Being a plaintiff’s lawyer these days requires more than a little bit of stoicism. The federal appellate courts rarely issue rules that expand the rights of people injured by corporate greed and recklessness. Usually, the question is how far the courts are going to go to restrict their rights. There’s no need for me to repeat all of those details here; Prof. Arthur Miller’s article on the deformation of federal civil procedure details them at length, and you can read my thoughts on his article at TortsProf. As I argued,


These decisions reflect, at bottom, a policy choice made by our courts, particularly the Supreme Court, to give preferential treatment to defendants in complicated disputes (and defendants who have well-concealed their conduct), by making factual determinations — e.g., that an allegation is “implausible” or that testimony by a qualified expert is nonetheless “unreliable” — that render it impossible for the plaintiff to satisfy their burden of proof.


There are plenty of pending cases that stand to make the situation even worse, like the upcoming Bartlett decision before the Supreme Court.


Frankly, none of this should be a federal matter; negligence and product liability law is generally a matter of state law, to be decided in state courts, unless Congress has specifically said otherwise. Yet, given the contortions courts go through to drag state-law injury lawsuits into federal courts, the federal court system is the most important battleground these days for injured consumers and patients.


Two weeks ago, the federal Judicial Conference’s Committee on Practice and Procedure approved a proposal that would amend the Rules of Civil Procedure ostensibly to streamline the discovery phase in certain cases, but which would, in practice, reward companies that conceal evidence or obstruct the discovery process.* 


The Committee doesn’t say it that way, of course. The Committee says it’s about making the extent of discovery “proportionate” to the needs of case — an understandable goal, but one that the Advisory Committee admits has already been met in most cases. See Advisory Committee on Civil Rules Report to the Standing Committee May 8, 2013, p. 10: “In most cases discovery now, as it was [in 1983, when the Rule was last revised], is accomplished in reasonable proportion to the realistic needs of the case.” Truth is, in the vast majority of federal court lawsuits, the plaintiff gets a little less discovery than they would like, the defendant has to produce a little more discovery than they like, but few lawyers or judges would argue that the court allowed “unreasonable” or “disproportionate” discovery.


So if the discovery rules aren’t broken, why fix them? The Committee’s argument that “discovery runs out of proportion in a worrisome number of cases, particularly those that are complex, involve high stakes, and generate particularly contentious adversary behavior” makes no sense. Putting aside the lack of even a clear definition of what type of discovery is “out of proportion” and what percent of cases is “worrisome” — not to mention the lack of concrete data supporting either conclusion — by their own argument, discovery should be expansive in “complex” and “high stakes” cases, and, moreover, the courts already have ample sanction tools to handle “contentious adversary behavior.” If a federal court wants to sharply curtail discovery in a case, there’s no doubt it has the power to do so, and the appellate courts will generally defer to its decision to do so.


But perhaps the most telling part of the Committee’s report is their use of the passive voice to describe why discovery has allegedly become disproportionate in a small subset of cases. The Committee admits that judges already have the power to address all of these claimed problems, and, as every judge knows and rightly bemoans, parties are usually too quick, rather than too hesitant, to involve the court in discovery disputes, and so most discovery takes place with the explicit blessing of the court.


Taking the report at face value, then, the Committee isn’t blaming the rules, it’s blaming judges, as if federal judges are somehow too blind to see when discovery in a case has spiraled out of proportion to the needs of the case. It’s an argument that obviously isn’t very compelling or palatable, so the Committee avoids making it, instead describing disproportionate discovery as problem that arises spontaneously from unknown sources.


As I’ve mentioned here time and time before, if courts want to move complex cases along, they need only do two things: stop entertaining repeated discovery obstructionism (which typically comes from defendants), and get the cases on a trial schedule. But the Committee wants to go exactly the opposite direction, by dramatically expanding the range of objections that defendants can raise to avoid producing relevant evidence, thereby both generating yet more work for the courts in evaluating objections to discovery and precluding plaintiffs from obtaining relevant information.


Consider the proposed change to Rule 26 that could potentially redefine the scope of evidence subject to discovery. The current rule says that a party may generally take depositions, and request documentation, on a given subject if the request “appears reasonably calculated to lead to the discovery of admissible evidence.” The reason for the rule is simple: to have a fair trial, each party needs to have in their hands before the trial all evidence that could be used at the trial (i.e., admissible evidence) to support their claim or defense. Thus, under the current rule, when a court evaluates a given discovery request, all it needs to figure out is if the request might lead to evidence that could be used at trial.


The proposed rule omits that language, and instead merely says “information within this scope of discovery need not be admissible in evidence to be discoverable.” On the one level, the change is meaningless: the change does not explicitly impose any new limits on discovery. Rather, it simply omits the subsequent language. The Advisory Committee on Civil Rules — a subpart of the Federal Judicial Committee — that came up with the change suggested that the change isn’t intended to limit discovery. See Draft Minutes of the Civil Rights Advisory Committee, April 11-12, 2013, p. 10: “[A]mending it will be seen by many as narrowing the scope of discovery. That perception should be addressed in the Committee Note if the proposal carries through …” It remains to be seen if the Committee will actually address that misperception, or if defense lawyers will be given the opportunity to latch onto it immediately, claiming revolutionary limitations on discovery — and if many judges will conclude that indeed the Committee indeed intended some sort of limitation by making the change.


Some might conclude that this sort of change won’t matter much for meritorious claims, thinking it will just tell courts not to permit plaintiffs from engaging in fishing expeditions for irrelevant information to support frivolous claims. However, this argument doesn’t make sense on its own terms — each claim that has gone into discovery has already passed the “plausibility” test under Iqbal, and why would plaintiff’s lawyers generally working on a contingent fee waste time and money chasing irrelevant information? — but it’s probably what many people believe if they’ve never taken on a big corporation.


If you’ve litigated against deep pocketed defendants before — the ones that spare no expense to thwart a fair investigation, like banks, insurance companies, pharmaceutical companies, and car companies — then you’ll recall the numerous instances in which the defendant brazenly lied about the documentation they had, and the truth only came out because of a tangential issue, sometimes because of another case entirely. Recall the Haeger case I wrote about last year, in which it was proven that Goodyear had a nationwide coordinated strategy to conceal evidence. Their lawyers’ internal emails showed they only produced what “serves our best interest to produce.” The scheme was uncovered thanks to a plaintiff’s lawyer reading a newspaper article about another case and realizing that case involved evidence Goodyear told him didn’t exist.


And that’s just the tip of the iceberg. Other proposed changes invite defendants to file even more motions to limit discovery, and would do more to reward defendants who invest more time and money into stonewalling discovery than into answering it. Depositions would be further limited, as would requests for documents, and the standard for imposing sanctions on companies that destroy evidence would be changed to let more of them off the hook.


As an attorney at the Center For Constitutional Litigation notes,


“The rulemakers themselves describe these changes as radical,” said CCL attorney John Vail, who attended the meeting. “Despite acknowledging that in the vast majority of cases discovery is working well, they propose changes that are tailored to a small fraction of cases without regard to the burdens placed on average people.” …


The new rules focus on litigation between large corporate entities as if those cases are typical of federal litigation. “In a very real way,” Vail continued, “these proposals say that there are entities too big to be sued.”


Indeed. The real question isn’t how we can limit discovery — the Committee itself admits disproportionate discovery is rare, and limited to big battles between corporations —  the real question is why the courts want to make discovery disproportionate against injured people, to further deny meritorious claims a fair day in court.


*The proposed changes are expected to be published for comment in August.