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Making Discovery in Federal Courts Less Expensive and More Effective

Friday, October 25, 2013 @ 04:10 PM
Brian Montague

The number of civil cases being filed in federal courts and, of those, the number being tried are declining.  According to Administrative Office of the U.S. Courts, the number of annual civil cases filed per judge in the Southern District of Mississippi declined from 525 in 2009 to 333 in 2013.  For the same years, the number of reported trials per judge (civil and criminal) in the Southern District of MS averaged 26 and 25, respectively.

These trends are not unique to South Mississippi.  Judge Patrick Walsh, a U.S. Magistrate Judge in the Central District of California, comments in the Fall 2013 edition of Litigation Journal, “[I]n the past 25 or 30 years, … we have seen the almost total disappearance of civil trials in federal court.”  He reports that, of the 14,000 or so civil cases filed in that district each year. “fewer than 70 civil cases are tried.”  Judge Walsh makes two instructive observations:

First, “the work of the district courts is, more and more, becoming the management of pretrial practice, including discovery, followed by settlement or dispositive motion.”  Commenting that he resolves on average about one discovery motion per week, he adds, “I wonder out loud whether the lawyers have taken into account that they are spending large amounts of time and money to pursue a discovery motion—and, they hope, obtain discovery—in a case that will in all likelihood be disposed of short of trial. It’s not that discovery doesn’t have relevance for settlement or motions practice. It does. But the scorched-earth practice many lawyers employ, attempting to discover ‘everything’ without regard to cost and aggressively litigating when production is not forthcoming, seems inconsistent with the goals of the civil rules—the just, speedy, and inexpensive resolution of the case—and what one assumes is the client’s goal: obtaining the best possible result for the least amount of money.”

Second, he points jurists and practitioners to Federal Rule of Civil Procedure 37(c) as a way to reduce costs of litigation.  The section provides that if you don’t identify critical documents or witnesses in your Rule 26 initial disclosures, you can’t use them in a motion or at trial (with certain exceptions).  Judge Walsh comments, “I don’t think most lawyers know that this provision is in the rules. …  To fix this problem, courts could include this provision in bold in the initial order. The order could also provide that, if the parties do not voluntarily disclose the information, they will not be allowed to use it. There is no doubt that this would encourage greater compliance with the voluntary disclosure requirements. After all, what’s the use in having great evidence if, because you failed to disclose it, you can’t use it?”

Judges and practitioners should remain committed to making efficient use of pretrial discovery as an effective means of resolving civil disputes.  Federal Rules 26 and 37(c) can be key parts of that effort.

Written by Brian Montague

Brian Montague

A fourth generation Hattiesburg native, an Iraq and military veteran, and a 1983 graduate of the University of Mississippi Law School, Brian Montague has established an AV rated, well-respected neighborhood law practice focusing on trying cases in state and federal court, corporate and transactional work, insurance defense and coverage, personal injury and wrongful death, residential construction and development issues, and estate probate and administration.

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