ALBANY, N.Y., June 28 (Reuters) - The New York State Bar Association has released a set of proposals it said would reduce
costs and delays that routinely arise during federal civil
In a 125-page report released Thursday, the bar association
called for the streamlining of the discovery process and
proposed amendments to the Federal Rules of Civil Procedure that
would require the preservation of documents, including those
stored electronically, and earlier pretrial conferences.
"The increasing use of technologies -- including email, text
messaging, social media and the cloud -- have complicated the
discovery process, causing long delays and exorbitant costs in
federal litigation," association President Seymour James said in
Though federal courts may order the preservation of evidence
on a case-by-case basis, there is currently no civil procedure
rule that creates a duty of preservation. According to the
report, the "sheer mass" of emails and other electronic
documents typically reviewed during discovery can create
confusion, disputes and delays.
The report calls for an amendment to the civil procedure
rules that would require parties to "take reasonable actions" to
preserve relevant documents. Under the proposal, failure to
preserve could result in dismissal of an action.
The report also recommends an amendment to speed up federal
litigation by requiring pretrial conferences within 60 days of
initial pleading, instead of the current 120 days.
Further, the bar association wants to put an end to a rule
that parties create "privilege logs," descriptions of documents
withheld during discovery.
Instead, the report recommended a series of guidelines for
litigants, including agreeing early on to exclude certain
categories of documents from the logs, permitting courts to
conduct reviews of small samples of documents instead of
reviewing all contested documents, and treating emails and email
attachments separately for the purpose of discovery.
"Legal gamesmanship and litigation by attrition must be
paradigms of the past," the report says.
The report also urged federal courts to repeal a current
requirement mandating production of all documents supporting a
party's claims or defenses. Instead, the court should determine
if such material should be produced on a case-by-case basis, the
Late last year, the U.S. District Court for the Southern
District of New York launched an 18-month pilot program that is
testing a number of proposals similar to those in the bar
association report. The program requires premotion conferences
on most motions as well as that parties submit reports
identifying the scope of discovery and how discovery disputes
will be settled.
(Reporting by Dan Wiessner)
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