Hu Hamilton's Comments in Opposition to the Proposed Changes to the Federal Rules of Civil Procedure

Hubert Hamilton recently posted (2/6/14) the following comment to concerning the proposed changes to the Federal Rules of Civil Procedure, particularly as to the dramatic limitations on the scope of discovery as well as shortening the time to complete service of process:

“These changes seem designed to tilt the playing in favor of defendants in personal injury cases. The proposed changes appear to ignore the fact that the plaintiff bears the burden of proof, and often starts a case at a substantial disadvantage, with little or no access to critical documents and records.

I have been a trial lawyer for over 37 years. While most of my cases are filed in various state courts, sometimes they are removed to Federal Court, and from time to time I do file suits in Federal Court. Plaintiffs bear the burden of proof so we generally need to send more written discovery, to seek production of more documents from the defendants than the defendants seek from the plaintiff, and we have to take more depositions. Imposing an arbitrarily low limit on written discovery and on the number of depositions only helps defendants.

In a case we recently settled four men were injured. The defendants had virtually all of the documents and records relevant to the cause of the fire. There were dozens of persons having knowledge of the cause of the fire, failure to warn and so forth. To find out what those persons knew and whether that knowledge was important was going to require us to take at least 10 to 15 discovery depositions, which is a typical number in such cases. Fortunately, the case was settled at mediation before proceeding with the first round of depositions. To identify all those persons, we had served more than 15 interrogatories, which were essential in determining who to depose. Arbitrarily limiting interrogatories to 15, and depositions to 5, would have severely handicapped us in the prosecution of the case.

Keep in mind that depositions are expensive and time consuming, so plaintiffs’ personal injury lawyers typically self-limit both the number and length of depositions. We work on a contingency fee and advance all the expenses. There is no need to impose arbitrarily low limits. The proposed limit of 5 depositions also ignores the fact that in a personal injury case the plaintiff often has to take the depositions of treating physicians for evidence at trial. So at least one, and perhaps more, of those 5 depositions could be taken up by deposing treating physicians for proof.

On a trucking case we recently filed, we requested a waiver of service under Rule 4(d). But, we are not sure the addresses provided on the police report are accurate. The defendants have a minimum of 30 days to return the waivers (Rule 4(d)(1)(F)). If they don’t return the waivers, or if the addresses turn out to be inaccurate, we would have less than 30 days to get service perfected under the proposed change to Rule 4(m). That would discourage us from using Rule 4(d). 60 days is way too short a period for perfecting service. Dismissing the case if service was not perfected in 60 days would just force a do-over, and impose additional burdens and expense on the plaintiff.

The proposed changes to Rule 26(b)(1) represent a fundamental shift away from the current standards for discovery and that shift will overwhelmingly favor defendants over plaintiffs in personal injury cases. Plaintiffs start at a disadvantage in litigation with trucking companies and other corporate defendants. Often we don’t know what we don’t know. We have to engage in the discovery process to discover relevant evidence. A critical piece of evidence can exist in the defendants’ records, but the plaintiff won’t know it until all the relevant records and documents are produced.

How can a court determine “the importance of the discovery in resolving the issue” (Factor 4) without knowing what is in the records and documents? The plaintiff cannot effectively argue that unproduced records and documents are important without knowing what they are. And the proposed rule change could actually open up new areas for discovery. Are the plaintiff and the court just supposed to take the defendant’s word about its “resources” (Factor 3)? Shouldn’t the plaintiff be able to conduct further discovery to test the defendant’s assertion that its resources are limited and it can’t afford to comply with the proposed discovery?

Certainly there are very complex document intensive cases where proportionality needs to be given consideration, and appropriate limits placed on the scope of discovery, considering the factors listed in the proposed rule change. But it would be much better to retain the traditional relevancy standard for discovery, while providing defendants some mechanism upon good cause shown in appropriate cases, to invoke a review by the court based on a proportionality standard. The proposed changes to Rule 26 will invite abuse and encourage delay, and just give defendants more excuses to avoid producing important documents and records.

I strongly oppose the changes to the discovery rules, particularly to Rules 26, 30, 31 33 and 36, as well as shortening time to perfect service under Rule 4.”