Jeopardizing discovery in employment and civil rights litigation, the Judicial Conference’s Advisory Committee on Civil Rules (the Advisory Committee) has developed a package of proposed changes to the Federal Rules of Civil Procedure that would impose new and additional presumptive limits on civil discovery.
At the January 2013 meeting of the Standing Committee on Rules of Practice and Procedure, which oversees the Advisory Committee, the chair of the Advisory Committee promised to finalize these rule changes by this April. The Standing Committee will vote on publishing the proposals for public comment as early as June 2013.
Within the package of rule changes, the following proposals may raise the greatest concern for employment and civil rights plaintiffs:
Limiting the number of Rule 34 requests for production to 25. This would add a presumptive limit where one does not currently exist.
Reducing the presumptive limit on depositions to 5 from 10.
Reducing the presumptive time limit per deposition to 4 hours from 7 hours.
Reducing the presumptive number of interrogatories to 15 from 25.
Limiting the number of requests for admission to 25. As with Rule 34, this would add a presumptive limit where one does not currently exist.
The Advisory Committee is accepting comments on these proposed rule changes. While NELA plans to submit comments on the adverse consequences of imposing these new limits, the Committee also needs to hear from practitioners about the difficulty in obtaining necessary discovery under the current rules. We encourage you to submit personal stories from your own cases about your inability to obtain needed discovery beyond presumptive limits, and how further narrowing the rules will impede justice for your clients. To ensure that all Advisory Committee members are provided with the submitted comments, materials must be sent to the Advisory Committee by March 1, 2013.
The Committee is also considering changes to Rule 26(b), which would remove the well-understood language regarding the scope of discovery (“[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence”). The rule change would replace this language with “[i]nformation within the scope of discovery sought need not be admissible in evidence to be discoverable” as well as add new limitations to discovery based on proportionality. The Committee views these changes as de minimis. Additional changes, meanwhile, may be beneficial to plaintiffs, such as allowing the service of discovery requests before the Rule 26(f) conference, requiring an informal conference with the court before discovery motions are filed, and reducing the amount of time after service of the complaint before a Rule 16 conference can occur.
AN ABSENT FUTURE FOR WORKERS’ RIGHTS
Workers, whose cases represent 12 to 14 percent of the federal civil docket, already face an uphill battle in litigation due to the imbalance of information and resources between employer and employee. The Advisory Committee’s proposed discovery limitations would exacerbate the problem of asymmetric information in employment cases.
The Advisory Committee believes that judges will exercise “flexibility” and freely grant parties discovery beyond the proposed numerical limits. This reasoning does not reflect the experiences of many plaintiffs’ employment attorneys. Under the current rules, workers already face steep hurdles to having their day in court before a jury. With new extreme limits on discovery, even more plaintiffs will be unable to build the core evidence needed to prove their claims and to defend against dispositive motions.
THE MANUFACTURE OF A DISCOVERY CRISIS
The impetus for current discovery reform efforts developed after a special conference on federal rules at Duke University in May 2010. The Duke Conference created a false sense of urgency within the Advisory Committee to change discovery practice and has culminated in the set of rule changes now being proposed.
At the Duke Conference, organizations that represent or have close ties to the defense bar presented white papers that ultimately served as the Advisory Committee’s model for the rule changes currently under consideration. These organizations, fueling the myth of rampant discovery abuse, are now leading a nationwide effort to limit discovery in both state and federal courts.
Yet, the Judicial Conference’s own research agency, the Federal Judicial Center (FJC), has not identified a broad crisis in civil discovery. In its most recent presentation to the Advisory Committee, the FJC came to the conclusion that “[d]iscovery is not a pervasive litigation cost problem for the majority of cases” and that “empirical data show that any problems that may exist with discovery are concentrated in a minority of the cases.” Federal Judicial Center, “Presentation by FJC Research Division, Emery G. Lee III,” slides 2-3 (January 2013) (available upon request to NELA). Quite the opposite of a crisis, senior FJC researchers reported that “the project [of discovery reform] may have failed to reduce costs because it does not address the actual drivers of cost” and “because those costs have a source other than the Federal Rules themselves.” Emery G. Lee III and Thomas E. Willging, “Defining The Problem Of Cost In Federal Civil Litigation,” 60 Duke L.J. 765-788 (2010). Even the Federal Rules Subcommittee that was tasked with developing the discovery rule changes explained that “[t]here was little call for drastic revision, and it was recognized that the rules can be made to work better by renewing efforts to educate lawyers and judges in the opportunities already available.” Standing Committee Agenda Book, “Advisory Committee on Civil Rules, Report to the Standing Committee,” 218 (Jan. 2013). Despite the agreement that there is no system-wide problem with discovery, the Advisory Committee continues to seek out discovery problems to fix.
For more information about the discovery rule changes or if you are interested in submitting comments to the Advisory Committee, please contact NELA Program Director Rebecca Hamburg Cappy (email@example.com) and Paul H. Tobias Attorney Fellow Carmen Comsti (firstname.lastname@example.org).