Fighting for a fair shot at justice — score one for “the little guy”?

Fighting for a fair shot at justice -- score one for

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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

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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.

Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

I Heart Kozinski

I Heart Kozinski

Justice Alex Kozinski

By Wendy Musell

It’s not every day that I profess my adoration for a public official so, well, publically. Especially not for a sitting Ninth Circuit Court of Appeals Judge who is often called conservative.

But I heart Kozinski.

It’s not because of his reportedly big personality, his colorful turn of a phrase, or his willingness to take on controversial topics. I must confess; I often disagree with his politics and his findings.

It’s that he gets it.

At least he gets it when it comes to the critical importance of vigorous discovery in civil cases to plaintiffs . . . now that he’s involved in a consumer class action suit against Nissan Motors.

What made this otherwise conservative judge see the light? It turns out that Judge Kozinski is unhappy with his attorney’s failure to delve into Nissan’s alleged illegal behavior before entering in what Judge Kozinski suggests is a “sweetheart” settlement deal in Klee, et al. v. Nissan North America, Inc., a class action on behalf of Nissan Leaf car owners for warranty and alleged battery defects. He was so enraged with his attorney’s failure to delve into the knowledge of Nissan regarding these alleged defects before selling the vehicles to consumers that he filed a pleading asking the Judge to deny court approval to the proposed settlement. In his thirty page opposition, he (and his wife) passionately made the case that “extensive” and “vigorous” discovery is needed to demonstrate liability of corporate defendants.

After deriding his high-powered attorneys for failing to obtain evidence that would be necessary to prove liability at trial (learn what is the asbestos attorney strategy), such as internal memos, emails, incident reports and prior complaints, Judge Kozinski wrote: “it’s the job of the lawyers suing to find out everything the company knows and hopes to conceal.”

Judge Kozinski took the words right out of my mouth.

His observation pinpoints the controversy over changes to federal rules now being proposed that would limit discovery in all civil cases, including those involving consumer, employment and civil rights claims, filed in federal courtroom across the country. The proposed changes to the federal rules that govern discovery would cut the number of depositions allowed by half (from 10 to 5) and limit them to six hours each. Documents requests are slashed imposing a limit of only to 25 requests; interrogatory requests from 25 to a paltry 15 and admissions having new numeric restrictions of only 25.

The proposed changes, recently submitted by the Judicial Conference of the United States to Congress are now open for public comment. Public hearings, which have already begun, are being held in Phoenix, Arizona on January 9, 2014 and Dallas, Texas

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on February 7, 2014. Public comments received from civil rights, consumer rights, and environmental champions argue that the rules will effectively do away with the discovery needed to enforce laws for the protection of all citizens.

On the other side, comments received from representatives of big corporate interests complain that the cost of discovery is too high, requiring a “trim” of discovery for all cases in federal court.

If these proposed changes to the federal rules of civil procedure take effect, Americans who bring consumer, employment or civil rights claims against large corporate entities will feel Judge Kozinski’s pain. An employee who was wrongfully fired for, say whistleblowing, won’t get to find out very much and certainly not what the company hopes to conceal. Instead, it is far more likely that companies who are intent on doing bad things and firing employees who bring unlawful practices to light will play possum until the meager discovery afforded under the proposed changes are all used up in a game of “gotcha.”

Judge Kozinski’s experience as a class member in a consumer rights case has led him to provide a vivid example of how paramount discovery is to prosecuting cases that that are brought under federal laws enacted to protect the public from false claims or faulty products. Judge Kozinski’s experience demonstrates how important this yawn-inducing technical “fix” to the discovery rules is to the general public. People and their elected representatives should be paying attention too.

[To learn more about how the proposed changes to the Federal Rules of Civil Procedure would harm civil right cases, read Wendy Musell’s earlier blog post, Gaming the system: If you can’t beat em, change the rules.]

 

Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

Gaming the system: If you can’t beat ‘em, change the rules 2

Gaming the system: If you can’t beat ‘em, change the rules

By Wendy Musell

A basic premise in our American justice system is that everyone should have to play by the same rule book, and the rules should not be rigged so that one side wins. These basic rules of fairness are being put to the test by the proposed changes to the federal rules of civil procedure.

The federal rules of civil procedure — just the name sounds boring and designed to put you to sleep. But while you’re dozing, there is a plan afoot — driven by attorneys representing employer interests — to change the rules in every federal courtroom across the country to limit access to evidence necessary to prove up violations of your civil rights. How? By drastically limiting discovery — the process by which civil litigants can get access to the other sides’ evidence, documents and witnesses.

Employment, civil rights and consumer cases, unlike contests between large business interests, are fights—where one side has more money, more time to kill, and often controls the evidence, documents and witnesses. Witnesses in employment civil rights cases are most often the supervisors who perpetrated the unlawful conduct, human resources who may not have addressed the complaints adequately and current employees who may fear that telling the truth will result in standing on the unemployment line.

To win an employment civil rights case, the employee-side lawyer

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needs to ask a lot of questions of multiple witnesses to find out who did what, who will admit to seeing the unlawful actions, and where the documents are located. It is also necessary to find out if different and changing reasons are given for the employment actions to show the jury that the employer’s actions were based on an unlawful reason, and not a legitimate non-discriminatory reason that the employer professes.

Take for example, a woman fired after she refuses the sexual overtures of her boss on the basis that her work was not competent. If there are only five depositions allowed, the victim of sexual harassment may not be able to get to the bottom of why she was fired, demonstrate her work was competent, or be able to demonstrate that she was fired because she would not give in to her boss and not based upon the quality of her work.

The employer can hide the ball until all five depositions are used up in a game of “gotcha.”After all, employees are often prohibited from taking emails and documents, no matter how important the document is to proving the employer violated the law. And they are shut out from their former employer’s computer system after they no longer work for the company, One of the only ways for a person whose civil rights were violated by their former employer to prove their case is by asking for the evidence about what happened, a process that is governed by the rules of civil procedure.

The proposed new rules slash in half the number of permissible depositions, limit the number of document requests, and limit how many written questions can be asked. These changes are akin to telling David, go ahead and fight Goliath, but we will tie one hand behind your back and only give you only half a slingshot.

The only way to ensure there is any place for employees to seek redress for violations of their civil rights , is to allow adequate access to evidence. Otherwise, we might as well be honest to American workers and tell them the rules have changed. And the number one rule is — you lose.

Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

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