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.