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On May 10-11, 2010, Harris Butler accompanied a National Employment Lawyers Association (NELA) delegation to Duke Law School to participate in the Federal Civil Rules Advisory Committee's Litigation Conference. The 180 participants, comprised of federal appellate and trial judges, law professors, major corporate general counsels and experienced litigators, met to discuss possible changes to the Federal Rules of Civil Procedure.

The business community has beaten a steady drum of opposition to the cost of litigation (and effects of electronically maintained data). As expected, corporate interests at the conference attacked the cost of electronically maintained data and want to restrict such discovery. The corporate 'lobby' also sought to modify federal pleading standards in light of the Supreme Court's Twombly and Iqbal decisions, seeking to amend the rules to make it easier to bar claims at the pleading stage—even before discovery.

Experienced plaintiffs' lawyers explained the burdens to the system created by recalcitrant employers who evade relevant and important discovery of critical emails and statistical proof and the delays imposed by employers' counsel who file dilatory motions to dismiss based on the Iqbal/Twombly analysis.

Obviously, a balance is key—discovery should be of relevant data but beware the business community's cries of "cost" and "burdensome" in its push to deny court access to important claims which advance public policy including the laws requiring that minimum wage and overtime are paid and that employment decisions are not infected with bias on the basis of gender, race, age or disability.