Washington Lawyer

Taking the Stand: New Rules and Consequences: Federal Rules of Civil Procedure Changes Would Address Imbalances in Discovery Costs

From Washington Lawyer, December 2013

By Gwen W. D’Souza

"Taking the Stand” appears periodically in Washington Lawyer as a forum for D.C. Bar members to address issues of importance to them and that would be of interest to others. The opinions expressed are the author’s own.

taking-stand-december-2013Galileo once said: “All truths are easy to understand once they are discovered; the point is to discover them.” Discovery is a civil litigator’s toolbox to find the truth. Most litigators wonder if they have asked too little of an opposing party, but few wonder if they have asked too much.

On August 15, 2013, the notice and comment period began for the proposed amendments to the Federal Rules of Civil Procedure. The amendments regarding discovery will have far-reaching consequences, if implemented. We, as members of the bench and bar, have been asked:

  • Would you like to be permitted to depose 5 witnesses? Or should the rule continue to provide for a limit of 10 witnesses?
  • Would you like to be limited to 6 hours of deposition? Or would you prefer the limiting provision remain at 7 hours?
  • Should the limitation be 15 interrogatories? Or would you prefer the rule to continue to provide for 25 interrogatories?
  • Would you like to be limited to 25 requests for admission of facts? Or would you prefer the current provision of unlimited admissions of facts?
  • Shall we define discoverable material by considering the cost of production?

The proposed changes are purportedly designed to address perceived imbalances in discovery costs. If the proposed rules restricting discovery were implemented, however, it is doubtful it would be cost-effective. First of all, the greatest increase in costs has been in the discovery of electronically stored information, but these proposed changes will affect even the more efficient areas of discovery.

Second, it appears the proposed changes may have an inequitable result. The Federal Rules of Civil Procedure provide that the denial of a request for leave to seek additional discovery could result in an order requiring payment of costs and fees by the losing party, and, as a result, many parties may become too terrified to proceed with a request for more information. While this chilling effect may decrease costs in the short run, it will not promote fairness in the long run.

Third, adopting a new definition for discoverable material, which includes consideration of costs of production, will only exacerbate the problem. Since 2006, Federal Rule of Civil Procedure 26(b)(2)(C)(iii) permits the court to limit discovery when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” The proposed changes redefine the scope of discoverable information and would require a requesting party to discuss the cost of production of the discovery before filing a motion to compel. This change will broaden the scope of sanctions available under the civil rules. A party could be sanctioned for requesting electronic evidence and not properly weighing the cost of production. Compliance will be difficult because the requested party will be expected to determine whether the cost of production of discovery is proportional to the benefit derived from the anticipated production.

Generally, the cheapest forms of discovery are interrogatories, in which a party may ask written questions, and requests for admissions, but the Rules Committee is considering limiting the use of them. By limiting the number of interrogatories from 25 to 15, as proposed, it is no longer possible to ask important questions such as why a party failed to admit a request for admission, what is the contact information for witnesses who were relied upon in responding, and what documents were reviewed when answering. Without access to this type of information, a party loses the ability to ask for details about who knew what happened, when the person(s) became aware, and how is or are the person(s) responsible or not responsible for a series of wrongful acts. This is particularly problematic in cases with multiple defendants and multiple allegations of wrongdoing. This type of amendment, without more, will probably result in more discovery disputes about the scope of individual requests.

Written requests for information are normally followed with a deposition in which oral questions are asked of a party or a witness. The proposed rules change the number of permitted depositions from 10 to five. As many persons who have sat on a jury know, corroboratory testimony is near essential in making a claim, and inconsistent testimony is very helpful in proving a defense. Restrictions on access to critical facts diminish a party’s opportunity to obtain critical information on the typical subjects of discovery such as official policies or institutional standards, facts about alleged wrongdoing, grounds for purported defenses, and perhaps the opinions of multiple medical and economic expert witnesses, during the time period established by the court.

Lastly, the proposed changes also call for the shortening of deposition time from seven hours to six, which will result in a loss of a significant opportunity to ask questions and receive information from an opposing party and important witnesses. Time is necessary to provide and receive information, particularly in cases where the underlying events occurred several years previously, to address a witness who is stalling when providing answers, to refresh a witnesses’ memory based on numerous old documents, to provide for a translation by an interpreter, to deal with an opposing attorney who may waste time by making meaningless objections, or to make appropriate objections about the failure to produce relevant documents prior to the time of deposition. Shortening the time for a deposition is unfair in the event a lengthy deposition is truly necessary because of reasons outside the control of the deposing party.

All persons who have been injured—whether it be by airplane crash, defective products, employment discrimination, police brutality, prisoner’s rights violations, stock fraud, or voting rights violations—will be severely limited when pursuing a claim in federal court. Even federal entities such as the U.S. Department of Justice will be limited in enforcing violations on behalf of members of the public. Every defendant accused of wrongdoing will have a limited ability to access information critical to the defense of a case during discovery.

The policy implications of these changes are drastic. How much justice is to be sacrificed for expediency? Will there actually be a more efficient system, or just more unrepresented parties raising violations of the Constitution and federal statute? Don’t these written discovery changes disfavor the party with the burden of proof? Won’t the shortening of depositions disfavor a defendant who usually takes only one or two depositions? Just what discovery can be limited without resulting in trial by ambush? Doesn’t the exchange of information facilitate a reasonable settlement? Why are domestic relations cases entitled to more discovery than violations of the U.S. Constitution and federal statute? How likely will the government permit further discovery when the defendant is a governmental entity? In time, will state courts follow suit in adopting similar changes? By redefining discoverable information, will more parties be sanctioned? Are we allowing federal courts that govern matters of national importance to become more like arbitration proceedings?

Any amendment to the Federal Rules of Civil Procedure must be positive in promoting the rule of law. I personally oppose these changes because our system of justice requires a search for the truth. The federal common law and the Federal Rules of Civil Procedure require a plaintiff to make a showing of a genuine dispute of material fact before a case may move beyond the summary judgment stage. Conversely, a defendant must show an absence of a dispute of material fact based on evidence obtained during discovery. To restrict access to information for either party, on matters not otherwise privileged, is to restrict access to justice. Parties must understand the facts of a case even to reach a reasonable settlement. Parties need requests for admission to narrow the issues at the summary judgment stage.

Parties for years have needed 25 or more interrogatories so that they can clearly communicate the issues and the facts in the case with each other. Parties need witnesses and witness testimony to present facts, and not just allegations. Parties and their attorneys should not be deprived of access to critical facts prior to summary judgment or trial.

Other amendments to the federal rules also have been proposed, including shortening the time for service of process on defendants from 120 days to 60 days, and abrogating the post-Zubulake trend in awarding minor sanctions in cases of negligent spoliation of electronic discovery. While these other proposed amendments are important, they will not have the potential effect of bottle-necking the court system with a burgeoning docket of motions for leave for additional discovery by plaintiffs and further delaying trial times in civil cases.

A redline version of the proposed changes can be viewed online.[1]

Additionally, according to the federal judiciary’s Web site,[2] members of the bench, bar, and public can submit a comment to the Judicial Conference Advisory Committees on Bankruptcy and Civil Rules through February 15. These comments will be made public.

Whether you practice in federal or local courts, please do comment on these proposals based on your personal experience in conducting discovery and what you consider to be necessary for a fair judicial system.

Gwen W. D’Souza is an attorney with D’Souza Law Office, LLC.

[1] The Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is available at http://1.usa.gov/1d3FiqX.
[2] To submit comments, visit http://1.usa.gov/NMYM2L.