There are amendments to the federal discovery rules in the works, the first major changes since 1993. The rules might, just might, reduce the ludicrous cost of discovery in complex civil litigation. They will certainly make life easier for corporate defendants and harder to product liability plaintiffs. But they will also limit the opportunities young lawyers have to learn the craft of civil litigation.
- Gone would be the days of discovery on anything “reasonably calculated to lead to the discovery of admissible evidence.” Plaintiffs would be limited to discovery “proportional to the needs of the case,” to be measured by a cost benefit analysis and potential contribution to the actual subject matters at issue.
- What? Document requests that make sense? Document requests that are actually manageable for corporations? Document requests that don’t bring the defendant’s daily operations to a crashing halt?
- What? Might 150-page privilege logs be a thing of the past? Those privilege logs on which so many young lawyers cut their teeth?
- What? Responsive documents could be measured once again in boxes, not gigabytes? (Side note — a mentor of mine once said to me “Egan — if you can’t walk into court with all your evidence in a redweld, then you haven’t done your job.” We walked into court in that very same case with 15 boxes of exhibits. Oh well.)
- The number of fact depositions permitted without a court order will drop from 10 to 6.
- What? Plaintiffs will have to demonstrate why they need to depose every sales rep who ever touched a product, or every bench scientist who ever looked at the molecule through a microscope, or every regulatory person who ever listened in on a call with FDA?
- What? Some poor lawyer will no longer be cursed with the endless task of scheduling and re-scheduling and re-scheduling depositions around everyone’s plans for summer vacation, winter vacation, spring break, High Holidays, Christmas, weddings, Easter, etc.?
- But good luck getting to take or defend one of those increasingly rare fact depositions if you are under 45 years of age. And expect each deposition to be crowded with as many senior lawyers as the room will hold so that everyone can get a piece of the action. Maybe depositions will have to move to auditoriums. Or sports venues.
- The number of interrogatories permitted without a court order will drop from 25 to 15.
- What? Precision in the use of the English language may actually become, perish the thought, a valuable if not sought after skill?
- What? Now it will matter that one well-crafted interrogatory can take the place of 20 duplicative, verbose, obtuse, turgid, and useless ones?
- But young lawyers beware — the red pen will be wielded more cruelly than ever before if partners have fewer sentences to bludgeon with edits.
- The number of RFAs permitted without a court order will be limited to 25.
- This one depresses me. One of my favorite things to do at the start of a civil matter is to drop a mass of RFAs on the other side to figure out what they actually believe about their case.
- And RFAs are so easy to draft! So fun to frame! So exhilarating to file! Easily the best part of my former life as an associate was thinking up preposterous RFAs at “happy hour” with my colleagues.
- So young lawyers — fuggedabout it. Instead of drafting RFAs yourself, you may be allowed to cast your eyes on the Platonic ideal of an RFA drafted by a team of partners at the peak of their earning power. I would guess at least four partners billing over $800/hour each. Yes, RFAs will become the most expensive documents ever prepared, possibly a separate line item in the standard litigation budget. The cost of one RFA could feed the entire population of a developing nation for three months.
So product liability litigators everywhere — pull up a chair. Watching this shake out could be fun!