that are before the court.”

Discovery has been a leading complaint among attorneys and their clients, particularly those with sprawling electronic databases that can get sucked into the whirlpool of e-discovery; as cases spiral on, they create a vacuum that can siphon massive amounts of money and manpower into a void.

A pilot project in the BLS is hoping to take a step toward resolving the discovery dilemma, but whether it works will depend on if lawyers and their clients are willing to risk being pioneers in uncharted territory.

“It has enormous potential, but like any initiative of this kind, it will depend largely on the goodwill and efforts of the individual lawyers and litigants who participate in the process,” said Richard M. Zielinski of Goulston & Storrs in Boston. “I have seen many, many rules changes and pilot projects and efforts to deal with various problems in the court system over the years, and too often I find that courts … just rewrite the rules, but it doesn’t actually change behavior or change outcomes.”

Setting boundaries

As of Jan. 4, cases filed in the BLS are eligible for the voluntary pilot project. Attorneys who opt in will work closely with the court to set the scope and timing of discovery, with the guiding principle of keeping the costs proportional to the magnitude of the claims. In other words, a $50,000 case should not entail $500,000 worth of discovery.

Contentious interrogatories will be “disfavored,” and each party will be expected to produce “all reasonably available non-privileged, non-work product documents” at the beginning of the litigation, according to the BLS, while discovery will be “limited to documents and information that would enable a party to prove or disprove a claim or defense, or enable a party to impeach a witness.”

The proportionality principle will also apply to electronic discovery, the breadth of which will be determined by the “nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens.” If the parties cannot agree, the court will hold a hearing and issue an order governing e-discovery.

If, as the case unfolds, one of the parties wants more discovery, it will have to convince the court of the “good cause and proportionality” of its request.
“We have all been involved in cases in which discovery become the tail that wags the dog,” Neel said.

It can entail thousands of documents, mountains of electronic data and depositions of dozens of witnesses, he added, while the computer age has only intensified the problems, making the amount of discoverable data “virtually limitless.”
“It can be tremendously expensive, tremendously disruptive. It is something we hear disputes about all the time, and that is what we are hoping to address,” Neel told the gathering of in-house counsel.

The current model for discovery is “passive,” with the court on the sidelines as the parties battle over what must be produced, he said. The pilot seeks to change that, making the court an active arbiter, setting boundaries and seeing that discovery stays within the lines.

“This is a radical change in how we think about discovery,” Neel said. “We want to get our hands around discovery up front. The goal is to figure out how many depositions, of whom, how long it should take, and the extent of e-discovery.”

Opportunity knocks

As a member of the BLS advisory board, James C. Donnelly Jr. of the Worcester, Mass., firm Mirick, O’Connell, Demallie & Lougee said the pilot project could reduce costs and speed litigation. For the right parties, it will be a “valuable opportunity to engage in a much more efficient form of litigation,” he said.

The court is not “trying to avoid the complexity of business law issues, or the responsibility to deal with them,” Donnelly added. “What the pilot program is about is helping parties to avoid false complexity by finding more efficient ways to get those issues to the court sooner and at less expense.”

But he acknowledged that it “is not an opportunity that all parties will want to take. Some will have very legitimate reasons. There are some cases that probably don’t lend themselves to this approach, and nobody is trying to force anybody” into the project.
Several attorneys who deal frequently with the BLS said the voluntary nature of the project means that few — if any — cases will be tried under its guidelines.

“It’s a good step,” said Nancy M. Cremins of Gesmer Updegrove in Boston, “but the law is slow to change. We are a profession of precedent and habit, and we like to look back on how things have always been done.”

The discovery project emerged in response to a study by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System. The report, issued last March, concluded that civil trials are disappearing and litigants are “captive to cost, delay, and in many instances, gamesmanship” as the direct result of discovery, which has become “an end to itself.”

Given such an urgent problem, voluntary steps may not be enough, Cremins said.
“I hate to be a cynic, but I think a lot of the success or failure is going to rest heavily on the bar,” she said. “If there is not buy-in from the bar about this, then the project will be dead before it starts.”

For now, said Bruce S. Barnett of DLA Piper in Boston, the types of cases that might agree to the stricter discovery rules are those in which “the resources are more evenly matched on each side, so it is worth it to scale back.”

Though he suspects that means a limited number of cases will enroll in the pilot, Barnett said there may still be benefits: “Hopefully, we can get some experience and learn what … sort of pre-trial order or discovery limits might work and then see from there what might be applicable on a broader basis.”

Barnett said many “in the courts and the bar association and academia have spent a lot of time thinking about these discovery issues. Obviously, no one has come up with a solution, or else we would have adopted it. So the experimentation and the pilot projects need to keep going.”

According to Zielinski, the crucial question for the pilot project is the notion of proportionality: Can it keep costs of discovery in line with the value of a case?
“Something has to be done. In any number of cases I have been involved in, I have seen more resources consumed in pre-trial discovery than the entire value of the case on its best day,” he said. “Will this be the cure-all and the fix-all? I think it will depend on whether people participate in good faith.”