Vincent T. Chang, Chair Federal Courts Committee New York County Lawyers Association 14 Vesey Street New York, NY

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1 Vincent T. Chang, Chair Federal Courts Committee New York County Lawyers Association 14 Vesey Street New York, NY March 25, 2013 FEDERAL COURTS COMMITTEE OF THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMENTS ON PROPOSED RULES OF THE CIVIL RULES ADVISORY COMMITTEE AND THE COMMITTEE ON THE RULES OF PRACTICE AND PROCEDURE The Federal Courts Committee (the Federal Courts Committee ) 1 of the New York County Lawyers Association ( NYCLA ) has approved the following comments on proposed changes to the Federal Rules of Civil Procedure now under discussion in the federal Judicial Conference s Advisory Committee on Civil Rules (Advisory Committee). 2 For reasons set out more fully below, the Federal Courts Committee believes that the limitations on discovery proposed in the Advisory Committee are generally not advisable for litigation in the Southern and Eastern Districts of New York. Litigations in our jurisdictions tend to be ill-suited to strict numerical limits on discovery tools because, among other reasons, litigation here is disproportionately complex and often involves large quantities of electronic discovery. 3 NYCLA is an organization of nearly 9,000 lawyers. Its Federal Courts Committee comprises attorneys from all areas of the practice in New York, including governmental, corporate in-house, large-firm, and small-firm practitioners. NYCLA and its Federal Courts Committee issue reports and position papers on matters of interest to our membership and advocate changes in law and procedure that we believe will promote the public interest. NYCLA s Federal Courts Committee applauds the Civil Rules Advisory Committee and the Committee on Rules of Practice and Procedure ( the Committee ) for its thoughtful effort to address some of the principal issues that federal practitioners face on a day-to-day basis. NYCLA s Federal Courts Committee fully agrees with the goal underlying these proposed rules changes: the goal of expediting and streamlining litigation, and reducing the cost and burden of litigation to both the parties and the judicial system. 1 The views expressed are those of the Federal Courts Committee only and have not been approved by the New York County Lawyers Association Board of Directors and do not necessarily represent the views of the Board. 2 We are responding to the proposed Rules changes set out on January 3-4, 2013 at 3 Our view might be altered if the proposed rules are adopted with an exception for complex cases. However, as set forth below, many of our members believe that some of the proposed caps on discovery are not appropriate even in smaller cases.

2 As a general matter, however, we do not believe that numerical limits on discovery achieve the intended effect. 4 As we explain below, one broad Request for Production can impose more burden on a responding party than 50 targeted Requests. Moreover, at least in complex cases, document and data discovery are the most costly and burdensome aspects of litigation. Limiting the other tools of discovery, such as requests for admission and interrogatories use of which can focus and reduce the document/data discovery at least to a degree is misdirected and may very well have the unintended consequence of increasing the overall discovery burden and the inefficiency in the litigation process Thus, we believe that, rather than numerical limits on such devices as interrogatories and requests for admission, measures to promote early cooperation among counsel on discovery matters and early and frequent judicial intervention (including by special masters and magistrate judges) are the preferred mechanisms for promoting an efficient discovery process. Most surveys support the intuitive notion that early cooperation among counsel reduces the cost and expense of litigation. The same is true for early judicial intervention to address potential discovery problems before they cascade into expensive and burdensome disputes. As Judge Shira Schendlin of the Southern District of New York has explained: "In a complex civil case...the more 'hands on' management there is, the more engaged a judge is in making prompt rulings and resolving discovery issues, the lower the costs and the less time the case will consume from inception to resolution... There has been this cry from the Bar for more aggressive management of civil cases." 5 We acknowledge that in many, if not most, cases, the parties agree to limits on discovery and often agree on deposition, interrogatory, and other limits that exceed the numbers set out in the applicable rule. That practice reduces the damage which onerous discovery caps could impose in litigation. However, the presence of such caps could give one side or the other leverage to extort unreasonable discovery concessions from the other. As a result, and for the additional reasons outlined below, we generally oppose overly stringent limits on discovery. 6 4 Notably, with respect to changes to the federal rules in the area of discovery, Federal Judicial Center researchers reported that the project [of discovery reform] may have failed to reduce costs because it does not address the actual drivers of cost and because those costs have a source other than the Federal Rules themselves. Emery G. Lee III and Thomas E. Willging, Defining The Problem Of Cost In Federal Civil Litigation, 60 Duke L.J (2010) Some of our members have commented that proposed caps on discovery tools would have the beneficial effect of forcing attorneys in complex cases to cooperate early to seek mutual increases in the caps. Alternatively, such caps might have the effect of forcing a party to seek early judicial intervention in the discovery process, which might force a judge or magistrate judge to become engaged in the process at an earlier stage. Our majority view, however, is that more direct efforts to promote early judicial intervention and cooperation among the parties 2

3 Our opposition to these limits is consistent with prior positions taken by the Federal Courts Committee. In 1999, we opposed the initial disclosure requirements ultimately adopted in Fed. R. Civ. P. 26 and the seven-hour deposition limit because: [t]he proposed changes are on balance not constructive, in complex litigation. The proposals one size fits all approach may promote obstructionist tactics, increase litigation expense and lead to a loss of judicial economy in complex cases. 7 For similar reasons, we oppose most of the proposed changes currently at issue. I. Numerical Limits on Certain Discovery Mechanisms A. Requests for Production The proposal would limit the number of Rule 34 requests for production ( RFPs ) to 25. This would add a presumptive limit where one does not currently exist. We are opposed to the imposition of a 25-request limit for the following reasons. First, a one-size-fits-all blunderbuss limit fails to take into account variations among cases. While a 25-request limit may be perfectly acceptable for simple cases involving one party and one issue, such a limit may be wholly inappropriate for complex multi-party cases. In addition, in cases where discovery is staged, a party may find that it has exhausted its 25 RFP limit even though the discovery itself has uncovered significant new areas for which RFPs are appropriate. 8 Second, we also note that numerical limits are at best an imperfect way to regulate discovery given that the reality that 50 targeted RFPs could be far less burdensome than even one sweeping untargeted RFP. Indeed, it is entirely possible that a cap on the number of RFPs could simply cause attorneys to propound broader, less specific RFPs in an effort to preserve would be appropriate, rather than using stringent discovery caps as an indirect mechanism to accomplish such goals. In our view, the resulting coercion and potential preclusion of necessary discovery that would result from such caps far outweighs any potential benefit from increased cooperation or early judicial intervention. 7 Comment of the Committee on Federal Courts of the New York County Lawyers Association on Proposed Amendments to the Federal Rules of Practice and Procedure (2/1/99) (available at 8 This is especially true in cases involving large data sets, in which a party could discover a highly relevant document late in the discovery process, which was buried in the large data set. Furthermore, with the rise of e-discovery, a party must often make multiple requests, for example, requesting that the party produce its metadata, since the metadata may turn out to be material to the case, even though it was not originally requested or produced. 3

4 their right to seek discovery. If such a tactic became prevalent, it would, of course, increase the burden of discovery a result diametrically opposite to that which the Committee has sought to achieve. Third, if a limit on RFPs is imposed, NYCLA recommends that the limit be imposed at a somewhat higher level, perhaps 50, with the concurrent issuance of ample commentary indicating that the limit can be modified if good cause is shown. If the imposition of a 50- request limit results in considerable efficiency gains, NYCLA would have no objection to reconsidering the 50 RFP limit with an eye towards a 25-request limit. In NYCLA s view, a move from no limit to a 25-request limit is too draconian a move to effect in one step. Such a measure should be taken, if at all, after the bar has had the ability to adjust to limits on RFPs and to evaluate the effectiveness of such limits. B. Requests for Admission As a general matter, we believe that Requests for Admission ( RFAs ) generally do not impose undue burdens and are often under-used. We thus would not, as a general matter, place overly stringent limitations on the use of RFAs. The Committee s proposal would limit the number of requests for admission to 25. As with Rule 34, this would add a presumptive limit where one does not currently exist. For many of the same reasons as set out above, we oppose the imposition of such a limit, which we do not believe would effectively reduce the cost and burden of litigation. Instead, we would set the limit at 50 and assess the effectiveness of such a limit. In this connection, we note that the Southern District of New York s Pilot Program for Complex Litigation has imposed a 50 Request for Admission limit, rather than a limit of 25. The SDNY s Pilot Program also contains other provisions that we believe the Committee should consider in lieu of a cap on the number of RFAs. In particular, the SDNY s pilot program places no limits on requests for admission made pursuant to Rule 36(a)(1)(B) relating to the genuineness of any described documents. We believe that such an exception is reasonable and should be applied to any caps on the number of RFAs because RFAs directed to such issues as genuineness and authenticity often can avert the need for depositions and/or trial time. The SDNY s Pilot Program also limits RFAs to 25 words in length. While we believe a 25-word limit is too low and would support a 50-word limit, it is our view that a word limit would likely be more effective in controlling abuses than a cap on the overall number of RFAs. C. Interrogatories There is some division in our committee as to the usefulness of interrogatories and the wisdom of imposing strict limits on interrogatories. Many of the members of our committee believe that interrogatories, as a general matter, serve no great purpose and should be discouraged. Many members believe that interrogatories rarely elicit useful information and that depositions and document discovery are generally far more effective discovery tools. Indeed, one 4

5 federal Magistrate Judge with whom we spoke said that he would eliminate interrogatories altogether from the federal discovery repertory. Others believe, however, that interrogatories have at least some value, particularly when they are used as contemplated in the Southern District of New York s local rules, which permit interrogatories only for the purpose of seeking names of witnesses with knowledge of information relevant to the subject matter of the action, the computation of each category of damage alleged, and the existence, custodian, location and general description of relevant documents, including pertinent insurance agreements, and other physical evidence, or information of a similar nature. 9 It should be noted that there is far from a consensus in our committee as to the wisdom of the above rule. Indeed, the Eastern District of New York, the state courts in New York, and most other federal courts have not adopted the SDNY s limitation on the substantive scope of interrogatories. Despite our internal disagreements over the value of interrogatories in general, our committee does not see great merit in the Committee s proposal to limit the presumptive number of interrogatories from 25 to 15. As an initial matter, we note that such a stringent limitation would need to be accompanied by limitations on the scope of interrogatories and would make more sense if the substantive scope of interrogatories were limited in the manner set out in the SDNY s Local Rules. However, the Committee has not proposed any such limits on the scope of interrogatories. In any event, the SDNY has not imposed a 15-interrogatory limit even though it has placed tight subject matter limits on interrogatories. 10 We also oppose this change, for many of the same reasons outlined above. A numerical limit on interrogatories does little or nothing to reduce the burden of litigation if such a change does nothing more than cause parties to propound fewer, but broader and less targeted, interrogatories. In addition, a numerical limit would be of little use if it does not tackle the question of subparts, clarifying what sorts of subparts may legitimately be encompassed within a single interrogatory. E.g., Security Ins. Co. of Hartford v. Trustmark Ins. Co., No. CIV.3:01cv2198(DCD), 2003 WL , at *1 (D. Conn. Mar. 7, 2003) (identifying a person by name, address, phone number, and place of employment is necessary to accurately 9 In the SDNY, interrogatories other than those set out above, may only be served (1) if they are a more practical method of obtaining the information sought than a request for production or a deposition, or (2) if ordered by the Court. 10 This limitation would be especially disadvantageous for cases involving large data sets, where interrogatories can be useful tools in locating particular documents by bates number within the large dataset, with the responding party answering an interrogatory with a simple Fed. R. Civ. Proc. 33(d)(1) answer. 5

6 identify a person and does not count as four separate interrogatories) (citing Safeco of Am. v. Rawstron, 181 F.R.D. 441, (C.D. Cal. 1998)). In addition, we have conducted a survey of the number of interrogatories permitted in various jurisdictions and have discovered no state that imposes a limit of under 25 interrogatories. By way of example, Georgia and Nebraska impose a 50-interrogatory limit. Alabama and Arizona have a 40-interrogatory limit. California imposes a 35-interrogatory limit. Massachusetts, Maine, Illinois, and Kentucky have a 30-interrogatory limit. Texas has a 25- interrogatory limit. D. Limits on the Number and Duration of Depositions The Committee s proposal would reduce the presumptive number of depositions from ten to five and the presumptive length from seven hours to four hours. In the view of the Federal Courts Committee, these limits are too stringent and are not workable for complex litigation. First, we note that the seven-hour limitation is itself of recent vintage (adopted in 2000) and many commentators have opined that even the seven-hour limitation is difficult to work with. Indeed, in 1999, our Committee wrote that: The presumptive 7 hour deposition limit does not work in complex commercial litigation and, in a district such as the Southern District of New York, will only lead to a proliferation of motion practice over extending the time limits to deal with recalcitrant deponents (particularly party deponents) in high stakes lawsuits. Second, we believe that if a four-hour cap is adopted, it should contain exceptions for certain types of cases. Notably, California recently adopted the seven-hour rule but carved out expert depositions, depositions in complex cases with more than five parties, depositions in employment litigation, and corporate representative depositions. At a minimum, we believe that any four-hour rule should contain exceptions for these categories of depositions. Third, we do not believe there is empirical support for the notion that deposing attorneys are prone to waste time in depositions such that the caps in question are needed to address a pressing issue. In a survey (unfortunately rather dated) taken by the Federal Judicial Center, most attorneys did not complain about the number of depositions taken by their adversary until the number reached depositions. 11 They did not complain about the length of those depositions until the mean duration of such depositions was 11 hours. Thus, the data, which are admittedly limited, tend to show that the four-hour and five-deposition caps are well below the numbers that most attorneys would consider excessive. Fourth, if caps of five depositions and four hours are imposed, we urge that the rules and the commentary reflect that those limits can be overridden before the deposition takes place and 11 See T. Willging, Federal Judicial Center Research Div., Data on Durational Limits on Depositions (12/22/97) (available at 1.pdf) (survey of counsel in 1000 closed cases). 6

7 upon a prima facie showing of good cause. Without such guidance, the amount of satellite litigation over the length of depositions could increase dramatically if a four-hour limit is imposed. Moreover, such litigation may not be easily resolved. Currently, at least in some courts, a motion to exceed the seven-hour cap requires a fact intensive inquiry as to whether a particular witness should or should not be required to submit to questioning which exceeds seven hours in length. Forte Capital Partners LLC v. Harris Cramer LLP, No. C (SBA), 2008 WL , at *3 (N.D. Calif. Nov. 14, 2008). Moreover, a court may not even consider a request for additional time until the first seven hours have been exhausted. Malec v. Tr. Of Boston Coll., 208 F.R.D. 23, 24 (D.Mass. 2002). We do not believe that the process of eliciting a few additional depositions or a few additional hours of deposition time should be so burdensome. 12 II. Change to Rule 26 The Committee is considering a change to Rule 26(b), which would remove language regarding the scope of discovery ( [r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence ). The rule change would replace this language with [i]nformation within the scope of discovery sought need not be admissible in evidence to be discoverable, as well as would add new limitations to discovery based on proportionality. The standard currently in Rule 26(b) is workable and well understood. We do not see a need to change it. As our Committee stated in 1999 when considering a similar change to Rule 26(b): The subject matter standard has been thoroughly reviewed and defined by the courts over a period of decades. The existing rule is thus a predictable standard for practitioners and the courts. Changing it would introduce uncertainty and a proliferation of early judicial involvement. We do, however, agree with the effort to add language regarding limitations on discovery based upon proportionality. We note that existing case law already takes proportionality into account. See Sedona Conference Commentary on Proportionality (Jan. 2013); see also Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010) ( Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done-or not done-was proportional to that case and consistent with clearly established applicable standards. ). Cf. Pippins v. KPMG LLP, 2011 WL , *8 (S.D.N.Y. Oct. 7, 2011) (cautioning against the application of a proportionality test as it relates to preservation where it would be expensive for the producing party to maintain thousands of hard drives of employees who might become members of a Fair Labor Standards Act class action if the class is certified, but where the producing party was not able to establish 12 Rule 30 dictates, "[t]he court must allow additional time consistent with Rule 26(b)(2) if needed for fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination." Fed. R. Civ. P. 30. Any proposed rules changes should clarify that extensions of time limits based upon a prima facie showing of good cause are consistent with Rule 26(b)(2). 7

8 conclusively that the materials contained on the hard drives are either of little value or not unique ; discovery had not yet begun to resolve what materials are contained on the hard drives; the motion to certify had not yet been decided; and the producing party was reluctant to work with the plaintiffs to generate a reasonable sample of the hard drives that may well be less burdensome to maintain ). III. Other Proposed Rules Changes We do not have significant commentary on the other proposed rules changes and we support them in their entirety. For example, one proposed change would allow the service of discovery requests before the Rule 26(f) conference. We see no reason not to permit discovery to proceed before the Rule 26(f) conference, particularly in cases where the conference is not held for a lengthy period of time. 13 Likewise, the requirement that an informal conference be held with the court before discovery motions are filed strikes us as sensible. This is consistent with the rules adopted by the SDNY in its complex case pilot litigation program, which require pre-motion conferences before virtually all motions. Vincent T. Chang, Chair NYCLA Federal Courts Committee Ad Hoc Subcommittee on Federal Rules Changes Scott M. Berman Henry J. Kennedy Gregg H. Kanter Jeffrey H. Zaiger Carolyn A. Kubitschek Yitzy Nissenbaum Jai Chandrasekhar Yasuhiro Saito 13 While one of our members is concerned that an early start to discovery could result in uncoordinated e-discovery that is produced in an inefficient and unworkable fashion, the short answer is that such sub-optimal e-discovery could occur even if a Rule 26(f) conference is conducted before discovery begins. Early discovery requests could provoke earlier discussion of, and working protocols on, electronic discovery. 8