[Senate Hearing 113-359]
[From the U.S. Government Publishing Office]
S. Hrg. 113-359
CHANGING THE RULES: WILL LIMITING THE SCOPE OF CIVIL DISCOVERY DIMINISH
ACCOUNTABILITY AND LEAVE AMERICANS WITHOUT ACCESS TO JUSTICE?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON BANKRUPTCY
AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 5, 2013
__________
Serial No. J-113-33
__________
Printed for the use of the Committee on the Judiciary
----------
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89-395 PDF WASHINGTON : 2013
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Bruce A. Cohen, Chief Counsel and Staff Director
David Young, Republican Chief of Staff
------
Subcommittee on Bankruptcy and the Courts
CHRISTOPHER A. COONS, Delaware, Chairman
DICK DURBIN, Illinois JEFF SESSIONS, Alabama, Ranking
SHELDON WHITEHOUSE, Rhode Island Member
AMY KLOBUCHAR, Minnesota CHUCK GRASSLEY, Iowa
AL FRANKEN, Minnesota JEFF FLAKE, Arizona
TED CRUZ, Texas
Ted Schroeder, Democratic Chief Counsel/Staff Director
Danielle Cutrona, Republican Chief of Staff
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Coons, Hon. Christopher A., a U.S. Senator from the State of
Delaware....................................................... 1
prepared statement........................................... 34
Flake, Hon. Jeff, a U.S. Senator from the State of Arizona....... 4
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 6
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 38
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 39
WITNESSES
Witness List..................................................... 33
Miller, Arthur R., Professor, New York University School of Law,
New York, New York............................................. 7
prepared statement........................................... 41
Pincus, Andrew, Partner, Mayer Brown LLP, Washington, DC......... 9
prepared statement........................................... 49
Ifill, Sherrilyn, President and Director-Counsel, NAACP Legal
Defense and Educational Fund, Inc., New York, New York......... 11
prepared statement........................................... 68
QUESTIONS
Questions submitted by Senator Flake for Andrew Pincus........... 79
QUESTIONS AND ANSWERS
Responses of Andrew Pincus to questions submitted by Senator
Flake.......................................................... 80
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Alliance for Justice, Washington, DC, statement.................. 88
Carrington, Paul D., Professor of Law, Duke University, statement 93
Dyller, Barry H., Esq., Partner, Dyller Law Firm, Wilkes-Barre,
Pennsylvania, October 31, 2013, letter......................... 96
Henderson, Wade, President & CEO, The Leadership Conference on
Civil and Human Rights, Washington, DC, statement.............. 100
Kimmel, Lawrance S., President, Delaware Trial Lawyers
Association, Wilmington, Delaware, October 30, 2013, letter.... 105
Klar, Jennifer, Partner, Relman, Dane & Colfax, PLLC, Washington,
DC, statement.................................................. 109
Lawyers for Civil Justice, statement............................. 117
Scruggs, Jonathan, Legal Counsel, Alliance Defending Freedom,
Scottsdale, Arizona, November 4, 2013, letter.................. 124
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government or
other criteria determined by the Committee:
``Public Comment Regarding Proposed Rule Changes, Lawyers for
Civil Justice,'' Regulations.gov (8/30/2013). Available at:
http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-
2013-0002-0267.
``The Proposed Rules: Light at the End of the E-Discovery
Tunnel,'' Metropolitan Corporate Counsel (9/26/2013).
Available at:
http://www.metrocorpcounsel.com/articles/25558/proposed-
rules-light-end-e-discovery-tunnel
``Amicus Curia Brief of U.S. Chamber of Commerce Regarding the
Burdens of E-Discovery,'' Pippins, et al. v. KPMG, U.S.
District Court for the Southern District of New York (11/4/
2011). Available at:
http://www.chamberlitigation.com/sites/default/files/cases/
files/2011/
Kyle%20Pippins,%20Jamie%20Schindler,%20and%20Edward%20
Lambert,%20Individually%20and%20on%20Behalf%20of%20
All%20Others%20Similarly%20Situated%20v.%20KPMG%20
LLP%20%28NCLC%20Brief%29.pdf
``Public Comment to the Advisory Committee on Civil Rules,''
U.S. Chamber Institute for Legal Reform (11/7/2013).
Available at:
http://www.instituteforlegalreform.com/uploads/sites/1/
FRCP_Submission_Nov.7.2013.pdf
``The Centre Cannot Hold: The Need for Effective Reform of the
U.S. Civil Discovery Process''. Available at:
http://ilr.iwssites.com/uploads/sites/1/
ilr_discovery_2010_0.pdf
CHANGING THE RULES: WILL LIMITING THE SCOPE OF CIVIL DISCOVERY DIMINISH
ACCOUNTABILITY AND LEAVE AMERICANS WITHOUT ACCESS TO JUSTICE?
----------
TUESDAY, NOVEMBER 5, 2013
U.S. Senate,
Subcommittee on Bankruptcy and the Courts,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Christopher
Coons, Chairman of the Subcommittee, presiding.
Present: Senators Coons, Whitehouse, Franken, Blumenthal,
Sessions, and Flake.
OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR
FROM THE STATE OF DELAWARE
Chairman Coons. This hearing of the Senate Judiciary
Subcommittee on Bankruptcy and the Courts will come to order.
Good morning. I would like to welcome the witnesses who have
joined us today. I am also very glad to be joined by my
distinguished Ranking Member, Senator Flake, who also has the
enormous misfortune of serving with me on the Africa
Subcommittee of Foreign Relations.
The purpose of this morning's hearing is to examine a
series of changes to the Federal Rules of Civil Procedure
proposed by the Judicial Conference's Advisory Committee on the
Civil Rules. Under current rules, all relevant material is
discoverable, but a party may seek court relief from an
otherwise valid discovery request if the request is out of
proportion to the needs of the case.
The proposed changes would invert this standard, allowing
responding parties themselves to decide what is proportional
and what is not.
The changes are also designed to increase the frequency
with which courts assign the costs of discovery to the
requesting rather than producing party. The changes would also
place somewhat stricter presumptive limits on depositions, for
example, from 10 to 15 and lasting no more than 6 hours as
compared to 7 under current rules; limits on interrogatories
from 25 to 15; and requests for admission, currently not
limited, would be limited to 25.
Although this is in service of an important goal--reducing
overall unnecessary discovery costs--these proposed changes
have also sparked significant controversy in the civil rights,
consumer rights, antitrust, and employment rights communities.
These advocates worry that limitations on civil discovery will
unduly hamper the ability of those who have been subject to
discrimination or other violations to obtain the evidence they
need in order to prove their cases in court.
Under the Rules Enabling Act, it is the role of the
judiciary to propose and for Congress to review any changes to
the rules that govern litigation in our federal courts. Despite
the mechanism for rules changes under the Rules Enabling Act,
however, over the past 30 years courts have typically avoided
the role of Congress and instead used decisional law time and
again to reinterpret the federal rules. In nearly every case
that reinterpretation has narrowed the path for a citizen to
have his or her case decided by a jury, according to the facts
and the law.
Most recently, a series of decisions has significantly
limited the availability of class actions, has raised pleading
standards, has foreclosed federal and State courts entirely for
those unlucky enough to find their dispute subject to an
arbitration clause.
Today, however, I am glad to report that the Judicial
Conference is proposing that the rules be changed through the
mechanisms set out in the Rules Enabling Act, which gives the
public and this Congress a valuable opportunity to be heard
before those changes might take effect.
In conducting my review of the proposals, I am guided, as
is also, I hope, the Judicial Conference, by four basic
considerations:
First, what specifically are these reforms meant to
accomplish? What problems or abuses are they hoping to remedy?
Second, how effectively would these proposed reforms
succeed in addressing the problems or alleged abuses?
Third, are there collateral costs to our overall system of
justice?
And, finally, if there are collateral costs, I think we
must weigh the costs and benefit in light of the broader
public's interest in a fair, efficient, and effective court
system.
So as to the first question, what are these changes meant
to accomplish, let me start with what I think is an
unobjectionable statement. Civil litigation in America can be
very expensive. As former in-house counsel for a manufacturing
company, I knew well the challenges that corporate defendants
can face in controlling costs of lawsuits where even a
meritless complaint can put settlement pressure on a client.
But to the second question, are these rules likely to
significantly reduce discovery costs that are unnecessary in
order to resolve the case, studies cited by the Judicial
Conference note discovery costs are not a problem in the vast
majority of cases, but that discovery is a problem in a
``worrisome number of cases.'' And those cases where discovery
costs are a real problem, which is to say that they are ``out
of proportion'' to the needs of the case, it tends to be in
cases that are ones dominated by high stakes, that are highly
complex, or highly contentious. In these cases, presumptive
discovery limits are likely to be of no impact at all. In
smaller cases, however, presumptive limits are likely to play a
normative role restricting the ability of the plaintiffs in a
small case to take badly needed depositions from a defendant
who holds the information relevant to a fair lending or
employment discrimination claim.
If I might, without objection, I would submit for the
record letters from Barry Dyller and from the Delaware Trial
Lawyers Association setting forth some of these concerns.
I will also submit for the record a letter from the
Alliance Defending Freedom, an Arizona-based organization
committed to defending religious freedom, which believes these
changes would inhibit legal challenges they bring to protect
citizens under the Free Exercise Clause of the First Amendment.
[The letters appear as submissions for the record.]
Chairman Coons. As to proposals to restrict the scope of
discovery, the import and impact of these changes is likely to
be highly litigated. Motions practice is also not cheap, and
when all is said and done, these changes would be implemented
by those same judges who today, according to the Judicial
Conference itself, are not doing a good enough job limiting
discovery in the cases before them.
Five times since 1980, the Judicial Conference has tweaked
civil discovery rules in attempts to curb perceived abuses.
Back in 1980, pretrial conference was added; in 1983,
proportionality was first added as a general limitation on
discovery; in 1993, the rules were amended to add some
presumptive discovery limits; in 2000, the scope of discovery
was narrowed; finally, just a few years ago, in 2006, the
proportionality provision, first instituted in 1983, was
revised again in an attempt to reflect the burdens of
electronic discovery.
Today we are faced with yet another incremental restriction
on discovery. Why would we expect these changes to work
significantly where the previous ones, arguably, have failed?
And if discovery cost is, at least according to one study, a
problem only in a minority of cases, is it appropriate to
narrow the scope of discovery in a way that applies across the
board to all?
Next, even if we are to assume that these changes would
have a positive impact in curbing discovery abuse, we must
still consider the third question: What harms are risked if
these changes are implemented? Discovery is a critical stage in
litigation that allows parties to marshal evidence in support
of their claims or defenses and evaluate the claims and
defenses of their counterparty. Without discovery, parties ask
judges and juries to decide cases based on incomplete
information, which can only degrade the ability of our legal
system to deliver justice under the law.
If discovery is important to the criminal justice system,
it is absolutely indispensable to civil plaintiffs. Plaintiffs,
not defendants, bear the burden of persuasion in proving their
claims, yet often, especially in employment discrimination and
consumer fraud cases, most of the relevant evidence is in the
possession of the defendant. Less access to information could
mean that responsible parties remain unaccountable, not because
allegations are not true but because of a lack of the evidence
to prove the allegations. If so, this would be a very real
cost, and not just to the plaintiffs whose meritorious cases
would thus be thrown out. In many areas of the law, notably
antitrust and discrimination, the law recognizes the societal
value of so-called private attorneys general.
Recognizing the limitation of Government resources, the law
provides encouragement for civil plaintiffs to bring suit and
help ensure compliance with these areas of the law. Where we
can cut costs without doing damage to our criminal justice
system, we should absolutely do so. When there is the
possibility of collateral costs to our courts and the ability
of Americans to enforce their substantive rights, we must tread
much more carefully.
Before we amend the rules to limit the ability of litigants
to marshal evidence to prove their cases, we should examine
whether any of these potential harms are likely to come to
pass. We must examine whether other reforms are more likely to
achieve the goals of reducing unnecessary litigation costs and
less likely to have the collateral consequence of reducing
access to justice.
Commentators are in general agreement that judges could do
more under the rules than they are currently doing to narrow
issues for discovery and reduce the burdens on producing
parties. Why are they not doing so? Are judges overworked? If
so, perhaps the problem could best be addressed by creating
some or all of the 91 new Article III judgeships recommended by
the Judicial Conference, as would be accomplished by the
Federal Judgeship Act of 2013 I recently introduced with the
Chairman.
Would a greater investment in technical and support
resources allow for more efficient management of cases and of
e-discovery leading to significant savings to litigants?
Is judicial training a limiting factor? And how might we
address that?
Clients also have tremendous power to limit litigation
costs incurred by their legal representation. Clients can and
do negotiate down hourly rates, the size of legal teams, and
even the hourly billing model that has created divergent
incentives between attorneys and clients. Do these paths all,
either in isolation or concert, offer a more promising avenue
for reform? These are just a few of many questions we will
explore with our witnesses today, but first I would invite
Senator Flake for his opening statement.
Senator Flake.
OPENING STATEMENT OF HON. JEFF FLAKE, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Senator Flake. Thank you, Mr. Chairman. I am here today
because Senator Sessions had a prior commitment. He may be able
to come a little later after that is finished. But I am glad to
be here. I want to thank the witnesses for coming today.
I look forward to the continuation of the process that
Congress created to make changes to the Federal Rules of Civil
Procedure. In the Rules Enabling Act, Congress created a
process that is careful and deliberate, taking years to effect
changes to the rules. This process begins with the Judicial
Conference Advisory Committee on Civil Rules. The Advisory
Committee evaluates proposals for amendments to the rules, and
if it decides to pursue a proposal, it may seek permission from
the Standing Committee to publish a draft of the proposed
amendments. Once published, the draft is subject to a 6-month
comment period, including several public hearings. We are
currently in the public comment period of the draft proposal,
and the first of the public hearings is taking place in 2 days
on November 7 in Washington.
The Advisory Committee on Civil Rules is chaired by the
Honorable David Campbell, U.S. District Judge from my home
State of Arizona, and members of the Advisory Committee include
four lawyers, including some who routinely represent plaintiffs
and others who routinely represent defendants in civil
litigation, which will be affected by the rules. The committee
also includes eight judges, one a judge on the Supreme Court of
Georgia, six U.S. district court judges, one judge from the
U.S. Court of Appeals on the Tenth Circuit, the dean of the
Lewis and Clark Law School, the Assistant Attorney General for
the Civil Division, Stuart Delery. The membership of this
committee brings vast experience and diverse points of view to
the process.
What I am trying to explain here is that this is a
deliberative, long, involved process. There is nothing that
happens quickly here. It is deliberative.
After the public review period, the Advisory Committee will
again review the proposed rules in light of the comments it
receives. The amendments may then be submitted to the Standing
Committee for Approval. The Standing Committee independently
reviews the findings of the Advisory Committee and, if
satisfied, recommends changes to the Judicial Conference, which
in turn recommends the changes to the Supreme Court. It is only
then that the rule proposal reaches Congress. If Congress does
not act within 6 months, the rules will be automatically
adopted. This entire process, as I have explained, is a
cautious one with each proposed rule change subject to
meticulous evaluation and discussion.
In proposing changes to the rules, the Judicial Conference
justifiably seeks to reduce costs and delays in civil
litigation. These costs have escalated in recent years due to
the massive increase in electronically stored data, as the
Chairman mentioned. The proposals put forth by the Advisory
Committee are modest changes to the rules seeking to address
these concerns. I respect this ongoing process. I hope that the
Advisory Committee will continue its careful review, and I look
forward to the witnesses' testimony. And I would ask unanimous
consent that Senator Cornyn's statement be entered into the
record as well.
Chairman Coons. Without objection.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Chairman Coons. Thank you, Senator Flake.
Before we begin with witness testimony, I would like to ask
all three witnesses to stand while I administer the oath, which
is the custom of this Committee. Please raise your right hand
and repeat after me. Do you solemnly swear that the testimony
you are about to give to the Committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Mr. Miller. I do.
Mr. Pincus. I do.
Ms. Ifill. I do.
Chairman Coons. Thank you. Let the record show the
witnesses have answered in the affirmative. Please be seated.
Our first witness today is Professor----
Senator Whitehouse. Mr. Chairman, if we are not going to
allow for opening statements from other members of the
Subcommittee, may I ask for unanimous consent that my written
statement be put into the record?
Chairman Coons. Certainly, Senator Whitehouse. You had not
expressed any interest to me beforehand. If you would like to
make an opening statement at this time, I will invite you to.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you. I want to thank the Chairman
for holding this hearing. It is the 75th anniversary of the
Federal Civil Rules, and there is particular reason for careful
deliberation when we consider rules changes like the ones
before us today.
There has been an undeniable trend in changes to the
Federal Rules of Civil Procedure--both the changes that come
through the Rules Enabling Act and changes that have occurred
through judicial interpretation. And that undeniable trend has
been to narrow and erode a fundamental American legal and
political institution: the civil jury. I fear that, if enacted,
the current proposed changes will continue and accelerate that
trend.
Our Founding Fathers envisioned the civil jury in the same
way that Sir William Blackstone had as a means of preventing
what Blackstone called ``the encroachments of the more powerful
and wealthy citizens.'' Unfortunately, today's most powerful
and wealthy beings are corporations, and they view jury trials
with annoyance and hostility, and they have brought their
considerable powers of political persuasion to bear to limit
Americans' access to this historic constitutional institution.
Aided by an increasing judicial focus on court efficiency, they
have successfully limited the use of the civil jury, which, as
Alexis de Tocqueville observed, is in the United States ``a
political institution'' and ``one form of the sovereignty of
the people.''
These recent amendments governing pleading, motions to
dismiss, class action lawsuits, summary judgment, and case
management procedures have narrowed the gateways to jury trial,
and now the Judicial Conference seeks to make changes to the
discovery process that could burden individual plaintiffs while
benefiting large corporations.
Most significantly, the proposed changes could
fundamentally shift the burden of discovery requiring
plaintiffs to demonstrate that discovery beyond presumptive
limits is necessary rather than requiring defendants to prove
that the information sought is not relevant. In cases involving
employment discrimination, product liability, and consumer
rights, the proposed changes could prevent plaintiffs from
ultimately obtaining the information that they need to advance
their cases to the trial phase and win their case.
The Founders intended the civil jury to serve as an
institutional check on the wealthy and powerful. It did so by
giving ordinary American people direct control over one element
of Government. We should be very careful not to lightly cast
such an institution aside in the name of judicial efficiency.
I thank the Chairman for his courtesy in allowing me to
make that opening statement.
Chairman Coons. Thank you, Senator Whitehouse.
Our first witness today is Professor Arthur Miller.
Professor Miller is a university professor of law at New York
University Law School and the School of Continuing and
Professional Studies. Professor Miller is I think
unquestionably the Nation's foremost expert on civil procedure,
which he has taught, researched, and written about for more
than 40 years. He is the co-author of one of America's most
cited, and used by the Chair, legal treatises ``Practice and
Procedure'' with Charles Wright. He has also served as a member
and reporter to the Judicial Conference's Advisory Committee of
Civil Rules, whose proposed rules changes we are here today to
examine. The remainder of his resume is too voluminous to begin
to address this morning.
We welcome your testimony, Professor Miller. Thank you for
being with us. Please proceed.
STATEMENT OF ARTHUR R. MILLER, PROFESSOR, NEW YORK UNIVERSITY
SCHOOL OF LAW, NEW YORK, NEW YORK
Mr. Miller. Thank you, Mr. Chairman, Senator Flake. I thank
the Chair for giving me an additional 10 years of life by
saying I have been teaching it for 40 years. The truth is it is
over 50 years. But who is counting?
In my written statement, I have tried to give you some
context and perspective for the proposed amendments, and both
you, Mr. Chairman, and Mr. Whitehouse have mentioned many of
the facts. In the last 25 years, the pretrial landscape in
federal courts has literally been littered with stop signs.
These stop signs prevent Americans from getting meaningful days
in court. They undermine congressional and constitutional
policies embedded in our most sacred statutes, and they have
resulted in the deformation of the Federal Rules of Civil
Procedure.
You have mentioned summary judgment enhancement. I add the
screening of expert witnesses, class action obstacles of
extraordinary significance, not simply the well-known Wal-Mart
case. The pleading decisions in 2007 and 2009 have completely
abandoned simplified pleading, substituted plausibility
pleading, meaning that there is now a real potential for
complete termination of an action based on one paper, the
complaint, and judicial speculation as to what the merits may
be. Not surprisingly, like Pavlov's dogs, defense firms
automatically make the motion to dismiss.
We have the potential narrowing of personal jurisdiction
indicated by four Justices of the Supreme Court, and I strongly
suspect Justice Alito will join them in the next case, meaning
that Americans may have to litigate in inconvenient fora. And
since 1983, when I was reporter, there have been sequential
restrictions to the scope of discovery, which the Chair has
already alluded to.
All of this means that there is now earlier and earlier and
earlier termination of civil actions long before discovery,
long before the trial.
Senator Whitehouse spoke of the jury trial, and that has
been our gold standard. Our gold standard is gone. Cases are
not tried. We are now left with the dross of motions to dismiss
and summary judgments.
Now, the defense bar would have us believe all of these
changes are necessary because of costs, loss of American
competitiveness, and electronic discovery. I assure the
Committee the foundations of American capitalism are not
crumbling. The system as it now exists is strong enough to deal
with these problems. There is simply no empiric basis for these
charges. There are anecdotes and there are impressionistic,
superficial cost surveys. The Federal Judicial Center itself
says it is not a problem.
I think there is an important back story here. American
capitalism in the last 75 years has expanded exponentially.
That has produced complex litigation and perhaps an increase in
absolute dollars.
However, keep in mind that the same exponential expansion
of dimension has brought exponential expansion of profits.
Corporate America has benefited from these tremendous growths
in our economy. They serve national marketplaces. They create
national risks to our people. And when challenged, they should
stand and defend against the charges against their conduct.
To me, an even more important risk is the risk to our
national statutes. Our 75 years has seen the greatest
sensitivity and development of social justice in this country,
and we should be proud of it. We now have civil rights
legislation, which we did not have then. We have environmental,
consumer, product protection, which we did not have then. We
have defenses against employment discrimination, disability
discrimination, and my personal favorite, age discrimination.
We do have a governmental regulatory system, but it is far
from perfect. Bernie Madoff proved that. Enron proved that.
Diet drugs, Vioxx, and the marketing of the garbage CDOs and
other financial instruments that nearly brought our economy to
a halt prove that what we need is what we always have had: a
satellite system of private litigation to enforce our public
policies.
I believe in our system. I do not want it deformed.
Congress should pay attention to this back story because what
we have seen are paper cuts perhaps, but death by 1,000
procedural paper cuts is still death to the system as we have
known it.
Thank you.
[The prepared statement of Mr. Miller appears as a
submission for the record.]
Chairman Coons. Thank you, Professor Miller.
Our next witness is Andrew Pincus. Mr. Pincus is a partner
at Mayer Brown, where he focuses on State and federal appellate
litigation, including before the Supreme Court, as well as on
developing legal arguments in trial courts. Notably, he
successfully argued AT&T Mobility v. Concepcion in which the
Supreme Court held the Federal Arbitration Act preempted State
law but denied enforceability of arbitration agreements
containing class action waivers. In addition to his work at
Mayer Brown, Mr. Pincus has served as general counsel of
Anderson Worldwide, general counsel of the United States
Department of Commerce, and Assistant to the Solicitor General
of the United States, among many other areas of services.
Mr. Pincus, please proceed.
STATEMENT OF ANDREW PINCUS, PARTNER, MAYER BROWN LLP,
WASHINGTON, DC
Mr. Pincus. Thank you, Mr. Chairman. Chairman Coons,
Ranking Member Flake, and members of the Subcommittee, I am
honored to appear before the Subcommittee today to discuss
these proposed rules amendments. And I think the starting point
is that our legal system has significant problems. Litigation
takes too long and it is too expensive, and that is not good
for plaintiffs, and it is not good for defendants.
In the words of a report co-authored by the American
College of Trial Lawyers, which is a group that includes both
plaintiff and defense attorneys, and I am quoting: ``Although
the civil justice system is not broken, it is in serious need
of repair. In many jurisdictions, today's system takes too long
and costs too much. Some deserving cases are not brought
because the cost of pursuing them fails a rational cost-benefit
test while some other cases of questionable merit and smaller
cases are settled rather than tried because it costs too much
to litigate them.''
The tremendous growth in the sheer quantity of
electronically stored information combined with discovery rules
formulated for the typewriter and paper era have produced a
huge increase in discovery-related legal costs. A very recent
study by the RAND Institute for Civil Justice, a widely
recognized nonpartisan group, found a median cost of $1.8
million per case just for producing electronically stored
information. The cost ranged from $17,000 in the smallest case
to $27 million in the largest case.
In addition, parties incur significant costs just to
preserve electronically stored information, beginning when a
claim is reasonably anticipated and during the entire course of
the litigation. Otherwise, they face onerous sanctions in the
event information later found to be subject to discovery is
lost, even if that deletion is unintentional.
For example, Microsoft informed the Rules Committee in 2011
that it was storing 115 terabytes of information, or more than
5 times the text of all the books in the Library of Congress.
Creating the systems to store this data and maintaining them
imposes significant costs.
Experienced litigators on both sides, in the American
College of Trial Lawyers and again in the Sedona group on
discovery issues, have said there is a serious problem with
electronic discovery, and both groups say the issues should be
addressed by changes in the rules.
The fact is litigation dispositions are increasingly driven
by costs in a significant category of cases and not by the
underlying merits of the claim, and that undermines the entire
basis of our legal system.
Now, I agree fully with Professor Miller about the
importance of the principles that are embodied in federal
statutes and the importance of providing a means to redress
violations of them. And that is why I think it is really
important to note that the rules proposals released for comment
represent moderate change. The committee did not decide to do
nothing. But it also did not adopt a number of proposals that
were advanced by some in the defense bar. It steered a middle
course.
The principal proposed amendment relating to the scope of
permissible discovery simply moves a standard already in the
rule, requiring that discovery be proportional to the needs of
the case in order to give that standard added emphasis. It is
hard to quarrel with the argument that discovery should be
proportional, especially because the draft rule expressly
includes factors other than the amount at stake in the
litigation, such as the importance of the issues involved in
the litigation, the need for discovery, and an overall cost-
benefit determination. And judges will make the decision of
what is proportional and what is not. We trust them to make
many determinations, and there is no reason why they cannot
make this one properly.
Again, this change is supported by the College of Trial
Lawyers, the Sedona group, and it has an important benefit. It
forces judges to engage in the discovery process when they
decide these issues, and a big complaint from all lawyers on
all sides is judges are not engaging enough early enough in the
case. They do not manage, and the lawyers, left to their own
devices, unfortunately, go off on a frolic. This will solve
that problem.
The amendments also would modify the provisions of the
current rules establishing presumptive limits on some forms of
discovery. The proposed limits are based on information
regarding the norms in most federal court litigation and,
therefore, are not expected to affect much of the litigation
that happens in the federal courts. But the Advisory
Committee's eminently reasonable conclusion, again, was, and I
am quoting, ``it is advantageous to provide for court
supervision when the parties cannot reach agreement in the
cases that may justify a greater number.'' Nothing prevents a
court from allowing a greater number, and, again, this forces
judges to focus on the case and make a decision instead of
leaving lawyers to their own devices.
Finally, as I mentioned earlier, the current vague and
uncertain standard for when sanctions should be imposed is
imposing significant costs for overpreserving data. The
proposed amendments begin to address that problem by replacing
the existing unclear rule with a new somewhat clearer standard.
I think it is important to conclude by mentioning, as
Senator Flake mentioned, these proposals are just that--
proposals. There is a process underway: 6 months of written
comments, 3 hearings. The committee will gather a lot of
information considerate of the rules processes working just as
Congress intended.
Thank you again for the opportunity to testify, and I look
forward to answering your questions.
[The prepared statement of Mr. Pincus appears as a
submission for the record.]
Chairman Coons. Thank you very much, Mr. Pincus.
Our next witness is Sherrilyn Ifill. Ms. Ifill is president
and director-counsel of the NAACP Legal Defense and Educational
Fund. Ms. Ifill began her legal career as an attorney with LDF
where she litigated voting rights cases for many years. Even
after joining the law faculty at the University of Maryland,
Ms. Ifill taught civil procedure and civil rights courses and,
in addition, continued to be involved in civil rights cases as
a consultant and litigant. Now in her current role as president
of LDF, Ms. Ifill is ideally suited to provide the Subcommittee
with an overall assessment of how these proposed rules changes
may affect the ability of civil rights plaintiffs to prove
their cases in court.
Ms. Ifill, please proceed.
STATEMENT OF SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL,
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NEW
YORK
Ms. Ifill. Thank you very much. Good morning, Chairman
Coons, Senator Flake, and other members of the Subcommittee.
Thank you for inviting me to testify today.
In the 20 years that I taught civil procedure, I began my
first class always by quoting Robert Cover, who said that
procedure is the blindfold of justice. And it is perhaps for
that reason that so many of the Rules of Civil Procedure have
been actually shaped within the context of civil rights cases,
cases that would be familiar to any of us who took a first-year
law course, Conley v. Gibson, Adickes v. S.H. Kress, Hansberry
v. Lee, Martin v. Wilks, Anderson v. Bessemer City, now Wal-
Mart v. Dukes and Iqbal v. Ashcroft. And the reason for that,
of course, is because of the unique role that civil rights
cases play in opening the opportunity for access to justice for
those seeking justice.
I represent lawyers who represent these clients, bringing
claims under the Constitution of the United States and other
civil rights laws at the federal and at the State level. And
what is essential to our clients is the opportunity to obtain
the information that will prove their claim.
Professor Miller talked about the pretrial landscape being
littered with stop signs, and that is undoubtedly true, from
the summary judgment decisions of several decades ago to the
recent pleadings decisions by the Supreme Court. And in each of
those cases, the concern that was raised was whether or not
judges were properly managing the litigation process. And now
here again we have returned to that same argument in the area
in which it can be without question that trial judges have the
greatest expertise and latitude: the management of discovery.
For those of us who represent civil rights plaintiffs,
discovery is the essential stage of any litigation, and that
is, of course, because of the nature of our claims. The
information that would support a claim of discrimination is
often, as the Chairman pointed out, within the possession of
the defendant. And the only way we can get that information is
through the discovery process.
It is also true that one of the great successes of our
work, the fact that we now find discrimination socially
unacceptable, means that our ability to find that information,
to gather that information, and to make a case for
discrimination largely based on circumstantial evidence
requires us to gather a range of information and data within
the possession of the defendant. That information for us can
only be obtained through discovery.
At the outset, Chairman Coons talked about a worrisome set
of cases and the potential for collateral consequences, and I
think this is where the inquiry really is most appropriately
targeted. Without question, there is a narrow band of cases,
perhaps those discussed by Mr. Pincus, in which there are real
problems with discovery and in which the costs are exorbitant.
But those are not the majority of cases. As Professor Miller
pointed out, no study has supported the idea that litigation
has run amuck, either from costs or from overburdensome
discovery. And the question is: What will we do with that small
band of cases? And will we allow that small band of cases to
essentially imbalance our civil litigation process against the
vast majority of cases and in our instance, of course, civil
rights cases?
Judges do have the power to manage discovery, and judges do
have the power to ensure that discovery is not burdensome. And
we have found in the cases that we litigate judges exercise
that authority. Magistrate judges are experts in managing
discovery in complex cases, and they do so. They play a very
active role in setting appropriate timetables and schedules for
the parties and ensuring that discovery is managed and
maintained in a way that is fair to all sides.
For our cases, we are not, frankly, very wealthy lawyers.
We always seek the most cost-efficient way to engage in
discovery and, therefore, there are certain kinds of discovery
that are actually most effective for us--interrogatories, for
example, and requests for admission. And so any effort to limit
the number of interrogatories and requests for admission, the
cheapest forms of discovery, are borne disproportionately by
those of us who are most interested in most efficiently and
effectively using the resources that we have available to
engage in litigation.
This is a critical moment in which this Committee has an
opportunity to stop and reflect on what has happened to civil
litigation over the last 30 years and what it means for our
clients. The list of cases that I rattled off at the beginning,
cases in which clients were able to bring forward
discrimination claims that revealed not just for those
individual plaintiffs but for our entire society the ongoing
nature of discrimination and violations of constitutional
rights of citizens who live at the bottom and at the margin,
are imperiled when those citizens do not have access to their
day in court.
Professor Miller described it as a ``meaningful day in
court,'' a ``meaningful opportunity'' to participate in the
process of litigation. We would respectfully ask that this
Committee refrain from adopting these proposed changes to the
discovery rules, recognize that this is a moment when we have
the opportunity to turn back from what has been an effort to
close the door on those who need the litigation system most.
Thank you.
[The prepared statement of Ms. Ifill appears as a
submission for the record.]
Chairman Coons. Thank you, Ms. Ifill.
We will now begin questions in 7-minute rounds. If I might
start with you, Ms. Ifill, since you began litigating civil
rights cases, can you speak about the impact a whole series of
decisions have had? Professor Miller referenced a series of
stop signs that now litter the pretrial landscape for those
litigants who are seeking to establish their case and advance
their case. Can you speak about the impact these changes have
had on your ability to bring civil rights cases and how these
further proposed changes to the discovery rules would play into
that?
Ms. Ifill. Well, of course, it begins decades ago with a
series of three decisions that the Supreme Court decided on
summary judgment, and, of course, we know that over the last
30, 40 years, the percentage of cases that go to trial have
greatly diminished. Everyone recognizes that summary judgment
is the name of the game. And because summary judgment is the
name of the game, it actually has put pressure on the front end
of litigation--pressure on the pleadings, pressure on
discovery. It makes those two moments in the litigation process
more important because of the likelihood that you will not get
to trial unless you can surmount summary judgment.
And then, of course, the changes to the pleadings rule and
the heightened pleading that has resulted as a result of the
Iqbal v. Ashcroft cases. A number of studies are still being
done to determine what the effect of that decision was on civil
rights cases, but I can certainly tell you that one of the
effects is essentially what we talk about with our clients,
what claims we think can survive a motion to dismiss. And,
remember, at the pleading stage we are talking about before you
have ever done discovery, what you are able to pull together.
As I just mentioned in my testimony, it is very important
for us to remember that the success of the work that
organizations like mine have done has resulted in the reality
that finding the smoking gun in which people use discriminatory
language openly and so forth, it still happens, unfortunately,
in far too many cases, but it is more likely not to be left
about in open and plain view. This is information that people
recognize that they have to hide.
And so what we have to do in the discovery process is dig
even deeper than we ever had to do in the past to ensure that
we can gather this information and use it for our claims. And,
frankly, because of the societal view against discrimination,
we frankly have a harder time proving that discrimination in
fact exists.
And so the work that we have to do as litigators in civil
rights claims has actually been increased. I mean, we are happy
for it in some ways. We do not want there to be blatant forms
of discrimination. But we bear the burden and the litigation
process, nevertheless, of ferreting out discrimination where it
exists.
Chairman Coons. And how would these proposed changes to the
discovery rules, which some view with alarm and others views as
moderate and reasonable and balanced and modest, how would they
affect your ability or those you work with, their ability in
civil rights cases to seek redress for ongoing harms?
Ms. Ifill. Well, the idea of the proportionality
requirement is deeply troublesome to us. Imagine a claim in
which an individual believes that they have been discriminated
against in employment or believes that they have been barred
from shopping in a store or racially profiled in some way. That
is one individual claim. How do we measure the proportionality
of the data that that plaintiff would need to prove whether or
not discrimination had occurred or was occurring with that
institution?
Even though we may not be talking about a case that
involves millions of dollars, the interests that are at stake
in civil rights cases in which we are really dealing with the
issue of the denial of constitutional rights and rights held
under federal statutes by individuals, how do we measure the
importance of those claims against an argument that it would
cost the defendant too much to find the information?
And then, second, for us in the litigation, the costs
involved in actually litigating the question of
proportionality. It seems to me this is opening up a door to
yet more expensive and time-consuming motions practice as we
argue over what is proportional to the importance of the case.
Chairman Coons. Thank you.
Professor Miller, you suggested that these changes might
not actually accomplish the goal of reducing discovery costs,
and in fact, very expensive and complex motions practice over
these elements of proportionality will simply be the result,
that there will be significant harms for those cases that are
vital to fulfilling the societal role of private attorneys
general enforcing some of our most important and treasured
legal advances of the last decades. Do you have anything
further to add to this or to the evidence of a cost problem in
discovery?
Mr. Miller. There is no doubt in my mind that establishing
proportionality as a front-end consideration in terms of
availability of discovery and, in effect, putting the burden on
the plaintiff to demonstrate proportionality is sort of like
hanging a carrot in front of the horse's nose. The defense bar
will simply do what it has done consistently since the early
1980s: make the motion, make the motion, make the motion,
which, it turns out, becomes a very high cost in terms of
money, resources, and judicial time.
One of the interesting byproducts of what has been
mentioned, the 1986 Summary Judgment Trilogy, let us get cases
out on summary judgment and save resources from being expended
at trial, well, that has simply magnified the sort of
Armageddon quality of the summary judgment motion so that both
sides are forced to put in enormous time, effort, and resources
to make and meet that motion. And there is now some evidence
that the cost of the summary judgment motion is about the same
as the cost of trial.
So what have we done? We have robbed Peter to pay Paul, and
we have denied people what we call ``the gold standard of
trial,'' let alone jury trial. I just think we have not really
developed the sophisticated empiric data that justifies these
changes.
Chairman Coons. Thank you, Professor Miller.
Mr. Pincus, how does this current effort to change the
rules to limit discovery expenses differ from the previous
five? You had suggested in your testimony judges do not
manage--I am paraphrasing--and this, the proportionality rule,
will solve the problem. How will these rules prompt judicial
intervention, as you suggested, when some complain that the
previous five rules changes have failed to elicit that judicial
engagement?
Mr. Pincus. Well, I think that is the hope. I do not think
there is any guarantee, but I think what the Rules Committee,
what the Advisory Committee has said--and it makes sense to
me--is we are taking a standard that already exists in the law,
the proportionality standard that has been referred to, and we
are giving it somewhat more prominence because we hope that
will encourage people to focus on it. So either it will have no
effect, in which case none of these bad things are going to
happen and it will have been a failed effort to get judges to
manage more aggressively and appropriately; or it will have
more effect, in which case I think the effect will be in
appropriate cases judges will conclude that the discovery being
sought does not make sense.
I think the important thing to recognize about how the
standard is applied is--as I said in my opening statement, it
does not just talk about the amount at issue. It talks about
the issues at stake and the clear messages to look at just the
issues that Ms. Ifill mentioned and to make those highly
relevant to the inquiry.
So I think we trust judges to make lots of decisions, and
there is no reason why if they are focused on the issue--and if
they have the time to manage, which is an important question
about our judicial system. But the whole thrust of these
changes is to bring the judge into the process to make the
decisions instead of just having the lawyers go off by
themselves, which does not seem to work very well.
And just to respond, if I might, to Professor Miller's
concern about motions practice, I guess I would say two things.
First of all, I think many clients today--and, Mr.
Chairman, you mentioned this in your testimony--manage what
their defense lawyers do. So defense lawyers, at least the ones
that I practice with, are not authorized to file every motion
unless they want to do it on their own nickel. They have got
clients that have budgets and that force them to prioritize
what they do.
And the second thing is, again, getting the judge involved,
most lawyers recognize that pestering the judge frequently with
motions that are going to get denied is a very, very bad
strategy for the person who ultimately is going to preside over
your case. And so that has quite an inhibiting effect.
Chairman Coons. I look forward to another round with you,
but I will defer now to Senator Sessions, who has joined me as
Ranking Member.
Senator Sessions. Well, thank you. It is an important
issue, and I like the way the judicial rule process proceeds.
And I believe it is proceeding in the proper way with public
hearings beginning, I believe, this week. And so we ought to--I
am a little uneasy about having congressional political
hearings while this process is going on, because we will have
an ultimate role in it.
Mr. Pincus, Congress will have to vote, or not vote, I
guess, once these rules are proposed. Is that correct?
Mr. Pincus. Absolutely. The rules will be sent by the
Supreme Court. If there ultimately is a product that goes
forward to the Supreme Court, the Supreme Court will deliberate
and make its decision and then send the package to Congress,
which will then have 6 months to consider it.
Senator Sessions. One of the biggest damages to justice in
America I think has been bogus lawsuits filed at great cost.
Professor Miller, I think motion practice may be costly in some
areas, but I do not think there is any doubt that it has short-
cut, short-stopped bogus lawsuits or claims. Maybe you have got
five claims, and one of them is good. The punitive damages are
not good. The sooner that is out of the case, the better
settlement prospects are. And we are reaching incredible
settlement numbers.
Do you know, Professor Miller, it seems like I have heard
that it is 97 percent of civil cases are now settled short of
trial?
Mr. Miller. If I might make a modest change to that, 97
percent of cases--and this figure is not dissimilar at the
State level--are terminated before trial. Some of them are
settled. Some of them are summary judgmented. Some of them are
motion to dismissed. Some are class action denied. And some of
them just fall out of fatigue. But there is no doubt that we
live in a settlement and not in a trial culture. And your
point, Senator, is absolutely right. Some of the motions do
skin the cat. They get rid of the garbage. That can be done
under the existing motions structure which has been in the
rules since 1938. It does not implicate curtailing discovery or
some of the other things that have happened in the last 25
years. What it does implicate is what I think everybody has
talked about this morning: somehow we must enhance and
sophisticate judicial management.
Senator Sessions. Well, I think one of the goals that
Congress and the courts have talked about is more settlements,
and that is occurring. And I hope that they reflect justice and
not injustice. I hope they do not weaken justice in the
process.
But I think, I do not believe a case should be sent to a
jury, as used to happen, with a punitive damages claim for $50
million when there was no basis for it, and then the defendant
feeling they had to settle because there was some remote
possibility they might get hit for $50 million.
And, Mr. Pincus, maybe you can--I understand you mentioned
something about the cost of discovery. But this is a huge
factor in forcing defendants to pay judgments at times that
they do not really feel like they should pay, but just the cost
of defending it is so great that they are not able to justify
the litigation. And that is not justice, I guess you would
agree, number one. And, number two, can you give us any more
thought about how the cost can rise in a discovery proceeding?
Mr. Pincus. Certainly, Senator. Well, I think the reality
is--I say this in my testimony. You know, you have a client who
is sued, and they want to know what is going to happen. And
they feel unjustly accused. They feel the allegations in the
complaint are false. The allegations may well be sufficient to
withstand a motion to dismiss, and so you have to then say to
them you will be--the time you get to say those things are
false is in a motion for summary judgment, and that is not
going to happen until after there is some discovery. So you are
looking at discovery, and the unfortunate fact is that in many,
many cases, as I discuss in my testimony, the discovery costs,
in the world of electronic discovery that we are now in, can
easily exceed $1 million just for the electronic discovery, not
counting the legal fees and other costs associated with the
rest of the litigation. So if a client is looking at that
potential expenditure, recognizing that he does not have a good
motion to dismiss, or maybe he has filed one and it has been
denied, what is the rational course? The rational course is to
say, gee, if I can settle this case for not much more than what
it is going to cost me to get to that summary judgment phase,
that is a rational economic decision and I should do that.
Senator Sessions. But it is not necessarily justice if you
do not owe the claim, number one. It is not justice if you do
not owe the claim.
Number two, there has been some suggestion that this is not
a problem, this cost. Apparently the courts--the Committee has
made some recommendations, I think modest, frankly, and they
perceive there is some problem here. Can you give an opinion,
Mr. Pincus, as to what the prevailing view out there is among
lawyers and judges as to whether or not we need to do something
about the discovery practice as it now exists?
Mr. Pincus. Well, my view is the best groups to look to for
that kind of view are groups of smart lawyers that are
balanced, that are not just the defense bar, they are not just
the plaintiffs' bar. And so I look at two groups, and I mention
them in my testimony: the American College of Trial Lawyers and
the Sedona Conference on Discovery, which is a group of
lawyers, both sides, that have come together to try and address
discovery issues. And both of those groups have said in no
uncertain terms that electronic discovery is a mess and we need
some changes to deal with it.
So I think that is a pretty good indication of what the
people who are giving a lot of thought to this problem and who
are out there in the trenches think about it. And, again, I
think it is important to say that the solution that has been
proposed here is not some draconian change introducing some
concept that was never in the rules. It is basically taking
this existing proportionality concept and saying let us give it
more focus in a way that will force judges to grapple with it
in hopefully more cases.
Senator Sessions. Well, thank you, Mr. Chairman. I do not
know if this is the appropriate time to have a congressional
hearing on the matter, but so be it. It is all right. And I
think this is a good panel to begin discussing it. Just having
had some experience in how the process works, they do this very
carefully. They have a judicial panel, and they take testimony.
Then they have public hearings. And I think there is a
concern--I heard it pretty regularly among friends in the
profession--that discovery is being abused too often in our
system. And I do not believe we need dramatic, draconian
changes in discovery. I do not think this proposal would do
that. But I do think there is a problem, and it needs to be
addressed, and I believe the process now going forward through
the Judicial Conference will help us improve it without
weakening the right of a plaintiff or any other party to find
out necessary facts for the litigation.
Thank you.
Chairman Coons. Thank you, Senator Sessions.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
With my time, I would like to make two points. The first is
that I think some of the questioning and testimony has been
very one-sided in the sense that the inference has been drawn
or the implication made that when there are flaws in a judge's
deliberate and effective prosecution of his courtroom and case
management responsibilities, the burden always falls on the
poor defendant; and that to the extent that there are discovery
problems, it is abuse by plaintiffs against the defense bar.
And maybe Rhode Island is different than other places, but that
runs very contrary to my experience.
My experience has been that plaintiffs want to get to court
as fast as they possibly can. They want to get that case into
court. They all think that they are brilliant in front of a
jury or in front of a judge, and they want the moment when they
are arguing for their plaintiff in the courtroom.
On the other side, my experience of the defense bar has
been that their number one goal is to delay the trial, to
postpone it for as long as possible--the larger the defendant,
the bigger the blizzard of motion practice and stall filings
and efforts basically to burn up the plaintiff's money and
starve out the case before it ever gets to trial. And at that
point you end up with a plaintiff who has to go to their client
and say, ``I cannot do this any longer. I am all done. I am out
of the budget that I have for the case. We are going to have to
settle for a pittance. I cannot go through.''
Discovery is very often extended by defendants in order to
keep the blizzard rolling and hurt the plaintiff and prevent
them from getting their day in court. And the sort of blizzard
technique and the starve-the-plaintiff technique I think are so
well known that it is surprising to me that neither Mr. Pincus
nor any of our questioners have mentioned that there are
actually two sides to this equation.
I was in a case, as both a lawyer and--I was a counsel and
because I was Attorney General I was also the client--where a
very concerted defense opposition with essentially unlimited
money, I want to say that they listed 100 trial witnesses,
forcing us to go to I cannot remember how many States around
the country and interview all of the witnesses so we were not
caught cold when they were brought to trial. And then when the
great day came at trial, how many of the hundred witnesses were
actually called? Zero. Zero. The entire exercise was one in
trying to burn up the plaintiff's side of the aisle in order to
prevent this from happening.
Now, frankly, we were able to withstand that, but that is a
technique that is out there. And I think it is important that
this hearing reflect that it is at least as bad on the other
side, and maybe even worse.
The second thing that I think the record of the hearing
should reflect is that the jury in our country is not just a
place where you go to get a judgment. It is in our
Constitution. It is in our Constitution and Bill of Rights
three times. The Founding Fathers put it there for a reason. If
you go back and look at the record of the American Revolution
and the grievances leading up to it, the jury trial is front
and center with our Founding Fathers. Front and center. And if
you go back to Blackstone, he sees and writes about its
institutional value, its value in our community, its value in
our system of government, or in a system of government, because
he was preceding our system of government. De Tocqueville
writes about it. He writes about it, if I remember correctly,
in the chapter that says on limiting the excessive powers of
government, or on, you know, sticking up for the rights of the
people, and he calls it one of the forms of the sovereignty of
the people.
And I think it has that role. I think it is very important.
I think we can all see a situation in which, you know,
something has been done wrong to you, and you try to go--let us
use the State as an example so I am not personalizing this in
any way. You go to your State General Assembly, and the other
side, they have got lobbyists everywhere. You cannot touch
them. They have got that place locked down. The Governor is
their pal. You have got no shot. The newspaper is on their
side, so you cannot even get an honest story in the paper. You
are just getting slaughtered by all of the existing forces of
power. When you are in that circumstance, the Founding Fathers
had an idea about what your last stand could be, where your
last stand could be, and that was in a courtroom, where even
the most powerful and wealthy citizens stood equal before the
law.
Now, big and powerful and wealthy American corporations do
not want to stand equal before the law with menials like
regular Americans. They like the legislature where all their
money and all their lobbyists and all their power and all their
campaign contributions and the super PACs can all help grease
their skids. And ditto the executive branch. They can throw an
absolute armada of warfare against a regulatory body.
Stand them before a jury where they are equal with the
person that they have injured, where if they try to mess around
with the jury, that is called ``tampering.'' It is a crime.
They try to tamper with us all the time. It is their daily
occupation. And I think that is a context that is very
important for the civil jury. It is not just a place where two
people go and have a dispute resolved. It is a part of the
American system of government. It is a part of the sovereignty
of the people, and it is a check and balance on the more formal
part of government, and a check and balance on the more
powerful and wealthy citizens.
I am sorry I have gone over my time, but--well, not quite.
I have used all my time, let me put it that way. But I think it
is important. And when Professor Miller says we are at 97
percent of cases that get filed that never get to a jury, I
think that is a sad fact. I do not think that is a good fact. I
do not think we should push 97 to 98 to 99. I do not think it
is a perfect world when we do not have jury trials any longer
and everything gets fixed in the paper blizzard back and forth.
I think that having every American have the ability to
stand before a jury and be treated equally to whoever is on the
other side of them and have 12 Americans, or 6, or however many
it is, depending on the local rules, to sit in that jury box as
deciders, as a part of government, as people who are completely
independent, who cannot be lobbied, who are not professional,
they are just there to do a citizenship duty, I think that is a
thing of real value. And it gets overlooked all the time as we
talk about the efficiency of the courts.
And our Founding Fathers would be horrified to see this.
They fought, bled, and died from Valley Forge on, and they
thought about the jury as one of the things that they
protected. The founders of all our States put the jury into
their Constitution, and they fought hard for that, and they
meant it. And now here we are, 97 percent, 98 percent, all
gone. I do not think that is a good path, and I do not think
the Founding Fathers would approve.
Chairman Coons. Thank you, Senator Whitehouse.
Senator Franken.
Senator Franken. I apologize for not being here for your
testimony. I was down in the HELP hearing. I want to thank you,
Chairman Coons, for holding this hearing. I know that civil
procedure reform is extremely important. We can enact laws to
protect workers and consumers and to establish civil rights,
but those laws have limited effect if the procedures necessary
to enforce them are eroded. And that is exactly what we have
seen in recent years. We have seen changes that make it harder
and harder for ordinary folks to enforce their rights, to get
into court. Iqbal and Twombley made it harder to get into court
in the first place. Concepcion and Italian Colors elevated
arbitration agreements over access to courts, and Dukes and
Symczyk made it a lot harder for workers to band together as a
class. So that is the broader context within which I am looking
at the proposed rules. And my sense is that they could be just
one more obstacle that blocks access to justice.
Professor Miller, in your written testimony, you noted
that, ``The ability of a citizen to get a meaningful day in
federal court is now in question.'' How do the proposed rules
changes that we are considering today fit within that larger
context of eroding access to justice? In particular, what is at
stake here for workers and consumers?
Mr. Miller. Well, Senator, to me, these proposals represent
what I have been calling ``stop signs.'' They are sort of time-
outs. Let us fiddle around, let us make a motion, let us have a
fist fight about proportionality--which, by the way, came into
the federal rules in 1983. I am the unindicted co-conspirator.
I was the reporter at the time. But the notion of the
proportionality in the 1983 amendment is a far cry from the
notion of proportionality that is now being proposed, which
puts it on an equal plane with relevancy, making it harder to
get at discovery, more resource consumptive in getting to
discovery, more of a deterrent to initiate claims when you feel
you have merit and want your day in court.
Senator Whitehouse said something very interesting. He
perceived--and I happen to agree with him--that this business
of cost is the 800-pound gorilla in the discussion. But the
question of cost for a corporation is very different from the
question of cost for a worker or someone who believes his or
her civil rights have been violated.
Defense lawyers bill by the hour, and even with client
control, they have an incentive to mount the hours, increase
the blizzard of paper, delay the litigation, and let the
plaintiff fall, as I have said, from fatigue. Many plaintiffs'
lawyers in the public interest environment are not working on
the clock. They at most are on a contingent fee arrangement, or
they hope for a court-awarded fee if the rainbow ever produces
a pot of gold. They have no incentive to delay, to attrit, to
make motions.
So this question--I think Senator Sessions argued this in a
sense--that defenses are sort of compelled to settle lest they
run the risk of trial, which may produce truth, which may not
be to their liking. I think that the littering of the pretrial
process with stop signs and motion practices and detours
creates a situation in which the compulsion is on the plaintiff
to settle because he/she lacks resources, lacks the energy, and
cannot afford the risks. So what we are ending up with perhaps
is compelled settlements that are too low, not too high. They
are too low, given the possible merit in the case. That means
undercompensation. That also means underenforcement of statutes
that this Congress has passed and presumably meant to have
enforced, like the discrimination, pension, consumer,
environment, safety statutes that have characterized federal
substantive law since the 1950s. I view that as a major social
problem.
Senator Franken. Thank you.
President Ifill, first I want to thank you and the NAACP
for your leadership in securing and enforcing the Nation's
civil rights laws.
In the National Journal's recent profile of you, you are
quoted as saying that you were focused on debt collection abuse
and foreclosures and other ``practices that are blocking people
from being able to move into the middle class.''
How would the proposed rules changes affect the NAACP's
ability to stop those kinds of anti-consumer policies?
Ms. Ifill. Thank you very much. There is a reason why those
of us who represent plaintiffs in civil rights cases are called
``private attorneys general,'' and that is because the cases
that we litigate are cases in which we represent individuals,
but the issues that we raise on behalf of those individuals are
in the public interest. And so these are cases that seek not
just to vindicate the right of the individual, but because of
the nature of the rights and the claims that we raise, it is in
the interest of the public to know about the case, to have a
resolution for the case, to be involved in the case.
The reality is that no one, no defendant, certainly no
defendant I have ever brought suit against who has been charged
with discrimination has received a complaint and said, ``I give
in. Uncle''; or who has, even as we began the process of
discovery, said, ``You know what? This is going to cost me too
much. Never mind.''
No one wants to admit that they have engaged in
discriminatory conduct. The onus is on us to prove it. We
represent clients at no cost to the client. And so as has
already been alluded to, we actually have no interest in
slowing down the proceedings. We have no interest in the war of
attrition. Our interest is in moving the claim forward as
quickly and as expeditiously and efficiently and in the most
cost-effective way possible. And that is the interest of all of
us who play in this field.
And the question, I think, before you and the question that
goes, I think, to what you have raised, Senator Franken, is
when we look at this what has been called ``modest proposal''
to change discovery rules, where should our attention be
focused? Should it be focused on the small slice of cases in
which there may be judicial management problems that err on the
side of one party or another? Or should we be looking at that
class of cases for which the Rules of Procedure are elevated in
importance? Those cases in which the claimants, whether they
are civil rights plaintiffs, whether they are workers, whether
they are those who do not have the resources to litigate long
and hard, for those people, the only thing that equalizes them
in the process are the Rules of Procedure. That is what makes
them equal to the other side.
And so the ability to obtain the information, not to have
to now litigate another motion about proportionality, but to
obtain the information in order to prove their claim, a claim
that at least from our perspective most often will be fought,
lies in the discovery process and lies in our ability to move
the claim forward so that we can obtain the information that
will support our claim, particularly given the reality that
summary judgment is bearing down on us. We all know what we
have to do in that process of discovery.
And as I testified earlier, our experience is that judges
are actually quite active in managing that process, in managing
the process of discovery, in making sure that things move
quickly, in making sure that costs are contained.
And my concern is: Are we going to throw out the baby with
the bath water? Are we going to, because of a small slice of
cases--you will remember the Twombley decision was originally
supposed to just be about antitrust cases, and then Iqbal came
and it was about everything.
So are we going to take a small slice of cases and the
problems that may arise in those cases, and are we going to
impose a solution that will have the effect of essentially
cutting off claims? Because I really want to be clear, in the
civil rights context, if we do not have free access to the
information in discovery, it is the end of the claim. The
defendants hold the information. They have the information. If
you are raising a claim of intentional discrimination, which
often you have to prove through circumstantial evidence that is
within the power of the defendant, and you do not have access
to that information, your claim cannot go forward.
So for civil rights claimants, this is not modest. It is a
potential death knell for a whole variety of claims.
Senator Franken. Thank you.
Mr. Chairman, I have to go back to the HELP Committee. I
got a message from staff that you would indulge me another
question, but I am way over, so--well, I have got a question
that is brief, but might warrant a long answer. Do you want to
risk it?
[Laughter.]
Senator Franken. Senator Sessions says no, and I do not
want to push this. Okay. Well, Professor Miller, what is your
theory of justice--no.
[Laughter.]
Senator Franken. Okay. Professor Miller, the Federal
Arbitration Act and reform of it has been one of my top
priorities, and I think that the need for it has become clearer
since the Italian Colors decision last term. In a footnote in
your written testimony, you wrote, ``There has been an
extraordinary expansion of the Federal Arbitration Act, far
beyond its original scope, by the Supreme Court.''
Can you elaborate on that? In your view, what was the FAA's
original scope and purpose? And how has that changed given
cases like Italian Colors and Concepcion and others?
Mr. Miller. The 1925 Federal Arbitration Act was designed
to deal with inter-corporate disputes, two sophisticated
combatants going to arbitration rather than to the great
courthouse in the sky.
As you well know, the string of Supreme Court decisions
which end with Concepcion and Italian Colors has simply taken
that and expanded it to embrace every conceivable contractual
situation, even though we know that when you or I rent a cell
phone or do much of anything in society, we are now subjected
to adhesive arbitration provisions. And now the court says you
cannot deal with this in the aggregate, knowing that the
individual claim on a consumer fraud or a product defect or an
employment situation is economically unviable.
So, in effect, what we have had is to cushion shop. First
we move dispute resolution out of the courts to arbitration.
Then we say you can only arbitrate one by one, good-bye. Good-
bye.
Now, Senator Sessions earlier did make the point that yours
is a political body. I suggest that there is a role for this
political body in thinking about revising the 1925 statute. So
it says there are apples and there are oranges; there are
commercial contracts between sophisticated parties, and there
are adhesive contracts. And the two should not be subjected to
the same rules with regard to taking the right of the day in
court, the right of the trial, the right of the jury trial away
from citizens.
In addition, by the way, Senator, I think it is time for
Congress to consider removing the word ``general'' from the
Rules Enabling Act, because that word prevents the
establishment of special rules for this thin band of complex
cases that should be treated differently because of their
resource consumptiveness and that are completely contorting our
discussion about the 95 to 98 percent of the cases involving
civil rights, consumers, et cetera, et cetera.
It was a good idea in 1938, but transsubstantivity, which I
think is a word created at the Yale Law School, may have gotten
long in the tooth and one size does not fit all anymore. That
to me is another area that Congress should consider.
Senator Franken. Thank you, and sorry it took so long, but
``transsubstantivity''----
Mr. Miller. It is a Minnesota word.
Senator Franken [continuing]. Took a long part of that.
That was a long part of that. Thank you.
[Laughter.]
Chairman Coons. Thank you, Senator Franken.
As I said in my opening statement, there are essentially
four questions before us in this hearing today, and I will
close with a few questions around this basic theme.
First, what are these reforms designed to accomplish? What
are the problems or abuses alleged? And, second, how
effectively would they actually accomplish those changes? But,
third, are there collateral costs to our system of justice? And
if there are these collateral costs, how do we strike a fair
and appropriate balance?
If I might, Ms. Ifill, if restrictive procedural changes
reduce your ability to challenge civil rights violations, are
there other viable alternatives open to Americans seeking to
advance or protect their civil rights or any of the other range
of statutes? Are there other viable options if these changes
preclude access to the courthouse? And if the costs of
discovery, which are not allocated entirely on the producing
party, are a significant burden, can you just speak something,
as you have before, to the resource limitations that are
natural drivers that reduce an excessive discovery initiative
by those seeking redress of fundamental claims like civil
rights?
Ms. Ifill. Well, we simply do not have the kind of
resources to engage in delay of any litigation that we are
involved in. We do not take cases unless we believe we possess
the resources to litigate them adequately. But as I said, our
interests are always in keeping costs down and moving the
litigation forward. Therefore, there are certain kinds of
discovery that are particularly important to us. Discovery like
interrogatories and requests for admission, which are the
cheapest form of discovery--they are not the most surgically
efficient as depositions are, but they do provide us with
information at very low cost to us and, frankly, at very low
cost to the defendant as well, to give us information that
allows us to continue, you know, some of the digging ourselves.
We obviously use a lot of public records and other kinds of
materials that can support our claims and that do not cost
either side any money.
So anything that would limit our ability to use the
cheapest forms of discovery would be deeply problematic for
civil rights plaintiffs and for those who lack abundant
resources in the litigation of claims.
You know, what we have talked about today and what I think
we all agree on is that there are issues that involve judges
and their management of cases and their management of
discovery. And the question is: Where is the place, the
appropriate venue, the appropriate forum to begin to address
that issue? I think, Senator Coons, at the very beginning, you
talked about training issues and other means of ensuring that
judges are able to appropriately manage cases. I will tell you
that over the course of my career as a civil rights lawyer,
when I first began litigating cases, as I recall, in those days
discovery even was filed, and so people had the opportunity to
see, you know, deposition transcripts and so forth, and that
went by the wayside. But, you know, there are many things that
have emerged that at least in my view have made things better.
The assignment of magistrate judges and sometimes, Senator
Sessions, settlement magistrates to complex cases in certain
jurisdictions to begin to move that process along at a very
early stage, to get the parties talking with one another, to
figure out what are the essential pieces of information we need
to bring the case to a posture where we can even talk credibly
in an equal way about what a settlement might look like, those
are some of the changes that have already happened and that I
think actually are working.
So I think the place--if our concern is about judges and
their management of trials, I do not think this is the way to
encourage judges to do that, that judges need the training to
be able to do it, I think your point at the very outset about
judges being overworked, particularly as we have an increase in
federal crimes and you have the speedy trial requirement, civil
cases are crunched in that. And we do need to have our bench
filled with judges where they are necessary in order to manage
the workload so that they can appropriately manage cases.
So I think those are all the ways in which we can move that
process forward if that is the problem. And we should meet the
problem where it exists, not invade the federal rules in ways
that are going to deeply and, quite frankly, negatively affect
civil rights plaintiffs.
Chairman Coons. Thank you, Ms. Ifill.
If I might, I am going to suspend for a moment. Senator
Sessions wanted to make a brief statement before he departs.
Senator Sessions. Well, thank you, Mr. Chairman. You always
conduct fair and good hearings, and you are so thoughtful on
all the issues that come before us.
I think proportionality, as in this rule, does seem to
bring the judge in. Some judges are good, some magistrates, you
know, bring cases to expeditious, fair solutions early that are
just. But people can hold out. They can refuse to settle. So we
want to ask ourselves: Is this a dramatic change in the rules?
And if so, what is the impact of it? Ultimately we will be
called on to be counted on it.
Ms. Ifill, you have submitted testimony to the Committee,
which I salute you for, and others have that opportunity, and
they will evaluate all of those comments, I know, as they go
forward. And the pendulum is always--I think we always should
analyze it. People have a right to file a lawsuit against the
biggest corporation in America, as Senator Whitehouse said, and
hold them to account. But other systems have the ``loser pay.''
I think Senator Graham and some others favor ``loser pay''
legislation here. That would be a dramatic change in the
ability we have that when you win--if you sue and you lose
against a corporation, you cost them $10 million, you do not
have to pay anything unless it is abusive, deliberately
abusive.
So I do not know. I think we have a good legal system. I am
proud of it. I believe the court system is correctly analyzing
discovery. I hear a lot of complaints about it. I hope they
have wisdom in the course of it, and I look forward to further
discussions.
Thank you again. I have a budget issue with the Defense
Department, and I have to get to that.
Chairman Coons. Thank you, Senator Sessions, and I, too,
have a meeting of the Appropriations Committee, which has
already begun. But I just have a few more questions I really
want to get through, so with the forbearance of our witnesses,
if I might, Ms. Ifill, thank you for summarizing. There are
other ways other than these rule changes to manage the
significant costs of discovery on a small band of cases. And if
I hear you right, the potential impact on a wide range of
plaintiffs who are seeking redress and where access to a key
piece of information is for legitimate reasons going to be
difficult and unlikely and inobvious, these rules may have a
significant burden, and they do not have other good alternative
ways to seek justice.
If I might, Mr. Pincus, if the federal courts are
overburdened--and I certainly agree that many of them are. Our
previous hearing was about the significant number of judicial
vacancies and the Judicial Conference report on the need for
even more judgeships given the steady increase in caseload. To
what do you attribute the overload? And would you just briefly
reflect on whether you would support raising the amount of
controversy for diversity as a way of easing the burden on the
federal courts? Because a significant amount of cases, I
believe it is 75,000 today, so a significant number of cases
end up in federal courts that could just as easily be resolved
in State court.
Mr. Pincus. Well, just to take your last question first,
Mr. Chairman, I think the problem is that State courts are even
worse, frankly. I mean, whatever the burdens are of the federal
courts, especially in the most recent round of budget crises
that have sort of ricocheted across the country, the closings
of courts, especially trials courts, have been quite dramatic
in States like California--but all across the country. So I
think the problem is you are just putting the monkey on someone
else's back if you do that, and the litigants who have at least
an opportunity to get into court will really be thrown into a
very, very large pot. So I would be very worried about that
solution.
You know, I think that the courts are very crowded right
now. Obviously criminal cases take priority, and I think--and I
am sure you hear this from your constituents. The problem is,
because of the Speedy Trial Act, civil cases have to move to
the back when there are criminal case demands, and criminal
dockets are large. And so that dynamic really creates a problem
in the processing of civil litigation, and I think more
judgeships would certainly help with that and I think would
help judges to have the time for either them or magistrates to
get engaged in the process.
I wonder if I might make just one observation about the two
parts of the proposal that we have been talking about, just
talking first about the presumptive limits. I think the
Advisory Committee's goal in the presumptive limit numbers was
really to focus in on the cases that we are talking about, the
relatively small number of cases that consume the largest
resources. And, in fact, the numbers, for example, of
depositions were based on a study of sort of what is the
median, what is the routine of depositions in cases. And I
think they would be very interested in comments that say the
presumptive limits that are proposed for interrogatories and
requests for admissions are going to affect a wide range of
cases because I do not believe that is the intent. But I think
the intent is to really focus in on the cases--to have the wide
range of cases be within the presumption, and the cases that we
are worried about that really consume a lot of resources, so
the ones where you want to get the judge involved, and that is
where there is an effort to move past the presumption.
And I think just one anecdote is the initial thought on
deposition limits was 4 hours because there had been some very
good experience on that in the State courts, and there was
commentary before the Advisory Committee that that really was
not going to be enough for this sort of median federal case,
and so they went up to 6 hours. So I really think that is the
goal of that part of the process.
Chairman Coons. Thank you, Mr. Pincus.
Professor Miller, as the person not just before us today
but probably more broadly with the longest and deepest
experience with this process by which the Judicial Conference
reviews rules, as the person who was involved--I think you
described yourself as an ``unindicted co-conspirator'' in the
1983 addition of proportionality--should we have any concern
that the courts will, subsequent to an enactment or an adoption
of some revision to the rules, that they will interpret them
going forward even more restrictively than they appear on their
face? Several Senators have referenced the whole series of
decisions over the years since 1983 that have suggested more
and more hostility to class actions, to plaintiffs, to, as you
put it, a variety of stop signs being erected on the pathway
toward the courthouse. Should we have concern that these modest
proposals will subsequently become immodest, be interpreted and
applied in ways that are even more restrictive in the future?
Mr. Miller. Yes. It is the law of unintended consequences,
and we have seen it over the years. A modest revision to Rule
11 in 1983 produced a cottage industry of sanction motions. You
just cannot predict.
What I think you have to worry about in the context we find
ourselves in this morning is I am not the only one who has seen
the stop signs. You have seen the stop signs. And if you are a
United States district judge, you can read tea leaves. You can
see the sequential movement of disposition earlier and earlier
in the case. And I think what we run the risk of is analogous
to what I think is happening in the summary judgment and motion
to dismiss context, namely, everybody is making the motions,
and judges I think are moving closer and closer to pretrial
merit determinations based on fact finding or factual
conclusions, which is exactly what you are not supposed to do
on either a motion to dismiss or a summary judgment motion.
I think there is a mode or a force toward disposition that
is trenching upon the right to trial and the right to jury
trial, because judges are reaching conclusions earlier and
earlier and earlier based on less and less and less
information. And the fear I would have is that judges will read
this, ``I do not believe it is a modest proposal.'' I believe
when you bring proportionality up to a plane of equality with
relevance, you will find more and more judges making what are
really fact-dependent decisions at the threshold of the case as
to what is proportional and what is not proportional. I do not
understand how a judge, just after the pretrial motion to
dismiss, can decide what is proportional, what the needs of the
case are. So that is the risk I see that these signals will be
read as more than they are intended to be.
Chairman Coons. I share those concerns, and before I
welcome Senator Blumenthal, I just want to ask unanimous
consent to include statements from Chairman Leahy, from the
Alliance for Justice, and from Professor Paul Carrington of the
Duke Law School.
[The information referred to appears as a submission for
the record.]
Chairman Coons. If I might, Mr. Pincus said the cases we
are talking about, the cases I have been trying to have us talk
about here today, are not the small number of cases in which
discovery costs are, arguably, massive but those cases where
there is a demonstrable problem, and then the much wider, much
broader range of cases where changes to the rules may end up
denying any access to justice. Balancing those two, finding a
path that is appropriate, and ensuring that we do not deny
access to justice for those who are aggrieved and who are vital
and whose interests are central, and weighing that
appropriately really was my focus of concern for today.
Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman, and thank you
for having this hearing. Thank you all for being here on a
very, very important subject and one that really should have
the attention of many more of our members than perhaps is
evident today, and I hope it will. And I have been following a
lot of the testimony and have read your written testimony.
Let me ask you, Mr. Pincus, when I read your testimony,
what I expected to see was evidence that the costs of discovery
are generally astronomical. What I found was evidence that some
extremely large businesses, which presumably have a lot of
resources, have high costs for electronic discovery. So if the
problem is electronic discovery, why not go back to the drawing
board and develop reforms targeted just at electronic
discovery? For example, I see no reason to limit requests for
admissions in response to a problem with the cost of electronic
discovery, and the same goes for other proposals.
Mr. Pincus. Senator, I think there are two issues. I think
one is electronic discovery, and I think that is a principal
reason for the moving of the proportionality standard to a
place of more prominence, because I think that is the place
where that determination could be made, because as you say,
that is the place where the very large costs, this $1.8 million
median cost, can arise, and where there is an opportunity to
have some focus.
With respect to the presumptive limits on depositions,
interrogatories, and requests for admission, I think what the
Advisory Committee's thinking was there--and, frankly, the
record on which they based their decision--was an effort to
establish presumptive limits that would not apply, that would
not be reached in the wide range of cases, the cases that
Chairman Coons was talking about that do not present a huge
discovery morass, and to try to use those presumptive limits to
distinguish the cases, the wide range of cases from these fewer
cases that need more judicial attention and the request to
exceed the presumptive limits would be the device that would
get the judge involved in making that decision. And, in fact,
on the deposition limit, for example, they based their proposal
for five depositions on some research that the Federal Judicial
Center did on the sort of median deposition level and their
evidence, at least that they had, was that will not affect the
large number of cases.
Now, the comment process obviously might turn out to be the
fact that the information they had before them was wrong, in
which case my guess is they are going to look at the limits,
because as I mentioned earlier, I think before you came in,
their initial thought on the time limit for deposition was 4
hours. There had been some experience in the Arizona State
courts, and several other State courts have that presumptive
limit, and the experience was that in the federal courts in
Arizona, parties routinely agree to that because it worked well
for them. They had some commentary from the public saying, Gee,
for the sort of median federal case, that seems like it is
going to be a little short, and so they went to 6 hours on the
theory that that is really a full day.
So I think what the Committee is looking for in this
comment process that is underway is: Have we gotten those
presumptive limits right? Have we done something that will
leave the bulk of cases untouched but bring the judge in on the
cases that the judge should be brought in on? And I think that
is what the comment process is going to find out.
Senator Blumenthal. And let me ask you and perhaps the
other folks as well, you know, we have all these rules, we have
a lot of smart people looking at the rules. Do we have any
objective data, anything comprehensive about how much
discretion judges use in enforcing those rules, how much they
adhere to the rules, how much they make exceptions to the
rules, and to what degree the rules are actually effective and
fair in the way that they operate?
Mr. Pincus. I do not think we have empirical experience.
Unfortunately--and Professor Miller is much wiser on this
subject than I am--the entire justice system would benefit
greatly from a lot more empirical data because a lot of things
are talked about without really empirical data to make a
reasonable decision. I think this latest study on electronic
discovery course finally gives us some empirical data, but I
think we could use a lot more.
So I think the short answer is we do not know. We have
anecdotal information from lawyers. Two groups that I think
have been very focused on this--the American College of Trial
Lawyers and the Sedona Conference on Discovery--both of which
are made up of plaintiff side lawyers and defense side lawyers
who are frequently in trial situations, and both of those
groups have said we have a big problem here in terms of judges
using the discretion that they have in an effective way.
Senator Blumenthal. Would you agree, Professor Miller?
Mr. Miller. Mr. Pincus and I are old friends, so this is
almost a love feast between us. I agree with him. We have no
empiric data. None. The surveys that are run are generally
impressionistic or anecdotal. Fortunately, I think the system,
through the Federal Judicial Center and Sedona, is starting to
get very sophisticated about this.
My experience with district judges ranges from judges who
think that the rules are suggestive and read it like the
Constitution, and other judges who think it is Holy Scripture
and read it like the Tax Code. And the world of judging is
between those two goal posts on electronic discovery. It is so
frightening to everyone, but I think that fear is clouding our
thinking about it. There is every reason to believe--and some
district judges have already sort of drunk the Kool-Aid--that
there are technological solutions to electronic discovery--not
real solutions but ways to use artificial intelligence, highly
sophisticated programming and analytics really to bring the
cost of electronic discovery way down from what our sort of
first-generation experience with it is.
I was blessed when I became the reporter with the advice of
my Chair, Judge Walter Mansfield of the Second Circuit, and my
sainted senior co-author, Charles Alan Wright, both of whom--
and this was our view: Do not tinker. Do not tinker. This
reduction of interrogatories and discovery strikes me as sheer
tinkering. And do not make proposals until you have a
demonstrated need for one, and make sure it is the least
draconian of all the possibilities.
Ms. Ifill. Just very briefly, Senator Blumenthal.
Senator Blumenthal. Yes, thank you.
Ms. Ifill. I think your question actually is a really
important one, because I think it draws our attention to what
we are doing, what is at stake here. Without empirical data
demonstrating that there is a widespread problem that must be
addressed through the rules, we stand at the precipice of
changing the rules in a way that we know will have a particular
effect on those for whom the rules are the most important.
Those who lack the resources, who lack the power, who cannot
play the war of attrition, the rules are their equalizer. And
so every time we tinker with the rules, we are essentially
affecting those claimants. And if we are to do it, we should be
doing it on the basis of a demonstrated problem and on the
basis of a solution that we have figured out will actually
address the problem.
And instead, frankly, to my view as a civil rights lawyer
leading an organization of civil rights lawyers who litigate in
courts all over this country, you know, we basically get to be
the staging ground. We get to be kind of thrown under the bus.
We are basically thrown under the bus in favor of very dramatic
stories about the $1 million in discovery costs from one piece
of litigation or another. And those anecdotes are driving a
view about litigation--earlier this conversation about what it
means to go to trial, about what it means to face a jury, our
clients want their day in court. They do not enjoy bringing
these claims. For every claim we bring, there are thousands
that will never be brought. People have learned to take
discrimination on the chin. That is what they are taught. When
they decide to file a claim, it is because they believe they
must do it. And we are essentially taking the claims of those
individuals who, frankly, have the courage to engage the
system, and we are making it harder and harder for them to use
the means that we all want them to use, right? We all want them
to use the legal means to vindicate their claims. We want them
to play in the system. And yet we are increasingly changing and
transforming the system to make it a hostile territory for them
to have their claims heard and vindicated. And I think it is
important just by that question that you asked that we pause
and that we recognize what we are preparing to do and to whom
we are preparing to do it.
Senator Blumenthal. Thank you. I really appreciate those
comments from all of you. The lack of empirical data really
concerns me because any of us who have practiced law have war
stories and anecdotes and, you know, they can be used so
misleadingly for changes or to resist change. So I thank you
all for those comments.
Thank you, Mr. Chairman.
Chairman Coons. Thank you, Senator.
I would like to thank the witnesses on behalf of the
Subcommittee on Bankruptcy and the Courts for your testimony
today. As the Judicial Conference moves forward with their
proposed rules changes, I hope they will consider the lessons
of this hearing and ask themselves: What problems are we really
trying to solve? What empirical evidence is there that these
changes will actually solve those problems? And at the same
time, what are the collateral costs or potential harms? And are
there ways to achieve their stated goals while reducing or
eliminating those harms?
Professor Miller, you said in passing that some judges
apply the Tax Code as Holy Scripture. If it is the Tax Code and
not the Constitution that is applied as Holy Scripture, we are
in bigger trouble than I thought.
I am concerned that because the Rules Enabling Act gives
Congress the opportunity to review proposed rules even after
the Conference acts, some say that we still have a central role
here, but most often the legislative calendar means the
decision of the Conference may well be the final word. So I
believe it is critical the Conference be certain to consider
the interests of all Americans, and especially those who
critically depend on the courts being open to them to resolve
disputes on a level playing field, especially those disputes
that are at core enforcing constitutional protections and not a
place where needless barriers or stop signs are erected that
add expense while obscuring truth.
The record of this hearing will remain open for members who
wish to submit additional testimony, and this hearing is,
therefore, adjourned.
[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
A P P E N D I X
Additional Material Submitted for the Record
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Prepared Statement of Hon. Christopher A. Coons
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Prepared Statement of Hon. Patrick J. Leahy
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Prepared Statement of Hon. John Cornyn
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Prepared Statement of Arthur R. Miller
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Prepared Statement of Andrew Pincus
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Prepared Statement of Sherrilyn Ifill
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Questions submitted by Senator Flake for Andrew Pincus
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Responses of Andrew Pincus to questions submitted by Senator Flake
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Miscellaneous Submissions for the Record
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