By Wendy Musell
It is often said that “sunlight is the best disinfectant,” but even the sun needs a little help at times. Major changes to the Federal Rules of Civil Procedure that would have made it much harder for consumers and employees to vindicate their rights were on track for approval by a rules subcommittee by April 10, 2014
The proposed changes would strip the tools that attorneys for employees, consumers and environmental advocates use to gain access to documents, depositions and admissions of their adversaries. The new limits on discovery would make it more difficult, if not impossible, for plaintiffs’ lawyers to find the smoking gun document, the lone employee who will tell the truth about the reason for a firing, about why faulty ignition switches were installed, or about what chemicals made their way into the drinking water after a toxic spill.
The changes were not the result of a proverbial back door deal – an agreement reached over hazy cigar smoke or an exchange of manila envelopes containing wads of cash. No. The proposed changes were presented right out in the open and subject to a six month public comment period.
Advocates for workers and consumers across the country became alarmed when the word got out that the number of people who could be deposed would be slashed from 10 to 5, that written questions under oath would be reduced from 25 to 15, and that other means of obtaining evidence of wrongdoing were reduced. Many stepped forward to voice opposition to the changes.
The California Employment Lawyers Association, National Employment Lawyers Association, Alliance for Justice, Public Justice, NAACP, Mexican American Legal Defense Fund, AARP, National Association of Consumer Advocates, American Association of Justice, Equal Justice Center, American Diabetes Association, Disability Rights Education and Defense Fund, ACLU, Impact Fund, and many other public interest organizations gave public testimony in support of keeping discovery robust and giving “the little guy” a fair shot at obtaining redress for wrongdoing.
In addition, law professors and traditional bar organizations, including the American Bar Association, Texas Trial Lawyers Association, Los Angeles County Bar Association, Utah Association of Justice, and Tennessee Association of Justice, joined the chorus of civil rights, environmental and consumer rights organizations describing how these changes could impact the balance of justice in federal court, tipping the trough of justice for defendants representing corporate interests. Arthur Miller, a venerated law professor from NYU, gave an impassioned speech before the Congressional committee considering the proposed changes.
The public outpouring of criticism from around the country made a difference. In the face of tremendous opposition, the Advisory Committee on
Civil Rules recommended against adopting the limitations on depositions, interrogatories and admissions proposed.
The public comment period ended February 15, 2014. Now the matter will go before the Committee on Rules of Practice and Procedure, empowered by Congress to hold a two-day meeting in May. That meeting will be “open to public observation but not participation.”
While it remains to be seen if the “sunlight” of observation is as powerful as the “sunlight” of participation, one thing is clear – active involvement is the key to retaining civil rights. Without the concerted pressure of public interest organizations, and the volunteer work of many people passionate about preserving the rights of individuals to find justice in the federal courts, odds are that the changes would have sailed through leaving the “little guy” unprotected — just as if the backroom “fix” really had been in.