American College of Trial Lawyers Releases Final Report Addressing Discovery and Issues Impacting Discovery, Encourages Public Comment and Debate

On March 11, 2009, the American College of Trial Lawyers released its report on discovery and issues impacting discovery.  The report is the final product of a joint project between members of the American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System.  The project was “conceived as an outgrowth of increasing concerns that problems in the civil justice system, especially those relating to discovery, have resulted in unacceptable delays and prohibitive expense.”  The goal of project was to provide Proposed Principles that would “ultimately result in a civil justice system that better serves the needs of its users.”

The Final Report identifies problems in several areas including pleadings, discovery, experts, and dispositive motions and provides Proposed Principles intended to address and resolve those problems.  The report’s discussion of discovery includes several Proposed Principles directly addressing the perceived problems in electronic discovery. Among those Proposed Principles are:

• Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation.  The parties should discuss the manner in which electronic documents are stored and preserved.  If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible.  That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of cost among the parties.

• Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens.

• The obligation to preserve electronically-stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation; however, it is unreasonable to expect parties to take every conceivable action to preserve all potentially relevant electronically stored information

These are just a few examples, however, and practitioners are strongly encouraged to read the report in its entirety.

The report ends by noting that there is more work to be done and by encouraging continued debate and movement towards reform.

A complete copy of the report is available here.