The Impact of the Changes to the Arizona Rules of Civil Procedure to Motor Vehicle Products Liability Cases After the promulgation of the Federal Rules of Civil Procedure, literally every state jurisdiction, including Arizona, revised its pre-trial discovery rules by either adopting the Federal Rules, or by promulgating similar procedural rules. These rules were a welcomed modification to the early practice known by may as "trial by ambush". This report will look at the working application of the rules of discovery to a certain sub-set of products liability litigation, review the major changes made to the Arizona rules of discovery, and suggest how these alterations will effect the litigation of a motor vehicle product liability case. The declared purposes of the amendments to the rules of discovery were to assure the fair resolution of cases without undue cost or delay. The former rules of discovery established the parameters for both written and oral discovery. These parameters defined relevancy in legal terms and set forth the legal bases for objecting to discovery. The discovery rules were not self-executing. Instead, they required that a litigant intentionally trigger the application of these rules by submitting interrogatories, filing requests for documents, filing requests for admission, and the noticing of depositions. Likewise, the imposition of sanctions for failing to conduct or respond to discovery required action by a litigant. Rule 26 in its former form provided that:
In motor vehicle product liability litigation (MVPLL), the parties ordinarily make use of interrogatories, requests for documents, and depositions of fact witnesses, corporate deponents, expert depositions and request for admission. Under the former system, the parties controlled the pace and scope of the litigation, with most courts content to either adopt a laissez faire approach or to provide a rudimentary scheduling Order as a guide through the primary stages of discovery. Other techniques of judicial management have focused on discovery limitations based on such nebulous factors as time, quantity, and "relevancy". Over time, it has become obvious in MVPLL that limitations upon discovery work to the advantage of the defendant manufacturers, who begin with immense financial and technical resources, which plaintiffs can only hope to "match" by the acquisition of sufficient internal data. Discovery in MVPLL is extremely expensive and time consuming. This has a disproportionate impact on the plaintiff who is lacking in both financial and personnel resources. The major expenditures include depositions, expert witness expenses, travel expenses, acquisition of documents, and the development and preparation of trial exhibits. All of these expenses may be dwarfed by the inordinate time commitment to MVPLL. Because issues in these cases often involve an exhaustive understanding of multiple vehicle design decisions, manufacturing specifications and marketing strategies, discovery is always a protracted process. The plaintiff attempts to acquire and assimilate a large number of corporate documents, while the defendant presents repeated road blocks to full discovery, requiring frequent use of the motion practice. It has become all too obvious that the defense approach is to artificially limit a plaintiff to very specific defect allegations, asking the plaintiff and the court or ignore that vehicles are not built with one or two components in mind. "Stonewalling" by defendant manufacturers and the concealment or non-disclosure of information has become more than a sporadic event. In contrast with the overuse of discovery, the adverse impact of stonewalling goes directly to the merits of the case. It deprives the plaintiff and the trier of fact of vital evidence. While some courts have resoundly rejected manufacturers' efforts to thwart discovery, many courts have little understanding of the effect of narrowing discovery requests of a plaintiff involved in MVPLL. In the acquisition of discovery, plaintiffs need to acquire both the positive and negative sides of data generated by the defendant. It is not enough to just obtain the information that a manufacturer believes is pertinent to the existing product. The evolution of the product with engineering and policy decisions about design are quite pertinent to issues of negligence and defect. In MVPLL cases, interrogatories, document requests and depositions are used to acquire sufficient information to learn the "what, why, when and how" of vehicle design. Thus, a plaintiff seeks broad categories of data about corporate organization, management discussion, performance criteria, design objectives, test data, field accident/performance reports, engineering documentation, of alternative considerations, marketing research, etc. In the ordinary case, there is a constant battle to either restrict plaintiff's requests for discovery or to gag plaintiffs from revealing the existence of the data to others. The former policy of the discovery rules was to allow counsel to make use of an "involuntary" process to acquire relevant data. The rules did not impose an obligation to disclose information voluntarily. And, the responding party's control over the flow of information limited the effectiveness of this "involuntary" discovery process. Another limitation of our former discovery practice rest pertained to with the difficulty in obtaining efficient and purposeful enforcement of the discovery rules. Litigants often abuse the intended scope of objections to discovery, and most adversaries have neither the time nor work force to refute these objections. In many instances, litigants have gone to trial without having seen pertinent data because they were unaware of its existence, because an adversary deemed the information not responsive to requests for discovery, or because a litigant convinced a trial court that the data was not really material. Discovery abuse has taken many forms, and is committed by litigants on both sides of the bar. Excessive discovery involving the submission of many hundred interrogatories, voluminous and non-directed document requests, and unnecessary or lengthy depositions constitute forms of harassment. Likewise, the selective production of relevant data based on an overly technical "interpretation" of a discovery inquiry has led litigants to file incomplete disclosure. Delay is also a favored tactic. Often counsel make endless promises for information, only to be told later that the data is either unavailable or incomplete -- at a point in time when other discovery deadlines have gone into effect. Of all the forms of discovery abuse, the plaintiffs' bar believes that nondisclosure is by far the most damaging. It can be accomplished in a variety of ways. A defendant may semantically interpret a request to effectively narrow its import, or eliminate documents through a corporate "retention" system, or respond by simply ignoring data which has been transferred to a business entity not technically under its control. Defendants often complain that plaintiffs' primarily abuse discovery by asking for non-relevant data, and by refusing to identify experts and specific theories of liability before undertaking extensive technical discovery of the defendant. It is difficult to seek sanctions for non-disclosure without first providing the requesting party with a means to discover that responsive data exists. Thus, the use of various discovery tools to probe the corporate "mind" is essential to locating the fox in the woodpile. Although some courts may believe that MVPLL has become mired in pleadings and motion practice, in truth, the processing of these lawsuit has somewhat leveled off, allowing both sides to predict the process. The several continuing pre-trial discovery issues which frustrate MVPLL are:
Changes to the Arizona Rules of Civil ProcedureThe motivating force behind the amended rules was the dissatisfaction expressed by segments of society pertaining to inordinate expense, and delay associated with civil litigation. The clear intent of these amendments was to ". . . make the judicial system in Arizona more efficient, more expeditious, less expensive, and more accessible. . . [and]. . . to avoid 'litigation by ambush'" Rule 26.1, Court Comment 1991 Promulgation. The primary pre-trial discovery rule changes which effect litigation of MVPLL include: Rule 26.1: A voluntary disclosure rule, that requires all litigants provide to every other party:
This information must be automatically provided -- without request -- by all parties within forty (40) days of service of an Answer to the Complaint, unless the parties reach an agreement otherwise. Rule 26.1 provides that no required disclosure will be allowed later than sixty (60) days before trial except by leave of Court. The scope of discovery has been broadened and certain new procedures have been promulgated. The most important expansion relates to Rule 26.1(a)(9) which requires disclosure of documents which ". . . may be relevant . . . and those which appear reasonably calculated to lead to the discovery of admissible evidence. . ." The Advisory Committee Notes explain that this change was intended to accelerate the exchange of basic information, and eliminate the paper work involved in requesting such information. The primary driving force of this Rule was to avoid "litigation by ambush". Rule 30: Of the amended Rules provides for a major limitation: depositions of lay or expert witnesses will be limited, without stipulation or court order, to four hours of actual examination of the deponent. Rule 33: Restricts the filing of written questions to 40 in number, including subparts (for non-uniformed questions). It further provides that additional questions will be allowed only upon leave of court or stipulation of the parties. Rule 34: Limits requests for documents, without leave of court, to 10 in number. While the Rule does not comment upon the questions of who pays for the cost of copying, the Supplemental Note indicates that the cost of copying documents shall be placed upon the requesting party, unless the producing party sends documents to the requestor instead of allowing an inspection. Rule 43(g): Has been amended to allow the trial court to limit opinion evidence at trial on "the same issue" to one witness per side. Amendments to the Arizona RulesThe following review is not intended as a criticism of the rule changes, but rather to serve as a series of warnings to litigators and courts about what can and does occur when litigants lose sight of the many reasons for these changes. While one could easily view these rule changes as a method to minimize discovery and restrict the presentation of evidence at trial, it was clearly not the intent of the Committee to frustrate reasonable and necessary discovery. It is hoped that the following comments will demonstrate that MVPLL may require special treatment through the development of exceptions to the standard procedures established by these amendments. Rule 26.1: The voluntary disclosure provisions will probably have very little effect upon the plaintiff's practice if, we assume that there will be no serious impediment to the supplementation of discovery responses. Aside from identifying persons having factual knowledge about the accident, and promptly furnishing information about the plaintiff's injuries and damages, most plaintiffs will begin MVPLL without having to disclose more information. There is, of course, the logistical disadvantage of having to prepare a computation of damages early on in litigation, which may have to be substantially altered as client's losses either resolve or become more clearly identified (in some instances, when counsel is retained shortly before suit is initiated, the acquisition of damage information may not be complete within the 30 day time period.) The basic document information which should be produced would include: police reports, ambulance reports, scene photographs, emergency room and hospital admission records, x-ray films, vehicle(s) photographs, client photographs, tax returns, and ancillary information about the product claims. There is some concern about the potential conflict between the obligation to voluntarily produce documents "which may be relevant" and data gathered by counsel -- constituting work product -- to be used during the pre-trial phase of the case; one example may suffice. Plaintiffs' counsel may obtain design and/or test information -- from private or public sources -- involving the same or even dissimilar vehicles which is helpful in counsel's continuing study of a defendant manufacturer's responsiveness to discovery or to a comparative analysis of a vehicle's crash performance. While these data "may" bear upon the ultimate claim to be presented at trial, it also constitutes counsel's work product. Interestingly, a similar quandary may face defense counsel (see discussion below). A plaintiffs' attorney, who has participated in several MVPLL matters may have accumulated internal documents from vehicle manufacturers pertaining to subjects relevant to the instant lawsuit, such as design and test documents for other model vehicles demonstrating different levels of crash protection. How significant these data will be in the instant lawsuit may or may not be obvious early in the litigation, but surely these data constitute work product. Similarly, counsel often acquire voluminous engineering and scientific literature pertaining to crash protection and injury mitigation by vehicle design; again, these data may or may not bear significantly on any claim or defense, but it also constitutes work product. Further, counsel may not always be in a position to decide which of the technical documents he or she has acquired in anticipation of a claim will be relevant until plaintiffs acquire from the defendant design and test information related specifically to the vehicle model in question. The defendant manufacturer faces the draconian task of identifying, within 40 days of receipt of the Complaint, all witnesses and documents which support the claim and defenses. It can be envisioned that these requirements will be ignored more often then not, because it seems almost impossible for a manufacturer to conduct a comprehensive factual and technical investigation of a vehicle claim within this short time period. In actuality, if a defendant did fulfill its literal obligation, in addition to disclosing all witnesses pertinent to the facts of the accident and damage claims, the defendant would be obliged to fully discern the technical claims, and identify all product design, manufacture, test and performance materials which may support the plaintiff's claims and the defendant's defenses. As the party in control of the product documents, the manufacturer is specifically obligated under the Rule 26.1 to at least describe the documents which "appear reasonably calculated to lead to the discovery of admissible evidence". Requiring an advocate to determine what data should be voluntarily disclosed is a novel provision. It is difficult to imagine that a manufacturer will voluntarily identify documents detailing alternative designs, test failures, or cost benefit studies -- which may be quite useful to a plaintiff -- in meeting its "voluntary" responsibility. Likewise, the defendant may also face a conflict between producing responsive discovery and what counsel may perceive is work product. For instance, while counsel for a defendant may, in the defense of a MVPLL have his or her client conduct a review of all public and non-public information about other similar incidents, should a defendant be compelled to produce this data as part of its "voluntary" responsibility" While it is clear that such data would bear significantly upon a claim or defense, what does this production do to the work product exception to discovery? There is great concern that a defendant will abuse the privilege of furnishing only a list of documents because of manufacturers' recent attempts to force the plaintiffs to travel to a "reading room", and then find documents a plaintiff deems relevant. This tactic is the current method used by manufacturers and serves as formidable, and often frustrating, procedure for plaintiffs. The production of hundreds of thousand of pages of documents, placed in boxes with minimal labeling -- and with duplicates or even triplicates in these many boxes -- makes it almost impossible to ferret out the critical data.1 The amendments to Rule 26.1 have done nothing to address the perplexing demand that manufacturers routinely make for confidentiality orders before disclosing data, despite recent findings of many courts (and some state laws) that these data should not be treated as confidential. Rule 30: Imposes a limitation on the time duration of a deposition without treating fact and expert witnesses differently. If this amendment is applied literally to MVPLL it will radically alter the practice of law. Ordinarily, depositions of all witnesses to a crash are taken, together with the depositions of the police and rescue personnel, the plaintiffs, their treating doctors, various engineers assigned different design and test responsibilities for the vehicle line in question, corporate designees and expert witnesses. While a time limitation will eliminate the taking of lengthy depositions to harass experts, the real issue is whether substantive depositions of experts and a manufacturer's engineers -- it is quite unlikely that this time limitation will effect the taking of depositions of fact witnesses -- can be adequately completed in four hours. While it is admirable to ask litigants to more carefully monitor their questioning of deponents, this may not be manageable in MVPLL. It must also be noted that this new rule is written to provide a total of "four (4) hours in length . . ." This brings up interesting (mundane) questions such as whether the four hours of time includes colloquy between counsel, time marking documents, and objections by opponents. Further, the rule does not address whether the four hour limit pertains to one party's questioning, and probably will be read to restrict depositions to four hours of questioning by all litigants. Interpreted this way, there will certainly be a rush to notice important depositions so that the noticing party has the opportunity to use the four hours of allocated time. It is also interesting to note that the rule envisions litigants petitioning for sanctions for ". . . unreasonable, groundless, abusive or obstructionist conduct" during depositions. Rule 33: Has been altered to restrict the serving of non-uniform interrogatories to forty in number. Such a restriction will, in all likelihood, effectively eliminate the filing of technical written questions until all other discovery means have been employed. While the past practice was to submit extensive factual interrogatories and contention interrogatories by both plaintiff and defendant, these will now be severely limited. In all probability, a litigant should "hold on" to its interrogatories and only use them after other forms of discovery have been completed. This then allows a litigant to use written questions as a "clean-up" technique. Both plaintiffs and defendants may choose to use interrogatories only to seek specific information about contentions and defenses after appropriate depositions and documents have been acquired. While litigators will undoubtedly learn to live with the restrictive rule, there is some doubt that it will promote justice or a speedy resolution. In MVPLL, interrogatories can be effectively used to identify pertinent engineers and other corporate employees who may not be deemed "significant' by a defendant in its voluntary disclosure of witnesses. Likewise, interrogatories are used to get written a history about the vehicle model, its chain of commercial handling, the acquisition of information about other similar claims, the identification of corporate organizations involved in critical design, marketing and manufacturing activities, and other matters which many not be discoverable through other discovery methods. Rule 34: Has been changed to limit non-voluntary (Rule 26.1 production) requests for documents to ten in number. The commentary note suggests that the inquiring litigant will pay for the copying costs, unless the producing party sends the documents (instead of allowing the requestor to inspect all relevant data) -- in which case the producing party pays for copying. Because this comment is not presented in connection with the duty to produce under Rule 26.1, it is likely that the party voluntarily producing data shall bear that expense. Rule 43(g): Has been amended to incorporate a rather odd evidentiary procedure for expert testimony. It permits a Court to prevent more than one expert per side from commenting on the same issue. This type of restriction in MVPLL can present significant evidentiary problems, and just as importantly, stifle the presentation or a claim of defense. It is quite routine for both sides to present experts whose opinions cover the same issues from different perspectives -- such as accident reconstruction, bio-kinematics and injury mechanics. Allowing these different perspectives by experts who have different credentials often aids the jury in resolving serious disputes. Hopefully this change will be applied sparingly, with the view that a well informed jury is more important than "saving" a few days of trial. ConclusionThe premise that changes in the rules were necessary to reduce costs and delays in litigation, may not be applicable to MVPLL. While the "voluntary" provisions of the changes can work to everyone's advantage, and speed along the discovery exchange, there has been some concern that litigants have been forced to engage in an increasing number of motions to sort out the propriety of an opponent's compliance with these provisions. While there have been incidents of discovery abuse, as well as broad, lengthy expert trial testimony, the adversarial system in this field of civil litigation has generally provided the necessary checks and balances. The ordinary methods to object to discovery, and seek compliance with discovery by employing motion practice, and the taking of depositions has not been universally unreasonable. Certainly both plaintiffs and defendants have voiced complaints about such things as lengthy sets of interrogatories and document requests, as well as the verbose objections raised by manufacturers; however, the solution should not be to limit necessary discovery. Instead, a solution should be found in dedicating time to the definition of "relevancy", and the elimination of confidentiality orders so that attorneys may more easily share data, thereby reducing the need to seek the same information over and over again from manufacturers. Likewise, the time restrictions on depositions seem unnecessary in this type of litigation, which is ordinarily focused and not unduly burdensome -- with the exception of expert depositions. If the true interests of time and expense were to be served, then the taking of expert depositions should be eliminated entirely. These depositions are generally unnecessary and merely serve to annoy and allow the inquiring party to better prepare for cross examination at trial. Similarly, the trial opinion rule change seems unrealistic and needless in MVPLL. Only time will tell whether these changes to our rules will significantly effect litigating motor vehicle product liability cases. Hopefully, practitioners and the court system will reasonably apply these rules so that justice and not expediency is obtained. |