Friday, November 8, 2013

So Now They Are Changing Rule 26 Again?



I must be totally out of the loop because this is the first time I am hearing of substantial amendments to the Rule 26 discovery process, which was the subject of a Senate Judiciary Committee hearing yesterday (you can watch video of the hearing here).

I haven't seen the text of the proposed changes, but the Alliance for Justice's Michelle Schwartz grades them pretty poorly:
The proposed change to Rule 26(b). This might best be called the Catch-22 rule. It involves “discovery” —when plaintiffs demand documents and other information from those they sue. Employees alleging sex discrimination, for example, might demand detailed information on salaries for male and female employees doing comparable work. The new rule would require plaintiffs to provide far more evidence that discovery requests are necessary—but, of course, that evidence often is in the documents the plaintiffs are trying to discover. The new rule also would upset decades of precedent and invite disputes over the meaning of the new language.

The proposed change to Rules 30, 31, and 33. Like the proposed change to Rule 26(b), these changes involve the information plaintiffs can obtain before trial. The changes would limit the number of depositions—statements one side gets from the other, which are given under oath—as well as the time spent in the depositions themselves—affecting how much information may be gathered under oath—along with interrogatories—written questions one side submits to the other.
Remember, the Supreme Court already has said plaintiffs must provide more evidence to avoid having their case thrown out in the early stages. But often, when plaintiffs go up against powerful corporate interests, much of that evidence is in the hand of the wrongdoer. These rules will make it much harder to obtain that evidence.

The proposed change to Rule 36. In many civil suits the parties ask each other to agree on certain basic facts, saving time and expense as the litigation proceeds. For example, in a suit over wrongful firing, one side might ask the other to agree that the firing took place on a specific date. The proposed change would limit the number of such request—meaning plaintiffs would have to allocate limited resources during trial to establishing facts that could have been agreed upon before trial.
Has anyone else heard about these amendments (I assume others have a different take)?


3 comments:

Anonymous said...

Hey SFL no love for Robin R. Moving to the ATL?

South Florida Lawyers said...

DOM covered it. I'm thrilled.

Charles Dickens said...

You people don't understand what discovery is for. Discovery is a creature of Equity. The purpose of the legal system it to give to monied might the means abundantly of wearying out the right. The system, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give--who does not often give--the warning, "Suffer any wrong that can be done you rather than come here!"