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."

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 truger@alm.com.

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