Changes proposed in e-discovery rules

Steve Lash

Daily Record Legal Affairs Writer

October 23, 2009— Lawyers in Maryland’s federal courts will have to replace bitter discovery battles with creative cooperation to keep down litigation costs and time, under proposed changes to discovery guidelines for the U.S. District Court divisions in Baltimore and Greenbelt.

The proposed changes, developed by a committee of judges and lawyers, require attorneys to “think creatively” and cooperate to accomplish discovery in “a more just, speedy, inexpensive way.” Demands would be limited to documents and depositions that are not only relevant, but “proportional” to the issues in the case and “not excessively burdensome or expensive.”

The proposal follows concerns voiced by Chief U.S. Magistrate Judge Paul W. Grimm that attorneys have failed to cooperate and make sure their discovery requests are reasonable, relevant and cost-effective.

Grimm was joined on the discovery guidelines panel — a subcommittee of the Maryland State Bar Association’s federal liaison committee — by U.S. Magistrate Judge Susan K. Gauvey. The changes are “a way of helping lawyers be better lawyers and giving them the guidance that they need,” she said.

“Discovery has become so complex and so expensive and so long,” said Gauvey, who sits in Baltimore. “It’s in the best interest of all parties to ratchet it down.”

Another panel member, Philip M. Andrews said federal judges in Maryland want attorneys to resolve discovery disputes among themselves.

“The court really wants counsel to take the lead and sit down and figure out what makes sense for their particular case,” said Andrews, managing partner at Kramon & Graham PA in Baltimore. The proposed changes “make it clear that in the court’s view the onus is on the lawyers to look at each case individually and decide what discovery makes sense.”

Fellow panel member Michael D. Berman called the “creativity and cooperation” proposals especially timely, now that the overwhelming majority of documents are in computers and e-mail communications. Electronic discovery can take even more time and be even more expensive, as parties must retrieve these paperless documents, examine them for relevancy and privilege, and provide them to opposing counsel.

“The proliferation of electronic discovery has reinforced the need for cooperation in discovery,” said Berman, a partner at Rifkin, Livingston, Levitan & Silver LLC in Annapolis.

Grimm was in Ohio on a judicial matter and unavailable for comment, an aide said Friday.

Last October, Grimm wrote in Mancia v. Mayflower Textile Services Co. that lawyers often contend “that the cooperation the judges expect during discovery is unrealistic because it is at odds with the demands of the adversary system, within which the discovery process operates.” However, Grimm added, “This is just not so.”

Comment period ending

The discovery guidelines are part of proposed changes to the local rules governing civil-trial procedure in Maryland’s U.S. District Courts. Attorneys and Maryland federal judges will discuss the proposals Friday at the sixth biennial bench-and-bar conference at the Greenbelt courthouse.

The official comment period ends Nov. 4; Maryland’s federal judges will then vote on adopting the rules and guidelines, which would take effect Dec. 1.

The guidelines, though less binding than court rules, can be considered by judges in weighing sanctions for abuse of the discovery process.

The proposals expand on current discovery guidelines, which state that attorneys are “expected to behave professionally and with courtesy” to opposing counsel, parties and witnesses. The proposed expansion would add that professionalism and courtesy encompass cooperation and civil conduct.

“Cooperation and civility include, at a minimum, being open to, and reasonably available for, discussion of legitimate differences in order to achieve the just, speedy and inexpensive resolution of the action and every proceeding,” the proposal states. “Cooperation and communication can reduce the costs of discovery, and they are the obligation of counsel.”

This article has been reprinted with permission of The Daily Record 2009.

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