Most lawyers and judges know that the Judicial Conference Advisory Committee on the Civil Rules has proposed another round of amendments to the Federal Rules of Civil Procedure. Designed to address the continuing challenges posed by the digital age to federal discovery practice, the proposals would touch many aspects of the discovery process. Much of the commentary suggests that the draft changes would cure the present ills afflicting discovery — a Pollyannaish view. No doubt, the proposed amendments — particularly the renewed emphasis on proportionality standards — represent enlightened improvements to the existing rules. However, without a corresponding change in discovery culture by courts, counsel and clients alike, the proposals likely would have little to no effect.
The most important changes must begin with in-house counsel. More than outside counsel or the courts, in-house lawyers can have the greatest influence over the costs and delays overwhelming discovery. The approach that in-house counsel adopts can directly affect its own litigation fortunes, along with the case strategy and decision-making of retained counsel. If in-house lawyers follow three steps, they may find costs reduced, speedier resolutions, and better traction in court.
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