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New Year, New Resolutions — Engineering a Change in Our Legal Culture

Posted in Litigation Shorts

Guest blogger: Theresa A. Coetzee is vice president & assistant general counsel at Marriott International, Inc. She is also a publication chair of the ACC Litigation Committee. She can be reached at theresa.coetzee@marriott.com.

As we embark on 2016, it feels like a year that is both marred by chaos and hostility (e.g., terrorism and the spate of acrimonious presidential candidates) and hopeful in infinite possibilities. So we press forward into the New Year and make resolutions. Perhaps to be an active listener, lose weight, or take on pro bono work. All are commendable resolutions.

In his 2015 Year End Report, US Supreme Court Chief Justice John Roberts Jr. asks us to make one more. Dedicating the entire report to the 2015 Amendments to the Federal Rules of Civil Procedure (“the Amendments”), the Chief Justice asks that we resolve to “engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice.”

Coetzee, Theresa 1The Amendments took effect on December 1 and, as the Chief Justice notes, they “may not look like a big deal at first, but they are.” They are a big deal because they aim to improve our judicial system by reducing wasteful litigation tactics and fostering cooperation among counsel and the judiciary. Will they work? Some are skeptical. We have all experienced an opposing counsel who refuses to agree to anything. Chaos and hostility commence. But, the new rules aim to end this dynamic.

Among other things, the new rules create express obligations on counsel and the judiciary to work together to achieve a “just, speedy, and inexpensive determination of every action and proceeding” (FRCP 1) by bringing the parties together on discovery issues sooner (FRCP 16(b)(2)) and by setting reasonable limits on all aspects of discovery (including preservation) that are “proportional to the needs of the case” (FRCP 26(b)(1)). To facilitate these aims, the judiciary is asked take a more active, in person role in resolving discovery disputes (FRCP 16(b)(1)(B) and 16(b)(3)(B)(iv)).

So what do the new rules mean for in-house counsel? First, they mean an increased emphasis on early case assessment. But, importantly, they also remind us to remain cognizant of the ethical implications of failures to comply with the Amendments and the FRCP, generally.

Early case assessment is not a new concept. But now, it must come earlier and be more meaningful. In order to achieve the intent of the new rules and prevail in inevitable discovery disputes, we must to do our best to “know our case” as early as possible. Document preservation obligations are (as always) urgent. If reasonable under the circumstances, counsel should also consider conducting initial witness interviews and collecting and initially assessing document and data pools in anticipation of meet and confer obligations and scheduling conferences. This means potentially working with outside counsel and legal technology vendors earlier in the discovery process than before the Amendments took effect.

Indeed, there are predictions that 2016 will see an evolution in the technology used for early case assessment. Don’t forget, Model Rule 1.1 (Competency) requires us to keep up with the latest e-discovery technology.

With regard to Chief Justice Robert’s call to “engineer a change,” the Rules of Professional Conduct have always overlaid discovery. Perhaps the Amendments will shine a glaring light on discovery abuses and increase judicial scrutiny. I hope the Amendments move us forward, cooperatively, in 2016.

To learn more, join the ACC Litigation Committee’s January 26th discussion, titled “The FRCP: New Year, New Rules, New Approach.” Not a member of the ACC Litigation Committee? ACC members can join for free to receive notice of upcoming events, resources and opportunities at www.acc.com/committees/lc/index.cfm.