Access to Justice at Stake with Federal Rules Change

The Federal Rules of Civil Procedure matter. They can determine who wins and who loses. And they have been changing in the wrong direction for some time. Now, proposed rule changes are moving forward and three things are clear: they are much better than what was originally proposed, they are still disturbing, and they demonstrate the critical importance of the Federal Rules process and access to justice advocates’ participation in it.

Last year, Professor Arthur Miller, perhaps the nation’s premier expert on federal civil procedure, published a landmark article, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure. Reviewing a wide range of developments, including changes to the Federal Rules, Miller decried the fact that our civil justice system was moving away from both the goal plainly stated in Rule 1 – “the just, speedy, and inexpensive determination of every action and proceeding” – and the “justice-seeking ethos” on which the Federal Rules are based: the belief in “citizen access to the courts and in the resolution of disputes on their merits.”

He noted that the objective of the discovery process was “obvious and seemingly unobjectionable: The parties should have equal access to the all relevant data; litigation was to be resolved based on the revealed facts, not on who was better at chicanery or at hiding the ball.”

This is why you should care, even if you’re not a lawyer. Your rights are at risk if you can’t find out the facts, especially if you are suing a big corporation or the government, which probably has most of the facts you will need to prove your case – like what they knew and when they knew it, why they did what they did, or how many people their conduct affected.

Miller warned, however, that the Federal Rules were being subverted. He expressed dismay that recent changes look in a “philosophically different direction” and were all “designed to constrict discovery.” Recounting the numerous ways in which procedural barriers were decreasing access to justice and stressing that Rule 1 starts with the word “just,” Miller said, “I fear that after seventy-five years, the application of the Federal Rules has lost its moorings; I fear that some in the profession, both on the bench and in the practicing bar, have lost sight of the goals our procedural system should pursue.”

Given this disturbing recent history, the harmful nature of the original, newly proposed changes was not a surprise. The Advisory Committee on Civil Rules proposed to limit discovery (the information that can be sought in litigation) enormously: reducing the presumptive number of depositions (sessions questioning witnesses under oath before trial) under Rule 30 from 10 to five, reducing the presumptive number of interrogatories (written questions that must be answered under oath before trial) under Rule 33 from 25 to 15, creating a presumptive limit on the number of requests for production of documents under Rule 34 (for the first time ever) of 25, creating a presumptive limit on the number of requests for admissions (factual assertions that must be admitted or denied under oath before trial) under Rule 36 (for the first time ever) of 25, eliminating the long-standing language that “information reasonably calculated to lead to the discovery of admissible evidence” is discoverable and increasing the importance of “proportionality” in evaluating discovery requests under Rule 26(b)(1), and increasing the possibility that those seeking information will have to pay for it under Rule 26(c)(1).

Public Justice’s comments on the proposed rules and testimony before the Advisory Committee challenged all of these proposed changes, as did comments and testimony by the American Association for Justice and a large number of other groups and practitioners nationwide. Other changes were proposed, commented on, and altered, too.

Which brings me back to my three points.

First, what was a surprise – and critical to note – is that the advocacy of those dedicated to access to justice had an enormous impact.

The Advisory Committee unanimously withdrew all of the proposed new numerical limits on discovery. It revised the factors to be considered when evaluating proportionality under Rule 26(b)(1) to put “the importance of the issues at stake” first (instead of the “amount in controversy”) and to include “the parties’ relative access to relevant information.”

And it rewrote the note accompanying the rule to clarify that the changes do not place a burden of proving proportionality on the party seeking discovery and do not allow boilerplate refusals to produce discovery on the ground that it’s not proportional. As to cost-shifting, the Committee amended the note to Rule 26(c)(1) to clarify that cost-shifting should not become a common practice and that courts and parties should “continue to assume” that a party responding to discovery requests ordinarily bears the costs of doing so.

One extremely positive new change also emerged from the process. The Committee amended its proposed change to Rule 34 to clarify that, when a party objects to a request for production of information, it must state what information, if any, is being withheld pursuant to that objection and what it is producing. This should put an end to a longstanding abusive practice, where lawyers make huge numbers of objections, but never tell their opposing counsel whether information is being hidden based upon the objections or not. This is an important and encouraging development: a proposed change that should substantially reduce stonewalling and discovery abuse.

Second, however, there are still some very bad proposals moving forward. A few advocates have declared victory, as if all of the problems with the original package have been solved. Sadly, that’s not true. To begin with, proportionality and cost-shifting will now be emphasized more. These concepts are often used to deny access to crucial information or to make it too expensive for those without large funds to prove their cases.

Even worse, the Advisory Committee continued to propose deleting from Rule 26(b)(1) the language that “information reasonably calculated to lead to the discovery of admissible evidence” is discoverable. Especially disturbing is the reason it gave for doing so.

The Committee said that the addition of this language in 1946 was never “intended to define the scope of discovery.” It acknowledged that “lawyers and courts often rely on this provision as an independent definition of the scope of discovery that extends beyond information relevant to the parties’ claims or defenses, or even the subject matter of the action.” (They have, of course, been doing so since 1946.) And it noted the “many comments” it had received describing the “reasonably calculated” language as the “bedrock definition of the scope of discovery.” But it said that was precisely why the language had to go.

According to the Committee, it is not really proposing to change anything that was ever intended. The Committee says it is just trying to correct a big misunderstanding: the language should be deleted because it was a drafting error that led everyone to believe incorrectly for the last 68 years that the scope of discovery was broader than intended. So, without discussing whether or attempting to explain why the scope of discovery has to be narrowed, the Committee proposes to delete this language – and make clear that discovery is no longer as broad as almost all lawyers practicing now have believed throughout their professional lives.

Please. No one should be fooled by this. The rules are being changed and access to information (which often can mean access to justice) is being narrowed without justification.

Third, as all of the above demonstrates, we must pay attention to the rules changes and the rule-making process. Access to justice is at stake. Exactly how these rule changes will play out in the real world – and the impact they will have in courtrooms throughout the country – will depend enormously on how familiar lawyers are with them, the notes accompanying them, and the reasons for them. Public Justice will soon be holding a webinar to educate everyone about these changes. I urge you all to participate.

Even more importantly, I urge everyone to understand that procedures can determine results. “Process” can control “substance.”

That’s why the rule-making process is critical. The active involvement of so many dedicated advocates helped block and improve many dangerous proposals this time. But don’t be surprised if they return.

And keep in mind that the rules can be changed for the better, too, if people get involved.

Canvassing the disturbing changes in our system of justice, Professor Miller noted, “What appears to be happening …betrays either an antilitigation, antiplaintiff, pro-business and pro-government orientation, or pro-management bias, or a combination thereof.”

“[O]ur courts should focus,” he said, “on how to make the civil justice system provide a level litigation field that is receptive to enforcing our public policies – deterring those tempted to violate them – and providing efficient procedures to compensate those who have been damaged.”

That’s what we all need to focus on – and make happen.

This post was originally posted on Public Justice, online here