The Editorial Board has previously addressed the question of civil litigation reform and the need to preserve access to the court for all litigants. To have truly open courts, all litigants must have their cases heard on the merits, regardless of the size of their case or their financial ability to afford a protracted legal battle.
Recent changes to the civil discovery rules proposed by the Federal Rules Committee are one possible approach to reduce the burden on certain types of litigants. These changes, which reduce the number of available interrogatories and depositions, have also been criticized for preventing plaintiffs in complex cases from obtaining information necessary to sustain their burden of proof. It appears, therefore, that reducing available discovery is a double-edged sword. It may help certain litigants achieve a less costly and faster resolution of a claim, while it may hinder others from fully pursuing their claims.
One solution is to increase the tiered nature of civil discovery procedure to account for these differences. Certain lower-stakes cases can be fast-tracked, while higher-stakes cases can retain traditional discovery procedures.
By way of background, the Federal Rules Committee has proposed several changes to federal procedure designed to streamline discovery. First, each party would be limited to 15 interrogatories and five fact depositions of six hours each. The rules changes would also create sanctions for e-discovery violations and emphasizes “proportionality” as a virtue of discovery in general.
For example, an amendment to Rule 26(b) would restrict the scope of discovery to information that is “proportional to the needs of the case.” The proposed changes have generated a lot of debate about the purpose of discovery, and who is harmed by discovery limitations. Generally, the plaintiffs’ bar has been opposed to the changes under the theory that discovery limitations will enable defendants to withhold important evidence.
A recent statement by the American Association for Justice did not mince words, finding that the changes would “dramatically alter our legal system, making it much more difficult to hold corporations that injure and kill Americans accountable in court.” Defenders of the changes point to the unfair burden that certain discovery obligations can cause defendants in the digital age when the amount of retained information (like e-mail for example) is expanding exponentially.
A potential middle ground in the debate would involve carving out a tiered civil justice system depending on the amount in controversy. Tiers exist currently, such as the amount in controversy limitations at the federal level and small claims jurisdiction at the state level. But these are blunt tools that could be made more precise. A tiered civil justice system would also create room for more flexibility in other procedural matters such as individual voir dire and single-judge assignment.
Another benefit of a tiered approach is that a lower tier can serve as an incubator for civil procedure reforms that may turn out to work well in the upper tier. One problem with the proposed changes to the federal rules is that they will take effect all at once and will apply instantly to every type of case. If the critics of the proposed changes are correct, the effects could wreak havoc with a large number of important claims. It seems unwise to make such sudden wholesale changes to the best civil justice system in the world without testing them on a smaller scale.
In the end, the goal of the civil justice system should be to have the merits of the case decided with the least amount of delay and administrative burden to the parties. Streamlining should not be accomplished, however, by sacrificing the quality of the ultimate decision.