[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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                       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

                              ----------                              

                    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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