CCL Attorney John Vail urged against a “paradigm shift” narrowing access to justice at a meeting last week of the committee that makes rules of procedure for federal courts.  

​The federal civil rules advisory committee, meeting in Norman, Oklahoma, voted to propose radical changes to the rules of discovery, rules that were originally intended to simplify access to courts.  

​The committee acknowledged that discovery works smoothly and is not costly in about 70% of cases, but said it is concerned that in cases involving large corporations discovery can become disproportionately expensive.

​“You don’t write general rules to address a specific case,” Vail told the committee, noting that more than two hundred plaintiffs’ lawyers had told the committee that in civil rights and other cases involving human plaintiffs the system is not broken.  

​Vail decried a proposal that persons requesting information – generally plaintiffs – be required to show that their requests are “proportional” before they can be granted.  “There is, currently, no proportionality standard in the rules,” he said.  “There is a disproportionality standard:  if someone believes that a request is disproportional, they can prove that to the court. “  

​Under the proposal, “all they have to do is object, and the other side has, somehow, to prove proportionality,” Vail noted.

​“Proportionality will become the new ‘burdensome’,” Vail noted, invoking an objection that is programmed into word processors and most often is overlooked as not seriously made, “with the difference being that under the new regime someone can just object and make the other party do all the work.”  

​Vail urged the committee to define the problem it hopes to solve with its proposals.  “That will allow persons who provide public comment to tell you whether that problem exists or is important.”

​The federal rules of civil procedure were put into place in 1938 with the purpose of precluding procedure from acting as a barrier to justice.  Many scholars contend that the Supreme Court and the committee that makes the rules have been construing the rules in ways that make access to justice more difficult.

​The draft rules the advisory committee approved last week will be sent to the committee on practice and procedure, which is expected to approve them at its June meeting.  The proposals are expected to be formally submitted for public comment for six months beginning August 15th.  The advisory committee is expected to hold three hearings during the public comment period, with one scheduled for Washington, DC, November 7th.  The others are expected to be held on the west coast and in the center of the country in late November and early January.

​A chart summarizing the proposed changes can be found here.  CCL’s initial comments on the proposals can be found here.