News

On November 7, 2013, CCL’s Andre M. Mura and Valerie M. Nannery attended the first of three public hearings on the proposed changes to the Federal Rules of Civil Procedure. The Judicial Conference Advisory Committee on Civil Rules has proposed changes that would change the scope of discovery, the time limit for service of process, as well as the presumptive number of depositions, requests for admission and interrogatories the parties are entitled to in civil litigation in Federal Court. The Advisory Committee heard a full day of testimony from more than 40 witnesses including members and the President of the American Association for Justice, members of the civil rights community, as well as several representatives from the DRI and general counsels of large corporations. Many witnesses testified that the proposed changes would cripple the efforts of injured plaintiffs to prove their cases and limit access to justice. Others testified that the proposals should be adopted to reduce discovery-related costs.

The comment period on the proposed Rule changes opened on August 15, 2013, and will remain open until February 15, 2014. The Committee has already received more than 300 written comments on these changes. Comments may be submitted electronically here. The Committee will hold two more public hearings early next year, in Phoenix, AZ on January 9th and in Dallas, TX on February 7th. Those who wish to testify at either of the upcoming hearings must submit their requests in writing at least 30 days in advance. More information can be found here.  CCL expects to file its own comments on the proposed rules.

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.

At a session of the Congressional Civil Justice Caucus Academy held in the Rayburn House Office Building on October 21, CCL President Robert S. Peck argued against a return to the 1983 version of the federal civil procedural rule that sanctions lawyers who file frivolous claims or defenses.  Representing the American Bar Association, which opposes the legislation at issue, Peck explained that "we have seen this movie before" and found it a disaster.

 From 1983 to 1993, Federal Rule of Civil Procedure 11 required judges issue mandatory sanctions against lawyers who filed so-called frivolous claims or defenses.  Experience made supporters of the stringent rule back off their support.  As Peck explained, judges applied inconsistent and unpredictable sanctions, including against lawyers who argued for positions subsequently adopted by the U.S. Supreme Court.  Perhaps even more importantly, the 1983 version of Rule 11 was used for unintended purposes.  Motions made pursuant to Rule 11 were not offered against frivolous actions, which were easily defeated on the merits, but as a tactical ploy against meritorious actions to make them more expensive to pursue. 

The Judicial Conference of the United States, the governing body of the federal courts, amended that version of Rule 11 because it resulted in significant collateral litigation, making cases more expensive, wasteful, and dilatory.  It was used against civil rights plaintiffs more frequently than against any other party.  Moreover, congressional imposition of an amended Rule 11, which would lack demonstrated need, is inconsistent with the Rules Enabling Act, the legislation regarded as a treaty between the legislative and judicial branches, that sets forth a considered procedure for changing the federal rules that utilizes input from the public, review within the judicial branch, and an opportunity for congressional veto.ssss

 Supporting the rule change through legislation against Peck was Shooky Hardy law partner Victor Schwartz, general counsel of the American Tort Reform Association, and Bradford Berenson, Vice President and General Counsel of General Electric. 

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 15^th.  The advisory committee is expected to hold three hearings during the public comment period, with one scheduled for Washington, DC, November 7^th.  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.

Proposals that would significantly narrow the ability to conduct discovery in federal courts will be considered at the April meeting of the advisory committee on civil rules.  Proposed changes have been drafted by a subcommittee chaired by federal district court Judge John G. Koeltl. The full committee, chaired by federal district court Judge David G. Campbell, is expected to revise those proposals and recommend that they be submitted for formal public comment. In advance of that meeting, CCL’s John Vail has submitted initial comments.

The letter singles out three proposals under consideration: a proposed re-definition of the scope of discovery; new presumptive limits on discovery; and a proposed restriction of the time for effecting service of process. It concludes that these proposed revisions are not warranted by empirical evidence or litigation experience and likely would have adverse impacts on access to justice, which is the core value the civil rules should implement.

You can’t have a lawsuit without evidence, and federal rulemakers are making it too easy for evidence to disappear, according to CCL attorney John Vail.

Vail, who regularly follows and comments upon proposals before the committees that make rules for the federal courts, told the committees in written comments that they should not and cannot prohibit a federal judge from giving an adverse inference instruction to a jury when applicable state law prescribes that action. 

The Committee on Practice and Procedure of the federal courts, known as the standing committee, debated Vail’s points during a two-day meeting in Cambridge, MA, on January 4-5.

The committees will publish for comment a draft revision of Federal Rule of Civil Procedure 37, which will guide federal judges in creating curative measures and granting sanctions when parties fail to preserve, or purposefully destroy, evidence