The Advisory Committee on Civil Rules, part of the Judicial Conference of the United States, conducted the first of three public hearings on controversial amendments to the Federal Rules of Civil Procedure. It heard divergent views from the 42 lawyers who alternately heaped praise and scorn at the daylong hearing held in Washington, D.C. on Nov. 7. Corporate defense lawyers welcomed the amendments, while plaintiff lawyers contended they would drastically impede justice.
The amendments would impose limitations on the discovery process, including sizing discovery proportional to each case, limiting the number and duration of depositions, lowering the presumptive number of interrogatories, and reducing the sanctions for failure to preserve records, as Trial reported previously. The Advisory Committee recommended changes to Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, and 84, but the amendments to Rules 26(b), 30, 31, and 37(e) drew much of the attention at the hearing.
The amendments to Rule 26(b) would require discovery proportional to the case and triggered a storm of protest by plaintiff lawyers, who argued that the proposal would shift the burden of proof and elevate cost and efficiency over relevance. The current discovery standard allows production of any matter relevant to the subject matter at issue as long as the discovery appears reasonably calculated to lead to the discovery of admissible evidence. The new standard would be based on a matrix that includes the amount in controversy, the importance of the issues, the parties’ resources, the importance of discovery in resolving issues, and an overall cost-benefit analysis of the discovery.
Plaintiff lawyers also criticized the amendments to Rules 30, 31, and 34, which would erect new limits on depositions and interrogatories. They would reduce the current number and duration of depositions (10 oral depositions, each with a seven-hour limit, and 10 written depositions) to five written and oral depositions (with oral depositions limited to six hours), and would decrease the number of interrogatories from 25 to 15.
Altom Maglio of Sarasota, Fla., argued that many of the amendments would have “drastic, negative, and unintended consequences.” He also suggested a point repeated by many plaintiff attorneys who addressed the panel—that the reduction in depositions and interrogatories would serve as a clear signal to the entire federal judiciary. “It sends the message to federal judges and magistrates that they are allowing too much discovery,” said Maglio, who represents plaintiffs injured by medical products. “It takes the rock from David’s sling and reduces it to a pebble.”
Barry Dyller of Wilkes-Barre, Pa., who represents plaintiffs in civil rights cases, told the committee that a limit of five depositions would be “a disaster” and explained that plaintiff lawyers “must not just survive summary judgment; we have to have a case ready for trial.” Dyller argued that “these proposals will prevent cases from being brought and allow government wrongdoers to avoid liability.” He also reminded the panel that plaintiff lawyers serve as the first litigation filter, especially when they serve on a contingency basis. “I have no incentive to pursue a bad case or schedule an unnecessary deposition,” said Dyller, “because it’s coming out of my pocket.”
The amendment to Rule 37(e), which governs the sanctions a court may impose for a party’s failure to preserve documents, received strong support by corporate defense lawyers. They contended that overpreservation of documents and electronic files has greatly increased corporate litigation costs, in part because of plaintiff lawyers’ discovery tactics and inconsistency in how sanctions are applied by different federal courts. This, many of the defense lawyers charged, requires companies to adopt extremely conservative preservation policies. The lawyers also complained of discovery that exceeded that relevant in the case, such as information about medical devices that are the similar to, but not “substantially equivalent” to, devices approved by the FDA. The proposed standard would impose a new calculus for imposing sanctions, including whether the failure to preserve caused substantial prejudice and was willful or in bad faith, or irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.
Robert Levy, an attorney for ExxonMobil Corp., expressed a view characteristic of the corporate lawyers who testified. He complained that his company’s employees need to spend at least 10 minutes a day on preservation activities, costing millions of dollars each year. He included plaintiffs among those who are hurt by escalating litigation costs, suggesting that “civil rights cases aren’t being brought because the costs are so high.”
Paul Carrington, a professor at Duke University School of Law and a reporter for the Advisory Committee in the 1980s, disputed that notion. “Individual plaintiffs are not the ones who are complaining, it’s the big companies,” he said. He urged the panel to “be very careful, because it may affect someone’s rights.” He posited that “the cost of discovery is an inflated notion [and] tends to be in big cases with big companies on each side.”
But Dan Troy, senior vice president and general counsel for GlaxoSmithKline, insisted that the current rules “harm global competitiveness” and claimed that litigation costs are 50 times higher than they are in cases outside the United States, a theme other defense lawyers echoed. “We can get way more effective justice in the U.K. and Germany,” said Troy, who referred to current discovery practice as “legalized blackmail” that forces companies to settle so that they can reduce litigation costs. He also told the committee that the American civil justice system “doesn’t have a very good reputation across the world,” prompting one committee member to ask, “Are you talking about cost and process or results?”
Patrick Regan of Washington, D.C., gave the committee a concrete example of the harm that might be visited on plaintiffs by the proposed limit on depositions. Reciting the facts of a case in which a construction worker was accidentally shot in the head by a powerful nail gun, Regan said that more than a dozen witnesses testified in depositions that the nail gun was safe for use at construction sites. But the thirteenth and fourteenth witnesses, he said, testified that five years earlier, the manufacturer had recommended that it be used only in shipyards for the joinder of two-inch thick steel plates. Under the proposed standard, Regan noted, the critical depositions likely would not have been allowed.
Burton LeBlanc of Baton Rouge, La., appeared in his capacity as president of the American Association for Justice. He provided the overarching view that the proposed rules would increase an already heavy burden on plaintiffs weighed down by recent Supreme Court decisions that have narrowed pleading standards. LeBlanc criticized the new proportionality standard for discovery as a shift from relevance to a cost-benefit analysis that would effectively give corporations “step-by-step instructions on how to avoid producing documents.” He predicted collateral litigation on discovery matters and warned that the proposals would be “catastrophic for injured parties, particularly those who have asymmetrical information” in civil rights, employment discrimination, and whistleblower cases. “Taken as a whole, these changes to the rules will impede access to justice and deny the just, speedy, and inexpensive determination of civil actions in our courts,” LeBlanc said.
Two more public hearings by the Advisory Committee are scheduled in Phoenix on Jan. 9 and Dallas on Feb. 7. Once proposed amendments are finalized by the Advisory Committee, they will be considered by the Standing Committee on Civil Rules, the Judicial Conference, and then the Supreme Court. The final version of any amendments will then be transmitted to Congress for review.