Debate intensifies over proposed federal discovery rules

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Debate is heating up over proposed changes to federal civil procedures rules governing discovery as lawmakers, plaintiff-side attorneys and consumer advocates warn that the amendments could limit some litigants’ access to the courts.

The proposed amendments to the Federal Rules of Civil Procedure, published in August by a committee of the Judicial Conference of the United States, are designed to speed up the litigation process, contain discovery-related costs and encourage attorneys on both sides to work together.

Advocates of the rules say that they are common sense changes that will benefit all litigants.

“Our legal system has significant problems: litigation takes too long and is too expensive. And that’s not good for plaintiffs and it’s not good for defendants,” Andrew J. Pincus, a partner in the Washington office of Mayer Brown LLP, testified Nov. 5 at a U.S. Senate subcommittee hearing on the proposed rules.

But opponents of the rules testified before the Senate Judiciary Committee’s Subcommittee on Banking and the Courts that the proposed changes will place additional hurdles in plaintiffs’ path to justice at a time when other rules and court decisions have made it harder than ever for plaintiffs to have their day in court.

“For those of us who represent civil rights plaintiffs, discovery is the essential stage of any litigation, and that is, of course, because of the nature of our claims,” testified Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc. in New York. “The information that would support a claim of discrimination is often … within the possession of the defendant, and the only way we can get that information is through the discovery process.”

The effect of the rules, if adopted, could vary from jurisdiction to jurisdiction, said James Kurz, a partner in the Alexandria, Va., office of Redmon, Peyton & Braswell LLP. In courts that see a steady stream of large, complex lawsuits, the impact could be immense. But attorneys in other areas shouldn’t expect a sea change, Kurz said in a phone interview.

“In the Eastern District of Virginia, where I practice, we see cases that are modest in size,” said Kurz, who represents civil plaintiffs and defendants. “The docket moves quickly and a lot of large cases would not be brought here. Someone [practicing] in New York may have a very different experience.”

‘Duke Rules’ debated

The proposed rules are colloquially known as the “Duke Rules” because they stem from a 2010 conference at Duke University School of Law sponsored by the Judicial Conference Advisory Committee on Civil Rules.

The Advisory Committee ultimately proposed amendments to thirteen of the federal rules to advance three major goals set at the conference: improving case management, stemming the increasing volume and cost of discovery and encouraging cooperation among attorneys.

Among the more controversial proposals is one that would potentially narrow the scope of discovery under Rule 26(b)(1) by requiring that it be “proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

The proposed new Rule 37(e) is also garnering a great deal of attention. The new rule would create a national standard for imposing spoliation sanctions, requiring a finding that the sanctioned party “acted willfully or in bad faith” and caused “substantial prejudice” to the opposing party, or that the destroyed evidence “irreparably deprived a party of any meaningful opportunity to present or defend against the claims … central to the litigation.”

Defense attorneys said the changes do not represent a radical shift, but take a middle-of-the-road approach that is needed to counter the high cost and growing red tape of civil litigation. Things have only gotten worse since the advent of e-discovery, when has dramatically increased the costs of discovery, Pincus said.

“The fact is litigation dispositions are increasingly driven by costs in a significant category of cases and not by the underlying merits of the claim, and that undermines the entire basis of our legal system,” he testified.

Ifill disagreed, saying that the problem of excessive discovery costs exists in only “a narrow band” of cases.

In the “majority of cases… judges do have the power to manage discovery and judges do have the power to ensure that discovery isn’t burdensome,” she testified.

Increased barriers

Two days after the Senate subcommittee hearing, the Advisory Committee on the Rules of Civil Procedure held a public hearing on the proposed changes in Washington. Michelle Schwartz, director of justice programs at the Alliance for Justice, a national association of advocacy groups, testified at the advisory committee hearing that civil litigants are already being adversely affected by a host of issues, from judicial vacancies that cause caseload backlogs, to the rise in the use and enforcement of mandatory arbitration agreements, to U.S. Supreme Court rulings that toughen the standards for bringing class actions.

“Unfortunately, a number of the proposed amendments to the Federal Rules will only magnify the barriers that already exist for those seeking justice,” Schwartz said.

Rather than leveling the playing field and encouraging cooperation among parties, the new rules skew the balance of power toward those with greater power, Schwartz said.

“I have heard it suggested that these proposed amendments are ‘minor’ and would have little effect,” Schwartz testified. “That may be true in cases where the parties have equal power and resources, but where a victim with few resources is coming up against a powerful corporation, the impact will be anything but small.”

Kurz said that if the rules are adopted, magistrate judges will still have broad authority in setting the limits of discovery and will be able to provide relief to both plaintiffs seeking crucial evidence and defense attorneys trying to contain costs and quell fishing expeditions.

“You have magistrate judges assigned to every case,” he said. “They take an active role. … My experience is that they will always step forward in managing discovery.”

After the comment period closes on Feb. 15, 2014, the proposed rules must be approved by the advisory committee, the Judicial Conference and the Supreme Court. If they are finalized, they will become effective Dec. 1, 2015.

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