First, why today? Well on Tuesday, the U.S. Senate Subcommittee on Bankruptcy and the Courts, chaired by Senator Chris Coons (D-DE) (whose election will be forever entangled with “Christine I’m-not-a-witch” O’Donnell ), held a hearing on these changes. It was entitled, “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?” HEY, WAKE UP!
And then on Thursday, the Judicial Conference of the United States, which must approve these rule changes, will hold the first of three public hearings – this one in Washington, DC - with a slew of witnesses, unfortunately but not surprisingly dominated by corporations and their lawyers.
So what are these changes and what’s wrong with them anyway? Well, I’ll do my best to speak English here. (Or, see this fact sheet.)
- Contrary to Federal Rules that have been in place for 75 years, these proposed rule changes give wrongdoers the ability to argue that information, which is solely in their control, is too expensive or burdensome to produce even though this information may be critical to the victim’s case.
- The rules would set artificial limitations on how much information a victim can ask of a wrongdoer during discovery.
- Especially hurt will be plaintiff-victims in fact-intensive cases like civil rights and employment discrimination, as well as cases involving product liability, bank fraud, environmental violations, and other complex cases like anti-trust, where evidence vital to proving the case is often in the sole possession of the wrongdoer(s).
- Other provisions would weaken rules meant to ensure that wrongdoers do not destroy documents, and would invite corporate wrongdoers to “ignore their affirmative duties to preserve evidence.” This should be of special concern now that many records are stored electronically, digitally or in “clouds,” which could disappear in an instant simply by not paying a monthly “cloud” bill.
- The proposals, ostensibly meant to cut costs in civil cases, will have the opposite effect by increasing the time spent sorting out disputes that are resolved with the current rules.
- While these rule changes would specifically impact cases in federal court, they would also likely impact state court rules as well, as states frequently adopt the Federal Rules as their own.
And frankly, if there’s a problem at all in the system, it isn’t overuse of or overbroad discovery by victims, but rather defendants trying to “hide the ball” by refusing to provide relevant discovery and deliberately burying key documents. Much of the discovery “costs” of which corporate wrongdoers complain are due to their applying resources to hide information or preventing the disclosure of documents. This should not be a basis to make it even harder to get information out.
Whether or not you can make it out to the Thurgood Marshall Federal Judiciary Building in Washington, D.C. at 9:00 A.M. ET on Thursday, you can still make your voice known.The other two hearings will be in Phoenix, Arizona, on January 9, 2014, and in Dallas, Texas, on February 7, 2014.
And written comments are critical. But remember: All comments must be submitted by February 15, 2014. Here’s how to submit them.
So, how’d we do?