Fewer depositions, reduced number of interrogatories, less requests for admissions and a proportionality requirement in discovery. This could be the new face of discovery under proposed rule changes to the Federal Rules of Civil Procedure. In addition to the judicially-crafted substantive barriers to success, the inherent disadvantages as a plaintiff, and the lack of professional diversity in the judiciary, proposed changes to the Federal Rules of Civil Procedure approved by the Advisory Committee on Civil Rules in April appear to ensure an even greater employer success rate in the federal courts.
The proposed rule changes would cut the number of depositions in half from 10 to five and reduce the maximum deposition time from seven hours to six. In employment cases, this is of great advantage to the defendant. The critical witnesses in an employment case most often remain employed by the defendant; thus, the only feasible way to try to get good information from them prior to trial is through a deposition. In the vast majority of employment cases, there are more than five witnesses identified in the employer’s initial disclosures alone, not to mention the inevitable corporate designee pursuant to Rule 30(b)(6). By reducing the number of depositions, plaintiffs are without adequate means of preparing for trial or summary judgment and the proverbial ball is put squarely in the employer’s court. The U.S. Court of Appeals for the Second Circuit has stressed in Gray v. Board of Higher Education, City of New York, 692 F.2d 901, 905-06 (2d Cir. 1983), that "if unable to engage in discovery, [plaintiff] cannot prove intent, and without proof of intent, he has no case."
