Q&A with William P. Butterfield on his Testimony Regarding the Costs and Burdens of eDiscovery Before the House Judiciary Committee’s Subcommittee on the Constitution

December 22, 2011

By Matthew Nelson 

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William Butterfield is a partner at Hausfeld LLP with over 33 years of experience as a trial attorney and a track record of success.  In addition to serving as a leader in several legal think tanks and teaching law, Mr. Butterfield’s achievements include reaching multiple settlements in the neighborhood of $100 million in complex legal matters.  Last week Mr. Butterfield had the rare opportunity to testify before Congress regarding the Costs and Burdens of eDiscovery in Washington D.C.  The following dialogue captures his experiences and observations testifying before the House Judiciary Committee’s Subcommittee on the Constitution.

Matthew Nelson: What was it like testifying before Congress and why did you feel compelled to testify?

William P. Butterfield: It was my first time testifying before Congress, so I wasn’t sure what to expect.  But it was a positive experience for me, and I’m glad that I was asked to testify.  While there is an organized, and well-financed effort by some in the corporate community to make drastic revisions to the Federal Rules of Civil Procedure, or civil rules, there is also a large segment of the bar (including many attorneys who are thought leaders in this area) who think that the types of “cures” under consideration will do more harm than good.  I think it’s important to give voice to that view, and that is why I testified.

Nelson: What were some of the key points you and other witnesses with different viewpoints made during the hearing?

Butterfield: Rebecca Kourlis, executive director of the Institute for the Advancement of the American Legal System (IAALS), testified that the cost of litigation is in part responsible for fewer trials.  She said that IAALS supports a three-pronged approach to address the problem:  1) More effective judicial case management, 2) Increased cooperation and 3) Rules revisions.  Importantly, Justice Kourlis said that we should defer to the Standing Committee and the Civil Rules Advisory Committee of the Judicial Conference, which is addressing the issues.

William Hubbard, assistant professor of law at the University of Chicago, testified about the costs of preservation and eDiscovery, noting that the costs are relatively modest in most cases.  He testified that most of the high discovery costs are occurring in a very few (5%) cases.

Thomas Hill, associate general counsel at General Electric, testified that the current Federal Rules of Civil Procedure (FRCP) result in American companies waste billions of dollars on unnecessary document preservation and production.  He indicated that part of the problem is that companies must preserve documents before a lawsuit is filed, and often they preserve where no lawsuit is ever filed.  He provided examples of occasions where GE spent more in preservation than the money at stake in the litigation.

My testimony focused on three things:  1) Our legal system depends on discovery and some of the proposals from those seeking drastic rules changes would undermine our goal of searching for the truth in litigation and resolving disputes on the merits; 2) The fear of sanctions that some companies claim are causing them to over-preserve is overblown, given that sanctions are sought in just 1/15th of 1% of federal court cases, and are granted in only about half of those cases; 3) A review of sanctions decisions demonstrates that parties are not getting sanctioned where they acted in good faith.  Rather, they are being sanctioned for egregious conduct.

Nelson: Did you sense a split among party lines or among certain members of Congress or some kind of overwhelming consensus on any issues?

Butterfield: Predictably, there appeared to be some differences between parties, although it is hard to say what reflects the views of Republicans on the committee, because only one of their members participated.  The Democrats expressed two general views:  1) Although eDiscovery presents challenges to litigants, it has been valuable in uncovering critical evidence and is very beneficial to the goals of discovery in general, 2) Congress should not interfere with the Rules Committee, which is carefully studying these issues.  The Republicans, represented by the Subcommittee Chair, Trent Franks, took the position that the current discovery rules do not promote the objectives of Rule 1, which provides that litigation should be just, speedy and inexpensive.  Franks said that the civil rules regarding preservation and spoliation sanctions are too vague, and parties are therefore required to preserve excessive amounts of information.  But despite those differences, I didn’t observe any member calling for congressional intervention at this time.

Nelson: What struck you as interesting or important and what do you expect will be the outcome or next steps for Congress?

Butterfield: What struck me as interesting (and surprising) was that only one member from the majority participated in the hearing.  Nothing during the hearing led me to believe that Congress would interfere with the Rules Committee’s work and process.