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TTHEHE RRULEULE((SS)) OFOF LLAAWW:: EELECTRONICLECTRONIC DDISCOVERISCOVERYY ANDAND THETHE CCHALLENGEHALLENGE OFOF RRULEMAKINGULEMAKING ININ THETHE SSTTAATETE CCOUROURTSTS ReportReport ofof thethe 20052005 ForumForum forfor StateState AppellateAppellate CourtCourt JudgesJudges Pound Civil Justice Institute ~FORUM ENDOWED BY HABUSH HABUSH & ROTTIER S.C.~ When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 1054 31st Street, NW, Suite 260 Washington, DC 20007 pound@roscoepound.org The endower, Habush Habush & Rottier S.C., has no control over the placement of information in or the editorial content of the Report of the 2005 Forum for State Appellate Court Judges. Library of Congress Control Number Pending ISBN: 0-933067-27-5 ©2006 Pound Civil Justice Institute Table Of Contents FOREWORD . 1 INTRODUCTION . 3 PAPERS, ORAL REMARKS, AND COMMENTS . 5 “The Varieties of State Rulemaking Experience and the Consequences for Substantive and Procedural Fairness” Professor Linda S. Mullenix, University of Texas School of Law . 5 Additional Oral Remarks of Professor Mullenix . 24 Comments by Panelists, Response by Professor Mullenix, Questions and Comments. 28 “E-Discovery: A Case Study in Rulemaking by State and Federal Courts” Judge John L. Carroll, Dean, Cumberland School of Law at Samford University . 45 Additional Oral Remarks of Judge Carroll . 62 Comments by Panelists, Response by Judge Carroll, Questions and Comments. 66 THE JUDGES’ COMMENTS . 80 POINTS OF AGREEMENT AND CLOSING COMMENTS . 127 APPENDICES . 130 i THE RULE(S) OF LAW: ELECTRONIC DISCOVERY AND THE CHALLENGE OF RULEMAKING IN THE STATE COURTS ii REPORT OF THE 2005 FORUM FOR STATE APPELLATE COURT JUDGES Foreword he Roscoe Pound Institute’s (presently known as the Pound Civil Justice Institute) thirteenth annual TForum for State Appellate Court Judges was held in July 2005, in Toronto, Canada. Continuing the standard of excellence that has marked our previous Forums, it featured outstanding scholars and panelists who examined the emerging issue of electronic discovery within a larger discussion of state court rulemaking. During the program, judges, scholars, and attorneys explored the process—which has become increasingly politicized—in which state judiciaries develop the rules that govern their courts, and how states have begun to deal with calls for changes in discovery rules precipitated by the increased amount of information stored electronically. The Pound Civil Justice Institute understands and appreciates the fact that America’s state courts lead the administration of justice in the United States and carry, by far, the brunt of the country’s judicial workload. We try to support them in their work by offering our annual Forums as a venue where judges, academics, and practitioners can participate in a dialogue devoted to a timely issue, held on a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is bound to be very fruitful. Our attendees bring with them different points of view, and we make additional efforts to include panelists with outlooks that differ from those of most of the Pound Institute’s Fellows. We believe that this diversity of viewpoints emerges in our Forum reports. Our previous Forums for State Appellate Court Judges have examined such important topics as the rise of mandatory arbitration, state courts and federal authority, the separation of powers, the jury in civil justice, judicial independence, the scientific evidence controversy, and secrecy in the courts. We are extremely proud of our Forums and are gratified by the increasing attendance we have experienced since their inception, as well as the very positive feedback from judges who have attended. The Pound Institute is indebted to many people for the success of the 2005 Forum for State Court Judges: • Professor Linda S. Mullenix, of the University of Texas School of Law, and Judge John L. Carroll, Dean of the Cumberland School of Law at Samford University, who wrote the papers that started our discussions; • Our panelists: Honorable Paul H. Anderson, Honorable Ronald J. Hedges, Thomas Y. Allman, William A. Gaylord, John H. Martin, James E. Rooks Jr., Michael J. Ryan, and Kenneth J. Withers; • The moderators of our small-group discussions, who keep the groups on track and help us to highlight what experienced state court judges think about the issues we discussed; and • Dr. Richard H. Marshall, Executive Director of the Pound Civil Justice Institute, and his staff, Marlene Cohen and LaJuan Campbell, for developing and running the Forum, and publishing and distributing this report. Finally, we cannot thank enough the distinguished group of jurists who took time from their busy schedules and in some cases, their summer holiday, to come to the Forum and share their expertise so that we might all learn from each other. 1 THE RULE(S) OF LAW: ELECTRONIC DISCOVERY AND THE CHALLENGE OF RULEMAKING IN THE STATE COURTS We hope you enjoy reviewing this Report of the Forum, and that it both opens your mind to the challenges of rulemaking in state courts and gives you a fresh perspective on the burgeoning issue of electronic discovery. Richard H. Middleton Jr. Gary M. Paul President President Roscoe Pound Institute Pound Civil Justice Institute 2003-2005 2006-2007 2 REPORT OF THE 2005 FORUM FOR STATE APPELLATE COURT JUDGES Introduction ne hundred fifty-four judges, from 37 states, took part in the Pound Institute’s 2005 Forum for State OAppellate Court Judges, held on July 23, 2005, in Toronto, Canada. They listened to presentations based on original papers written for the Forum by Professor Linda S. Mullenix of the University of Texas School of Law (“The Varieties of State Rulemaking Experience and the Consequences for Substantive and Procedural Fairness”) and Judge John L. Carroll, Dean of the Cumberland School of Law at Samford University (“E-Discovery: A Case Study in Rulemaking by State and Federal Courts”). Each presentation was followed by a panel discussion with distinguished commentators, followed by judges breaking into small groups to talk about the issue. Responding to Professor Mullenix’s paper were: James E. Rooks Jr., an attorney with the Association of Trial Lawyers of America (ATLA) in Washington, D.C.; John H. Martin, a defense attorney from Dallas, Texas; William A. Gaylord, a plaintiff attorney from Portland, Oregon; and the Honorable Paul H. Anderson, an Associate Justice on the Minnesota Supreme Court. Responding to Judge Carroll’s paper were Kenneth J. Withers, an attorney with the Federal Judicial Center in Washington, D.C.; Thomas Y. Allman, a defense attorney from Chicago, Illinois; Michael J. Ryan, a plaintiff attorney from Fort Lauderdale, Florida; and the Honorable Ronald J. Hedges, a United States Magistrate Judge from New Jersey. For biographies of the paper writers, panelists, and group moderators, please go to the Appendix of this report at page 130. After each paper presentation and commentary, the judges separated into small groups to discuss the issues raised in the papers, with Fellows of the Pound Institute serving as group moderators. The paper presenters and commentators visited the groups to share in the discussion and respond to questions. The discussions were recorded on audio tape and transcribed by court reporters, but under ground rules set in advance of the discussions, comments by the judges were not made for attribution in the published report of the Forum. A selection of the judges’ comments appears later in this report. Judges, when identified, are only identified at the level of specificity of the region of the country they were from, i.e., “a Mid-western state” or a “southern state.” At the concluding plenary session, the judges’ views of the issues under discussion were summarized based upon the moderator’s reports of their groups, and all participants in the Forum had a final opportunity to make comments and ask questions. This report is based on the papers written and presented by Professor Mullenix and Judge Carroll and on the transcripts of the plenary sessions and group discussions. Richard H. Marshall, Ph.D. Editor Executive Director, Pound Civil Justice Institute 3 THE RULE(S) OF LAW: ELECTRONIC DISCOVERY AND THE CHALLENGE OF RULEMAKING IN THE STATE COURTS 4 REPORT OF THE 2005 FORUM FOR STATE APPELLATE COURT JUDGES Papers, Oral Remarks, and Comments THE VARIETIES OF STATE RULEMAKING EXPERIENCE AND THE CONSEQUENCES FOR SUBSTANTIVE AND PROCEDURAL FAIRNESS Linda S. Mullenix rofessor Mullenix begins her paper by discussing the relative obscurity of rulemaking scholarship in general, Pwhat she calls an “untended garden of the legal landscape,” and in particular, the lack of study of state court rulemaking. Her paper surveys state rulemaking models, and she finds that the state rulemaking landscape is incredibly varied, complex, colorful, and untidy. She first examines the well-known federal rulemaking model, which has three distinguishing characteristics: rulemaking authority is delegated by Congress to the federal judiciary; it is shared with Congress, which has the authority to promulgate rules; and it is limited by statute. She looks at the “Rules Enabling Act,” and the limitations it sets on rulemaking, which has inspired a spirited debate concerning the substance/procedure distinction. The paper then discusses how Federal Rules are implemented through