Leonard Deutchman

One of the fascinating things about the COVID-19 pandemic, is what it has done to ground society to a halt and how, out of that stasis, American society has been trying to improve what had been in place until the pandemic shut it down. In this month's column, we will discuss how the Philadelphia court system has tried to improve civil litigation through application of a pandemic-based praecipe to resolve discovery disputes.

Background

Due to the pandemic, the trial division, civil, of the Philadelphia of Common Pleas Court found itself where almost all courts across the United States had found themselves—closed. To move things along in a virtual manner, i.e., without persons having to come into physical contact with others, on May 5, the court "issued a notice to the bar … establishing a protocol for discovery motions filed before May 5, and on May 27, extended the protocol through July 6." Just prior to July 6, the court issued the protocol, discussed below, which applies from July 6 through Sept. 7.

The protocol required that all discovery filed after July 6 and through Sept. 7, had to be filed through digital submissions of motions, particularly (and within 20 days of filing the motion) "through the e-filing system (EFS) an appropriate praecipe for the court's review as contained in the model protocol released by the court." For all discovery motions that are withdrawn, the moving party shall file "a praecipe to withdraw, identifying the e-file number, and identifying the party or parties against whom the motion is pending, with the relief sought. For all motions entered by agreement, the "moving party" had to "file a praecipe to enter discovery order by agreement," identifying the party or parties against whom the motion was pending, with the relief sought." For "all uncontested discovery motions," the moving party had to file a praecipe which identified the e-file number, the party or parties against whom the motion was pending, and the relief sought. For all "discovery motions concerning any person or entity which is not a party to the applicable action (collectively referred to as a 'third party') that are by agreement or uncontested, the moving party or person" had to file a praecipe that identified the e-file number and "the third party or parties against whom the motion is pending, with the relief sought." While sanctions or orders for preclusion could be entered by agreement, none could be entered by way of uncontested motion. For all contested discovery motions—including third-party motions—the moving party or person had to file a praecipe for contested discovery motion. This praecipe had to identify the e-file number, the party or parties against whom the motion was pending and the relief sought. It also had to "confirm that counsel for the movant" had "conferred or made reasonable efforts to confer with the opposing party or third party or its counsel to resolve the dispute and despite reasonable efforts, the parties" were unable to resolve the dispute without court intervention. All praecipe and certifications described had to be made subject to the penalties of 18 Pa.C.S.A. Section 4904 regarding unsworn falsifications to authorities.

Analysis

The above description of protocols involving discovery reveals that all of the praecipes set forth have the goal of addressing the attempt to seek discovery from opposing and third parties and how to obtain or record the results of such attempts. What is fascinating about the protocols is that they can move discovery along in a way that works much better than the process has worked for decades when it has been controlled by persons arguing with courts, opponents, third-parties and others with stakes in the argument.

The logic of the protocols is straightforward and does not include the political tricks often included by courts, powerful groups of lawyers and in others legislation and other artifacts. First, all discovery demands or other statements had to be filed through the e-filing system. This procedure keeps the parties from arguing that the demand said this or that, i.e., it shrinks arguments so that a party cannot argue that the demand was for X if the praecipe demanded Y, or that the demand was for other than X and the demand was plainly for X. The protocols further allow the parties to withdraw discovery demands or move the court to have the demand made clearer to the receiving side. Similarly, and perhaps most importantly, the protocols required the parties to try to work out discovery disputes without having to present evidence or arguments to the court. Finally, the protocols allow the parties to review discovery demands and responses and try, if the parties so desire, to agree to a compromise. Whether the demanding or producing party prevails, or the parties compromise, discovery becomes a relatively straightforward process aided by digital discussion.

What is perhaps most striking is that the protocols are dictated and controlled by a logic which removes from the process the nonsensical arguments common to litigation. The first step, that for all discovery demands filed after July 6 and through Sept. 7, the movant shall, within 20 days of filing the motion, "file through the e-filing system (EFS) an appropriate praecipe for the court's review as contained in the model protocol released by the court" removes from the process personal and political appeals, and all of the other nonsense that characterizes litigation but has nothing to do with justice. The same holds true for the step that demands that for all motions entered by agreement, the "moving party" had to "file a praecipe to enter discovery order by agreement," identifying the party or parties against whom the motion was pending, with the relief sought. Similarly, for all discovery motions that are withdrawn, the moving party shall file "a praecipe to withdraw, identifying the e-file number, and identifying the party or parties against whom the motion is pending, with the relief sought." Note that, so far, all of the steps demanded were done in text, not simply making humans in the courtroom irrelevant but forcing the process to be guided by objective logic and not other factors. The same criterion guided the next step, which is that for all uncontested Discovery motions, the moving party had to file a praecipe which identified the e-file number, the party or parties against whom the motion was pending, and the relief sought. If the discovery motion concerned any person or thing which was not a party to the applicable action, the moving party or person had to "file a praecipe which identified the e-file number, the third-party or parties against whom the motion was pending, and the relief sought." While sanctions or orders for preclusion could be entered by agreement or could be contested, in the latter case, the moving party had to describe how it conferred or made reasonable efforts to confer with the opposing party or third-party or its counsel to resolve the dispute, but despite reasonable efforts, the parties were unable to resolve the dispute without court intervention. All praecipe and certifications described had to be made subject to the penalties of 18 Pa.C.S.A. Section 4904 regarding unsworn falsifications to authorities.

Thus, all steps in discovery would be made by writing, not arguing; all steps had to be described to the court in writing so that the court could follow the discovery process and rule upon disagreements, and all steps had to advance the goal of having discovery provided to the appropriate parties. The protocol issued by the court in its note was both a smart response to the problems created by the coronavirus because the courts were shut down and an example of how logic could create an environment in which digital steps and results could improve the litigation process.

Conclusion

The pandemic has led to many, many changes in the business world. Businesses that serve strangers, from restaurants to major league baseball games, have shut down. People who got into the office early and stayed late are now working from home. For those working from home, the digital revolution has provided means for communicating and getting work done. Many workers spend their days talking to others using internet applications on computers and smartphones that display all of the call participants and transmit verbal communications.

One consequence of these changes is that they demonstrate what is truly necessary to make a process work and what simply is in place because it has been in place, it does not require specialized knowledge or equipment, and so on. In the world of litigation, the pandemic has closed down active courtrooms, jury trials, and virtually all of what we think of as litigation. The strategy has been, as with baseball, that over time the coronavirus will be cured, kept in special places that could be avoided, or otherwise no longer interfere with human activity. The changes to litigation discussed herein have, however, followed a different strategy: instead of having the virus disappear from the world, the world—here, the world of litigation—will change so as to accommodate the presence of the virus. The adoption of digital devices to adjust to a world where the pandemic is prevalent is a great testament to the intelligence and flexibility of those in the legal and business worlds.

Leonard Deutchman is a legal consultant retired from one of the nation's largest e-discovery providers, KLDiscovery, where he was vice president, Legal. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cyber crime, fraud, drug trafficking and other offenses.