Discovery Rules Changes Greeted With Skepticism in Senate

, The National Law Journal


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

Coons complained that the proposed changes would more frequently assign costs of discovery to the requesting party. They would impose strict presumptive limits on depositions — from 10 to five — and reduce the maximum length from seven hours to six. The new rules would reduce the number of interrogatories allowed from 25 to 15. Requests for admission, unlimited now, would be limited to 25.

Andrew Pincus, a partner at Mayer Brown in Washington, described the proposals as moderate. A study showed the median cost just for producing electronically stored information is $1.8 million per case, with one case running to $27 million, he said.

"Our legal system has significant problems. Litigation takes too long and it’s too expensive. And that’s not good for plaintiffs and that’s not good for defendants," Pincus said.

The proposed rules would force judges to take a firmer hand in discovery, he added. It’s hard to quarrel with the argument that discovery should be proportional, he said. "The lawyers, left to their own devices, unfortunately, go off on a frolic."

The Judicial Conference’s Advisory Committee on Civil Rules is still in the process of accepting public comment about the proposed rules.

That Congress is involved at all is a rarity, Coons said. He criticized the judiciary for using case law time and again to reinterpret the Federal Rules. "In nearly every case, the reinterpretation has narrowed the path for a citizen to have his case decided by a jury according to the facts and the law," Coons said.

He reviewed the five times the Judicial Conference has changed discovery rules since 1980: requiring pretrial conferences in 1980, proportionality in 1983 and presumptive discovery limits in 1993; narrowing the scope of discovery in 2000; and revising the proportionality rules for electronic discovery in 2006.

"Why would we expect these [proposed] changes to work where others have failed?" Coons said. "And if discovery cost is not a problem in the majority of cases, is it appropriate to narrow the scope of discovery across the board?"

Arthur Miller, a New York University School of Law professor, urged Congress to consider that the changes to the discovery rules are leading to earlier terminations of civil actions, long before discovery or a trial. "Death by 1,000 procedural paper cuts is still death to the system as we know it," Miller said.

Contact Todd Ruger at

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