by Attorney Domenick Lazzara
I. IntroductionView ABA Summer 2016 Publication
The December 2015 changes to the Federal Rules of Civil Procedure narrows the breath of federal tort cases and encourages efficient discovery practice while emphasizing cooperation among the parties. Even though the most notable changes pertain to discovery under Rule 26, changes to Rule 1 creates an obligation between the parties and the court to cooperate. The new Rule 1 States: These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1 (emphasis added).
The Advisory Committee's Note to Rule 1 highlights this novel and shared responsibility between the parties "to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay". Fed. R. Civ. P. 1., Advisory Committee's Note to 2015 Amendment. This responsibility sets the stage for discovery practice under the emerging proportionality requirement of Rule 26.
Where Rule 1 mentions proportionality as a footnote of sorts, the changes to Rule 26(b)(1) make proportionality discovery’s centerpiece. Rule 26(b)(1) now states that: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the purported discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1) (emphasis added). Under the new Rule 26, the universe of discoverable information must be weighed in relation to the case as a whole. Rationally related and relevant discovery is no longer routinely obtainable. Instead, the Rule 26 amendments restores proportionality and reinforces cooperation from the very beginning of discovery: case management. See generally, Fed. R. Civ. P. 26 Advisory Committee's Note to 2015 Amendment.
II. Case Management
To combat the hydra that was bogging down the legal system – cost, delay, and obstinacy - efficient case management has become paramount to effectively navigate discovery under new Rule 26. From the outset, the parties must work to create a clear plan for the direction of the litigation, including listing: all possible claims and defenses; the factual or legal issues that could be raised; and the underlying facts that need to be proved or disproved to make your case. A comprehensive list – which undoubtedly will change and expand as the case proceeds - will provide easy answers to the essential needs of the case. Additionally, this roadmap will help to craft a discovery plan acutely tuned to what is proportional to those needs.
Efficient case management under the new Rule 26 should paint a clearer picture of what lies ahead as discovery unfolds; especially the discoverable material that will narrow the breadth of federal tort cases. When taking into account the added proportionality requirement of the new Rule 26, discovery no longer needs to include the entire universe of rationally related material.
III. Effective Discovery Under the New Rule 26
Under the new Rule 26, effective discovery in federal tort cases starts early. The Rule 26(d)(2) amendments allow an early document request to be sent to the opposing party 21 days after service of the summons and complaint, even though the parties have not had their required Rule 26(f) conference. See Fed. R. Civ. P. 26(d)(2); see also, Fed. R. Civ. P. 26, Advisory Committee's Note to 2015 Amendment. This early document request allows litigants to define the scope of the issues earlier, thereby narrowing the breadth of the case. Doing so allows the parties to eventually come into their Rule 26(f) conference with a much more concise plan for discovery.
Moreover, the changes to Rule 26 are meant to thin out and streamline discovery, incidentally narrowing the breadth of federal tort cases. Every request for discovery may no longer be deemed relevant when weighed against the new proportionality requirement. Effective discovery under the new Rule 26 requires more tailored and intelligent discovery requests. These requests must focus on the issues that need actual discovery and are integral to resolving issues in federal tort cases. If the information is obtainable from other sources - such as the client, internet, or public records, then that information should not be included in the discovery request.
IV. The Reasonable Lawyer
Ushered in with the era of proportional discovery is the reasonable lawyer. The reasonable lawyer is not a push over bending to the whims of opposing counsel, but rather knows which battles need fighting and which are better served with a stipulation. The court and parties are encouraged to cooperate "to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay" thus polarizing the justice system. See Fed. R. Civ. P. 1 Advisory Committee's Note to 2015 Amendment. Quite simply, the new proportionality requirement highlights that it is not reasonable to spend all of the parties' resources – including time - on discovery. Being reasonable while still effectively representing your client means working with opposing counsel to keep the case's momentum on track. Early document requests allow for more prepared pre-trial conferences, and stipulations on minor issues keep the focus on issues critical to the case.
In the same vein, general objections to discovery are not reasonable. Under the new Rule 26, a reasonable objection should start in the positive, stating what documents will be produced, and poses the objection as an exception, communicating how the objected-to-items are disproportional to the needs of the case. A well-thought-out discovery objection goes all the way back to the initial case plan, and relays to the judge and opposing counsel how the request is both disproportionate and not reasonable when weighed against the central issues and needs of the case. The reasonable lawyer should cooperate with the court and opposing counsel, and in doing so, may gain the strategic advantage in discovery.
The amendments to Rule 26 envision a justice system with a level playing field, consequently narrowing the breadth of federal tort cases. The reasonable and proactive lawyer will get to the starting block early with infantile document requests and wellplanned pre-trial conferences. Identifying the critical issues from the outset will map out a discovery plan tailored to circumnavigate all of the relevant issues while remaining proportional to the needs of the overall case.
Source: by permission of the American Bar Association, © 2016, Summer Publication
IntroductionView ABA Winter 2016 Publication
Last year, I found myself three months out from trial in a general negligence maritime claim. The firm I was with at the time represented two clients against a large and well known cruise line for injuries sustained when the grab bar in their handicap accessible stateroom came detached from the wall. This sudden and unexpected event brought about permanent injuries and a lawsuit approximately one year after the incident. The crux of our lawsuit was the cruise line’s negligence in failing to maintain grab bars ship wide, and especially, in its handicap accessible staterooms.
Three months from trial – while discussing the case with my managing partner – a lightbulb went off over both of our heads. We did not possess the grab bar. While we had requested hundreds of documents, a myriad of depositions, and countless interrogatories and admissions, we had not requested the actual grab bar. Luckily for us, we were only three months out from trial and still within the discovery cut-off. The next three months would be a race to compel the grab bar’s production, track down an “exemplar” bar from manufactures in California and Italy, and deliver the grab bars to our expert for analysis and testing. It was a stressful process; one which would have been a lot less stressful had the grab bar been requested when the lawsuit was filed. Consequently, I learned a valuable lesson: the importance of physical evidence in tort claims.
Step One: Identify the Physical Evidence Early On
The first step in assessing the importance of physical evidence in tort claims is identifying what that physical evidence is. Examples of physical evidence include clothing and footwear, the (defective) product that may have caused the injury, and the automobile in an automobile accident. In my case, this should have been the easy part: a shower grab bar. However, as the case unfolded and trial neared, we went down a long and intricate rabbit hole to identify the grab bar and its manufacturer. Identifying the grab bar took us to corporate representative depositions for the cruise line and the alleged manufacturer in California, international phone calls to Italy, hearings in Brevard County, and countless hours of internet research before we finally identified the correct grab bar and its manufacturer. I use this to illustrate why it is important to identify the physical evidence early in your case.
Identifying the physical evidence begins with client intake. Take the time to ask your client what caused his or her injury, and just as important, what could have caused or contributed to his or her injury, including what he or she was wearing and carrying at the time of the incident. In a premise liability action – for example – where a person slips and falls on a foreign substance left on the ground, the banana peel is just as important as the shoes your client was wearing at the time of the incident.
Step Two: Preserve the Physical Evidence
Spoliation of evidence is a powerful weapon in any tort claim. American Bar Association Rule 3.4 states: A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act…
American Bar Association, Center for Professional Responsibility. (2016). Model Rules of Professional Conduct 3.4; see also 18 U.S.C. §1519.
In the case of physical evidence, spoliation occurs when that evidence is required for discovery but is subsequently destroyed or altered significantly. Depending on your jurisdiction, you may be entitled to an inference against the offending party. C.f. Fed.R.Civ.P. 37 (Failure to preserve electronically stored information may lead to, inter alia, the presumption that the lost information was unfavorable to the party). In Florida for example, “the spoliation can actually benefit that party through the imposition of sanctions, evidentiary presumptions, or even a separate cause of action for spoliation of evidence against the spoliator.” Spoliated Evidence: Better than the Real Thing? James T. Sparkman and John W. Reis, The Fla. Bar Journal, July/August, 1997.
In order to preserve your client’s spoliation claim you should first put the parties on notice by requesting they preserve the physical evidence. It is a two-way street. Either party can put the other party on notice by sending an evidence preservation letter after the claim is initiated; the sooner, the better. At the same time, once you have met with the client and identified the physical evidence, you should immediately take the requisite steps to identify that evidence and preserve it from day one.
Step Three: Request and Inspect the Physical Evidence
Once you have identified the physical evidence and taken the necessary steps to ensure the evidence is preserved, you should arrange for an inspection of the physical evidence. Usually, this requires placing the evidence in the hands of your expert. This can be arranged with opposing counsel informally or formally. Giving your expert time to inspect the physical evidence – and if necessary, prepare a report about your expert’s inspection – will give you one more weapon to use during settlement negotiations, and eventually, trial. Lastly, taking these steps early on will ensure that the actual evidence will be available at trial.
Failing to timely evaluate the import of physical evidence in tort claims could prove detrimental to your client’s case. As such, physical evidence should be identified at the outset of any tort claim. After identification, steps should be taken to preserve and request that physical evidence for inspection and presentation at trial. The failure to preserve such evidence may lead to an adverse inference; yet another reason to appreciate physical evidence from the outset of any tort claim.
Source: by permission of the American Bar Association, © 2016, Winter Publication