Do Proposed Federal Rules Change Narrow Scope of Discovery?

, Texas Lawyer

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With Valentine's Day fast approaching, hearts and flowers aren't the only things on lawyers' minds. Feb. 15 is the deadline to comment on proposed changes to the Federal Rules of Civil Procedure, which could significantly change discovery practice.

Proposed changes to Rule 26 "will narrow the window plaintiffs have to get justice," said Michael O'Keefe Cowles, who testified at a Feb. 7 hearing at a Dallas-Fort Worth Airport hotel. It was one of three hearings nationwide for public input on the proposed changes. Cowles is an attorney for the nonprofit Equal Justice Center in Dallas, which is working with a coalition of plaintiff lawyers to prevent the committee from finalizing those changes to Rule 26.

Cowles may have an ally from the other side of the docket. V. Elizabeth "Junie" Ledbetter, the president of the Texas Association of Defense Counsel, and of counsel to Jay Old & Associates in Beaumont, wrote in an email that though she agrees in principle with the committee's proposed changes, "To the extent that proportionality could be used to unreasonably restrict discovery and thus restrict a litigant's access to justice, TADC would harbor reservations."

Rule 26 lets parties obtain discovery regarding any nonprivileged matter relevant to a party's claim. The proposed additional language requires such discovery to be "proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit."

Cowles said he told the committee member at the hearing that the proposed changes to Rule 26 use a hammer to solve any alleged discovery abuses rather than surgically removing problems in the existing federal civil rules and procedures.

Cowles noted that not everyone at the hearing agreed with him. Rebecca Kourlis, the executive director of the Institute for Advancement of the American Legal System at the University of Denver, spoke before him and supported the changes to Rule 26, Cowles said.

Kourlis, a former justice of the Colorado Supreme Court, said in an interview that the proposed Rule 26 will give judges appropriate discretion to prevent overproduction and excessive demands during the discovery process.

She said she believes the reaction against the proposed Rule 26 reflects "[a]ttorneys across the country worrying about worst-case scenarios because this is our nature."

That said, she agreed one clause in the proposed Rule 26, "considering the amount in controversy," could be cut or de-emphasized. It suggests that small-dollar cases don't deserve as much discovery time and effort, she said. But one person's small-dollar case represents another's life savings.

She said the committee needs to decide "whether they want judges managing down (rules that sweep broadly, for big cases) or managing up (rules designed for mid-sized cases). IAALS supports the current proposals, and suggests that managing up—with good judicial involvement—is a much better solution for the majority of cases."

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