May 28, 2022

Volume XII, Number 148

Advertisement
Advertisement

May 27, 2022

Subscribe to Latest Legal News and Analysis

May 26, 2022

Subscribe to Latest Legal News and Analysis

May 25, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

Progress in Reducing Litigation Costs in U.S. Federal Court System

It has been widely recognized that the costs of litigation in the U.S. federal court system are going  out of control. These higher costs induce parties to settle cases that have little or no merit; erode American companies’ ability to compete in world markets; and make foreign companies reluctant to invest here.  Excessive civil discovery is the primary culprit for these excessive costs and the accompanying delay in resolving cases.  Other systems abroad, as well as criminal law, arbitration and administrative litigation in the U.S., do not need massive document exchanges to reach just results.

Against this background, on May 29, 2014, the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure (“Standing Committee”) approved amendments to the Rules of Civil Procedure intended to reduce the burdens of discovery. One of the most important amendments emphasizes that information sought must also be proportionate to the needs of the case.  Mere relevance of the material sought will no longer be enough to permit unlimited discovery.

Another important amendment focuses on the tremendously costly burden for companies indefinitely to preserve electronically stored information.  Under the proposal, not  every failure to preserve can be punished–only those for which a party acted in bad faith to hamper litigation.  This change will reduce the economic burden  by enabling companies to exercise judgment about how much electronically stored information to preserve.

The next step for the proposal is approval by the Judicial Conference and then, the Supreme Court.  The amendments will then go into effect unless changed by Congress within six months of Supreme Court approval.  It is likely that they will be approved; however, this process will take at least another year.

Our view is that these amendments do not go far enough to address the underlying incentives that force bad settlements. This could have been achieved by expanding a judge’s authority to require the requesting party to pay for discovery and by providing specific examples of situations in which judges should use their authority to allocate costs of discovery to the requesting party.  The Committee was not prepared to go that far despite strenuous urging, but says it will take up economic incentives in discovery at a later date.

As a result, the proposed amendments are merely important and helpful steps in the right direction.  We believe more could and should be done.

© 2022 Covington & Burling LLPNational Law Review, Volume IV, Number 163
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Jon Kyl, Regulatory and public policy lawyer, Covington
Senior Of Counsel

Jon Kyl retired from Congress in January 2013 as the second-highest ranking Republican senator. He advises companies on domestic and international policies that influence U.S. and multi-national businesses and assists corporate clients on tax, health care, defense, national security and intellectual property matters among others.

During Senator Kyl’s 26 years in Congress, he built a reputation for mastering the complexities of legislative policy and coalition building, first in the House of Representatives and then in the Senate.  In 2010, Time magazine...

202-662-5660
E. Donald Elliot, Litigation attorney, Covington
Senior Of Counsel

Don Elliott, co-chair of the firm’s Environmental Practice, has over 30 years of experience in environmental law, administrative law and product liability and toxic torts, including having served as Assistant Administrator and General Counsel of the U.S. Environmental Protection Agency (EPA) and as national coordinating counsel in litigation for several companies.  According to Chambers, Mr. Elliott “brings a vast amount of experience to his broad environmental practice” while Who’s Who Legal notes that he is a “key figure” in the US and provides...

202-662-5631
Advertisement
Advertisement
Advertisement