On November 5, the Senate Judiciary Committee’s Subcommittee on Bankruptcy and the Courts held a hearing to consider whether proposed amendments to the Federal Rules of Civil Procedure being considered by the Advisory Committee on Civil Rules would, if adopted, impede access to the courts. The hearing, entitled “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?” was chaired by Senator Chris Coons (D-DE). Also in attendance were Senators Jeff Sessions (R-AL), Sheldon Whitehouse (D-RI), Al Franken (D-MN), Richard Blumenthal (D-CT), and Jeffrey Flake (R-AZ). The committee received testimony from Professor Arthur Miller of NYU School of Law, Andrew Pincus of the Mayer Brown law firm, and Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. Andre M. Mura attended on CCL’s behalf.

Senator Coons opened by questioning whether it is appropriate to narrow the scope of discovery in all cases, when access to information is essential to our civil justice system. He urged the Advisory Committee to examine carefully whether, in seeking to reduce litigation costs, there would be any collateral, negative consequence for access to courts. In addition, Senator Whitehouse expressed grave concern that changes to the civil rules generally were negatively affecting the constitutional right of trial by jury. Senators Jeff Sessions and Jeffrey Flake, however, expressed concerns with reports about discovery costs and stated that the process for amending the rules should run its course.

Professor Miller testified that the proposed amendments lack empirical support and would establish another roadblock to access to the civil justice system. Mr. Pincus, by contrast, expressed the view that discovery-related legal costs are significant, and the proposals would produce cost-savings. Ms. Ifill, however, responded that she was aware of no empirical evidence that discovery costs were out of control, and that the proposals severely truncate the number of low-cost discovery requests that may be served. She further stated that while in a small fraction of cases discovery may be abused, it was unwise to amend the rules to narrow the scope of discovery in all cases.

A video of the hearing is now available online.