Discovery Rules Changes Greeted With Skepticism in Senate

, The National Law Journal

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Senator Christopher Coons (D-DE)
Senator Christopher Coons (D-DE)

A controversy over the federal civil discovery process reached Capitol Hill on Tuesday, when senators and litigation experts warned that rules changes intended to reduce legal costs would instead harm plaintiffs in discrimination cases.

The federal judiciary is still writing the new rules, which would limit the scope of discovery and encourage judges to better police the process. But Congress ultimately will review any changes before they go into effect near the end of 2015.

U.S. Sen. Christopher Coons (D-Del.), who chairs the Subcommittee on Bankruptcy and the Courts, called the congressional hearing. He opened with a list of his concerns, including whether the changes would be effective at curbing the skyrocketing costs of discovery.

He predicted that some proposed restrictions – such as reducing the number of depositions, interrogatories and requests for admission for each case – would do nothing about the high-stakes, highly complex or highly contentious cases in which discovery costs are a problem.

But those limits would likely restrict plaintiffs in smaller cases in which discovery costs are not a problem, Coons said—especially in employment, discrimination and consumer fraud cases, when most relevant evidence is in the possession of the defendant.

"Less access to information could mean that responsible parties will remain unaccountable—not because the plaintiff’s allegations are untrue, but because the plaintiff lacks the evidence to prove them," Coons said.

Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund Inc., voiced those same concerns. She also criticized a proposal to let responding parties decide for themselves when requests are of a scale proportional to a case.

"This is opening up a door to yet more time-consuming and expensive motions practice as we argue over what is proportional to the case," she said.

Ifill also expressed concern that judges would have to weigh the importance of relatively modest claims against arguments that it would cost the defendant too much to find the information demanded.

"The ongoing nature of discrimination and violations of constitutional rights of citizens who live at the bottom and at the margin are imperiled when those citizens do not have access to their day in court," she said. "Recognize that this is a moment where we have the opportunity to turn back from what has been an effort to close the door on those who need the litigation system most."

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