By Denise M. Champagne
The Daily Record Newswire
The airing of concerns is underway on proposed changes to the Federal Rules of Civil Procedure, designed to reduce costs and delays.
Among the biggest concern witnesses testified about during a congressional hearing Nov. 5 had to do with proportionality, a change that would narrow the scope of discovery to what is proportional to the needs of the case.
Sen. Christopher A. Coons, D-Del., said all relevant material is discoverable under current rules and that the proposed changes would shift the cost of discovery to the requesting party, rather than the producing party.
Coons chairs the Senate Committee on the Judiciary’s Subcommittee on Bankruptcy and the Courts, which conducted a more than two-hour hearing on “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?”
Some senators and witnesses felt it would, while others thought the proposed changes are moderate. All seemed to agree a closer look is needed. Coons said he was focusing on four things: What proposed reforms are meant to accomplish and what problems or abuses they would remedy; how they would succeed; collateral costs to the overall justice system; and weighing those costs, if any, with the benefits.
“In the last 25 years, the pretrial landscape in federal courts has literally been littered with stop signs,” said Arthur R. Miller, a professor at New York University School of Law, one of three witnesses. “These stop signs prevent Americans from getting meaningful days in court.”
Miller was a reporter to the Advisory Committee on Civil Rules for the Judicial Conference of the United States in 1983 when changes in discovery began. He said the scope of discovery has been limited by additional
restrictions since, and now the same committee is proposing new amendments, which he said will mean earlier termination of civil actions, long before discovery and trial.
In his written testimony, Miller noted that when the Federal Rules of Civil Procedure were first promulgated in 1938, they reflected a policy favoring citizen access to federal courts and sought to resolve civil disputes on their merits.
Miller said the defense bar would have Congress believing the proposed changes are necessary because of costs, but there is no “empirical basis” for the changes. Miller also said American capitalism has expanded exponentially in the last 75 years, as have profits, and that private litigation is needed to enforce government policies.
“Congress should pay attention to this backstory because what we have seen are paper cuts perhaps, but death by 1,000 procedural paper cuts is still death to the system as we know it,” Miller said.
Andrew Pincus, a partner in the Washington, D.C. firm Mayer Brown LLP, argued the legal system has significant problems; that litigation is too costly and takes too long which is not good for defendants or plaintiffs.
He cited reports by attorney groups that include plaintiff and defense attorneys, such as the American College of Trial Lawyers, showing some deserving cases are not brought because of the costs, while others of questionable merit are.
He pointed specifically to the tremendous costs associated with electronic discovery, storing information and fines if material is deleted, even if it is done unintentionally. Pincus said electronic discovery costs can easily exceed $1 million alone.
He said the advisory committee steered a middle course, coming up with proposals that represent moderate change and that there is a lengthy process to be followed before anything is approved.
He said judges will decide what is proportional and what is not, forcing them to engage in discovery issues.
Sherrilyn Hill, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc. in New York City, has serious concerns about the proposed rule changes, particularly as they apply to civil rights matters.
She noted many of the civil procedure rules where shaped by civil rights cases because of the unique role they have played in opening opportunities for access to justice.
She said it is essential for her clients to be able to obtain the information they need to prove their discriminatory claims and that information is held by the defendants.
“The only way to get that is through discovery,” Hill said, noting there is a small band of cases in which there are real problems, but the proposed changes would affect all discovery.
She urged the committee to reflect on what has happened with civil litigation in the last 30 years, how it has affected her clients and to refrain from adopting the amendments she said are an effort to close the door on those who need access to justice most.
In response to a question from Coons, Hill said the idea of proportionality is “deeply troubling” and asked how one measures proportionality in a discrimination case; measuring the denial of constitutional rights against an argument that discovery will cost too much.
Pincus said proportionality already exists and the proposed changes would only give it more prominence. He said the whole thrust is to bring in judges into discovery instead of leaving it to lawyers, a process which has not worked well. He said it will give judges an opportunity to conclude if the discovery being sought does not make sense.
Ranking committee member Sen. Jeff Sessions, R-Ala., said one of the biggest damages in the country has been bogus lawsuits filed at great costs. He noted 97 percent of cases are settled without trial and that one of the goals Congress has talked about is increasing settlements.
Sessions said he does not believe a case should be sent to a jury awarding punitive damages of $50 million, making defendants feel they have to settle so they do not get hit with a $50 million judgment.
Sen. Sheldon Whitehouse, D-R.I., said talk focused on burdens falling on defendants, but that it has been his experience that the No. 1 goal of defendants is to delay a trial with a “blizzard” of motions to burn up the budget of the plaintiffs, whom he said want to get to court as fast as they can.
He said it is not good when 97 percent of cases are settled before going to trial, adding that a jury trial is where regular Americans stand equal with large corporations.
Sen. Al Franken, D-Minn., called costs the 800-pound gorilla in the argument, saying they were very different for corporations and someone who believed his or her civil rights had been violated. He said defense lawyers bill by the hour and even with client control, have incentives to increase the blizzard of paper to delay litigation and let the plaintiff fall from fatigue.
Franken said public lawyers are not working on the clock, most are on contingency fees and “hope for a court-awarded fee if the rainbow ever produces a pot of gold;” that they have no incentive to delay cases.
Coons said the hearing record will remain open for additional comments. He did not specify for how long, but custom is five business days.
The public has until Feb. 15 to submit comments to the Judicial Conference on the proposed amendments. Any changes must first be adopted by the Supreme Court before being sent to Congress for approval. The process requires three hearings, the first of which was conducted Tuesday, and six months to receive written comments. The clock on the comment period started ticking in August when the draft proposal was issued.
A video of the hearing is available at www.judiciary.senate.gov while the proposed rules may be found at www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf.
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