Paul W. Grimm and Judge David G. Campbell discuss changes to the Federal Rules of Civil Procedure concerning discovery practices and the effects of the “2015 Amendments” to the rules.
On this episode, host Paul W. Grimm speaks with Senior U.S. District Court Judge David G. Campbell about changes to the Federal Rules of Civil Procedure concerning discovery practices, and in particular, the effects of the “2015 Amendments” to the rules. These amendments include narrowing the scope of discovery to relevant and proportional information, reintroducing proportionality as a primary limitation to the scope of discovery, and emphasizing judicial case management to streamline litigation. Their discussion highlights how better discovery practices can lead attorneys to faster, better, and cheaper results for their clients.
ADDITIONAL RESOURCES:
Speaker 1: Hello, and welcome to Order in the Court, a podcast production of the Bolch Judicial Institute of Duke Law School. Here's your host, retired federal judge and the director of the Bolch Judicial Institute, Paul Grimm.
Paul W. Grimm: Welcome to Order in the Court. This is a podcast that discusses best practices and techniques for effective representation in federal court. My name is Paul Grimm. I'm a retired US district judge and the director of the Bolch Judicial Institute at Duke Law School. Today, my special guest is United States District Judge David Campbell from the District of Arizona. Judge Campbell, Dave, welcome to Order in the Court. It's such a great pleasure to have you join us.
Hon. David G. Campbell: Thank you, Paul. It's great to be here.
Paul W. Grimm: I'd like to start by setting the stage for our listeners. In addition to your longstanding and distinguished service as a district judge, you chaired the Civil Rules Advisory Committee where it was my honor to serve there alongside of you. You later were the chair of the Standing Committee for Rules of Practice and Procedure. Before we talk about specific aspects of civil discovery, could you briefly tell our listeners about the role of the Civil Rules Committee and the Standing Committee in the adoption and revision of the Federal Rules of Civil Procedure?
Hon. David G. Campbell: I would be happy to. To understand the role of those two committees, I think you need to start with a statute that was passed in 1934 called the Rules Enabling Act, which some people have described as a peace treaty between Congress and the courts on the question of who makes law and procedure for the federal courts.
The Rules Enabling Act gives the Supreme Court power to create rules of procedure and evidence for the federal courts. It specifically states that the Judicial Conference of the United States, which is the governing body of judges that oversees the federal courts, chaired by the Chief Justice, has the authority to appoint a standing committee to assist the Supreme Court in this rulemaking process. That standing committee consists of federal judges, lawyers, and academics appointed by the Chief Justice to help with all of the rules of procedure and evidence that the Supreme Court has authority to promulgate.
In addition to that, the Judicial Conference has created five advisory committees, an advisory committee for each of the five sets of federal rules: civil, criminal, appellate, bankruptcy, and evidence. And one of those committees that you've mentioned is the Advisory Committee on the Federal Rules of Civil Procedure. These five advisory committees also consist of judges and lawyers and academics appointed by the Chief Justice.
And the real work of reviewing and updating and revising the rules is done in these advisory committees. They are the ones who receive recommendations for changes in the rules. They are the ones who study the rules and look for areas of needed improvement. They propose changes to the rules and hold public hearings on those proposed changes. They are assisted by very able academic advisors who are on their committee.
And they then make a recommendation with respect to their set of rules. In the civil rules case, it would be the Federal Rules of Civil Procedure. They make a recommendation to the standing committee for changes to be made to the rules. The standing committee can then accept or reject those recommendations or require further work. If the standing committee approves the change, then those proposed changes go to the Judicial Conference of the United States. If the conference approves them, they go to the Supreme Court. If the Supreme Court approves them, then the Chief Justice presents them to Congress, and they sit before Congress for a period of six months. And if Congress does not act to reject or revise or return them during those six months, then they become federal rules for the federal courts. And under the Rules Enabling Act, they then have the force and effect of federal law.
Paul W. Grimm: That's a great overview of that process, which I have to confess, Dave, that when I became a judge, I had very little idea about how that process operated even though I had been using the Rules of Practice and Procedure for my entire judicial career. The most recent comprehensive changes to the Rules of Civil Procedure dealing with discovery, the topic of our conversation today, took effect at the end of that process that you just described on December 1 of 2015, and that was during the period of time that you served as the chair of that Civil Rules Committee. I recall that you masterfully summarized a very long document that went up for approval through each of those steps that you mentioned by saying that, in a nutshell, there were a handful of very primary goals and objectives of those proposed changes that took effect on December 1, 2015.
One dealt with redefining the scope of discovery; second, the importance of cooperation during the discovery process; third, reintroducing proportionality as a limiting factor in the scope of discovery; fourth, the importance of active judicial management of the discovery process to help keep costs and burdens low; and finally, the need for a new rule that became 37(e) that dealt with what was a big problem that was being looked at by the rules committee dealing with the duty to preserve electronically stored information and the possible consequences if a party failed to do so. I'd like to take each of these in turn and just ask you to share with us why they were so important to achieving best outcomes in the discovery phase of civil cases in court.
Let's start with scope of discovery. As you know, the new rule change, [which became] effective December 1, 2015, narrowed the scope to non-privileged matters relevant to a party's claims and defenses and discontinued the previous second layer that could allow discovery for good cause that was relevant to the subject matter involved more broadly. That was one. It also got rid of the language that had previously existed to eliminate discovery, "reasonably calculated to lead to the discovery of admissible evidence," so-called discovery about discovery.
Could you unpack the changes to the scope of discovery and why those were considered so important by the committee to recalibrate the discovery process to address many of the complaints that the committee was told about that led to this rule change?
Hon. David G. Campbell: Sure. I think to understand the 2015 Amendments, it's helpful to go back to 2010 when the Civil Rules Advisory Committee convened a conference at Duke Law School; came to be known as the “Duke Conference.” That was intended to be a broad look at the Federal Rules of Civil Procedure and how they were working, where they needed to be changed, where they needed to be updated. About 200 lawyers, judges, and academics from around the country were invited, state and federal court, appellate and trial — a very broad range of experts on both sides of the “V” from the bar. And in advance of this conference, there were lots of studies done, there were lots of papers written. It was a very intensive look at what could be done to make civil litigation less expensive, more efficient, more helpful to the parties involved.
Every change you just described, Paul, came out of that 2010 conference. That's where it had its beginning. And it became apparent at the conference that even though folks didn't think we needed to scrap the system and start over, it was clearly too cumbersome and too expensive, and most of the problems arose in discovery.
The first thing that you described that ultimately came out of that 2010 conference was a change in 2015 that focused discovery more narrowly on what really needed to be obtained in a case. As you've identified, it limited discovery to information that is relevant to a claim or defense. Several years before, discovery could be conducted into anything related to the subject matter of the case. The Civil Rules Committee had changed that sometime before 2015 and said we only get that broad discovery if you can show a reason for it. You have to show good cause. But when we got to looking closely at the rule in connection with the 2015 amendments, we concluded that not only was that broad discovery into subject matter not needed, it was virtually never requested, and so that was just dropped from the rule. There is nothing in the scope of discovery that now says you can get it into any subject matter related to the case. It has to be relevant to the claim or defense. I think the more important change was that the rule now says it isn't enough that it's relevant to the claim or defense to conduct discovery of it. It not only has to be relevant, it has to be proportional to the needs of the case. And we will talk about that more in a minute.
We also recognized as we went through this that the most common standard that lawyers cited and that judges cited in their rulings on what was or was not discoverable was that sentence you mentioned in the rule which said that parties could obtain discovery of any information that was, quote, "reasonably calculated to lead to the discovery of admissible evidence," close quote. That was a very broad standard. In fact, people often drop the admissibility part of it out and said, "Well, it's reasonably calculated to lead to something that might help me in my case so I can conduct discovery of it."
We found when we studied the rule that that “reasonably calculated” language was never intended to define the scope of discovery. It was added to the rule in 1946 when lawyers were objecting to discovery on the ground that the information to be discovered would never be admissible. They were taking the position, for example, that hearsay couldn't be inquired into in a deposition because it would never be admissible at trial.
Well, the rules committee back in the 1940 said that doesn't make any sense because getting that hearsay may lead you to something that's admissible, so they added that sentence basically saying there is not an admissibility objection to discovery, but that's all that was intended. Over time, however, it took on a new life. It became the definition of the scope of discovery, and so we just dropped that sentence from the rule, and we rephrased it to say that information within the scope of discovery need not be admissible in evidence to be discoverable and therefore got rid of the “reasonably calculated” standard. At the end of the process, there's two tests for the scope of discovery. Is it relevant? And is it proportional? And we thought that would help achieve the goal from the 2010 conference of eliminating much unnecessary discovery.
Paul W. Grimm: Dave, before we start to talk about proportionality, I'm mindful of a lesson that I think all of us who spent so much time on the 2015 changes saw is that the minute you adopt new amendments to rules, you do though that against the backdrop of dozens or perhaps hundreds of cases that have previously construed the old version of the rule. There's no magic that goes through all those cases and says, "Hey, wait a minute. Don't cite this case for that proposition; the rule's been changed." You have to rely upon the fact that when you're citing a case, you have to look at the date of that case and then try and see if the rule that if you've [cited has been changed]. You recall one of the members of the committee, Chilton Varner, had a great expression that she would say sometimes. If she wasn't really enthusiastic about something but didn't want to object to it, she'd say, "Well, I'm not prepared to die in a ditch over that." But if you were going to die in a ditch over an interpretation of a rule, you want to make sure that that ditch had not been filled in by a change to the rule.
I think we see it less often now, but it was a lesson to me that after all the work that went into the 2015 changes in all the work that we did with the chief justice's fantastic support and Lee Rosenthal and her road trips to get the word out there that we still see occasionally even today some citations to that old language because you find a case that says what you want it to say and it was 2006, but it wasn't 2015. There is that time that it takes sometimes for these new rules to take hold as concretely as you might want.
Hon. David G. Campbell: I agree with that. And I think added to the fact that it's sprinkled throughout decades of case law. It's also the fact that just old habits die hard, and lots of busy judges and lawyers don't take time to read the updated rules when they're thinking of discovery. “Reasonably calculated” springs to mind. As recently as last year, eight years after this change, I saw a federal court of appeals issue an opinion citing the reasonably calculated standard that had been eliminated in 2015. It does take time.
Paul W. Grimm: And I think that that's a practice pointer that I would share with our audience. I think it's very important to keep that in mind. We really understand how much time pressure there is in the course of a case and that you're working hard to meet deadlines and responding to motions and everything, but you really do need to make sure that when you're arguing an interpretation of a rule and you're citing a case that's been around for a while to support your interpretation that you check to make sure that the rule that you're talking about hasn't been amended after that case was decided. And that will be appreciated by the judge. And it may actually win the case because your opponent might not have done that.
Let's talk proportionality. The discussions about proportionality, Dave, were fascinating to me when we were there. And it got us back into the history of the rules and how they had originally been done. As you know, the rules committee and the change to Rule 26(b)1 reintroduced the notion of proportionality as part of the scope of discovery. Now, that had previously been the case. It had always, at the earlier stages, been what the rules committee intended, and of course by implication Congress and the Supreme Court as well. But through a series of amendments, it [the proportionality limitation] had dropped down into lower portions of Rule 26. And Dave, you know better than almost anybody, I would bet a soda pop that the longest rule of practice and procedure in any of the five sets of rules is Rule 26. It just seems to go on forever. You can understand why someone might not read further than scope of discovery to go a couple sections down and see the proportionality never disappeared, it just dropped down into a subsection and “disappeared”.
The 2015 changes gave it pride of place again as part of the scope of discovery. And I think that may have been one of the most important things that that set of changes accomplished. Could you talk about that, why the committee did that and why proportionality has always been and will always continue to be so important to proper discovery that's enough for what you need for your case but not excessively burdensome and expensive?
Hon. David G. Campbell: One of the points of almost universal agreement at that 2010 conference at Duke was that discovery is often disproportionate to what's at stake in the case. There were some surveys done before the conference was held, and my memory of those surveys is that 70% or 80% of lawyers in the ABA Section on Litigation said that discovery was almost always excessive in small cases, and about 40% said it's almost always excessive in large cases. There were very similar numbers that came out of some other bar groups that were surveyed.
The idea of proportionality is that the tail shouldn't wag the dog. A case with $80,000 in dispute shouldn't spend $80,000 on discovery. It makes it impossible to litigate. It means the merits are never addressed. The basic idea of proportionality is that the discovery should be proportional to what's at stake in the case, simpler cases should have less discovery, simpler discovery, complex cases should not engage in unnecessary discovery, and that the parties and the judge ought to be asking the question through the case; what's really needed for this case to be decided fairly. And that's all we're going to do. We're not going to bill by the hour and conduct extensive discovery on matters that are not likely to have much of an effect in the case.
As you mentioned Paul, that concept had already been in Rule 26 but not with the word proportionality. It was actually, by the time we got to it in part 26(b)(2) of the rule, which said that the court on its own motion or at the request of the parties, and I'm now reading, quote, "must limit the frequency and extent of discovery if it determines that the burden or expense of the proposed discovery outweighs its likely benefit considering the needs of the case, the amounting controversy, the party's resources, the importance of the issues at stake in the action, et cetera." It was already there in the rule, but it wasn't in the defined scope of discovery. And we found as we looked into it that it was almost never discussed. And that's what people at the Duke Conference complained of. Judges don't raise it, and the other side doesn't believe it's really required.
The change we made in 2015 was really two steps. First, we actually put the word proportionality into the rule as a thumbnail way to identify this concept. And we secondly moved it right up into the scope of discovery where it is unavoidable. Now when you read the rule in the scope of discovery, the information to be obtained must be relevant and it must be proportional to the needs of the case considering six non-exclusive factors which are then set forth. And I think folks now are familiar with that language and what it means.
I think it has accomplished its objective in large degree. I find when parties raise issues with me about discovery or when we talk about it in a case management conference, proportionality is discussed as often as relevancy is, so it's on people's minds; it never was before. I don't know how well judges are doing and parties are doing in truly holding the litigation to what's proportional, but I think it's better than it was. I think we can still improve through active case management that we'll be talking about in a minute. But you're right, that was one of the more important efforts in the rule to try to reign in the scope of discovery and the cost of litigation.
Paul W. Grimm: I think that that was such an important insight that we got from that process. And it's going to become apparent, I think, to our listeners, I hope. One of the reasons why that succinct summary [of] what we were trying to accomplish is so important is because it's going to become apparent when we get through each of these areas that you don't read these rule portions in isolation; they all are mutually supportive. The next couple of things that we're going to talk about help deal with that as well, but it was really a very significant accomplishment. And I agree with you, I think that it has been largely successful in raising consciousness that this notion of proportionality is something that has to be reckoned with from the beginning of the case and throughout it, which had not been the case before.
The next area is one that, you recall, Dave, there was a lot of discussion about. And there were some people who were passionately in favor of it and some people who were just as passionately against it, and that is a notion of cooperation as being essential in the discovery process to achieve those goals of proportionality and to keep costs down but make sure that people get the discovery that they needed. It was funny because the word “cooperation” existed nowhere in the rule [but] existed in the title to a rule.
And you may recall that I probably talked much longer than I should have about the need for cooperation, but the word evokes so much emotional reaction by people who thought that it was inconsistent with their role as an advocate that instead we... And I think it was one of the things that talks about how great these committees are because you've got a lot of smart people on there. And someone said, "Well, let's not use the word cooperation, but let's just make sure we go back to the basic principle of rule one, which is that the rules are to be interpreted by the parties and enforced by the judge to achieve just speedy and inexpensive resolution of all claims. Let's expand that to include the parties as well."
And when you try to find how you will achieve just, speedy, and inexpensive and you combine it with case management theories and proportionality and conferences with the judge, suddenly you get this idea that by cooperating, not capitulating but by cooperating in which depositions you're going to take first, and what order are you going to take these things? And can you stage discovery? You start getting results which do not undermine advocacy on behalf of your client but actually support it because you get faster, better, cheaper results for your client. Cooperation became very important, but it's the most important concept not mentioned by name. Could you talk about that and how it fits into the equation?
Hon. David G. Campbell: I agree with everything you just said about it, Paul, including the fact that there were folks who gave us some pushback when we started holding public hearings on these rules amendments. Interestingly, the Duke Conference in 2010, which consisted of a strong group of plaintiffs lawyers and a strong group of defense lawyers, reached unanimous agreement: Cooperation makes litigation more efficient and less expensive.
At the other end of the process in 2015 when these rule changes went through…, even though we had plaintiffs lawyers and defense lawyers on the Civil Rules Advisory Committee and on the standing committee and a broad range of judges at the Judicial Conference in the Supreme Court, these rule amendments were unanimously approved by every one of those groups. There was not a single dissenting vote at any of those committees who were at the conference or at the Supreme Court, which to me suggests that those who really studied the issue closely recognized the truth of what you just said, cooperation enhances litigation, it doesn't weaken or handicap litigation.
You're right. We struggled as to how we put it into the rules. There was lots of discussion of how do you legislate cooperation? You can't really do that. And we settled on the notion of putting it in Rule 1 and making clear that the just, speedy, and inexpensive resolution of every case was a responsibility not only of the courts but of the parties. The advisory committee note to that change to rule one in 2015 I think summarizes what you just said. It includes these two sentences. The note says, "Discussions of ways to improve the administration of civil justice regularly include pleas to discourage overuse, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with and indeed depends upon cooperative and proportional procedure." That was the conviction of those of us on the committee. I think it's fair to say it was of those who were at the Duke Conference. It's certainly my experience over 20 years on the federal bench that lawyers who cooperate are more effective. They're more effective advocates, they serve their clients better, they resolve cases more efficiently and less expensively, they do better in jury trials, in my view, in front of the jury. I remain a strong believer in this cooperation principle.
Paul W. Grimm: I think that I was absolutely one of those in that same camp. I thought that it was essential. And it flows naturally into the next topic that was really, again, not so much mentioned as a slogan but was really fleshed out in a series of changes to the rules that could be talked about the importance of active judicial management of discovery. And our audience should know that one of the most amazing things about the process by which these 2015 changes took place was I think we had four or five public hearings. There were over 120 people who testified we had a limited amount of time that each person could talk and a limited number of people who could speak, but I attended those, and of course, Dave, you presided over those, and every single person got a chance to be heard. There was never a time that you ever had to cut anybody off. Hey, they just seemed to get up and say what they wanted to say; appreciated the chance to do it.
I think that one of the things that they told us, it reminded me of that old saying that whenever you point the finger at someone, there are three fingers pointing back at you. And a lot of what the judges were told and the committee was told was, "Judge, look, we can live with a ruling that goes in our favor and we can live with a ruling that goes against us, but we can't live with no ruling”. And when we get these cases and we have a dispute and we've tried to cooperate and we've narrowed it but we can't get it completed, we need to get you to jump in and help us with this." And although due process requires that when a person brings a motion, the other side has to have time to respond and you need to have time to reply and then the judge has to have time to review it, but when you're dealing with a six-month discovery period in the case and if you have over a month built in before any dispute is ripe before the judge can look at it, it takes too long to help us with these rulings, many of which could be done in an informal way. "Can you help us out?" And we really heard that.
I think that the combination of rules between Rule 26(f) and 16 really allowed that. But I think that one of the most important things I took away from that, and I absolutely drank the Kool-Aid in my own cases, was being available to the parties throughout the process quickly and informally. Could you talk about that active judicial management, how it operates and why it is so integral to these changes and what we were trying to do?
Hon. David G. Campbell: Yes. Going back again to the 2010 conference, it was an interesting experience to sit in this room at Duke with 200 really capable lawyers and judges and several times having the lawyers basically turn to us judges and say, "You're the problem. If you would just manage our cases effectively and be engaged and rule when we need rulings, we could get all of this done more quickly." And I was a believer in case management before that conference, but boy I left it determined to be better and more vigorous in my managing of cases.
Active judicial case management to me was described well by a jurist from England when he was going through judicial reforms a few years ago that had been implemented there. And he said, "It means that the judge gets a grip on the case and doesn't let go until the case is over and manages it actively throughout the life of the case." To me, an effective case manager is a judge who intervenes early in the case, meets with the parties and the lawyers to discuss what is really needed in the case, sets a reasonable but efficient schedule for completion of those tasks, holds the parties and the judge himself or herself to the schedule, promptly resolves issues when they arise, whether they be discovery disputes or other motions so that the judge doesn't slow down the resolution of the case, holds an effective final pre-trial conference so everybody knows what's going to happen at trial, starts trial on the date set, ends trial on the date set. If it's a bench trial, rules promptly. The judge has a concern from beginning to end about the efficiency of the case and a responsibility for making it happen.
We came out of the 2010 conference convinced that that was needed to a greater degree. The challenge we faced was that the notion of judicial case management had been in the rules for 30 years since the early 1980s when Rule 16 was revamped. It wasn't a new idea. The problem was not what the rules said, the problem was how we judges were applying it. And so what we did was we tweaked the rules in four different places to try to help emphasize this point of active case management.
Just running quickly through those tweaks, we deleted language from Rule 16 that said that the initial case management conference could be done by mail. We wanted lawyers and judges talking together. Secondly, we shortened the time within which the case management conference should occur by 30 days. Third, we added some relevant topics to the discussion at the case management conference including preservation of ESI and Rule 502 agreements that can help streamline the case. And finally, we put in the suggestion that judges consider and lawyers consider a procedure under which judges talk to the parties before discovery motions are filed and rule quickly.
And we really use those four tweaks as hooks to preach judicial case management and encourage judges to become more active case managers. I think we know that's worked with some judges. It hasn't worked with others. I remember getting a letter from a judge while we were in the middle of this process, a federal judge in the southeast part of the United States saying, "You guys have it all wrong. Judges aren't supposed to manage cases. Judges are supposed to keep their hands off cases until they have to decide matters." Some people just didn't buy into the notion. But I know, Paul, you have preached active case management and modeled active case management for decades; others do as well. And hopefully as a bench we get better and better at it.
Paul W. Grimm: What's funny about that, Dave, as you know, I was a magistrate judge for 16 years, almost 16 years before I became a district judge, and while I was a magistrate judge, I wrote a lot of opinions on discovery. As a district judge, I don't think I had a single lengthy discovery opinion I issued, but I issued an awful lot of letter orders and informal orders that were just summarized in a filing on the docket that ruled on something, but I had an awful lot of phone calls.
And I found that in the discovery area, so many of the issues, they're very important to the parties, but unless you get a really difficult work product issue or a privilege issue or something that really requires everybody to hit the books, most of the decisions you make as a judge when you're managing the discovery process are common sense opinions based on going to the pleadings and seeing what's an issue and talking to the parties. And I think that even some of those initial skeptics, when they actually got the benefit of that process, really liked it. To me, it was always the barometer of what was going on [in a] case. If you got a lot of problems and all of a sudden you're having a conference call every week, it doesn't take more than a couple of those conferences before the lawyers start to get the idea I'm not getting too far by being an obstructionist. It's not getting me any kind of a benefit because I'm getting on the phone call with the judge and the judge is listening to both sides, and then she or he is issuing an order, and it didn't work out the way I planned.
And so I think that the active management... What I used to try to do, I didn't sell all my colleagues on it, I sold a number of them on it, but when some of my colleagues would tell me, "I don't have time for all those conferences," my response was always, "You don't have time not to have those conferences because it's a lot [shorter] in the long run if you get on top of it." I really think that in my mind, those tweaks that you made reference to, Dave, were some of the most important ones that we made.
The committee in Rule 37(e) dealt with what I think was the tail end of that initial ESI explosion that occurred right around 2000 when all of a sudden we were overwhelmed with electronic information. The rules were not adequate to deal with the volume and the number of people who had access to it in a digital environment. And one of the problems that we faced, and I think it's a subtle point that you might want to elaborate on that the audience might not understand, is that the Rules Enabling Act does not allow the federal rulemaking process to adopt or abrogate a common law privilege. That requires actual action, affirmative action by Congress to do that.
And one of the things that is important is that part of the common law is not to be trespassed into without specific congressional permission. And each state had a law of spoliation; that each state had its own formula for what would happen if a party failed to preserve information necessary to resolve any case. And some of them allowed sanctions only for bad faith, some of them for gross negligence, some of them for mere negligence. And we heard from litigants that, "We have cases... Our clients work in all 50 states. We can't deal in an environment where they don't preserve this information and suddenly they're facing sanctions that could result in a default judgment."
And so, we had to struggle with the fact that in a digital environment, there's going to be information lost no matter how careful you are. What we really wanted to try and do is prevent people from destroying evidence so that their opponent could not get access to it for a tactical advantage. But we didn't want to turn the case into a series of “gotchas” where someone who did the best they could and some information, particularly if it was in the cloud or something, got deleted.
And I think that 37(e) was the toughest rule change that we had to actually draft. We all knew it was important, but we had the hardest time capturing it in language. I'd love it if you would take a few minutes and just reminisce about that rule and why it was structured the way it was and why it was such a challenge to try and draft it. But I think it was on the bus going to the committee meeting that you and I were sitting there working on that language; that we had an amendment to it that the parties who had been looking at all of our proposed drafts got there. And it was almost like, just what you said, it was like it was out there and people said, "Aha, we can live with that," and that became the rule. It was a really amazing process. If you reminisce about that, that would be great.
Hon. David G. Campbell: We were fortunate, Paul, in my view, that you were chairing the subcommittee that was writing this new amendment for ESI because you had given more thought to the topic than most anybody on the federal bench. We were also fortunate at the 2010 conference to have a panel presentation that included Shira Scheindlin who had written in the area, John Barkett who'd done some litigating in the area, and several others. And at that panel presentation, I still remember it in 2010, they basically said, "We need help from the Civil Rules Committee on this. There is no rule in the federal rules that specifies when you have to preserve electronically stored information, what happens when it's lost, what kind of sanctions are required, and yet it's becoming a big issue in all kinds of cases. Please write a rule." And that embarked us upon this effort that you oversaw chairing the subcommittee. And I still remember that we held what I think we called mini conferences where we invited plaintiffs lawyers, defense lawyers, we represented... Or pardon me, we invited lawyers who represented large institutional clients like hospitals and universities and corporations who had volumes and volumes of ESI just to talk about the problems.
There were some serious problems in 2010 that I think have been significantly helped by the Rule 37(e) change. What these big institutions told us was, "Look, in some circuits," as in some states, "we can be hit with an adverse inference instruction which will kill us in front of a jury if we negligently lost electronically stored information. And in this developing world, we don't know when our deletion of ESI, however well intended, will be viewed with hindsight as negligence, so we can't delete anything." And I remember one institution telling us that they were spending $5 million a month preserving everything that was generated within their vast... I think it was a hospital system for fear that something would be deleted and later would be found to be negligent and the jury would be told that they could assume there was a smoking gun in the information that was lost that went against our case.
We were also told by lots of lawyers and judges that in many cases, disputes over the loss of electronically stored information was becoming a sideshow that was taking over the case. The parties were shifting their focus from litigating the merits of the case to litigating the merits of a potential spoliation motion. And it appeared even in some cases that was eclipsing the merits of the case in importance. And there were consultants being hired, there were experts being brought on board, there was discovery about spoliation being done that was greatly disproportional to what was actually an issue in the case.
What we ended up doing in the rule were a couple of things. We found we could not write into the rule a strict definition of when the duty to preserve information arose. It was just too fact dependent. What the rule says in its committee notes is, "We are not disturbing the common law trigger for when a duty to preserve arises." And that is when you reasonably anticipate litigation. That was left in place.
A second thing we did in the rule is say people should not be sanctioned if they take reasonable steps to preserve electronically stored information and it gets lost anyway. And the example I think that we were given was the super storm that hit New York that flooded server rooms and lost lots of information where parties had been very careful to preserve it. And nobody anticipated a storm that would flood their rooms, but they'd taken reasonable steps. We also concluded that if ESI gets lost in one setting, there shouldn't be sanctions if it can be found elsewhere.
The way we rewrote Rule 37(e) was to say that the curative measures, the sanctioned provisions only apply if information should have been preserved under that common law standard, meaning litigation was reasonably anticipated, the party with the information did not take reasonable steps to preserve it, and the information cannot be recovered or reconstructed through other discovery. If those three situations exist, then we established a two-step process for evaluating what measures the court should take.
Step one, which is in Rule 37(e)(1), says that the court can take curative measures if it finds that the opposing party was prejudiced by the loss of the information. But it can only take measures necessary to cure the prejudice and no greater. It was purely a curative measure. And that would include things like cost shifting or allowing a party to bill another party for an expert if an expert needed to be retained to, in effect, replace the lost information, or certain information would be admitted or certain information would be precluded because it couldn't be fairly countered because of the information that had been lost; curative measures.
The second category of actions the court can take are in Rule 37(e)(2). And these deal with the things that were causing lots of institutions to over preserve and were causing lots of side shows in litigation. They are the adverse inference instructions, the dismissal is a spoliation sanction, or the default judgment because of a spoliation sanction. And we said those more harsh sanctions can only be imposed if the court finds that the party who lost the information did so with an intent to deprive the opposing party of the information's use in litigation. In effect, we adopted the bad faith standard, which had been the common law tradition for spoliation which had been adopted by a number of Circuits such as the Tenth and which differed from the negligence standard that had been adopted in other Circuits like the Second. We resolved the Circuit split and confined these more harsh sanctions to situations where somebody really loses or destroys evidence intentionally to deprive the opponent of it.
I think it's been helpful. I think there are far fewer side shows in litigation than there used to be. I am told anecdotally that there's a lot less over preservation than there used to be. I have found when I have to work with Rule 37(e) in cases that the structure is helpful. It helps me work through the issues with the parties and find a fair resolution. Surely it's not perfect, but I think it's a substantial improvement that your subcommittee developed over what was there before.
Paul W. Grimm: It's interesting how you can get hung up when you're trying to adopt the rule. The fact that the standards that were being proposed were focusing on phrases such as negligence, gross negligence, bad faith. And of course, each of those concepts exist in independent substantive realms throughout the law that have nothing at all to do with discovery. And we found that each of them had a cache of what people thought about that, and it introduced some standards that got in the way of the analysis. And what really helped us break the logjam was when we finally just said, "What are we saying is the kind of conduct that should merit the most severe penalties?" And everybody said, "Well, that's if you do it on purpose to try to hamstring your opponent." And then someone said, "Well, why don't we just say that instead of trying to use bad faith or gross negligence?" And it really allowed us to avoid these phrases that had well-established meanings in other contexts of the law that didn't really fit what we were trying to do there. And my experience in the seven years after the adoption of those rules before I retired from the bench was that it did accomplish a lot more good in that area. And no rule is perfect, but it really helped out a lot. We're getting close to the-
Hon. David G. Campbell: Oh, can I-
Paul W. Grimm: Go ahead, Dave, please.
Hon. David G. Campbell: Another thought — you made the point a moment ago about how helpful it is for lawyers to read the rules and cite the current rules to the judge and to their opponent. I think that nowhere is that as important as it is when it comes to ESI spoliation issues. There's lots of case law out there that pre-existed rule 2015 that sets various circuit standards for how you evaluate spoliation. And I think because it's less litigated because we adopted Rule 37(e), there's less case law addressing how you litigate it. And I'm surprised at how many lawyers will come into my courtroom to talk about an ESI spoliation issue and they never mention Rule 37(e), and they start citing the Ninth Circuit standard, which applies in my court which predated Rule 37(e). This is an area where lawyers ought to be sure they read the rule and they look at cases that have applied the rule before they go to court to make those arguments.
Paul W. Grimm: It's great advice to give and it's a great common-sense thing that people should take and keep in mind because it really does impact the success which you might find when you go into court with a problem in this area that you want resolved.
I'd like to just talk about some narrow things because we have a limited amount of time. I could spend all day on this, and it would be a crime to expect you to do so. But one of the areas that people talked about was a lot of abuse that took place in connection with the so-called written discovery, the interrogatories and document production requests. And one of the things that we really heard a lot of people talk about was the phrase boilerplate objections. That people would... That they would reel off a series of legal conclusions as over broad, as burdensome. It's not proportional to the case. But they really wouldn't provide any information to the party that had asked for it. They would allow that party to re-examine what they were asking for and try and narrow it so that it would really be something that was more proportional and they could get something, maybe not everything they had initially wanted but enough to get started with.
And so, one of the things that the rules did was it changed for Rule 33 interrogatories and document production requests. [It] made really clear that when you're objecting, you had to give specifics. And it didn't have to be an affidavit, it didn't have to be a huge, expensive thing, but you had to at least, if you were saying that it was burdensome, give the other side some factual information under which they could say, "All right, I get it. You don't want me going back to look at records for 10 years, so how about we go back five years? And let's try it there. And then we'll see what happens after five years of data." And so, I think that those were very helpful. I think that old habits do die hard here, and we still see it. But what are your thoughts about, with the written discovery, the importance if you're going to object, making sure that you object with enough specific information for the other side and the judge to be able to try and do what we had hoped they would do, which is then have a conversation and try and see if they could resolve it by maybe narrowing it? And you can't do that if you're dealing with a bunch of conclusions.
Hon. David G. Campbell: I think here, again, I would encourage lawyers to review the changes we made to Rule 34, which were specifically intended to address what you just described. And as a judge, this is the first place I go when I'm dealing with Rule 34 issues. First, it says that the objections, as you've already pointed out, must be stated with specificity. Boilerplate objections don't count anymore. Second, the rule permits the responding party to state that it will produce copies of documents or ESI instead of permitting inspection, but requires the party to identify a reasonable time for production. You can't simply say, "Yes, I'll respond at an appropriate time in the future," and four months pass with nothing happening. And third, you have to state whether you're withholding anything on the basis of the objections that you have stated. Oftentimes parties say, "I object, I object, I object. I'm producing the following documents." And the reader can't tell whether anything has been withheld on the basis of the objections. That's no longer proper under Rule 34.
But the key, in my view, is what you just mentioned, Paul, it's cooperation. It's then having a reasonable discussion with the other side about what is required, about how you can figure out a way to exchange it, being willing to compromise and negotiate in good faith rather than just stand by either unreasonable boilerplate objections or unreasonably broad requests until you get in front of the judge. If you do that, you're only going to have a frustrated judge.
Paul W. Grimm: I think that you'll recall that at some point in that process that someone when talking about one of the discovery abuses that they wanted to have the rules help them with was the party that asked for everything “and a pony”. I never forgot that; “and a pony”. But what I would tell people, and I think that this is the on the ground impact of what you just described, Dave, was if you're going to take a position, imagine you're standing in front of the court and one side said, "I want everything and a pony. I want it all," and the other side said, "I think that's disproportionate and excessively burdensome, but here's what I'm willing to do. How about instead of five years information, we'll give you two years, and we'll start with this. We'll do this, we'll do this, we'll do this. And then at the end of it, if you think you need more, I'm open-minded to talking about it. And if you don't agree, we can go to the judge then." And the other side says, "No, I want everything. I want everything."
Which side do you think is going to get an order from the court closest to what that position was that they were arguing? And inevitably, even if the judge doesn't give you the order that you were asking for, it's going to look a lot closer to what the person that was reasonable in terms of trying to respond to an attempt to get through some of those boilerplate objections that really were not well thought.
Hon. David G. Campbell: I agree completely.
Paul W. Grimm: We've covered some of the other topics that I wanted to talk about already, and so I'm going to skip over them. And in the short time that we have remaining, I'd just like to turn over to you the opportunity to share with our audience any “dos and don'ts”; things you've seen lawyers do that you think worked well or things that you've seen lawyers do that even if they did it with the best of intentions, they just didn't work well.
I think that you have modeled every single one of these aspirations of the rule changes. You're always available, you ule so promptly. You hold the conferences, you resolve informally when you can, and you've seen just about everything that can be seen in the course of a distinguished judicial career. If you had a couple minutes, an elevator talk to the lawyers that you would leave them with on discovery, how to get a better result for their clients in terms of how they conduct discovery, some closing thoughts that you might want to share with them.
Hon. David G. Campbell: Well, I don't know, Paul, that I've got anything profound to say. I think we've really touched on the most important points, being reasonable, being cooperative, being civil, you can do all of that and be vigorous and effective as an advocate. And if you do that, you will save your client money, you will impress the judge. You will likely elicit the same kind of response from your opponent. And if you don't and you have to go before the judge, you'll likely get a ruling in your favor. I think the way you've described it and we've discussed it is really the way to practice law. I absolutely do not buy into the notion that sharp elbows and disagreeableness make you a more effective lawyer. To the contrary; they just don't.
To the judges who may pick up the podcast, to me, the most important thing is be available, be accessible, be engaged in your cases. I agree completely with what you said a minute ago. The judge who is willing to take a call when a problem arises and talk through a discovery issue, which I know you did and which I do, will resolve 90%, maybe 95% of the discovery issues without any need for briefing. If briefing has to be done, it'll be done in a week or two and the matter will be ruled upon. And it doesn't take very long for a judge behaving that way for the parties to get the message that they need to be reasonable and cooperative, including the parties who aren't on the call but hear by word of mouth how Judge Grimm does things. The whole system runs better when a judge is available and prompt in rulings.
Paul W. Grimm: Well, I think that's terrific. And I think that what we've tried to do here is a reminder to our audience that fewer than two out of every 100 civil cases filed goes to a trial. That means that the point where you will shape the case to either settle it or get it resolved on a motion or try it is going to be done during discovery. And the discovery process takes place outside the purview of the judge except when you have a conference or a dispute. And mastering discovery practice is the best thing you can do as a civil lawyer to represent your client effectively. And what we hope you find in this podcast — because you've heard from the master — is best practices in order to do that.
Dave, I can't thank you enough for being here with us. I'm reminiscing about those days, and I'm showing my age when I think back about that. And in retrospect, those were the six fastest years of my life, so they were great. Thank you so much for sharing your time with us today.
Hon. David G. Campbell: Great to be with you, Paul. Thank you.