Reducing Discovery Costs: The English ExperienceAuthor(s): Paul M. LeonardSource: Litigation, Vol. 5, No. 3, ADMINISTRATIVE LITIGATION (Spring 1979), pp. 3-4, 54-56Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758463 .

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Iriiil Balloon

Reducing Discovery Costs:

The English Experience Although the judicial systems in the United States and in England have

many things in common, the provi? sions for discovery in civil suits are

disparate. Most American courts pro? vide for wide-ranging and often bur? densome discovery; the English courts permit rather limited dis?

covery, often controlled by the court itself. The less extensive British sys? tem of discovery reduces the bill for the client, but there are also disad?

vantages.

While the frequently overwhelming discovery permitted under the Feder? al Rules of Civil Procedure has led one critic to label the system, only partly in jest, "trial by avalanche," the

English litigators rely on the tradi? tional "trial by ambush/'

It is unusual for a litigant in

England, except perhaps in personal injury cases or in the Restrictive Prac? tices Court, to enter the courtroom

knowing with any degree of precision exactly what evidence there is against him. Sometimes the evidence comes as a shock, and at lunch time in res? taurants near the Law Courts in the Strand in London, huddles of liti?

gants and their lawyers furiously work

up questions for cross-examination of their opponent's witness whose evidence they have heard for the first time that morning. The litigant then stumbles back to court wondering what else is in store for him apart, that is, from indigestion. On the other hand, before an

American litigant enters the court? room, he will have taken depositions from just about everybody, without court order, covering both testimony and documents. He will also have sent his opponent the most searching in?

terrogatories, frequently unlimited in number and designed to expose every facet of his opponent's case, evidence as well as facts. He will have had the

by Paul M. Leonard equivalent of subpoenae ad testifican dum and duces tecum before the trial and he enters the fray having spent a fortune and pestered everybody in

sight but ready for anything. More

important perhaps, he may long since have given up and settled the case if he has discovered that the evidence

against him was overwhelming.

Sometimes these wide-ranging dis? closures produce important evidence that would not otherwise be available to the court. At other times, of course,

they produce "overkill,'' not only of the litigants themselves, but also of

anybody within sniping range. You could sum up the American pro? cedure as a general, pretrial fishing expedition of the purest water where not even the snail darter, that mighty three-inch dam buster from Ten? nessee, is safe.

It is rare in England for the tes?

timony and documents of witnesses to

Mr. Leonard is an English solicitor and a

partner of Freshfields, in London.

be disclosed compulsorily before the trial.

The English Rules emphasize the

importance of giving the evidence at the trial itself and not before. For ex?

ample, the court will not order

pretrial discovery against a mere

witness, not so as to prevent relevant evidence from being given, as Lord Reid said in the Norwich Pharmacol case, but to postpone it until the trial itself.

Must Disclose The parties are required to disclose

their relevant documents on discov?

ery, but interrogatories are not easy to obtain. First, they must be strictly necessary, as opposed to merely desir? able. Secondly, they must relate to the

facts, rather than the evidence, and

thirdly, they need a court order, unlike requests for further and better

particulars which, for that reason, have largely replaced interrogatories.

Depositions of nonparty witnesses are also severely restricted by the courts and are granted, again by court

order, only when, to quote the Annual Practice:

A witness is either too old or

decrepit to attend a trial or might die before the trial or is so ill that there is no prospect of his being able to attend the trial or, if a

female, is pregnant and likely to be delivered about the time of the trial or where the witness intends to leave the country before the trial.

Thus, if the witness is an old lady liv?

ing in Cornwall and is about to flee the

country, you have a sporting chance of getting a court order for her evi? dence to be taken on deposition. Even then you will have to satisfy the court that she cannot actually attend the trial before her deposition will be allowed in as evidence.

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Although expert evidence and

hearsay evidence may often have to be disclosed before trial, and although noncontroversial evidence can be giv? en on affidavit, so that the witness himself need not attend the trial for cross-examination, it is generally re?

garded as essential that the judge should see and hear the witness giving his evidence in order to form a view about his credibility. Thus, where evi? dence is taken on deposition before an

examiner, it is not considered proper for the examiner to give his opinion on the credibility of the witness. How? ever, the examiner is allowed to report any special facts, for example, that the witness fainted or rose to his feet and tried to assault the cross-exam?

ining counsel, which one might think said a lot for that witness's credibility.

It is apparent from this discussion that the discovery problems in

England are not the same as in the United States. Whereas in America there is a veritable monsoon of

pretrial information, British lawyers are often lucky if there is a slight driz? zle to alleviate the drought. The mon? soon exists because, to repeat the

much quoted phrase, "the good idea has gone wrong," but it was never? theless a good idea originally, and I would not for a moment suggest that the current abuse of American dis? covery procedures could be solved by a return to the restrictive discovery rules applied by the old English Court of Chancery and Exchequer in the

eighteenth century. However, per? haps U.S. lawyers can learn some lessons from the current English practice.

The Special Committee for the

Study of Discovery Abuse has recom? mended that the scope of discovery in the United States be confined to the issues as opposed to the subject mat? ter of the action. Thus, it would be similar to the English Rule, where dis?

covery is limited to the "matters in

question in the action." Obviously this change would in some measure reduce the scope of discovery.

Guano Fight Take a hypothetical case of a pluto

nium cartel. The subject matter could be said to be the plutonium industry generally, although the issues might relate to the narrower area of the cartel itself, its existence (if that were

an issue), its operations and its effect. While less sweeping, these issues are still very wide, and even discovery on certain issues may lead to a great deal of material. In the leading English case on the subject, the Peruvian Guano case, a mere ninety-six years old, it was held that discovery on cer? tain issues would encompass docu?

ments "which it is not unreasonable to suppose may contain informa? tion .. .likely to lead to a train of en?

quiry... enabling the party seeking discovery either to advance his own case or damage the case of his op? ponent."

Fix Issues But however wide the scope of the

issues may be, it seems to me essential that the issues be defined, and de? fined in a document or documents. In this connection, the Committee rec? ommends that if the parties cannot

agree on what the issues are, there should be a court order fixing the issues following a discovery con?

ference, which would take place only at the request of one of the parties. Remembering that the purpose of the exercise is to save costs, one can fairly say that massing battalions of lawyers for pretrial conferences will not achieve this. Indeed, the Winn Com? mittee reporting on personal injuries litigation in England thought that

pretrial conferences generally would, as they put it, "complicate, delay and increase the costs of litigation/'

However, I believe that a set of firm, clear and comprehensive in? structions on discovery at an early stage by either the judge or a master

having jurisdiction mainly in in?

terlocutory and procedural matters could save a great deal of time, and therefore costs, later on. For this reason, I consider a discovery con? ference essential, particularly in ma?

jor, complex cases like many of the antitrust cases or class actions.

It is clear that the success of a

discovery conference, like any pretrial conference, will depend to a great ex? tent on the conduct of the judge. It is unrealistic to expect either litigants or their lawyers voluntarily to limit the scope of pretrial discovery to any great degree. Litigants are not necessarily interested in a fair result?what they

want is a favorable result. Lawyers will do what they can to win their cases

consistent with their obligations under the rules and their duties to the court. I am therefore skeptical about the value of a rule that makes the

holding of a discovery conference

dependent upon the request of one of the parties. It should take place in any event, if only to define the issues. This is surely essential if the rule restricting discovery to the issues, as opposed to the subject matter, is to operate effec?

tively. In England, the issues are defined

in the pleadings, which should con? tain all facts relied on, although not, of course, the evidence. Pleadings form the scenario for discovery and can be a most valuable clue to the nature of the ordeal facing the litigant at the trial. Unfortunately, the

pleading rules in England are not en? forced as strictly as they might be, allowing defendants in particular to

get away with half-pleaded cases con?

sisting mainly of denials. Of course, the Scots are the masters of pleading. Theirs are generally full, yet precise, with the issues well defined, although they try to confuse their opponents with an excess of quite incomprehen? sible Latin phrases.

Since the definition of issues in the

pleadings is crucial, anyone who tries to redefine the issues by amending his

pleadings is penalized in costs, which in English practice includes attorney fees. It is in this area of costs, I think, that one finds the major solution to

discovery abuse. In England the courts have wide

discretion to make orders about costs, and such orders have been very effec? tive. Furthermore, a court can order that there shall be no discovery of documents at all if it feels that dis?

covery is not necessary either for

disposing fairly of the action or for

saving costs. The same applies to in?

terrogatories. Courts frequently order that dis?

closure of documents by nonparties in

personal injury actions should be con? ditional on the applicants paying the costs and giving security in advance for those costs. The same applies to evidence taken by deposition.

Similarly, an applicant for exam? ination of a witness outside the juris? diction by letters rogatory will find that he must file an undertaking in

(Please turn to page 54)

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of other agencies and conducts hear?

ings in a broad range of regulatory areas. Chapter 120, Fla. Stat.; Cal. Govt. Code Ann. ?? 11370 et seq.; Mo. Ann. Stat. ? 161 (Vernon Supp. 1977). The courts have had only lim? ited opportunity to interpret these statutes and there is considerable room for creativity by practitioners. The following paragraphs suggest areas where special attention may be fruitful.

As a general proposition, the burden of proof in an administrative

proceeding lies with the party who asserts the affirmative of the issue. Cooper, State Administrative Law, 355 (1965). The burden does not in all cases fall upon the citizen who is con?

fronting an agency. If the citizen seeks a permit to operate a facility under the jurisdiction of agencies whose function is to protect the en?

vironment, then clearly the citizen has the affirmative duty to establish facts showing an entitlement to the

permit. If, on the other hand, an

agency seeks to revoke an occupa? tional license, the burden lies with the

agency.

Frequently, the question of which

party has the burden of proof is less obvious than in these examples. For

example, in the area of taxation it is commonly accepted practice, fol?

lowing the federal example, to place upon the taxpayer the burden of es?

tablishing the invalidity of a tax assessment. However, if one views the issue from the perspective of the party seeking to change the status quo, it is the taxing authority that bears the affirmative of the issue. Unless a statute specifically places a burden

upon the taxing authority, or gives presumptive validity to an assessment of the taxing authority, one can force?

fully argue that it is the agency that has the burden of establishing its en? titlement to collect the tax.

The formal rules of evidence usual?

ly are not applied in administrative

proceedings. Typically, those prin? ciples of evidence that are followed are relaxed. The revised Model State Administrative Procedure Act per? mits introduction of information that is commonly relied upon by reason?

ably prudent persons in the conduct of their affairs, even though the infor? mation may not be admissible in the courts. Typically, hearsay evidence is

admissible in administrative proceed? ings, at least to the extent that it is cumulative of other evidence. Rarely is credence given the "best evidence rule." Copies are freely received in lieu of original documents. Statutes, judicial decisions and agency rules should be consulted in each jurisdic? tion to determine precisely what prin? ciples of evidence govern.

Despite the relaxation of the formal rules of evidence, admissibility argu?

ments based upon the formal rules of evidence are not precluded. The fact that the courts have determined that a given sort of evidence is admissible would persuasively demonstrate that the evidence would be admissible in the administrative proceeding. The fact that evidence would not be ad? missible would provide a persuasive, albeit not determinative, argument. As in the case of non-jury trials, there is a tendency by hearing officers to receive matters that are arguably in? admissible. Where the evidentiary arguments are complex, this tactic provides an opportunity for a full

briefing by the parties after the hear? ing, and depending upon further de?

velopments in the case, may eliminate the need to rule upon admissibility of the evidence.

The Florida Administrative Pro? cedure Act provides, and in some cases requires, that parties engage in

pleading and motion practice. De?

spite this availability, counsel fre? quently ignore their first opportunity to persuade. Just as a judge is likely to be familiar with the pleadings in a trial, hearers are likely to be familiar with the request or petition for hear?

ing. If the request says no more than 'T want a hearing," even if it is suffi? cient to invoke the hearing mech? anism, the hearer will be relatively un?

prepared. If the request or petition cogently presents the parties' conten? tions, the hearer will have an oppor? tunity to prepare in advance.

Attorneys frequently ignore the op? portunity to engage in motion prac? tice in administrative proceedings. I know of no administrative procedure acts that specifically reject motion

practice. If a party wishes to have a

hearing scheduled in a place different from that chosen by the agency or the

hearing officer, if a party wishes to take steps before the hearing to pre? vent the opponent from presenting ir

relevant evidence, if the opponent's request for hearing or reply to re?

quests for hearing presents no cogent matter for determination of disputed issues of fact, or if a party is in any way dissatisfied with the development of a case, it certainly cannot harm the case to ask for the desired relief. Even if the hearer denies the motion summarily, motion practice presents a useful op? portunity to engage in a persuasive technique that may be fruitful later in the proceeding.

An administrative hearing provides affected persons with an opportunity to assist in the- development of the record that will be utilized to make a final decision. In many cases the op? portunity is provided in as formal a context as is provided in civil actions. However, even where the hearer is not

legally trained, the hearing is ex?

tremely informal and the findings of the hearer have no profound impact upon the final decision maker, the op? portunity to play a part in the develop? ment of the record should not be lost.

Attorneys who are successful in court

litigation have developed techniques for gathering facts before a hearing and for presenting them in an orderly manner at the hearing. These same

techniques will avail in administrative

hearings, and attorneys should use them.

Iruil

Balloon

(Continued from page 4) advance to pay the expenses incurred

by the Secretary of State, and he must

pay the expenses themselves on de? mand. Normally he must also pay the fees and expenses of the examiner.

In the Norwich Pharmacal case in 1974, where the House of Lords al? lowed plaintiffs to succeed in their ac? tion for discovery against the customs authorities, thereby compelling the authorities to disclose the names of

private importers who were in breach of the plaintiffs' patent rights, the court made it clear that the costs and expenses both of the application and of the discovery itself would have to be

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borne by the applicant as a general rule.

Thus, under the English system, even where the discovery is permitted, the party seeking it must conclude that it is important enough to his case to justify the expense. The amend? ment proposed by the Special Com? mittee on Discovery Abuse proposes for American litigants a similar

reassignment of costs to the discover?

ing party "as justice dictates." This

change would presumably strengthen the courts' powers in the United States to order an applicant to pay the costs and expenses of the discovery he is seeking. A U.S. court recently refused to permit such a result in the celebrated government antitrust case

against IBM, where the court de? clined to order plaintiff to bear a third

party's discovery expenses. The court

opined that the third party should bear its own discovery expenses because all citizens have an interest in the correct resolution of government litigation?a rather underhanded form of taxation.

But clearly, if an applicant for dis? covery knows that he will bear the costs of that discovery, he will more

readily make sure that his application is really necessary even if he feels that his costs would eventually be paid by his opponent if he wins his case, as is common practice in England and, as I understand it, occasionally the prac? tice in the United States in antitrust cases in particular. If an applicant for

discovery were penalized by costs, this would reduce a lot of discovery of the

"unthinking, knee-jerk variety," simply transported verbatim from one case to another like so much bag? gage.

Another possible limitation on dis? covery is to disallow nonspecific "sweeping up" phrases that are often tacked on to the end of specific re?

quests for discovery. An example is a

phrase like: and any memoranda, correspondence or other documents

relating thereto_This formula was tested in a recent case before the House of Lords in the context of letters rogatory. In a previous case the formula was approved by the Court of Appeal, but the House of Lords held that such sweeping up phrases, including general requests for testimony "and the evidence of

any other persons having knowledge

of the facts" were too wide for letters

rogatory. Instead, they will apply the "blue pencil" approach and strike out scheduled items that are not suffi?

ciently particularized and leave intact those that are. Such an approach by the courts here?acting as a discovery censor?could help reduce to man?

ageable proportions some requests for discovery.

No Duplication A further technique to reduce dis?

covery is to use wherever possible the

discovery already obtained in previ? ous, related cases. The discovery pro? cess could often be shortened in the United States by greater use in private cases of the fruits of prior govern? mental proceedings, for example, grand juries. There are, I gather, secrecy problems here, but if these were resolved, unnecessary duplica? tion of deposition taking could often be avoided. And many governmental proceedings are far less enshrouded in secrecy and barnacled by tradition and cases. This is not, however, a

technique that is available to us in

England. Since the Distillers and the Riddick cases, it is quite clear that the courts will severely restrict the use to which a person can put documents obtained by compulsion on discovery elsewhere.

It is by now crystal clear that judges have a key role to play in curbing dis? covery abuse, and it is perhaps sur?

prising that judges allow litigants to

get away with quite so much as they do, particularly when it seems that the

existing federal rules already give dis? trict courts wide powers to curb this abuse. Rule 1 provides that all the rules "shall be construed to secure the

just, speedy and inexpensive deter? mination of every action." Courts also have wide powers under Rule 26(c) to make protective orders preventing discovery from taking place at all, limiting its scope or allowing discov? ery only on specified terms and condi? tions if the court feels that "justice re?

quires ... [such an order] to protect a

party or person from annoyance, em?

barrassment, oppression or undue burden or expense." Remembering the National Football League case where discovery was allowed to in? clude the running and financial af? fairs of all twenty-six league teams, I should think there are probably a

great number of football players who look back on a time when they were

annoyed, embarrassed, oppressed, unduly burdened and subjected to ex?

pense over an entire season.

On the face of it, although I speak with deference to U.S. experts, there seems nothing at present to prevent a district court from ordering the dis?

covering party to pay the costs of the

discovery under Rule 26(c) (protective orders) and the costs of a motion and order compelling discovery under Rule 37(a)(4).

Of course, some judges occasional?

ly feel the need to show their distaste both in England for the strictures of some of the rules and in America for the way the rules are abused. Some years ago in England, Mr. Justice Roche issued a public announcement that he and his fellow judges in the commercial court would be happy in the future, if the parties agreed, to act

more as commercial arbitrators than

strictly as judges so that they could then ignore some of the particularly stringent rules of evidence relating to

proof of documents. Similar frustra? tion was displayed here in the United States over the abuse of interroga? tories, which, as the Special Commit? tee observes, give rise to more abuse than any other element of discovery. One judge from the Southern District of New York became so incensed by this abuse that he refused to permit the use of interrogatories in his court at all.

Historically, I note that the Ever shed Committee on Practice and Pro? cedure, reporting in 1953, records that 100 years ago interrogatories could be administered in England by notice without leave of the court. This

practice was quickly changed because it had been used as what the Commit? tee described as "a delaying and cost

making manoeuvre." Now, 100 years on, it still is.

Last Word The last word must, I think, go to

the judge who, addressing an audi? ence of hardened antitrust lawyers, said:

I put it to you gentlemen, if you do not limit your discovery re?

quests, we are going to do so. We cannot do it with the skill, fi? nesse, the precision that you are

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capable of. We will do it with rus?

ty, blunt meat axes.

Lady Macbeth, faced with a similar

problem, offered this advice: "Be

bloody, bold and resolute." Perhaps only judges can accomplish the task.

Formal

Investigations

(Continued from page 27) taken that can seriously harm his client. It appears that the courts will not set aside Commission action if the staff fails to advise a witness that he is a target and counsel therefore does not make a timely submission. SEC v. National Student Marketing Corp., 538 F.2d 404 (1976), cert, denied, 429 U.S. 1073 (1977). The regulations provide, however, that the staff upon request may advise the witness of the amount of time that may be available for preparing and submitting a state? ment before the staff makes its pres? entation to the Commission. 17 C.F.R. ? 202.5(c). When the tes?

timony starts, counsel should always make a request on the record that if the staff intends to make a recom?

mendation that the Commission take

any action, counsel be given an oppor? tunity to make a submission under Release No. 5310.

A witness has the unqualified right to inspect the official transcript of his own testimony. Although a witness is entitled upon written request to ob? tain a transcript of his testimony, that

request may be denied by the Com? mission "for good cause" (Rule 6). See Commercial Capital Corp. v.

SEC, 360 F.2d 856 (7th Cir. 1966). While as a general matter the witness should request a copy of the tran?

script, there are circumstances when that may be inadvisable. Once re?

quested, a transcript of testimony in a formal investigation is not privileged and can be ordered produced in dis?

covery in private litigation. LaMorte v. Mansfield, 438 F.2d 448 (2d Cir.

1971). If a copy of the transcript is not

requested, or the request is denied, the official transcript should be in?

spected so that counsel can decide whether the transcript was garbled by

the reporter or if any action to correct the transcript is advisable.

A final note of caution: the Com? mission's enforcement staff is often

quite young, with little experience compared to members of the private bar involved in significant investiga? tions. It can be both tempting and a serious mistake to assume an attitude of superiority toward the staff or to

grandstand to impress a client. It in?

evitably offends the staff, which has a

large measure of discretion about the actions they will recommend to the Commission. The client only loses if his lawyer gives the staff an additional incentive to make a recommendation for enforcement action. Equally im?

portant, it is unprofessional to offend an adversary unnecessarily, and it is foolish to underestimate an oppo? nent.

Federal

Library (Continued from page 17)

significance, and incentives for the re?

questing party to forgo requests for confidential data except where it had a strong reason to press ahead.

One approach would authorize the award of fees, including attorneys' fees, to a party substantially prevail? ing in any contest for corporate data.

Congress has authorized the award of

attorney's fees against the govern? ment in FOIA litigation on behalf of

"substantially prevailing" requesters and has authorized the taxing of search and copying fees to cover the costs initially incurred by the gov? ernment in responding to FOIA re?

quests. FOIA practitioners believe that these provisions have had ben? eficial effects by inducing more re? fined requests and overcoming bureaucratic reticence. But the Act does not authorize the award of at?

torneys' fees against a requesting par? ty no matter how frivolous the request or great the costs incurred by the

government and submitting parties in defense. Conversely, the Act does not

require submitters to pay attorneys' fees even when opposition to disclo? sure lacks any merit.

Confidentiality claims could be handled like this: at the time of sub

mitting documents, submitting par? ties could identify those deemed con? fidential. When a request is received, the government would produce non confidential documents and advise both the submitting and requesting parties that some documents were be?

ing withheld pending further pro? ceedings on confidentiality. The sub?

mitting party could then withdraw its

confidentiality claims, in whole or in

part, and submit a summary descrip? tion and a confidentiality justification for the balance. The requester, on the basis of that showing, would identify the desired documents. The agency would render a decision, and court review would be available on either side. The court would have the discre?

tion, but would not be required, to

impose fees in favor of the substan?

tially prevailing party. In order to avoid any untoward

chilling effect, fees would be awarded

only where one party had substantial?

ly prevailed and, even then, only in the discretion of the court. This would

permit the court to assess the interests and financial wherewithal of the los?

ing party. The advantage of this approach is

that it should induce reasonable com?

promise. It puts financial pressure on the submitter to weed out all but the

most damaging documents; other? wise, he runs the risk of substantially losing and incurring additional fees. It pressures the requesting party to

pare his request to documents clearly satisfying his needs and unconvinc

ingly defended by the submitter. It

places most of the burden of justifying withholding on the submitter rather than the agency. It permits imposi? tion of litigation costs on the dis?

putants rather than the government (which now faces the prospect of hav?

ing to cover attorney fees if it loses a fourth exemption case in court). This will permit an agency to make a more disinterested judgment in these cases because it does not have to fear finan? cial liability if it errs on the side of

withholding. We do not suggest a blanket insula?

tion of corporate business files. In some cases either the public at large or litigants and others with special interests should have access. But the stakes and potential burdens are suf?

ficiently large to call for a more rational and certain regime, and its

development should have a first

priority.

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