Many more Americans could lose the chance to stand up for their rights in court

UPDATE, FEB. 18, 2014:

• Read the letter from 171 law professors opposing the proposed changes

• Read the comprehensive statement in opposition referenced in the law professors’ letter

By Michelle D. Schwartz
AFJ Director of Justice Programs

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Michelle Schwartz

Even in Washington, conversations at parties rarely begin with “Have you heard about what they might do to Rule 26(b) of the Rules of Civil Procedure?!” But changes to this rule or others can make a huge difference in the lives of millions of Americans. Unfortunately, the changes now under consideration by a committee of the Judicial Conference, whose members are appointed by the Chief Justice of the United States, would make it even harder for Americans to stand up for their rights in court.

On Tuesday, discussion of these proposed changes made their way to the Senate which has oversight over the federal rules in a hearing called by Senator Christopher D. Coons, D-Del.  Later today I will be testifying at a public hearing of the Advisory Committee on Rules of Civil Procedure, the body which proposed the rules and which will decide whether and how to proceed with any final rules.

The changes would be harmful in and of themselves. But they are even worse when seen in context. They add still more barriers to the many created in recent years that are eroding everyday Americans’ access to justice.

● The Supreme Court has made it harder to get into court at all. In a series of decisions the Court has upheld forced arbitration.  Consumers are forced to make their case to an arbitrator hired by the very company that wronged them. It’s like walking out on the field to play baseball and discovering that the other team hired – and paid for – the umpires. No wonder one study found that arbitrators rule for big business 93.8 percent of the time.

● Even if individuals can get in the courthouse door, it’s harder for them to band together to stand up for their rights. When millions of people are cheated out of relatively small amounts per person, each can’t afford to go through a cumbersome legal process to get her or his money back. Similarly, when thousands of people face racial or sex discrimination by a big corporation it’s extremely difficult to fight the company one-by-one. But the Supreme Court has imposed stringent new limits on class action suits.

● If individuals get past these barriers they also have to overcome increased barriers to allowing a case to get to trial. Again, because of Supreme Court decisions, those trying to take on a large corporation must meet a higher standard of evidence early on—often before it’s possible to gather the evidence.

And now, new proposed stumbling blocks

For those victims who are able to avoid forced arbitration, survive the gauntlet of onerous class action restrictions and overcome heightened pleading standards—the proposed changes to the Rules of Civil Procedure threaten to add a whole series of new stumbling blocks.

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.

If enacted, these changes will have a profound chilling effect on whether everyday Americans can even try to take on powerful corporate interests—because it is not economically practical to pursue a case that is likely to be dismissed.

• Read Michelle Schwartz’s testimony
• Read AFJ’s formal comments on the proposed changes 

Published Nov. 7, 2013

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