Arbitration & Mediation

ABA Articles Find Rule 26 Disclosures and E-Discovery a "Morass"

By Christopher B. Hopkins, Esq.

Despite the fact that I am a member of the three federal court districts in Florida, I rarely suggest to a client to resort to federal court. Why? The expense of discovery and the needless procedures. It appears I'm not alone.

According to a recent survey of nearly 4,000 lawyers, the process of filing in federal court itself has become a weapon: pleading requirements, immediate discovery demands, new e-discovery, and a "total lack of control over discovery." Case in point, we have a case which was removed from state court to federal court and both sides briefed remand. The trial court still required the parties to go through pro hac vice motion practice, discovery, procedure-related orders, and other demands. And then the judge sits on the remand issue for months -- while I fend off a client who is paying high bills but is seeing no results.

So what can be done about it? Well, no clue yet. The two associations which performed the survey are going to the drawing board with ideas about tailoring the Rules of Civil Procedure based upon the type of case, giving the judge more control over discovery or putting in attorney fee provisions (Note: as a general anecdotal rule, attorney fee statutes/rules INCREASE litigation, not the opposite).

For more reading, check out these two similar ABA Journal articles: "Litigation Too Costly, E-Discovery a ‘Morass,’ Trial Lawyers Say" and "OK, Discovery’s a Problem, But What Can Be Done About It?"

Full post as published by Florida Arbitration Law on October 05, 2008 (boomark / email).