Comment from Helen Hershkoff, New York University School of Law; Adam N. Steinman, Seton Hall University School of Law; Lonny Hoffman, University of Houston Law Center; Elizabeth M. Schneider, Brooklyn Law School; Alexander A. Reinert, Benjamin N. Cardozo School of Law; and David L. Shapiro, Harvard Law School

This is a Comment on the United States Courts (USC) Proposed Rule: Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure

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These comments are submitted jointly by Professors Helen Hershkoff, Lonny Hoffman, Alexander A. Reinert, Elizabeth M. Schneider, David L. Shapiro, and Adam N. Steinman. Our complete comments are attached. A summary follows:

We write to urge this Committee to reject the proposed amendments that redefine the scope of discovery, lower presumptive limits on discovery devices, and eliminate Rule 84 and the pleading forms. The undersigned are law professors who teach and write in the area of federal civil procedure. Each of us also litigated in the federal courts prior to entering the academy, and remain actively involved in professional practice.

In our judgment, two key issues bear close consideration by the Committee as it considers how to proceed: (1) What problem does the Committee seek to solve? (2) On balance, how likely is it that the proposed amendments will improve the status quo? As in 1993 and 2000, the Committee is focused on addressing a perceived problem of excessive discovery costs. In supporting the current proposed amendments, the Committee recognizes that empirical data show no widespread problem, but nevertheless hopes that new across-the-board limits on discovery will lessen discovery costs in the small number of complex, contentious, high stakes cases where costs are high. The Committee is correct about the data: most critically, the Federal Judicial Center’s (“FJC”) 2009 closed-case study shows that in almost all cases discovery costs are modest and proportionate to stakes. As in 1993 and in 2000, evidence of system-wide, cost-multiplying abuse does not exist, and the proposed amendments are not designed to address the small subset of problematic cases that appear to be driving the Rule changes. We anticipate that, as with past Rule changes, untargeted amendments will fail to eliminate complaints about the small segment of high-cost litigation that elicits headlines about litigation gone wild; instead they will create unnecessary barriers to relief in meritorious cases, waste judicial resources, and drive up the cost of civil justice. The amendments are unnecessary, unwarranted, and counterproductive.

In our view, those who support major change to the Federal Rules are responsible for demonstrating that proposed amendments will, on balance, make the overall system fairer and more efficient. Perceptively, Judge Lee Rosenthal has noted that “[s]ince their inception in 1938, the rules of discovery have been revised with what some view as distressing frequency. And yet the rulemakers continue to hear that the rules are inadequate to control discovery costs and burdens.” Even assuming that a small subset of cases presents a problem that should be solved, the proposed amendments will do little, if anything, to decrease costs in these cases.

Our concern is not just that the proposed amendments will be ineffectual. Our greater worry is that they will increase costs to litigants and the court system in those average cases that operate smoothly under the current rules. In our view, the amendments are likely to spawn confusion and create incentives for wasteful discovery disputes. Even more troubling, by increasing costs and decreasing information flow, the proposed amendments are likely to undermine meaningful access to the courts and to impede enforcement of federal- and state-recognized substantive rights.



Joint Comments submitted to Rules Committee Final

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Comment Period Closed
Feb 15 2014, at 11:59 PM ET
ID: USC-RULES-CV-2013-0002-0622
Tracking Number: 1jy-8aa0-7kxb

Document Information

Date Posted: Feb 7, 2014
RIN: Not Assigned
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Submitter Information

Submitter Name: Alexander Reinert
Organization Name: NA