May 10-11, 2010: Civil Litigation Conference at Duke Law School

A live Webcast is available for the 2010 Civil Litigation Conference, sponsored by the Judicial Conference of the United States, and being held 10-11 May 2010 at Duke University Law School in Durham, North Carolina, USA.

The conference will focus on empirical research on U.S. federal civil litigation, including research on lawyers’ satisfaction with the Federal Rules of Civil Procedure, judicial decisions (Iqbal and Twombly and cases applying them) respecting pleading rules, ediscovery, the “vanishing trial”, incentives for settlement, and experimentation and proposals respecting civil litigation reform in U.S. states, including research conducted by the Institute for the Advancement of the American Legal System at the University of Denver (IAALS).

Click here for the conference program.

Click here for information about the conference from Duke Law.

Click here for an article about the conference from Tony Mauro at National Law Journal.

7th Circuit eDiscovery Pilot Program Committee Issues Phase 1 Report

The Seventh Circuit eDiscovery Pilot Program Committee has issued Seventh Circuit eDiscovery Pilot Program: Report on Phase One: May 20, 2009-May 1, 2010 (May 2010). Here is most of the executive summary:

The Seventh Circuit Electronic Discovery Pilot Program was initiated in May 2009 as a multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure.

The Seventh Circuit Electronic Discovery Pilot Program Committee (“Committee”) targeted its schedule so it could prepare this Report on Phase One for presentation at the Seventh Circuit Bar Association’s Annual Meeting and Judicial Conference on May 3, 2010. This Report contains an explanation of the process and reasoning behind the Committee’s Principles Relating to the Discovery of Electronically Stored Information (“Principles”). It also provides a preliminary, anecdotal “snapshot” of the information gathered regarding the application of the Principles in cases during Phase One of the Pilot Program. In May 2010, the Committee will review the feedback it receives regarding Phase One and this Report. It will then commence Phase Two of the Pilot Program, which will run from July 1, 2010 to May 1, 2011. The Committee intends to present its Report on Phase Two in May 2011, before moving on to Phase Three.

The Committee consists of a diverse and growing group of attorneys, non-attorneys, and judges experienced with the discovery of electronically stored information (“ESI”). The Principles were developed and drafted throughout the summer of 2009. During that time, there were numerous meetings, which included substantial discussion and debate among the members of three subcommittees — the Preservation Subcommittee, the Early Case Assessment Subcommittee, and the Education Subcommittee — to address the key ESI issues identified at the Committee’s first meeting on May 20, 2009, and draft proposed principles in response to these issues. In September 2009, the full Committee reviewed and adopted the Principles, which became effective October 1, 2009, as a part of Phase One. The Principles are contained in Section 2 of this Report.

From October 2009 through March 2010, the Principles were tested in practice. Thirteen (13) judges of the U.S. District Court for the Northern District of Illinois, including five (5) district judges and eight (8) magistrate judges, implemented the Principles in ninety-three (93) civil cases pending on their individual dockets. In March 2010, survey questionnaires were sent to two hundred eighty-five (285) attorneys involved in the Phase One cases as well as to the participating judges. All thirteen (13) judges responded to the Judge Survey Questionnaires, and one hundred and thirty-three (133) attorneys responded to the Attorney Survey Questionnaires. The Committee’s Survey Subcommittee worked closely with the Institute for Advancement of the American Legal System at the University of Denver, and the Federal Judicial Center in Washington, D.C., which is the educational arm of the U.S. Courts, in designing and administering the Surveys. Data analyses of both Surveys are in the Appendix in Section 12.E. and available on-line at www.7thcircuitbar.org.

Because a limited number of judges participated in Phase One, a reader of this Report should be cautious in extrapolating the judges’ responses to the questions posed on the Phase One Judge Survey Questionnaire to the larger population of judges throughout the Seventh Circuit or the country. It would be best for the reader to treat the responses to the Judge Survey as anecdotal expressions of experienced observers. The particular district judges and magistrate judges participating in Phase One, however, were generally positive about the effectiveness of the Principles.

One hundred percent (100%) of the judges either “agreed” or “strongly agreed” that the involvement of e-discovery liaisons required by Principle 2.02 (E-Discovery Liaisons) contributed to a more efficient discovery process.

Over ninety percent (90%) of the judges thought the Principles “increased” or “greatly increased” counsels’ level of attention to the technologies affecting the discovery process and the demonstrated familiarity counsel had with their clients’ electronic data and data systems. Ninety-two percent (92%) of the judges agreed that the Principles had a positive effect on counsels’ ability to resolve discovery disputes before requesting court involvement and reach agreements on how to handle the inadvertent disclosure of privileged information or work product. A summary of these and other survey responses by the participating judges, along with the judges’ specific anecdotal comments and opinions, is contained in Section 9.A. of this Report.

The one hundred and thirty-three (133) attorneys who responded to the Attorney Survey Questionnaire constituted slightly more than forty-six percent (46%) of the two hundred and eighty-five (285) counsel for the parties in the Phase One cases. Each attorney was asked to respond with regard to his or her experience in connection with the single Phase One case in which he or she served as counsel of record. The attorneys responding to the Attorney Survey Questionnaire were fairly evenly divided as to the role of their respective clients regarding ediscovery in their Phase One case. Thirty-three percent (33%) identified themselves as representing a party primarily requesting ESI. Thirty-five percent (35%) represented a party primarily producing ESI. Twenty-five percent (25%) represented a party equally requesting and producing ESI. Seven percent (7%) represented a party neither requesting nor producing ESI. The cases that were selected by the participating judges to be a part of Phase One were at various stages in the litigation process when the Phase One Principles went into effect on October 1, 2009. Consequently, because the discovery phase had already commenced in some of the Phase One cases, not all of the questions posed in the Attorney Survey Questionnaire were applicable to all cases.

A substantial portion of the responding attorneys, forty-three percent (43%), reported that the Principles “increased” or “greatly increased” the fairness of the discovery process. Fifty-five percent (55%) stated they believed the Principles had no effect on the fairness of the discovery process, and just under three percent (3%) felt that the Principles decreased the fairness.

More than thirty-eight percent (38%) of the responding attorneys stated that the Principles increased the parties’ ability to resolve e-discovery disputes without court involvement, sixty-one percent (61%) stated the Principles had no effect on this, and less than one percent (1%) stated the Principles decreased their ability to resolve e-discovery issues without court involvement.

When asked whether the application of the Principles affected their ability to zealously represent their clients, seventy-four percent (74%) of the responding attorneys indicated “no effect” and twenty-two percent (22%) said the Principles increased their ability to zealously represent their clients. Only four percent (4%) of the attorneys indicated a negative effect.

A further summary of these and other survey responses by the participating attorneys, along with those attorneys’ specific anecdotal comments and opinions, is contained in Section 9.B. of this Report.

In addition, during Phase One of the Pilot Program, the Committee’s Education Subcommittee developed an “E-Discovery Program” section on the Seventh Circuit Bar Association’s website (http://www.7thcircuitbar.org) as a resource to assist lawyers in accessing the case law addressing e-discovery issues. The Education Subcommittee has presented two national broadcast webinars, the first on February 20, 2010, titled “Reforming Discovery: The Seventh Circuit E-Discovery Pilot Program,” (scroll down) and the second on April 28, 2010, titled “You and Your Clients: Communicating About Electronic Discovery.” Both webinars were free of charge to the more than 1,000 participants. More webinars are planned.

The Seventh Circuit Electronic Discovery Pilot Program was featured in the November 2009 edition of The Third Branch, which is the newsletter of the federal judiciary. The Pilot Program was also highlighted in numerous privately sponsored seminars and programs across the country. As demand for information about the Pilot Program continued to grow, the Committee established the Communications and Outreach Subcommittee to oversee the flow of information about the Pilot Program to persons or entities planning presentations and seminars regarding the Pilot Program.

During Phase Two, the Committee hopes to expand the geographic reach of the Pilot Program and increase the number of cases and participating judges. The Committee also intends to lengthen the implementation period for Phase Two so the Principles will be tested more comprehensively than in Phase One. The Committee may also modify the Principles based on the Phase One feedback. Additionally, the Committee may establish more subcommittees to address other identified areas of ESI discovery as the Pilot Program continues. [...]

Lee & Willging, Attorney Satisfaction with the Federal Rules of Civil Procedure

Emery G. Lee III and Thomas E. Willging, both of the Federal Judicial Center, have published Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules (2010). Here is the executive summary:

This report provides a brief comparison of the results of three surveys on the current operation of the Federal Rules of Civil Procedure (“Rules”). These surveys asked attorneys in the American College of Trial Lawyers (“ACTL”), the American Bar Association Section of Litigation (“ABA Section”), and the National Employment Lawyers Association (“NELA”) to respond to a series of statements regarding the Rules. The Federal Judicial Center (“FJC”) did not administer the ACTL survey, but it did administer the ABA Section and NELA surveys. Respondents in the ACTL survey had many more years of practice, on average, than respondents in the other surveys. The following findings are discussed in this report:

• Members of the ABA Section tended to agree that the Rules are conducive to the goals stated in Rule 1 (“to secure the just, speedy, and inexpensive determination of every action and proceeding”), but ACTL fellows and NELA members tended to disagree.
• The statement, “The Rules must be reviewed in their entirety and rewritten to address the needs of today’s litigants,” elicited more disagreement than agreement in each of the surveys and among all groups (plaintiff attorneys, defendant attorneys, and attorneys representing both plaintiffs and defendants about equally).
• The statement, “One set of Rules cannot accommodate every type of case,” elicited more disagreement than agreement from ABA Section and NELA members, and more agreement than disagreement from the ACTL fellows.
• The statement, “Trial dates should be set early in the case,” elicited more agreement than disagreement with every group except ABA Section defendant attorneys.
• The statement, “Discovery is abused in almost every case,” elicited more disagreement than agreement from the ACTL fellows and ABA Section plaintiff attorneys, and more agreement than disagreement from NELA members and other ABA Section members.
• The statement, “Economic models in many law firms result in more discovery and thus more expense than is necessary,” elicited more agreement than disagreement in each of the surveys and among all groups.
• The statement, “The cumulative effect of the changes [enacted since the Pound Conference in 1976] has significantly reduced discovery abuse,” elicited more disagreement than agreement in every survey and among every group except ABA Section plaintiff attorneys.
• The statement, “Intervention by judges or magistrate judges early in the case helps to limit discovery,” elicited more agreement than disagreement in each of the surveys and among every group.
• The statement, “Judges do not enforce Rule 26(b)(2)(C) to limit discovery,” elicited more agreement than disagreement in each of the surveys and among every group, although ABA Section plaintiff attorneys were almost evenly divided.
• The statement, “Summary judgment practice increases cost and delay without proportionate benefit,” elicited more agreement than disagreement from plaintiff attorneys in each of the surveys and more disagreement than agreement from defendant attorneys and those representing both plaintiffs and defendants about equally.
• Attorneys in all three surveys reported that costs were disproportionate to the value of some cases, although respondents in the ABA Section and NELA surveys tended to answer that costs are not disproportionate to the value of large cases.
• In all three surveys, the most common response to the question asking about “the primary cause of delay in the litigation process” was “time to complete discovery.”

Respondents to the NELA survey were also asked a series of questions about the impact of the Supreme Court’s recent pleadings decisions [known as Iqbal and Twombly] on employment discrimination cases. The most commonly reported impact was the inclusion of additional facts in the complaint, followed by an increase in the number of motions to dismiss filed by defendants. Few respondents, however, reported that any of their employment discrimination cases had been dismissed under the new standard.

IAALS: Fact-Based Pleading: A Solution Hidden in Plain Sight

The Institute for the Advancement of the American Legal System (IAALS) at the University of Denver has issued a new report entitled Fact-Based Pleading: A Solution Hidden in Plain Sight (2010) (free registration required). Here is a summary:

“It is time to bring fact-based pleading out of the shadows and into the debate over constructive changes to the Federal Rules of Civil Procedure. Why have these states so steadfastly retained their fact-based pleading requirements over the years, especially in light of pressure to conform to the more general requirements of the Federal Rules of Civil Procedure? And what lessons can the federal system draw from their continued commitment to fact-based pleading? In this short paper, we explain how fact-based pleading increases access to the civil justice system, helps control cost and delay by narrowing the parties’ issues in dispute, and is flexible enough to allow all meritorious cases to be presented for the court’s consideration.”

Legal OnRamp members may view and participate in an interesting discussion of this paper.

HT Paul Lippe at Legal OnRamp.

Papers Available for New Horizons for Civil Justice in Europe: Towards the “Stockholm Programme”

Papers and outlines for the presentations given at the conference, New Horizons for Civil Justice in Europe: Towards the “Stockholm Programme”, held November 5-6, 2009, at the ERA Congress Centre, in Trier, are now available.

Here is the conference program. Here are background documents for the conference. Here is a list of the presentations, many of which deal with legal informatics issues:

• Diana Wallis, From Tampere and The Hague to the Stockholm Programme;
• Burkhard Hess, Minimum standards in civil procedural law;
• Salla Saastamoinen & Paolo Pasqualis, Mutual recognition of documents: Civil status documents; Legalisation of authentic documents;
• Salla Saastamoinen & Ulrike Janzen, Abolition of exequatur: pros and cons;
• Alexander Layton, Speeding up cross-border debt recovery: Attachment of bank accounts; Transparency of debtor’s assets;
• Etienne Pataut, Drafting new conflict of law rules for business: Company law; Insurance contracts;
• Guillermo Palao Moreno, Pressing the “blue button”: the CFR as optional European contract law?
• Jacek Garstka, Providing easier access to justice: E-justice; Electronic order for payment and small claims procedure.

Hedges et al. on Allowing Domestic Electronic Service of Process in the Federal Courts

Ronald J. Hedges of Ronald J. Hedges LLC, Kenneth N. Rashbaum of Fios Inc., & Adam C. Losey have published Electronic Service of Process at Home and Abroad: Allowing Domestic Electronic Service of Process in the Federal Courts, 4 Federal Courts Law Review 1 (2009). Here is the abstract:

“Federal courts see the many advantages of using electronic communications in lieu of pen-and-ink pleadings. Indeed, international
service by electronic means is already accepted in federal courts, as well as some jurisdictions outside the United States. Filing by electronic means is now the default by virtue of its ease, convenience and cost-effectiveness.

“Service by electronic media is an idea that has now come of age. This Article proposes amendments to the Federal Rules of Civil Procedure to allow domestic electronic service of process. Part II of this Article discusses service of process on foreign nationals via electronic communications. Part III advocates amending the Federal Rules to allow domestic electronic service of process in a manner akin to international service of process. Part IV contains proposed amendments to the Federal Rules that would allow domestic electronic service of process, with some limitations.”

Empirical Study of Civil Case Processing in U.S. Federal District Courts

A recent empirical study of civil case management in U.S. federal district courts offers interesting insights into the use of information in civil litigation, and the relationship of certain kinds of information processing to litigation costs and delay.

Earlier in 2009 The Institute for the Advancement of the American Legal System at the University of Denver (IAALS) issued its report entitled Civil Case Processing in the Federal District Courts: A 21st Century Analysis (2009). The report discusses results of an empirical study, covering more than 7600 cases, of civil case management in 8 U.S. federal district courts from October 2005 through September 2006. The methodology included statistical analysis of data taken from court dockets, and interviews with representatives of the courts studied.

Of the factors identified in the study, that appear to contribute to speedier civil case processing in federal courts, the following may be of particular interest to legal informatics researchers:

• schedules featuring shorter durations for all stages of litigation;
• refraining from deviating from those schedules;
• fostering, among counsel, expectations of expedited proceedings;
• collecting and disseminating metadata about case management to facilitate transparency and accountability.

Here are the findings of the report:

• “Finding #1: Cases in which: (1) a trial date is set early, (2) discovery issues are raised and resolved within the set discovery period, and (3) dispositive motions are filed as early as possible tend to be resolved more quickly than cases where these things do not occur. (emphasis added)
• “Finding #2: About one-third of civil cases take more than a year to resolve.
• “Finding #3: Rule 16 scheduling conferences are held in less than half of all civil cases. (emphasis added)
• “Finding #4: The time it takes a judge to rule on motions on disputed discovery, motions to dismiss, and motions for summary judgment varies significantly across courts.
• “Finding #5: Motions to dismiss were frequently filed and granted, even before the Twombly decision. (emphasis added)
• “Finding #6: Holding a hearing is associated with faster times to ruling for motions on disputed discovery, although the evidence is less clear with respect to dispositive motions.
• “Finding #7: Many cases settle shortly after a motion to dismiss or a motion for summary judgment is denied.
• “Finding #8: About 90% of all motions to extend deadlines are granted in every court, but in courts with faster average overall times, many fewer motions to extend deadlines are filed. (emphasis added)
• “Finding #9: External reporting of case management data does appear to encourage courts to rule more rapidly on certain motions than might otherwise be the case. (emphasis added)
• “Finding #10: An attitude of efficiency, especially when embraced by both the bench and bar, can contribute to lower disposition times.” (emphasis added)

The report also offers several recommendations for expediting case processing. Here are the recommendations for courts:

• “1. Setting firm dates early in the pretrial process for the close of discovery, the filing of dispositive motions, and trial, and maintaining those dates except in rare and truly unusual circumstances;
• “2. Ruling expeditiously on motions, even when the motions are denied;
• “3. Limiting the number of extensions sought by the parties during any phase of the case;
• “4. Working to foster a local legal culture that accepts efficient case processing as the norm, and enforcing that culture through active judicial case management (emphasis added); and
• “5. Tracking the status of cases and motions through internal statistical reporting, and disseminating the results internally and externally as appropriate.” (emphasis added)

The report also offers recommendations to lawyers:

• “1. Agreeing to realistic deadlines early in the case and not seeking a deviation from those deadlines except under rare and truly unusual circumstances;
• “2. Commencing discovery early in the discovery period, so that any discovery disputes may be presented to the court and resolved well before the discovery deadline;
• “3. Filing dispositive motions as early as possible in the case; and
• “4. Working within the bar generally, and with opposing counsel specifically, to foster expectations of efficient case processing.” (emphasis added)

Civil Justice, Case Management, & Discovery Reform Tools from ACTL & IAALS

Two new resources to assist U.S. courts and lawyers in implementing civil justice reform have been issued by the Joint Project of The American College of Trial Lawyers (ACTL) Task Force on Discovery and Civil Justice and The Institute for the Advancement of the American Legal System at the University of Denver (IAALS):

• 21st Century Civil Justice System: A Roadmap for Reform: Pilot Project Rules (2009). Here is a summary:
• “In March 2009, we published a joint Final Report that contains 29 Principles. Those Principles suggest changes to the civil justice system that would address costs by simplifying and expediting the system. The Final Report can be found on both of our websites at www.actl.com and www.du.edu/legalinstitute. The Principles represent the best thinking of the individuals involved in our project, in collaboration with the broader membership of the ACTL and with experts across the nation. Nonetheless, we understand how important it is to test our proposed solutions before suggesting that they be widely implemented. Accordingly, it is our intention that the Principles be tested in pilot projects in courts around the country, with the projects monitored and measured to determine what works and what does not. In order to be able to apply the Principles in those pilot projects, we have undertaken the task of reducing them to operational Rules. We urge jurisdictions to use these Rules as a roadmap for consideration in creating and implementing a pilot project. IAALS has dedicated a portion of its website to these pilot projects (www.du.edu/legalinstitute/tcri2.html), and will be collecting information as we move forward. IAALS will also be developing metrics to gauge the impact of the pilot projects.”
• 21st Century Civil Justice System: A Roadmap for Reform: Civil Caseflow Management Guidelines (2009). Here is a summary:
• “Excessive litigation costs and delay (separate but closely interrelated concerns) are two of the most serious problems in the civil justice system. These problems not only plague litigants whose cases do get into court, but also negatively affect access to justice, not just for the indigent, but perhaps even for the middle class. These concerns can be addressed meaningfully through caseflow management practices. Effective caseflow management involves much more than reducing time to disposition; it involves timeliness throughout the life of the case. … Another goal of caseflow management is to ensure that each event is meaningful, in that ‘the activity and preparation required for the event to take place on the scheduled date is completed before that date by all involved stakeholders.’ A corollary goal is to assure that effort is not duplicated. When the parties, counsel and the court prepare for an event, that event should occur. Otherwise, the preparation will have to be repeated. Additionally, the event itself should advance the resolution of the case in some way. The Guidelines that follow were drawn from a number of sources, including the Interim and Final Reports of the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS), and a recent and extensive IAALS civil case processing study [i.e., Civil Case Processing in the Federal District Courts: A 21st Century Analysis (2009)]. These Guidelines and the discussion of specific suggestions for applying the Guidelines are designed to assist judges in effectively managing the flow of civil cases to ensure that all events in the life of a case are timely and meaningful. … The Operational Protocols accompanying the Guidelines are intended to breathe life into the Guidelines. The Protocols are recommended practices and procedures that will assist judges in implementing the Guidelines. As is true with the Guidelines, not all of the Operational Protocols will be applicable to every case and judges exercising active caseflow management will be best positioned to determine which Protocols should be adopted in each case.” (footnotes omitted)

Both the Rules and the Guidelines include provisions for limiting pretrial discovery.

For more information on the joint project, please see the IAALS Website.

eDiscovery Developments in US Federal Courts

Two recent developments respecting electronic discovery in U.S. federal courts may be of interest.

First, the Federal Judicial Center has published National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules (October 2009). Here is the abstract:

“This report presents preliminary findings from a survey of attorneys in recenty closed civil cases which the Federal Judicial Center conducted in May and June 2009. Nearly half of the attorneys invited to participate responded. The report covers discovery activities and case management in the closed cases; electronic discovery activities in the closed cases; atorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attitudes toward specific reform proposals and, more generally, the Federal Rules of Civil Procedure.”

Second, this month the United States Court of Appeals for the Seventh Circuit launched an Electronic Discovery Pilot Program, and published a Statement of Purpose and Preparation of Principles (Oct. 1, 2009) respecting that program.

Both the FJC report and the 7th Circuit program will be discussed at two upcoming conferences:

• The Annual Meeting & Judicial Conference of the Seventh Circuit Bar Association, to be held May 2-4, 2010, in Chicago (details about the conference will be announced on the bar association’s Website);
• Conference of the Judicial Conference of the United States, Advisory Committee on Civil Rules, to be held May 10-11, 2010, at Duke University (for details, see the Nixon Peabody announcement (please scroll down)).

HT @PosseList & Nixon Peabody LLP.