May 23, 2017

Amendment of Rule 26 – Captain Andy Vickery’s Thoughts

The judicial committee has proposed an amendment to Rule 26, Fed.R.Civ.P.    If passed, the scope of discovery will no longer be information that is relevant, or likely to lead to relevant evidence.  Instead, there will be a new barometer.   The judge can weigh in and decide whether the information sought, by either side, is “proportional to the needs” of the case.   Here is the comment that I posted on the Committee website regarding that proposed amendment:

I am a 40 year member of the Bar and former law clerk to the Chief Judge of the Fifth Circuit.  I am also a plaintiff’s trial lawyer and a member of the staff of Trial Lawyers College.  Most of my career has been spent in federal court.    Unlike most of my colleagues in the plaintiff’s bar, I do not view the “proportional to the needs of the case” standard being implemented in Rule 26 as necessarily draconian.   In this, as in most civil justice matters, it depends on the judgment and discretion of the trial judge.  And, if the judges use it to circumscribe the defense as much as the plaintiff, it could be a boon.

Plaintiffs lawyers seem to think this change in scope will limit their ability to develop a case.   In the hands of some federal judges, it undoubtedly will.  Without question, this rules change will result in enormous litigation fights over the scope of discovery.  On the other hand, I do welcome limiting the defense to five depositions for most cases.   That is where we have seen the greatest abuse and cost.   I just hope, when the pigeons come home to roost on that, that the corporate counsel who are advocating so stringently for these rules changes will realize that they are getting what they ask for.

Our Jury trial system is in jeopardy.   If Washington and Adams and Jefferson could see the system today, they would shudder.   As a member of ABOTA and believer in the Bill of Rights, I decry that.   But the jeopardy comes more from Twiqbal* and Daubert than the proposed modification of Rule 26.   The Supreme Court has given us those edicts, and, IF it truly values the Seventh Amendment, it needs to change both, either via a rules change or decision.   But that, perhaps, is a different rant for a different day.  . . .   On the other hand, perhaps not.

The bottom line of this decisional law, and of the current rules changes, is that we are removing justice from the hands of the citizens, and entrusting it, even more than before, to life tenured federal judges.  Sometimes, when they are fair minded, that is a good thing.

But, if you happen to draw a tyrant in a black robe, beware.   Your case can be tossed on 12(b)(6) because the JUDGE thinks it is not “plausible.”    Or your client can never see a day in Court because the JUDGE exercised his/her discretion to exclude your expert.  Or, the JUDGE can grant summary judgment — which was first sanctioned by the Supreme Court to avoid “frivolous defenses” [1] — and oust you before you even get started.   And now, with the amendment to Rule 26, you can be deprived of critical discovery because the JUDGE doesn’t consider the information you have requested to be “proportional to the needs” of your case.

The fundamental question we need to ask is “do we believe in the Seventh Amendment or not?”  If we think the Founding Fathers were right, and if we TRUST that precious commodity we all call “justice” to our fellow citizens, then we as lawyers and judges need to start acting like it.   If we don’t, there will be hell to pay!

Andy Vickery, Houston, Texas

* Isn’t it appalling that Rule 84 is being “abrogated”?    It is a travesty wreaked by Twiqbal.   In truth, in the wake of those two decisions, Rule 8 should have been amended to eliminate the “short plain statement” standard.   That rule is now a farce from bygone days.   Justice is being delayed, and sometimes denied, because defendants now deem the 12(b)(6) motion that used to be so rarely used, as sine qua non.  With the amendment of Rule 26, the defense playbook will change to (1) file motion to dismiss, then (2) fight discovery with motions focusing on what discovery is reasonably “proportional”, and then (3) file Daubert or MSJ motions to avoid trial.   If the Committee wants every federal judge in every case to have to deal with this three tiered layer of motion practice, then it should follow through with the amendments.   Certainly these developments bode well for those who bill by the hour.



[1]   Fidelity & Deposit Company of Maryland. v. United States, 187 U.S. 315, 319-20 (1902).

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