On Thursday, the New York Bar Association released a 125-page report calling for optimizing and streamlining the discovery process and proposed suitable amendments to the Federal Rules of Civil Procedure. The amendments are targeted at preservation of documents including pretrial conferences and electronically stored data. According to the NY Bar Association, the proposals would reduce the costs and delays of federal litigation.
Association president Seymour James said in a statement, “The increasing use of technologies -- including email, text messaging, social media and the cloud -- has complicated the discovery process, causing long delays and exorbitant costs in federal litigation.”
While the current practice for federal courts is to order preservation of evidence on a case-by-case basis, there is no civil procedure rule that mandates a duty of preservation. According to the report, without proper optimization and streamlining of concerned processes, the “sheer mass” of electronic documents typically reviewed during discovery creates confusion delays and disputes.
The report, thus recommends an amendment to add speed to federal litigation by shortening the limit related to recordable pretrial conferences from the current 120 days to 60 days from the date of initial pleading. The bar association also wants to end the rule of “privilege logs” that record the descriptions of documents withheld during discovery. At the same time the report also recommends the creation of rules where it would be upon the parties to “take reasonable actions” for preserving documents and their failure to preserve relevant documents can result in the dismissal of an action.
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The report has recommended guidelines for litigants that would permit courts to conduct reviews of small document samples instead of being forced to review all contested documents. The recommendations also include treating emails and email attachments as separate documents for the purpose of discovery.
The NY Bar Association also wants the repeal of a current requirement in federal litigation which mandates the production of all documents supporting a party’s claims or defenses. Instead of that, the report argues, the court should determine the production of material on a case-by-case basis.
The report of the NY bar association mentioned, “Legal gamesmanship and litigation by attrition must be paradigms of the past.”