Two judges question proposed discovery limits in Federal Rules

February 5, 2014

You’ve got only 10 days left to offer your opinion of the U.S. Judicial Conference’s proposed changes to the Federal Rules of Civil Procedure: The comment period ends on February 15. I don’t share the apocalyptic vision of the U.S. civil justice system that Senator John Kyl described in a Jan. 20 Wall Street Journal op-ed on the proposed new rules, but I do endorse his advice that you speak up if you’ve got something to say about how the changes will affect your practice.

Nearly 600 people and organizations already have, according to, where their letters are posted. I spent several hours Wednesday reading public comments on the proposed rule changes. (I confess. I was preparing to moderate a panel on the proposals on Thursday at Hofstra Law School.) For the most part, the comments reflect the deep divide I’ve already described: Defense lawyers and business groups laud the Judicial Conference for attempting to reduce the burdens of discovery in civil litigation in the federal courts; plaintiffs lawyers are gravely worried that proposed limits on depositions, interrogatories and other discovery tools – and more discretion to defendants opposing discovery demands – will exacerbate the challenge of acquiring legitimate information from defendants who don’t want to surrender it.

I read more than a dozen letters from public interest groups and private lawyers who specialize in plaintiffs work, and all of them said the same thing: Presumptive limits on discovery will unfairly disadvantage people suing corporations and governments and will lead to more motions practice as lawyers ask judges to lift those limits. Plaintiffs lawyers are also very concerned about a new emphasis on “proportionality” in the new rules, which would permit defendants to refuse discovery demands if they believe the cost of production is disproportionate to the size and significance of the case. That unilateral discretion, according to detractors, is going to cause them undue harm.

And according to opponents of the proposed changes, there’s no civil litigation crisis that would justify a fundamental shift in the balance of power between plaintiffs and defendants. Several comments referred to a 2010 study of discovery costs by the Federal Judicial Center, arguing that the study found no evidence of spiraling, uncontrolled litigation expense either for plaintiffs or defendants. In a graph-packed comment letter, civil procedures professor Nancy Moore of the St. Thomas University School of Law asserted that neither resolution time nor cost has really increased (when you adjust for inflation) in the average case. Wrote Professor Stephen Yeazell of UCLA Law: “Careful studies by the Federal Judicial Center…do portray a system in which occasional bad lawyers or less than diligent judges allow pretrial proceedings to impede rather than serve justice. They do not portray a system in need of the wide-ranging changes set forth in the proposed amendments. To draw from these studies the conclusion that substantial changes in the rules were in order seems to me a misreading not cured by selective use of the studies’ findings.”

The law profs whose comments I read all argue that the proposed changes are an overreaction to outlier cases that will result in more pretrial litigation, not less. Five members of Congress also submitted comments that questioned the need and impact of the proposed rule changes. The Justice Department’s lengthy comment letter expressed support for the concept of a proportionality test but not for presumptive discovery limits.

Defense lawyers, as you might expect, are generally happy with the new proposed rules, though some expressed the view that even more drastic discovery reconsideration would be welcome. Several comments addressed one word in the proposed new rule governing the preservation of electronic discovery. The rule would restrict sanctions to spoliation that is willful or in bad faith. Shook, Hardy & Bacon, Debevoise & Plimpton and several other commenters from the defense bar suggested that the rule require both willfulness and bad faith, not one or the other. Defense commenters talked about widespread belief on both sides of the bar that discovery costs are too high; a comment letter from John Beisner of Skadden, Arps, Slate, Meagher & Flom provided some statistics to back that assertion. Like some of the other defense-minded commenters, Beisner and the folks from the Institute for Legal Reform argue that the changes proposed by the Judicial Conference are just a start at the reform needed to rein in litigation costs.

To me, the most interesting comment letters came from two federal trial judges, U.S. District Judge Leon Holmes of Little Rock, Arkansas, and U.S. District Judge Shira Scheindlin of New York. (A third judge, U.S. District Judge Michael Baylson of Philadelphia, also submitted a comment letter, but simply to point out that conducting preliminary discovery conferences by phone can be efficient and cost-effective.) Both Holmes and Scheindlin dispute the need for some of the new rules and worry about their unintended consequences.

Judge Holmes was nominated by President Bush in 2004, but he sounds very much like a trial lawyer in his comment letter, which opposes changes to discovery limits and the proportionality standard, based on what Holmes says is nine years of practical experience overseeing Arkansas cases.

“The proposed amendments presuppose that the typical case can be prepared for trial adequately with five depositions and fifteen interrogatories, but for many cases that is not true; which means that these stringent limits will give an advantage to the party in possession of most of the relevant information and generate more discovery disputes than we have seen before,” Holmes wrote. “It is difficult to see why we would adopt a rule that would give an advantage to the party in possession of most of the relevant information and generate an increased number of discovery disputes.” Permitting defendants to refuse to produce supposedly disproportionate discovery will prompt plaintiffs to ask judges to get involved, which adds subjectivity to the discovery process and makes disputes “less susceptible to principled resolution,” Holmes says.

“I understand that in some complex commercial cases the court may need to be more involved in supervision of the discovery process, but the cases that need active judicial supervision of discovery represent a minuscule portion of the federal judiciary’s docket, and the needs of those few cases should not result in the adoption of rules that will also apply to the vast majority of cases,” Holmes wrote.

Judge Scheindlin, who previously served on the Judicial Conference’s rules committee, also expressed skepticism about the need for and impact of some of the proposed changes. Elevating proportionality, according to Scheindlin, “invites producing parties to withhold information based on a unilateral determination…. This could become a common practice, requiring requesting parties to routinely move to compel the production of the withheld materials. This, in turn, will increase costs and engender delay.” Right now, she says, there’s no clear test for proportionality and no clear indication of which side bears the burden of proof. Her assessment: “What a nightmare for the court!”

Scheindlin is a noted authority on e-discovery sanctions, having written the early and influential Zubulake decisions on destruction of electronic records. She opposes the proposed new rule for e-discovery sanctions. Like defense commenters, she’s concerned about the rule’s “willful or in bad faith” language. Unlike them, she is of the view that requiring a showing of bad faith to impose sanctions will encourage parties to handle their e-discovery preservation sloppily. With bad faith too high a standard, Scheindlin suggests, the rule should permit sanctions in cases of recklessness or gross negligence. The judge also argues that the new rule places the burden of proof on the innocent party, rather than on the party that engaged in destruction. In sum, she says, the e-discovery sanctions proposal “will only create new problems instead of curing old ones.”

I don’t envy the Judicial Conference clerks who will have to read all of the comments and come up with analysis of them. My survey of just 50 or so was pretty exhausting. But as I said at the top, if you’ve got something to say, now’s the time.

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