The Senate Judiciary Committee’s hearing on Nov. 5 examined the impact of changing the scope of civil discovery in U.S. courts. In August, the Judicial Conference Advisory Committees on Bankruptcy and Civil Rules proposed amendments to their respective rules and requested the proposals be circulated to the bench, bar, and public for comment. The amendments propose a number of changes to the rules of civil discovery, including instituting proportional discovery, limiting the number of depositions and interrogatories, and imposing uniform rules on sanctions when a litigant fails to preserve certain documents.
“We all agree there must be some limitations on discovery,” said Judiciary Committee Chairman Patrick Leahy (D-VT). At the same time, the rules “must protect the ability of everyday, hardworking Americans to seek justice in court.”
During the hearing, New York University Law Professor Arthur Miller argued that there has been a dramatic shift over the last 30 years in the way the federal courts have interpreted and applied the federal discovery rules. “All of these changes restrict the ability of plaintiffs to obtain a determination of the merits of their claims, which has resulted in a narrowing of citizen access to a meaningful day in court,” he stated.
Miller suggested that Congress might consider eliminating the concept of “general” rules now found in the Rules Enabling Act so special provisions might be formulated to deal with different categories of cases, rather than having one set of procedural rules that no longer fits all cases.
The hearing also included testimony from Andrew Pincus, a partner at the law firm of Mayer Brown. Speaking for the business community’s perspective, Pincus noted that the tremendous growth in electronically stored information has produced an exponential growth in discovery-related litigation costs. He cited a recent independent study which found a median cost of $1.8 million per case for producing electronically stored information.
According to Pincus, excessive litigation costs are a key barrier to foreign investment in the United States. “The excessive costs of the U.S. legal system do not simply deter foreign investment in our country,” he stated. “They also disadvantage U.S. companies seeking to compete in other markets around the world.”
The deadline for submitting comments on the proposed rules changes is Feb. 15, 2014. To read more about the proposed changes and for instructions on submitting a comment, click HERE.
Three public hearings were scheduled to coincide with the public comment period. The first hearing was in Washington, D.C., on Nov. 7. The second and third hearings will be on Jan. 9, 2014, in Phoenix, Arizona, and on Feb. 7 in Dallas.
Following the public comment period, the Advisory Committee on Civil Rules will submit its final proposals to the Committee on Rules of Practice and Procedure for approval. If approved by that committee, the proposed amendments must then be approved by the Judicial Conference and the Supreme Court. Congress will have six months to review the amendments and recommend changes. If no changes are made by Congress, the amendments will go into effect in December 2015.