AARP Foundation Litigation (AFL) will be submitting a comment letter to the Committee on Rules of Practice and Procedure of the Administrative Office of the U.S. Courts opposing proposed changes to the rules that govern the conduct of civil litigation in federal courts. If adopted by the Committee and subsequently approved by the U.S. Supreme Court, the changes to the Federal Rules of Civil Procedure would severely limit the ability of plaintiffs in civil litigation to obtain information needed to prove their claims. The comment letter will be signed by all ten AFL Senior Attorneys, each of whom is well-qualified to evaluate the effects of the proposed changes. All have at least 20 years of experience with several having conducted litigation for over 30 years.
The proposed changes to what are known as the discovery rules would apply to all the issue areas in which AFL litigates on behalf of people age 50+. The discovery rules allow both plaintiffs and defendants to seek information from the other parties through the use of depositions, in which a witness answers questions under oath and the questions and answers are recorded for later use, interrogatories, which are written questions, requests for production of documents, and requests that a party admit certain facts, known as requests for admission. Some of the proposals reduce the limits under the current rules on the number of depositions, the time allowed for depositions, and the number of interrogatories allowed. Under the current rules there are no limits on the number of requests for production of documents or the number of requests for admission, but the proposed changes impose a limit of 25 on each of these discovery tools.
Although these limits apply to all parties, they fall much more harshly on plaintiffs than defendants because in the vast majority of cases it is the defendant that possesses and controls nearly all of the information and documents relevant to the issues in the case. It is up to the plaintiff, through the use of the various discovery tools, to get the defendant to hand over what is necessary if the plaintiff is to have any chance at success.
Another proposed change limits discovery to that which is “proportional to the needs of the case” based on (1) the amount in controversy, (2) the importance of the issue at stake in the action, (3) the parties’ resources, (4) the importance of the discovery in resolving the issues, and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit “proportional” to the case, a decision that is committed to the discretion of the trial judge. Disputes over what is “proportional” will undoubtedly entail additional expense that many plaintiffs can ill afford.
Finally, and perhaps most importantly, proposed Rule 37(e) weakens the ability of a party to obtain sanctions against a party who fails to preserve discoverable information. The proposed rule places the burden on the innocent party to prove that “it has been substantially prejudiced by the loss” of relevant information, even where the loss was the result of willful or intentional misconduct. A federal judge renowned for her expertise and fairness in discovery issues recently declared that “imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to “remedial curative measures”) even if they were negligent, grossly negligent, or reckless in doing so.” Due to the asymmetric distribution of information relevant to a case, i.e., the defendant nearly always has much more of it than the plaintiff, the impact of this proposed rule would fall more harshly on plaintiffs. AFL’s comments will recommend that it should be rejected out of hand because the burden should be placed on the party who failed to preserve the information to prove that the innocent party was not prejudiced or irreparably harmed.
The proposed rules, if adopted, will be subject to implementation by the trial judge and, in those cases in which the plaintiff can afford to appeal an adverse discovery ruling critical to the success of the case, to the interpretation by an appellate court. Thus, it remains to be seen if the consequences of the proposed changes, which some might call draconian, come to pass.
The comment letter submitted by AFL Senior Attorneys will highlight several cases in which they have participated over the years that in many instances required multiple requests for relief from the court under the discovery rules in effect when the cases were litigated. The proposed rules, if adopted, will impose discovery limits that would make litigating similarly complex cases much more difficult (and expensive), especially for plaintiffs, and require much more active participation by the courts in the discovery process.
The comment letter will conclude by stating that plaintiffs, who already face steep hurdles to having their day in court even under current discovery rules will have much more difficulty in vindicating their individual and civil rights under the proposed rules, which, AFL Senior Attorneys believe, would unquestionably undermine the fairness of the discovery process.