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Bar News - August 14, 2009

A Change Is Gonna’ Come: New Committee Examines Discovery Rules


Hon. Robert J. Lynn

Philip R. Waystack
A group of veteran trial attorneys and judges in New Hampshire, spurred by the Court, is drawing up proposed reforms to the NH Superior Court Rules to speed up what has become a long, drawn-out, and expensive discovery process in the state’s civil cases.

The American College of Trial Lawyers Trial Court Advisory Committee, led by Superior Court Chief Justice Robert Lynn and Colebrook trial attorney Philip Waystack, held its first meeting earlier this month with the goal of developing court rule changes based on the recommendations of a new report co-authored by the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System.

James J. Tenn, Jr., current president of the NH Bar Association and himself a trial lawyer, says that he looks forward to reading the recommendations of the task force: "The NH Bar Association welcomes the initiative by the Court to discuss how we may better our civil justice system by reviewing the principles set forth in the discovery task force."

The report targets the discovery process as a major contributor to delays and expense in the civil justice process – although in NH, the lack of judges and the crush of criminal cases are worsening the delays.

"I read the report and I kept nodding. It made perfect sense," said NH Supreme Court Chief Justice John T. Broderick, Jr., who has been a vocal proponent of streamlining the state’s civil trial process. "So my colleagues and I asked the local ACTL chapter to establish a delegation of its members to look at the principles in the report to see how we might apply those principles in our courts."

Based on the results of a survey of the American College of Trial Lawyers’ national membership, the report calls for a variety of changes to the discovery process in civil jury trials, ranging from more involvement of judicial officers to the establishment of limits on electronic discovery.

Initial Disclosure

In both the current state criminal court rules and in the Federal Rules of Civil Procedure, prosecutors and civil attorneys must submit discovery packages to the opposing party/lawyer immediately after a suit/charge is filed. The report calls for a similar process in state civil trials.

"If we can build in a voluntary initial disclosure process, then we get to trial in a year," said Philip Waystack, whose cases regularly take two to three years from filing to trial. "That would be a real improvement.

Decreasing the time between filing and trial, Waystack says, can set firm deadlines for parties involved and may make some cases more likely to settle beforehand.

Fact-based Pleading

The use of fact-based pleading, the report says, can drastically cut back the scope of discovery and would allow for a more streamlined process.

Under the current notice pleading system, some plaintiffs file suit with broad and vague claims. For example, a plaintiff’s attorney representing a car accident victim using notice pleading would simply state that a defendant caused an accident; fact-based pleading would describe the elements of proof – the speed of the car, weather conditions, and other facts.

"With fact-based pleading there’s a clearer sense of what’s being argued and what you need to prepare for," said Waystack.

Evaluation of Proportionality

The notion of evaluating proportionality is not particularly radical, but requires either a proactive effort by participating attorneys or the involvement of the judge to determine the necessary discovery and to set limits early on.

Such evaluations, says Waystack, could be made at the outset of a case during the Rule 62 pretrial conference. Also useful may be a wider implementation of Rule 62(II), which provides for a fast-tracked discovery process.

"Not every case is the same. Say I have a traffic accident with $1,000 damage; there’s not as much at stake in a case like that compared to an accident where there were fatalities," Waystack said. "There should be much less discovery for a case like that; the process should be in proportion to the dispute."

Greater Judicial Involvement

In a recommendation that may prove unpopular, the report calls not only for a single judicial officer to handle a case from start to finish, but also for more intensive judicial involvement where the judge would act more as a "monitor" to a case.

Part of the principle involves holding a pretrial conference as soon as is possible, as well as the granting of "subsequent status conferences...when necessary, either on the request of a party or on the court’s own initiative." Post-pretrial conferences would be held to identify pleading issues and evaluate discovery disputes, much like those held by the magistrate judge in the federal courts.

The report also requests that the court establish realistic discovery completion and trial dates which should be held to barring any extraordinary circumstances.

Electronic Discovery

With no state rules on the books regarding the scope of e-Discovery, Waystack says that New Hampshire is particularly vulnerable to electronic discovery problems.

The report says that, "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."

Also important, the report says, is an understanding among both court officers and trial attorneys of the technical issues arising from extensive e-discovery development. Such practical realizations of "expense and burdens," would not only cut some of the cost, but would also relieve some of the reliance on third-party e-discovery services that are now prevalent in the legal community.

"Each new means of communication requires new levels of discovery. I have to expand my consciousness of those areas and that all costs money," he said. "So we’re back to the needing to view things proportionally."

Other Recommendations

  • Limit the number of interrogatories.
  • Disclose early any prospective trial witnesses.
  • Limit deposition lengths based on a witness’s importance to a case.

Last overhauled in 1979, the current rules on discovery were created in an effort to eliminate the so-called "trial by ambush" method of litigation, by which attorneys would withhold evidence until the last minute in an effort to gain the upper hand in a case. While the changes have accomplished their goal, the currently held broad interpretation of what’s admissible and pertinent to a case has led to what Chief Justice Broderick has calls "trial by attrition."

"Part one, article 14, of the state constitution guarantees a civil trial promptly and without delay; if your right to get a hearing is lessened because of the scope of the discovery process, is that justice?" Waystack asked. "I’m not sure anymore; but we have to accept for a moment that it’s more difficult to get a civil trial these days."

The current broad limits on discovery in the state’s Court Rules, Waystack says, have caused the costs of bringing a civil case to trial to skyrocket.

"There has to be some systemic change in the process so the courts can remain active, so the trial lawyers are involved and so the public has access," said Chief Justice Broderick. "We need fewer rules, less tension, more proactive action, simplicity and cooperation. We need to take a very candid look at what we do. We need to have a more subtle understanding of what’s important."

Currently, as many organizations have realized – from the ACTL, to the American Bar Association, to many state and local bars – the public is increasingly using private mediation and arbitration to settle disputes since the rules of discovery are more relaxed, and therefore, less expensive. If the trend continues, say many, civil jury trials may be a thing of the past.

"We need to lower the cost of the product without losing quality," said Chief Justice Broderick. "I’m convinced that there is some kind of balance to be found."

The committee will meet several times in the coming months to put together their suggestions; the first meeting is scheduled for August 6. Committee members include Michael Callahan, Gallagher, Callahan & Gartrell; Martha Van Oot, Orr & Reno; James Wheat, Wadleigh, Starr, Peters, Jeffrey Osburn, McDowell & Osburn; Wilbur Glahn, McLane, Graf, Raulerson & Middleton; and Peter Taylor, McNeil, Taylor & Gallo. Jeanne Herrick, chair of the NHBA Committee on Cooperation with the Courts and a member of the NH Court Rules Advisory Committee, and Bruce Felmly, a litigator at McLane, Graf, Raulerson & Middleton, will act as liaisons.

The committee will meet several times in the coming months to prepare its recommendations to the court, but Waystack stresses that these are not changes that will happen overnight.

"This isn’t something we want to be a Hail Mary pass from Brady to Moss. That’s not the way we want to go with this," he said. "We want to go Brady to Welker, Brady to Welker. Let’s eat up six yards at a time."

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