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 current rules regime. However, without a corresponding change in discovery culture by courts, counsel and clients alike, the proposed rules modifications will likely have little to no effect on the manner in which discovery is conducted today.
For a shift in discovery culture to occur, the most important changes must begin with in-house counsel. More than outside counsel or the courts, in-house lawyers can have the greatest impact on decreasing the costs and reducing the delays that are 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 to change their discovery culture, they may find costs reduced, speedier resolutions, and better traction in court. Those steps are:
- Improve the information governance plan of in-house counsel’s organizational client.
- Recognize and observe the value of adversarial cooperation in discovery.
- Provide better management of outside counsel.
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