ALBANY, N.Y., June 28 (Reuters) - The New York State Bar Association has released a set of proposals it said would reduce costs and delays that routinely arise during federal civil litigation.
In a 125-page report released Thursday, the bar association called for the streamlining of the discovery process and proposed amendments to the Federal Rules of Civil Procedure that would require the preservation of documents, including those stored electronically, and earlier pretrial conferences.
"The increasing use of technologies -- including email, text messaging, social media and the cloud -- have complicated the discovery process, causing long delays and exorbitant costs in federal litigation," association President Seymour James said in a statement.
Though federal courts may order the preservation of evidence on a case-by-case basis, there is currently no civil procedure rule that creates a duty of preservation. According to the report, the "sheer mass" of emails and other electronic documents typically reviewed during discovery can create confusion, disputes and delays.
The report calls for an amendment to the civil procedure rules that would require parties to "take reasonable actions" to preserve relevant documents. Under the proposal, failure to preserve could result in dismissal of an action.
The report also recommends an amendment to speed up federal litigation by requiring pretrial conferences within 60 days of initial pleading, instead of the current 120 days.
Further, the bar association wants to put an end to a rule that parties create "privilege logs," descriptions of documents withheld during discovery.
Instead, the report recommended a series of guidelines for litigants, including agreeing early on to exclude certain categories of documents from the logs, permitting courts to conduct reviews of small samples of documents instead of reviewing all contested documents, and treating emails and email attachments separately for the purpose of discovery.
"Legal gamesmanship and litigation by attrition must be paradigms of the past," the report says.
The report also urged federal courts to repeal a current requirement mandating production of all documents supporting a party's claims or defenses. Instead, the court should determine if such material should be produced on a case-by-case basis, the report says.
Late last year, the U.S. District Court for the Southern District of New York launched an 18-month pilot program that is testing a number of proposals similar to those in the bar association report. The program requires premotion conferences on most motions as well as that parties submit reports identifying the scope of discovery and how discovery disputes will be settled.
(Reporting by Dan Wiessner)