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S. HRG. 113–359 

CHANGING THE RULES: WILL LIMITING THE 

SCOPE OF CIVIL DISCOVERY DIMINISH ACCOUNTABILITY AND LEAVE AMERICANS WITHOUT ACCESS TO JUSTICE? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON BANKRUPTCY 

AND THE COURTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 5, 2013 

Serial No. J–113–33 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

DAVID YOUNG, Republican Chief of Staff 

SUBCOMMITTEE ON BANKRUPTCY AND THE COURTS

CHRISTOPHER A. COONS, Delaware, Chairman 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama, Ranking Member 

CHUCK GRASSLEY, Iowa 

JEFF FLAKE, Arizona 

TED CRUZ, Texas 

TED SCHROEDER, Democratic Chief Counsel/Staff Director 

DANIELLE CUTRONA, Republican Chief of Staff 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coons, Hon. Christopher A., a U.S. Senator from the State of Delaware ........... 1 

prepared statement .......................................................................................... 34 

Flake, Hon. Jeff, a U.S. Senator from the State of Arizona ................................. 4 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 6 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 38 

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 39 

WITNESSES 

Witness List ............................................................................................................. 33 

Miller, Arthur R., Professor, New York University School of Law, New York, 

New York .............................................................................................................. 7 

prepared statement .......................................................................................... 41 

Pincus, Andrew, Partner, Mayer Brown LLP, Washington, DC .......................... 9 

prepared statement .......................................................................................... 49 

Ifill, Sherrilyn, President and Director-Counsel, NAACP Legal Defense and 

Educational Fund, Inc., New York, New York .................................................. 11 

prepared statement .......................................................................................... 68 

QUESTIONS 

Questions submitted by Senator Flake for Andrew Pincus ................................. 79 

QUESTIONS AND ANSWERS 

Responses of Andrew Pincus to questions submitted by Senator Flake ............. 80 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Alliance for Justice, Washington, DC, statement ................................................. 88 

Carrington, Paul D., Professor of Law, Duke University, statement .................. 93 

Dyller, Barry H., Esq., Partner, Dyller Law Firm, Wilkes-Barre, Pennsylvania, October 31, 2013, letter ............................................................................ 96 

Henderson, Wade, President & CEO, The Leadership Conference on Civil 

and Human Rights, Washington, DC, statement .............................................. 100 

Kimmel, Lawrance S., President, Delaware Trial Lawyers Association, Wilmington, Delaware, October 30, 2013, letter ..................................................... 105 

Klar, Jennifer, Partner, Relman, Dane & Colfax, PLLC, Washington, DC, 

statement .............................................................................................................. 109 
Page

IV 

Lawyers for Civil Justice, statement ..................................................................... 117 

Scruggs, Jonathan, Legal Counsel, Alliance Defending Freedom, Scottsdale, 

Arizona, November 4, 2013, letter ...................................................................... 124 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government or other criteria determined by the Committee: 

‘‘Public Comment Regarding Proposed Rule Changes, Lawyers for Civil 

Justice,’’ Regulations.gov (8/30/2013). Available at: 

http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013- 

0002-0267. 

‘‘The Proposed Rules: Light at the End of the E-Discovery Tunnel,’’ Metropolitan Corporate Counsel (9/26/2013). Available at: 

http://www.metrocorpcounsel.com/articles/25558/proposed-rules-light-ende-discovery-tunnel 

‘‘Amicus Curia Brief of U.S. Chamber of Commerce Regarding the Burdens 

of E-Discovery,’’ Pippins, et al. v. KPMG, U.S. District Court for the 

Southern District of New York (11/4/2011). Available at: 

http://www.chamberlitigation.com/sites/default/files/cases/files/2011/ 

Kyle%20Pippins,%20Jamie%20Schindler,%20and%20Edward%20 

Lambert,%20Individually%20and%20on%20Behalf%20of%20 

All%20Others%20Similarly%20Situated%20v.%20KPMG%20 

LLP%20%28NCLC%20Brief%29.pdf 

‘‘Public Comment to the Advisory Committee on Civil Rules,’’ U.S. Chamber 

Institute for Legal Reform (11/7/2013). Available at: 

http://www.instituteforlegalreform.com/uploads/sites/1/ 

FRCP_Submission_Nov.7.2013.pdf 

‘‘The Centre Cannot Hold: The Need for Effective Reform of the U.S. Civil 

Discovery Process’’. Available at: 

http://ilr.iwssites.com/uploads/sites/1/ilr_discovery_2010_0.pdf 
(1) 

CHANGING THE RULES: WILL LIMITING THE 

SCOPE OF CIVIL DISCOVERY DIMINISH ACCOUNTABILITY AND LEAVE AMERICANS 

WITHOUT ACCESS TO JUSTICE? 

TUESDAY, NOVEMBER 5, 2013 

U.S. SENATE, 

SUBCOMMITTEE ON BANKRUPTCY AND THE COURTS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:10 a.m., in 

Room SD–226, Dirksen Senate Office Building, Hon. Christopher 

Coons, Chairman of the Subcommittee, presiding. 

Present: Senators Coons, Whitehouse, Franken, Blumenthal, Sessions, and Flake. 

OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. 

SENATOR FROM THE STATE OF DELAWARE 

Chairman COONS. This hearing of the Senate Judiciary Subcommittee on Bankruptcy and the Courts will come to order. Good 

morning. I would like to welcome the witnesses who have joined us 

today. I am also very glad to be joined by my distinguished Ranking Member, Senator Flake, who also has the enormous misfortune 

of serving with me on the Africa Subcommittee of Foreign Relations. 

The purpose of this morning’s hearing is to examine a series of 

changes to the Federal Rules of Civil Procedure proposed by the 

Judicial Conference’s Advisory Committee on the Civil Rules. 

Under current rules, all relevant material is discoverable, but a 

party may seek court relief from an otherwise valid discovery request if the request is out of proportion to the needs of the case. 

The proposed changes would invert this standard, allowing responding parties themselves to decide what is proportional and 

what is not. 

The changes are also designed to increase the frequency with 

which courts assign the costs of discovery to the requesting rather 

than producing party. The changes would also place somewhat 

stricter presumptive limits on depositions, for example, from 10 to 

15 and lasting no more than 6 hours as compared to 7 under current rules; limits on interrogatories from 25 to 15; and requests for 

admission, currently not limited, would be limited to 25. 

Although this is in service of an important goal—reducing overall 

unnecessary discovery costs—these proposed changes have also 

sparked significant controversy in the civil rights, consumer rights, 
2 

antitrust, and employment rights communities. These advocates 

worry that limitations on civil discovery will unduly hamper the 

ability of those who have been subject to discrimination or other 

violations to obtain the evidence they need in order to prove their 

cases in court. 

Under the Rules Enabling Act, it is the role of the judiciary to 

propose and for Congress to review any changes to the rules that 

govern litigation in our federal courts. Despite the mechanism for 

rules changes under the Rules Enabling Act, however, over the 

past 30 years courts have typically avoided the role of Congress 

and instead used decisional law time and again to reinterpret the 

federal rules. In nearly every case that reinterpretation has narrowed the path for a citizen to have his or her case decided by a 

jury, according to the facts and the law. 

Most recently, a series of decisions has significantly limited the 

availability of class actions, has raised pleading standards, has 

foreclosed federal and State courts entirely for those unlucky 

enough to find their dispute subject to an arbitration clause. 

Today, however, I am glad to report that the Judicial Conference 

is proposing that the rules be changed through the mechanisms set 

out in the Rules Enabling Act, which gives the public and this Congress a valuable opportunity to be heard before those changes 

might take effect. 

In conducting my review of the proposals, I am guided, as is also, 

I hope, the Judicial Conference, by four basic considerations: 

First, what specifically are these reforms meant to accomplish? 

What problems or abuses are they hoping to remedy? 

Second, how effectively would these proposed reforms succeed in 

addressing the problems or alleged abuses? 

Third, are there collateral costs to our overall system of justice? 

And, finally, if there are collateral costs, I think we must weigh 

the costs and benefit in light of the broader public’s interest in a 

fair, efficient, and effective court system. 

So as to the first question, what are these changes meant to accomplish, let me start with what I think is an unobjectionable 

statement. Civil litigation in America can be very expensive. As 

former in-house counsel for a manufacturing company, I knew well 

the challenges that corporate defendants can face in controlling 

costs of lawsuits where even a meritless complaint can put settlement pressure on a client. 

But to the second question, are these rules likely to significantly 

reduce discovery costs that are unnecessary in order to resolve the 

case, studies cited by the Judicial Conference note discovery costs 

are not a problem in the vast majority of cases, but that discovery 

is a problem in a ‘‘worrisome number of cases.’’ And those cases 

where discovery costs are a real problem, which is to say that they 

are ‘‘out of proportion’’ to the needs of the case, it tends to be in 

cases that are ones dominated by high stakes, that are highly complex, or highly contentious. In these cases, presumptive discovery 

limits are likely to be of no impact at all. In smaller cases, however, presumptive limits are likely to play a normative role restricting the ability of the plaintiffs in a small case to take badly needed 

depositions from a defendant who holds the information relevant to 

a fair lending or employment discrimination claim. 
3 

If I might, without objection, I would submit for the record letters from Barry Dyller and from the Delaware Trial Lawyers Association setting forth some of these concerns. 

I will also submit for the record a letter from the Alliance Defending Freedom, an Arizona-based organization committed to defending religious freedom, which believes these changes would inhibit legal challenges they bring to protect citizens under the Free 

Exercise Clause of the First Amendment. 

[The letters appear as submissions for the record.] 

Chairman COONS. As to proposals to restrict the scope of discovery, the import and impact of these changes is likely to be highly litigated. Motions practice is also not cheap, and when all is said 

and done, these changes would be implemented by those same 

judges who today, according to the Judicial Conference itself, are 

not doing a good enough job limiting discovery in the cases before 

them. 

Five times since 1980, the Judicial Conference has tweaked civil 

discovery rules in attempts to curb perceived abuses. Back in 1980, 

pretrial conference was added; in 1983, proportionality was first 

added as a general limitation on discovery; in 1993, the rules were 

amended to add some presumptive discovery limits; in 2000, the 

scope of discovery was narrowed; finally, just a few years ago, in 

2006, the proportionality provision, first instituted in 1983, was revised again in an attempt to reflect the burdens of electronic discovery. 

Today we are faced with yet another incremental restriction on 

discovery. Why would we expect these changes to work significantly where the previous ones, arguably, have failed? And if discovery cost is, at least according to one study, a problem only in 

a minority of cases, is it appropriate to narrow the scope of discovery in a way that applies across the board to all? 

Next, even if we are to assume that these changes would have 

a positive impact in curbing discovery abuse, we must still consider 

the third question: What harms are risked if these changes are implemented? Discovery is a critical stage in litigation that allows 

parties to marshal evidence in support of their claims or defenses 

and evaluate the claims and defenses of their counterparty. Without discovery, parties ask judges and juries to decide cases based 

on incomplete information, which can only degrade the ability of 

our legal system to deliver justice under the law. 

If discovery is important to the criminal justice system, it is absolutely indispensable to civil plaintiffs. Plaintiffs, not defendants, 

bear the burden of persuasion in proving their claims, yet often, especially in employment discrimination and consumer fraud cases, 

most of the relevant evidence is in the possession of the defendant. 

Less access to information could mean that responsible parties remain unaccountable, not because allegations are not true but because of a lack of the evidence to prove the allegations. If so, this 

would be a very real cost, and not just to the plaintiffs whose meritorious cases would thus be thrown out. In many areas of the law, 

notably antitrust and discrimination, the law recognizes the societal value of so-called private attorneys general. 

Recognizing the limitation of Government resources, the law provides encouragement for civil plaintiffs to bring suit and help en-
4 

sure compliance with these areas of the law. Where we can cut 

costs without doing damage to our criminal justice system, we 

should absolutely do so. When there is the possibility of collateral 

costs to our courts and the ability of Americans to enforce their 

substantive rights, we must tread much more carefully. 

Before we amend the rules to limit the ability of litigants to marshal evidence to prove their cases, we should examine whether any 

of these potential harms are likely to come to pass. We must examine whether other reforms are more likely to achieve the goals of 

reducing unnecessary litigation costs and less likely to have the 

collateral consequence of reducing access to justice. 

Commentators are in general agreement that judges could do 

more under the rules than they are currently doing to narrow 

issues for discovery and reduce the burdens on producing parties. 

Why are they not doing so? Are judges overworked? If so, perhaps 

the problem could best be addressed by creating some or all of the 

91 new Article III judgeships recommended by the Judicial Conference, as would be accomplished by the Federal Judgeship Act of 

2013 I recently introduced with the Chairman. 

Would a greater investment in technical and support resources 

allow for more efficient management of cases and of e-discovery 

leading to significant savings to litigants? 

Is judicial training a limiting factor? And how might we address 

that? 

Clients also have tremendous power to limit litigation costs incurred by their legal representation. Clients can and do negotiate 

down hourly rates, the size of legal teams, and even the hourly billing model that has created divergent incentives between attorneys 

and clients. Do these paths all, either in isolation or concert, offer 

a more promising avenue for reform? These are just a few of many 

questions we will explore with our witnesses today, but first I 

would invite Senator Flake for his opening statement. 

Senator Flake. 

OPENING STATEMENT OF HON. JEFF FLAKE, A U.S. SENATOR 

FROM THE STATE OF ARIZONA 

Senator FLAKE. Thank you, Mr. Chairman. I am here today because Senator Sessions had a prior commitment. He may be able 

to come a little later after that is finished. But I am glad to be 

here. I want to thank the witnesses for coming today. 

I look forward to the continuation of the process that Congress 

created to make changes to the Federal Rules of Civil Procedure. 

In the Rules Enabling Act, Congress created a process that is careful and deliberate, taking years to effect changes to the rules. This 

process begins with the Judicial Conference Advisory Committee on 

Civil Rules. The Advisory Committee evaluates proposals for 

amendments to the rules, and if it decides to pursue a proposal, it 

may seek permission from the Standing Committee to publish a 

draft of the proposed amendments. Once published, the draft is 

subject to a 6-month comment period, including several public 

hearings. We are currently in the public comment period of the 

draft proposal, and the first of the public hearings is taking place 

in 2 days on November 7 in Washington. 
5 

The Advisory Committee on Civil Rules is chaired by the Honorable David Campbell, U.S. District Judge from my home State of 

Arizona, and members of the Advisory Committee include four lawyers, including some who routinely represent plaintiffs and others 

who routinely represent defendants in civil litigation, which will be 

affected by the rules. The committee also includes eight judges, one 

a judge on the Supreme Court of Georgia, six U.S. district court 

judges, one judge from the U.S. Court of Appeals on the Tenth Circuit, the dean of the Lewis and Clark Law School, the Assistant Attorney General for the Civil Division, Stuart Delery. The membership of this committee brings vast experience and diverse points of 

view to the process. 

What I am trying to explain here is that this is a deliberative, 

long, involved process. There is nothing that happens quickly here. 

It is deliberative. 

After the public review period, the Advisory Committee will 

again review the proposed rules in light of the comments it receives. The amendments may then be submitted to the Standing 

Committee for Approval. The Standing Committee independently 

reviews the findings of the Advisory Committee and, if satisfied, 

recommends changes to the Judicial Conference, which in turn recommends the changes to the Supreme Court. It is only then that 

the rule proposal reaches Congress. If Congress does not act within 

6 months, the rules will be automatically adopted. This entire process, as I have explained, is a cautious one with each proposed rule 

change subject to meticulous evaluation and discussion. 

In proposing changes to the rules, the Judicial Conference justifiably seeks to reduce costs and delays in civil litigation. These costs 

have escalated in recent years due to the massive increase in electronically stored data, as the Chairman mentioned. The proposals 

put forth by the Advisory Committee are modest changes to the 

rules seeking to address these concerns. I respect this ongoing process. I hope that the Advisory Committee will continue its careful 

review, and I look forward to the witnesses’ testimony. And I would 

ask unanimous consent that Senator Cornyn’s statement be entered into the record as well. 

Chairman COONS. Without objection. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Chairman COONS. Thank you, Senator Flake. 

Before we begin with witness testimony, I would like to ask all 

three witnesses to stand while I administer the oath, which is the 

custom of this Committee. Please raise your right hand and repeat 

after me. Do you solemnly swear that the testimony you are about 

to give to the Committee will be the truth, the whole truth, and 

nothing but the truth, so help you God? 

Mr. MILLER. I do. 

Mr. PINCUS. I do. 

Ms. IFILL. I do. 

Chairman COONS. Thank you. Let the record show the witnesses 

have answered in the affirmative. Please be seated. 

Our first witness today is Professor—— 

Senator WHITEHOUSE. Mr. Chairman, if we are not going to allow 

for opening statements from other members of the Subcommittee, 
6 

may I ask for unanimous consent that my written statement be put 

into the record? 

Chairman COONS. Certainly, Senator Whitehouse. You had not 

expressed any interest to me beforehand. If you would like to make 

an opening statement at this time, I will invite you to. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. 

SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you. I want to thank the Chairman 

for holding this hearing. It is the 75th anniversary of the Federal 

Civil Rules, and there is particular reason for careful deliberation 

when we consider rules changes like the ones before us today. 

There has been an undeniable trend in changes to the Federal 

Rules of Civil Procedure—both the changes that come through the 

Rules Enabling Act and changes that have occurred through judicial interpretation. And that undeniable trend has been to narrow 

and erode a fundamental American legal and political institution: 

the civil jury. I fear that, if enacted, the current proposed changes 

will continue and accelerate that trend. 

Our Founding Fathers envisioned the civil jury in the same way 

that Sir William Blackstone had as a means of preventing what 

Blackstone called ‘‘the encroachments of the more powerful and 

wealthy citizens.’’ Unfortunately, today’s most powerful and 

wealthy beings are corporations, and they view jury trials with annoyance and hostility, and they have brought their considerable 

powers of political persuasion to bear to limit Americans’ access to 

this historic constitutional institution. Aided by an increasing judicial focus on court efficiency, they have successfully limited the use 

of the civil jury, which, as Alexis de Tocqueville observed, is in the 

United States ‘‘a political institution’’ and ‘‘one form of the sovereignty of the people.’’ 

These recent amendments governing pleading, motions to dismiss, class action lawsuits, summary judgment, and case management procedures have narrowed the gateways to jury trial, and 

now the Judicial Conference seeks to make changes to the discovery process that could burden individual plaintiffs while benefiting large corporations. 

Most significantly, the proposed changes could fundamentally 

shift the burden of discovery requiring plaintiffs to demonstrate 

that discovery beyond presumptive limits is necessary rather than 

requiring defendants to prove that the information sought is not 

relevant. In cases involving employment discrimination, product liability, and consumer rights, the proposed changes could prevent 

plaintiffs from ultimately obtaining the information that they need 

to advance their cases to the trial phase and win their case. 

The Founders intended the civil jury to serve as an institutional 

check on the wealthy and powerful. It did so by giving ordinary 

American people direct control over one element of Government. 

We should be very careful not to lightly cast such an institution 

aside in the name of judicial efficiency. 

I thank the Chairman for his courtesy in allowing me to make 

that opening statement. 

Chairman COONS. Thank you, Senator Whitehouse. 
7 

Our first witness today is Professor Arthur Miller. Professor Miller is a university professor of law at New York University Law 

School and the School of Continuing and Professional Studies. Professor Miller is I think unquestionably the Nation’s foremost expert 

on civil procedure, which he has taught, researched, and written 

about for more than 40 years. He is the co-author of one of America’s most cited, and used by the Chair, legal treatises ‘‘Practice 

and Procedure’’ with Charles Wright. He has also served as a member and reporter to the Judicial Conference’s Advisory Committee 

of Civil Rules, whose proposed rules changes we are here today to 

examine. The remainder of his resume is too voluminous to begin 

to address this morning. 

We welcome your testimony, Professor Miller. Thank you for 

being with us. Please proceed. 

STATEMENT OF ARTHUR R. MILLER, PROFESSOR, NEW YORK 

UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK 

Mr. MILLER. Thank you, Mr. Chairman, Senator Flake. I thank 

the Chair for giving me an additional 10 years of life by saying I 

have been teaching it for 40 years. The truth is it is over 50 years. 

But who is counting? 

In my written statement, I have tried to give you some context 

and perspective for the proposed amendments, and both you, Mr. 

Chairman, and Mr. Whitehouse have mentioned many of the facts. 

In the last 25 years, the pretrial landscape in federal courts has 

literally been littered with stop signs. These stop signs prevent 

Americans from getting meaningful days in court. They undermine 

congressional and constitutional policies embedded in our most sacred statutes, and they have resulted in the deformation of the 

Federal Rules of Civil Procedure. 

You have mentioned summary judgment enhancement. I add the 

screening of expert witnesses, class action obstacles of extraordinary significance, not simply the well-known Wal-Mart case. The 

pleading decisions in 2007 and 2009 have completely abandoned 

simplified pleading, substituted plausibility pleading, meaning that 

there is now a real potential for complete termination of an action 

based on one paper, the complaint, and judicial speculation as to 

what the merits may be. Not surprisingly, like Pavlov’s dogs, defense firms automatically make the motion to dismiss. 

We have the potential narrowing of personal jurisdiction indicated by four Justices of the Supreme Court, and I strongly suspect 

Justice Alito will join them in the next case, meaning that Americans may have to litigate in inconvenient fora. And since 1983, 

when I was reporter, there have been sequential restrictions to the 

scope of discovery, which the Chair has already alluded to. 

All of this means that there is now earlier and earlier and earlier 

termination of civil actions long before discovery, long before the 

trial. 

Senator Whitehouse spoke of the jury trial, and that has been 

our gold standard. Our gold standard is gone. Cases are not tried. 

We are now left with the dross of motions to dismiss and summary 

judgments. 

Now, the defense bar would have us believe all of these changes 

are necessary because of costs, loss of American competitiveness, 
8 

and electronic discovery. I assure the Committee the foundations of 

American capitalism are not crumbling. The system as it now exists is strong enough to deal with these problems. There is simply 

no empiric basis for these charges. There are anecdotes and there 

are impressionistic, superficial cost surveys. The Federal Judicial 

Center itself says it is not a problem. 

I think there is an important back story here. American capitalism in the last 75 years has expanded exponentially. That has 

produced complex litigation and perhaps an increase in absolute 

dollars. 

However, keep in mind that the same exponential expansion of 

dimension has brought exponential expansion of profits. Corporate 

America has benefited from these tremendous growths in our economy. They serve national marketplaces. They create national risks 

to our people. And when challenged, they should stand and defend 

against the charges against their conduct. 

To me, an even more important risk is the risk to our national 

statutes. Our 75 years has seen the greatest sensitivity and development of social justice in this country, and we should be proud of 

it. We now have civil rights legislation, which we did not have 

then. We have environmental, consumer, product protection, which 

we did not have then. We have defenses against employment discrimination, disability discrimination, and my personal favorite, 

age discrimination. 

We do have a governmental regulatory system, but it is far from 

perfect. Bernie Madoff proved that. Enron proved that. Diet drugs, 

Vioxx, and the marketing of the garbage CDOs and other financial 

instruments that nearly brought our economy to a halt prove that 

what we need is what we always have had: a satellite system of 

private litigation to enforce our public policies. 

I believe in our system. I do not want it deformed. Congress 

should pay attention to this back story because what we have seen 

are paper cuts perhaps, but death by 1,000 procedural paper cuts 

is still death to the system as we have known it. 

Thank you. 

[The prepared statement of Mr. Miller appears as a submission 

for the record.] 

Chairman COONS. Thank you, Professor Miller. 

Our next witness is Andrew Pincus. Mr. Pincus is a partner at 

Mayer Brown, where he focuses on State and federal appellate litigation, including before the Supreme Court, as well as on developing legal arguments in trial courts. Notably, he successfully argued AT&T Mobility v. Concepcion in which the Supreme Court 

held the Federal Arbitration Act preempted State law but denied 

enforceability of arbitration agreements containing class action 

waivers. In addition to his work at Mayer Brown, Mr. Pincus has 

served as general counsel of Anderson Worldwide, general counsel 

of the United States Department of Commerce, and Assistant to 

the Solicitor General of the United States, among many other areas 

of services. 

Mr. Pincus, please proceed. 
9 

STATEMENT OF ANDREW PINCUS, PARTNER, MAYER BROWN 

LLP, WASHINGTON, DC 

Mr. PINCUS. Thank you, Mr. Chairman. Chairman Coons, Ranking Member Flake, and members of the Subcommittee, I am honored to appear before the Subcommittee today to discuss these proposed rules amendments. And I think the starting point is that our 

legal system has significant problems. Litigation takes too long and 

it is too expensive, and that is not good for plaintiffs, and it is not 

good for defendants. 

In the words of a report co-authored by the American College of 

Trial Lawyers, which is a group that includes both plaintiff and defense attorneys, and I am quoting: ‘‘Although the civil justice system is not broken, it is in serious need of repair. In many jurisdictions, today’s system takes too long and costs too much. Some deserving cases are not brought because the cost of pursuing them 

fails a rational cost-benefit test while some other cases of questionable merit and smaller cases are settled rather than tried because 

it costs too much to litigate them.’’ 

The tremendous growth in the sheer quantity of electronically 

stored information combined with discovery rules formulated for 

the typewriter and paper era have produced a huge increase in discovery-related legal costs. A very recent study by the RAND Institute for Civil Justice, a widely recognized nonpartisan group, found 

a median cost of $1.8 million per case just for producing electronically stored information. The cost ranged from $17,000 in the 

smallest case to $27 million in the largest case. 

In addition, parties incur significant costs just to preserve electronically stored information, beginning when a claim is reasonably 

anticipated and during the entire course of the litigation. Otherwise, they face onerous sanctions in the event information later 

found to be subject to discovery is lost, even if that deletion is unintentional. 

For example, Microsoft informed the Rules Committee in 2011 

that it was storing 115 terabytes of information, or more than 5 

times the text of all the books in the Library of Congress. Creating 

the systems to store this data and maintaining them imposes significant costs. 

Experienced litigators on both sides, in the American College of 

Trial Lawyers and again in the Sedona group on discovery issues, 

have said there is a serious problem with electronic discovery, and 

both groups say the issues should be addressed by changes in the 

rules. 

The fact is litigation dispositions are increasingly driven by costs 

in a significant category of cases and not by the underlying merits 

of the claim, and that undermines the entire basis of our legal system. 

Now, I agree fully with Professor Miller about the importance of 

the principles that are embodied in federal statutes and the importance of providing a means to redress violations of them. And that 

is why I think it is really important to note that the rules proposals 

released for comment represent moderate change. The committee 

did not decide to do nothing. But it also did not adopt a number 

of proposals that were advanced by some in the defense bar. It 

steered a middle course. 
10 

The principal proposed amendment relating to the scope of permissible discovery simply moves a standard already in the rule, requiring that discovery be proportional to the needs of the case in 

order to give that standard added emphasis. It is hard to quarrel 

with the argument that discovery should be proportional, especially 

because the draft rule expressly includes factors other than the 

amount at stake in the litigation, such as the importance of the 

issues involved in the litigation, the need for discovery, and an 

overall cost-benefit determination. And judges will make the decision of what is proportional and what is not. We trust them to 

make many determinations, and there is no reason why they cannot make this one properly. 

Again, this change is supported by the College of Trial Lawyers, 

the Sedona group, and it has an important benefit. It forces judges 

to engage in the discovery process when they decide these issues, 

and a big complaint from all lawyers on all sides is judges are not 

engaging enough early enough in the case. They do not manage, 

and the lawyers, left to their own devices, unfortunately, go off on 

a frolic. This will solve that problem. 

The amendments also would modify the provisions of the current 

rules establishing presumptive limits on some forms of discovery. 

The proposed limits are based on information regarding the norms 

in most federal court litigation and, therefore, are not expected to 

affect much of the litigation that happens in the federal courts. But 

the Advisory Committee’s eminently reasonable conclusion, again, 

was, and I am quoting, ‘‘it is advantageous to provide for court supervision when the parties cannot reach agreement in the cases 

that may justify a greater number.’’ Nothing prevents a court from 

allowing a greater number, and, again, this forces judges to focus 

on the case and make a decision instead of leaving lawyers to their 

own devices. 

Finally, as I mentioned earlier, the current vague and uncertain 

standard for when sanctions should be imposed is imposing significant costs for overpreserving data. The proposed amendments 

begin to address that problem by replacing the existing unclear 

rule with a new somewhat clearer standard. 

I think it is important to conclude by mentioning, as Senator 

Flake mentioned, these proposals are just that—proposals. There is 

a process underway: 6 months of written comments, 3 hearings. 

The committee will gather a lot of information considerate of the 

rules processes working just as Congress intended. 

Thank you again for the opportunity to testify, and I look forward to answering your questions. 

[The prepared statement of Mr. Pincus appears as a submission 

for the record.] 

Chairman COONS. Thank you very much, Mr. Pincus. 

Our next witness is Sherrilyn Ifill. Ms. Ifill is president and director-counsel of the NAACP Legal Defense and Educational Fund. 

Ms. Ifill began her legal career as an attorney with LDF where she 

litigated voting rights cases for many years. Even after joining the 

law faculty at the University of Maryland, Ms. Ifill taught civil procedure and civil rights courses and, in addition, continued to be involved in civil rights cases as a consultant and litigant. Now in her 

current role as president of LDF, Ms. Ifill is ideally suited to pro-
11 

vide the Subcommittee with an overall assessment of how these 

proposed rules changes may affect the ability of civil rights plaintiffs to prove their cases in court. 

Ms. Ifill, please proceed. 

STATEMENT OF SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., NEW YORK, NEW YORK 

Ms. IFILL. Thank you very much. Good morning, Chairman 

Coons, Senator Flake, and other members of the Subcommittee. 

Thank you for inviting me to testify today. 

In the 20 years that I taught civil procedure, I began my first 

class always by quoting Robert Cover, who said that procedure is 

the blindfold of justice. And it is perhaps for that reason that so 

many of the Rules of Civil Procedure have been actually shaped 

within the context of civil rights cases, cases that would be familiar 

to any of us who took a first-year law course, Conley v. Gibson, Adickes v. S.H. Kress, Hansberry v. Lee, Martin v. Wilks, Anderson 

v. Bessemer City, now Wal-Mart v. Dukes and Iqbal v. Ashcroft. And the reason for that, of course, is because of the unique role 

that civil rights cases play in opening the opportunity for access to 

justice for those seeking justice. 

I represent lawyers who represent these clients, bringing claims 

under the Constitution of the United States and other civil rights 

laws at the federal and at the State level. And what is essential 

to our clients is the opportunity to obtain the information that will 

prove their claim. 

Professor Miller talked about the pretrial landscape being littered with stop signs, and that is undoubtedly true, from the summary judgment decisions of several decades ago to the recent pleadings decisions by the Supreme Court. And in each of those cases, 

the concern that was raised was whether or not judges were properly managing the litigation process. And now here again we have 

returned to that same argument in the area in which it can be 

without question that trial judges have the greatest expertise and 

latitude: the management of discovery. 

For those of us who represent civil rights plaintiffs, discovery is 

the essential stage of any litigation, and that is, of course, because 

of the nature of our claims. The information that would support a 

claim of discrimination is often, as the Chairman pointed out, within the possession of the defendant. And the only way we can get 

that information is through the discovery process. 

It is also true that one of the great successes of our work, the 

fact that we now find discrimination socially unacceptable, means 

that our ability to find that information, to gather that information, 

and to make a case for discrimination largely based on circumstantial evidence requires us to gather a range of information and data 

within the possession of the defendant. That information for us can 

only be obtained through discovery. 

At the outset, Chairman Coons talked about a worrisome set of 

cases and the potential for collateral consequences, and I think this 

is where the inquiry really is most appropriately targeted. Without 

question, there is a narrow band of cases, perhaps those discussed 

by Mr. Pincus, in which there are real problems with discovery and 
12 

in which the costs are exorbitant. But those are not the majority 

of cases. As Professor Miller pointed out, no study has supported 

the idea that litigation has run amuck, either from costs or from 

overburdensome discovery. And the question is: What will we do 

with that small band of cases? And will we allow that small band 

of cases to essentially imbalance our civil litigation process against 

the vast majority of cases and in our instance, of course, civil rights 

cases? 

Judges do have the power to manage discovery, and judges do 

have the power to ensure that discovery is not burdensome. And 

we have found in the cases that we litigate judges exercise that authority. Magistrate judges are experts in managing discovery in 

complex cases, and they do so. They play a very active role in setting appropriate timetables and schedules for the parties and ensuring that discovery is managed and maintained in a way that is 

fair to all sides. 

For our cases, we are not, frankly, very wealthy lawyers. We always seek the most cost-efficient way to engage in discovery and, 

therefore, there are certain kinds of discovery that are actually 

most effective for us—interrogatories, for example, and requests for 

admission. And so any effort to limit the number of interrogatories 

and requests for admission, the cheapest forms of discovery, are 

borne disproportionately by those of us who are most interested in 

most efficiently and effectively using the resources that we have 

available to engage in litigation. 

This is a critical moment in which this Committee has an opportunity to stop and reflect on what has happened to civil litigation 

over the last 30 years and what it means for our clients. The list 

of cases that I rattled off at the beginning, cases in which clients 

were able to bring forward discrimination claims that revealed not 

just for those individual plaintiffs but for our entire society the ongoing nature of discrimination and violations of constitutional 

rights of citizens who live at the bottom and at the margin, are imperiled when those citizens do not have access to their day in court. 

Professor Miller described it as a ‘‘meaningful day in court,’’ a 

‘‘meaningful opportunity’’ to participate in the process of litigation. 

We would respectfully ask that this Committee refrain from adopting these proposed changes to the discovery rules, recognize that 

this is a moment when we have the opportunity to turn back from 

what has been an effort to close the door on those who need the 

litigation system most. 

Thank you. 

[The prepared statement of Ms. Ifill appears as a submission for 

the record.] 

Chairman COONS. Thank you, Ms. Ifill. 

We will now begin questions in 7-minute rounds. If I might start 

with you, Ms. Ifill, since you began litigating civil rights cases, can 

you speak about the impact a whole series of decisions have had? 

Professor Miller referenced a series of stop signs that now litter the 

pretrial landscape for those litigants who are seeking to establish 

their case and advance their case. Can you speak about the impact 

these changes have had on your ability to bring civil rights cases 

and how these further proposed changes to the discovery rules 

would play into that? 
13 

Ms. IFILL. Well, of course, it begins decades ago with a series of 

three decisions that the Supreme Court decided on summary judgment, and, of course, we know that over the last 30, 40 years, the 

percentage of cases that go to trial have greatly diminished. Everyone recognizes that summary judgment is the name of the game. 

And because summary judgment is the name of the game, it actually has put pressure on the front end of litigation—pressure on 

the pleadings, pressure on discovery. It makes those two moments 

in the litigation process more important because of the likelihood 

that you will not get to trial unless you can surmount summary 

judgment. 

And then, of course, the changes to the pleadings rule and the 

heightened pleading that has resulted as a result of the Iqbal v. 

Ashcroft cases. A number of studies are still being done to determine what the effect of that decision was on civil rights cases, but 

I can certainly tell you that one of the effects is essentially what 

we talk about with our clients, what claims we think can survive 

a motion to dismiss. And, remember, at the pleading stage we are 

talking about before you have ever done discovery, what you are 

able to pull together. 

As I just mentioned in my testimony, it is very important for us 

to remember that the success of the work that organizations like 

mine have done has resulted in the reality that finding the smoking gun in which people use discriminatory language openly and so 

forth, it still happens, unfortunately, in far too many cases, but it 

is more likely not to be left about in open and plain view. This is 

information that people recognize that they have to hide. 

And so what we have to do in the discovery process is dig even 

deeper than we ever had to do in the past to ensure that we can 

gather this information and use it for our claims. And, frankly, because of the societal view against discrimination, we frankly have 

a harder time proving that discrimination in fact exists. 

And so the work that we have to do as litigators in civil rights 

claims has actually been increased. I mean, we are happy for it in 

some ways. We do not want there to be blatant forms of discrimination. But we bear the burden and the litigation process, nevertheless, of ferreting out discrimination where it exists. 

Chairman COONS. And how would these proposed changes to the 

discovery rules, which some view with alarm and others views as 

moderate and reasonable and balanced and modest, how would 

they affect your ability or those you work with, their ability in civil 

rights cases to seek redress for ongoing harms? 

Ms. IFILL. Well, the idea of the proportionality requirement is 

deeply troublesome to us. Imagine a claim in which an individual 

believes that they have been discriminated against in employment 

or believes that they have been barred from shopping in a store or 

racially profiled in some way. That is one individual claim. How do 

we measure the proportionality of the data that that plaintiff 

would need to prove whether or not discrimination had occurred or 

was occurring with that institution? 

Even though we may not be talking about a case that involves 

millions of dollars, the interests that are at stake in civil rights 

cases in which we are really dealing with the issue of the denial 

of constitutional rights and rights held under federal statutes by 
14 

individuals, how do we measure the importance of those claims 

against an argument that it would cost the defendant too much to 

find the information? 

And then, second, for us in the litigation, the costs involved in 

actually litigating the question of proportionality. It seems to me 

this is opening up a door to yet more expensive and time-consuming motions practice as we argue over what is proportional to 

the importance of the case. 

Chairman COONS. Thank you. 

Professor Miller, you suggested that these changes might not actually accomplish the goal of reducing discovery costs, and in fact, 

very expensive and complex motions practice over these elements 

of proportionality will simply be the result, that there will be significant harms for those cases that are vital to fulfilling the societal 

role of private attorneys general enforcing some of our most important and treasured legal advances of the last decades. Do you have 

anything further to add to this or to the evidence of a cost problem 

in discovery? 

Mr. MILLER. There is no doubt in my mind that establishing proportionality as a front-end consideration in terms of availability of 

discovery and, in effect, putting the burden on the plaintiff to demonstrate proportionality is sort of like hanging a carrot in front of 

the horse’s nose. The defense bar will simply do what it has done 

consistently since the early 1980s: make the motion, make the motion, make the motion, which, it turns out, becomes a very high 

cost in terms of money, resources, and judicial time. 

One of the interesting byproducts of what has been mentioned, 

the 1986 Summary Judgment Trilogy, let us get cases out on summary judgment and save resources from being expended at trial, 

well, that has simply magnified the sort of Armageddon quality of 

the summary judgment motion so that both sides are forced to put 

in enormous time, effort, and resources to make and meet that motion. And there is now some evidence that the cost of the summary 

judgment motion is about the same as the cost of trial. 

So what have we done? We have robbed Peter to pay Paul, and 

we have denied people what we call ‘‘the gold standard of trial,’’ let 

alone jury trial. I just think we have not really developed the sophisticated empiric data that justifies these changes. 

Chairman COONS. Thank you, Professor Miller. 

Mr. Pincus, how does this current effort to change the rules to 

limit discovery expenses differ from the previous five? You had suggested in your testimony judges do not manage—I am paraphrasing—and this, the proportionality rule, will solve the problem. 

How will these rules prompt judicial intervention, as you suggested, when some complain that the previous five rules changes 

have failed to elicit that judicial engagement? 

Mr. PINCUS. Well, I think that is the hope. I do not think there 

is any guarantee, but I think what the Rules Committee, what the 

Advisory Committee has said—and it makes sense to me—is we 

are taking a standard that already exists in the law, the proportionality standard that has been referred to, and we are giving it 

somewhat more prominence because we hope that will encourage 

people to focus on it. So either it will have no effect, in which case 

none of these bad things are going to happen and it will have been 
15 

a failed effort to get judges to manage more aggressively and appropriately; or it will have more effect, in which case I think the 

effect will be in appropriate cases judges will conclude that the discovery being sought does not make sense. 

I think the important thing to recognize about how the standard 

is applied is—as I said in my opening statement, it does not just 

talk about the amount at issue. It talks about the issues at stake 

and the clear messages to look at just the issues that Ms. Ifill mentioned and to make those highly relevant to the inquiry. 

So I think we trust judges to make lots of decisions, and there 

is no reason why if they are focused on the issue—and if they have 

the time to manage, which is an important question about our judicial system. But the whole thrust of these changes is to bring the 

judge into the process to make the decisions instead of just having 

the lawyers go off by themselves, which does not seem to work very 

well. 

And just to respond, if I might, to Professor Miller’s concern 

about motions practice, I guess I would say two things. 

First of all, I think many clients today—and, Mr. Chairman, you 

mentioned this in your testimony—manage what their defense lawyers do. So defense lawyers, at least the ones that I practice with, 

are not authorized to file every motion unless they want to do it 

on their own nickel. They have got clients that have budgets and 

that force them to prioritize what they do. 

And the second thing is, again, getting the judge involved, most 

lawyers recognize that pestering the judge frequently with motions 

that are going to get denied is a very, very bad strategy for the person who ultimately is going to preside over your case. And so that 

has quite an inhibiting effect. 

Chairman COONS. I look forward to another round with you, but 

I will defer now to Senator Sessions, who has joined me as Ranking 

Member. 

Senator SESSIONS. Well, thank you. It is an important issue, and 

I like the way the judicial rule process proceeds. And I believe it 

is proceeding in the proper way with public hearings beginning, I 

believe, this week. And so we ought to—I am a little uneasy about 

having congressional political hearings while this process is going 

on, because we will have an ultimate role in it. 

Mr. Pincus, Congress will have to vote, or not vote, I guess, once 

these rules are proposed. Is that correct? 

Mr. PINCUS. Absolutely. The rules will be sent by the Supreme 

Court. If there ultimately is a product that goes forward to the Supreme Court, the Supreme Court will deliberate and make its decision and then send the package to Congress, which will then have 

6 months to consider it. 

Senator SESSIONS. One of the biggest damages to justice in 

America I think has been bogus lawsuits filed at great cost. Professor Miller, I think motion practice may be costly in some areas, 

but I do not think there is any doubt that it has short-cut, shortstopped bogus lawsuits or claims. Maybe you have got five claims, 

and one of them is good. The punitive damages are not good. The 

sooner that is out of the case, the better settlement prospects are. 

And we are reaching incredible settlement numbers. 
16 

Do you know, Professor Miller, it seems like I have heard that 

it is 97 percent of civil cases are now settled short of trial? 

Mr. MILLER. If I might make a modest change to that, 97 percent 

of cases—and this figure is not dissimilar at the State level—are 

terminated before trial. Some of them are settled. Some of them 

are summary judgmented. Some of them are motion to dismissed. 

Some are class action denied. And some of them just fall out of fatigue. But there is no doubt that we live in a settlement and not 

in a trial culture. And your point, Senator, is absolutely right. 

Some of the motions do skin the cat. They get rid of the garbage. 

That can be done under the existing motions structure which has 

been in the rules since 1938. It does not implicate curtailing discovery or some of the other things that have happened in the last 

25 years. What it does implicate is what I think everybody has 

talked about this morning: somehow we must enhance and sophisticate judicial management. 

Senator SESSIONS. Well, I think one of the goals that Congress 

and the courts have talked about is more settlements, and that is 

occurring. And I hope that they reflect justice and not injustice. I 

hope they do not weaken justice in the process. 

But I think, I do not believe a case should be sent to a jury, as 

used to happen, with a punitive damages claim for $50 million 

when there was no basis for it, and then the defendant feeling they 

had to settle because there was some remote possibility they might 

get hit for $50 million. 

And, Mr. Pincus, maybe you can—I understand you mentioned 

something about the cost of discovery. But this is a huge factor in 

forcing defendants to pay judgments at times that they do not really feel like they should pay, but just the cost of defending it is so 

great that they are not able to justify the litigation. And that is not 

justice, I guess you would agree, number one. And, number two, 

can you give us any more thought about how the cost can rise in 

a discovery proceeding? 

Mr. PINCUS. Certainly, Senator. Well, I think the reality is—I 

say this in my testimony. You know, you have a client who is sued, 

and they want to know what is going to happen. And they feel unjustly accused. They feel the allegations in the complaint are false. 

The allegations may well be sufficient to withstand a motion to dismiss, and so you have to then say to them you will be—the time 

you get to say those things are false is in a motion for summary 

judgment, and that is not going to happen until after there is some 

discovery. So you are looking at discovery, and the unfortunate fact 

is that in many, many cases, as I discuss in my testimony, the discovery costs, in the world of electronic discovery that we are now 

in, can easily exceed $1 million just for the electronic discovery, not 

counting the legal fees and other costs associated with the rest of 

the litigation. So if a client is looking at that potential expenditure, 

recognizing that he does not have a good motion to dismiss, or 

maybe he has filed one and it has been denied, what is the rational 

course? The rational course is to say, gee, if I can settle this case 

for not much more than what it is going to cost me to get to that 

summary judgment phase, that is a rational economic decision and 

I should do that. 
17 

Senator SESSIONS. But it is not necessarily justice if you do not 

owe the claim, number one. It is not justice if you do not owe the 

claim. 

Number two, there has been some suggestion that this is not a 

problem, this cost. Apparently the courts—the Committee has 

made some recommendations, I think modest, frankly, and they 

perceive there is some problem here. Can you give an opinion, Mr. 

Pincus, as to what the prevailing view out there is among lawyers 

and judges as to whether or not we need to do something about the 

discovery practice as it now exists? 

Mr. PINCUS. Well, my view is the best groups to look to for that 

kind of view are groups of smart lawyers that are balanced, that 

are not just the defense bar, they are not just the plaintiffs’ bar. 

And so I look at two groups, and I mention them in my testimony: 

the American College of Trial Lawyers and the Sedona Conference 

on Discovery, which is a group of lawyers, both sides, that have 

come together to try and address discovery issues. And both of 

those groups have said in no uncertain terms that electronic discovery is a mess and we need some changes to deal with it. 

So I think that is a pretty good indication of what the people who 

are giving a lot of thought to this problem and who are out there 

in the trenches think about it. And, again, I think it is important 

to say that the solution that has been proposed here is not some 

draconian change introducing some concept that was never in the 

rules. It is basically taking this existing proportionality concept 

and saying let us give it more focus in a way that will force judges 

to grapple with it in hopefully more cases. 

Senator SESSIONS. Well, thank you, Mr. Chairman. I do not know 

if this is the appropriate time to have a congressional hearing on 

the matter, but so be it. It is all right. And I think this is a good 

panel to begin discussing it. Just having had some experience in 

how the process works, they do this very carefully. They have a judicial panel, and they take testimony. Then they have public hearings. And I think there is a concern—I heard it pretty regularly 

among friends in the profession—that discovery is being abused too 

often in our system. And I do not believe we need dramatic, draconian changes in discovery. I do not think this proposal would do 

that. But I do think there is a problem, and it needs to be addressed, and I believe the process now going forward through the 

Judicial Conference will help us improve it without weakening the 

right of a plaintiff or any other party to find out necessary facts 

for the litigation. 

Thank you. 

Chairman COONS. Thank you, Senator Sessions. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

With my time, I would like to make two points. The first is that 

I think some of the questioning and testimony has been very onesided in the sense that the inference has been drawn or the implication made that when there are flaws in a judge’s deliberate and 

effective prosecution of his courtroom and case management responsibilities, the burden always falls on the poor defendant; and 

that to the extent that there are discovery problems, it is abuse by 

plaintiffs against the defense bar. And maybe Rhode Island is dif-
18 

ferent than other places, but that runs very contrary to my experience. 

My experience has been that plaintiffs want to get to court as 

fast as they possibly can. They want to get that case into court. 

They all think that they are brilliant in front of a jury or in front 

of a judge, and they want the moment when they are arguing for 

their plaintiff in the courtroom. 

On the other side, my experience of the defense bar has been 

that their number one goal is to delay the trial, to postpone it for 

as long as possible—the larger the defendant, the bigger the blizzard of motion practice and stall filings and efforts basically to 

burn up the plaintiff’s money and starve out the case before it ever 

gets to trial. And at that point you end up with a plaintiff who has 

to go to their client and say, ‘‘I cannot do this any longer. I am all 

done. I am out of the budget that I have for the case. We are going 

to have to settle for a pittance. I cannot go through.’’ 

Discovery is very often extended by defendants in order to keep 

the blizzard rolling and hurt the plaintiff and prevent them from 

getting their day in court. And the sort of blizzard technique and 

the starve-the-plaintiff technique I think are so well known that it 

is surprising to me that neither Mr. Pincus nor any of our questioners have mentioned that there are actually two sides to this 

equation. 

I was in a case, as both a lawyer and—I was a counsel and because I was Attorney General I was also the client—where a very 

concerted defense opposition with essentially unlimited money, I 

want to say that they listed 100 trial witnesses, forcing us to go 

to I cannot remember how many States around the country and 

interview all of the witnesses so we were not caught cold when 

they were brought to trial. And then when the great day came at 

trial, how many of the hundred witnesses were actually called? 

Zero. Zero. The entire exercise was one in trying to burn up the 

plaintiff’s side of the aisle in order to prevent this from happening. 

Now, frankly, we were able to withstand that, but that is a technique that is out there. And I think it is important that this hearing reflect that it is at least as bad on the other side, and maybe 

even worse. 

The second thing that I think the record of the hearing should 

reflect is that the jury in our country is not just a place where you 

go to get a judgment. It is in our Constitution. It is in our Constitution and Bill of Rights three times. The Founding Fathers put it 

there for a reason. If you go back and look at the record of the 

American Revolution and the grievances leading up to it, the jury 

trial is front and center with our Founding Fathers. Front and center. And if you go back to Blackstone, he sees and writes about its 

institutional value, its value in our community, its value in our system of government, or in a system of government, because he was 

preceding our system of government. De Tocqueville writes about 

it. He writes about it, if I remember correctly, in the chapter that 

says on limiting the excessive powers of government, or on, you 

know, sticking up for the rights of the people, and he calls it one 

of the forms of the sovereignty of the people. 

And I think it has that role. I think it is very important. I think 

we can all see a situation in which, you know, something has been 
19 

done wrong to you, and you try to go—let us use the State as an 

example so I am not personalizing this in any way. You go to your 

State General Assembly, and the other side, they have got lobbyists 

everywhere. You cannot touch them. They have got that place 

locked down. The Governor is their pal. You have got no shot. The 

newspaper is on their side, so you cannot even get an honest story 

in the paper. You are just getting slaughtered by all of the existing 

forces of power. When you are in that circumstance, the Founding 

Fathers had an idea about what your last stand could be, where 

your last stand could be, and that was in a courtroom, where even 

the most powerful and wealthy citizens stood equal before the law. 

Now, big and powerful and wealthy American corporations do not 

want to stand equal before the law with menials like regular Americans. They like the legislature where all their money and all their 

lobbyists and all their power and all their campaign contributions 

and the super PACs can all help grease their skids. And ditto the 

executive branch. They can throw an absolute armada of warfare 

against a regulatory body. 

Stand them before a jury where they are equal with the person 

that they have injured, where if they try to mess around with the 

jury, that is called ‘‘tampering.’’ It is a crime. They try to tamper 

with us all the time. It is their daily occupation. And I think that 

is a context that is very important for the civil jury. It is not just 

a place where two people go and have a dispute resolved. It is a 

part of the American system of government. It is a part of the sovereignty of the people, and it is a check and balance on the more 

formal part of government, and a check and balance on the more 

powerful and wealthy citizens. 

I am sorry I have gone over my time, but—well, not quite. I have 

used all my time, let me put it that way. But I think it is important. And when Professor Miller says we are at 97 percent of cases 

that get filed that never get to a jury, I think that is a sad fact. 

I do not think that is a good fact. I do not think we should push 

97 to 98 to 99. I do not think it is a perfect world when we do not 

have jury trials any longer and everything gets fixed in the paper 

blizzard back and forth. 

I think that having every American have the ability to stand before a jury and be treated equally to whoever is on the other side 

of them and have 12 Americans, or 6, or however many it is, depending on the local rules, to sit in that jury box as deciders, as 

a part of government, as people who are completely independent, 

who cannot be lobbied, who are not professional, they are just there 

to do a citizenship duty, I think that is a thing of real value. And 

it gets overlooked all the time as we talk about the efficiency of the 

courts. 

And our Founding Fathers would be horrified to see this. They 

fought, bled, and died from Valley Forge on, and they thought 

about the jury as one of the things that they protected. The founders of all our States put the jury into their Constitution, and they 

fought hard for that, and they meant it. And now here we are, 97 

percent, 98 percent, all gone. I do not think that is a good path, 

and I do not think the Founding Fathers would approve. 

Chairman COONS. Thank you, Senator Whitehouse. 

Senator Franken. 
20 

Senator FRANKEN. I apologize for not being here for your testimony. I was down in the HELP hearing. I want to thank you, 

Chairman Coons, for holding this hearing. I know that civil procedure reform is extremely important. We can enact laws to protect 

workers and consumers and to establish civil rights, but those laws 

have limited effect if the procedures necessary to enforce them are 

eroded. And that is exactly what we have seen in recent years. We 

have seen changes that make it harder and harder for ordinary 

folks to enforce their rights, to get into court. Iqbal and Twombley 

made it harder to get into court in the first place. Concepcion and 

Italian Colors elevated arbitration agreements over access to 

courts, and Dukes and Symczyk made it a lot harder for workers 

to band together as a class. So that is the broader context within 

which I am looking at the proposed rules. And my sense is that 

they could be just one more obstacle that blocks access to justice. 

Professor Miller, in your written testimony, you noted that, ‘‘The 

ability of a citizen to get a meaningful day in federal court is now 

in question.’’ How do the proposed rules changes that we are considering today fit within that larger context of eroding access to 

justice? In particular, what is at stake here for workers and consumers? 

Mr. MILLER. Well, Senator, to me, these proposals represent 

what I have been calling ‘‘stop signs.’’ They are sort of time-outs. 

Let us fiddle around, let us make a motion, let us have a fist fight 

about proportionality—which, by the way, came into the federal 

rules in 1983. I am the unindicted co-conspirator. I was the reporter at the time. But the notion of the proportionality in the 1983 

amendment is a far cry from the notion of proportionality that is 

now being proposed, which puts it on an equal plane with relevancy, making it harder to get at discovery, more resource consumptive in getting to discovery, more of a deterrent to initiate 

claims when you feel you have merit and want your day in court. 

Senator Whitehouse said something very interesting. He perceived—and I happen to agree with him—that this business of cost 

is the 800-pound gorilla in the discussion. But the question of cost 

for a corporation is very different from the question of cost for a 

worker or someone who believes his or her civil rights have been 

violated. 

Defense lawyers bill by the hour, and even with client control, 

they have an incentive to mount the hours, increase the blizzard 

of paper, delay the litigation, and let the plaintiff fall, as I have 

said, from fatigue. Many plaintiffs’ lawyers in the public interest 

environment are not working on the clock. They at most are on a 

contingent fee arrangement, or they hope for a court-awarded fee 

if the rainbow ever produces a pot of gold. They have no incentive 

to delay, to attrit, to make motions. 

So this question—I think Senator Sessions argued this in a 

sense—that defenses are sort of compelled to settle lest they run 

the risk of trial, which may produce truth, which may not be to 

their liking. I think that the littering of the pretrial process with 

stop signs and motion practices and detours creates a situation in 

which the compulsion is on the plaintiff to settle because he/she 

lacks resources, lacks the energy, and cannot afford the risks. So 

what we are ending up with perhaps is compelled settlements that 
21 

are too low, not too high. They are too low, given the possible merit 

in the case. That means undercompensation. That also means 

underenforcement of statutes that this Congress has passed and 

presumably meant to have enforced, like the discrimination, pension, consumer, environment, safety statutes that have characterized federal substantive law since the 1950s. I view that as a major 

social problem. 

Senator FRANKEN. Thank you. 

President Ifill, first I want to thank you and the NAACP for your 

leadership in securing and enforcing the Nation’s civil rights laws. 

In the National Journal’s recent profile of you, you are quoted as 

saying that you were focused on debt collection abuse and foreclosures and other ‘‘practices that are blocking people from being 

able to move into the middle class.’’ 

How would the proposed rules changes affect the NAACP’s ability to stop those kinds of anti-consumer policies? 

Ms. IFILL. Thank you very much. There is a reason why those of 

us who represent plaintiffs in civil rights cases are called ‘‘private 

attorneys general,’’ and that is because the cases that we litigate 

are cases in which we represent individuals, but the issues that we 

raise on behalf of those individuals are in the public interest. And 

so these are cases that seek not just to vindicate the right of the 

individual, but because of the nature of the rights and the claims 

that we raise, it is in the interest of the public to know about the 

case, to have a resolution for the case, to be involved in the case. 

The reality is that no one, no defendant, certainly no defendant 

I have ever brought suit against who has been charged with discrimination has received a complaint and said, ‘‘I give in. Uncle’’; 

or who has, even as we began the process of discovery, said, ‘‘You 

know what? This is going to cost me too much. Never mind.’’ 

No one wants to admit that they have engaged in discriminatory 

conduct. The onus is on us to prove it. We represent clients at no 

cost to the client. And so as has already been alluded to, we actually have no interest in slowing down the proceedings. We have no 

interest in the war of attrition. Our interest is in moving the claim 

forward as quickly and as expeditiously and efficiently and in the 

most cost-effective way possible. And that is the interest of all of 

us who play in this field. 

And the question, I think, before you and the question that goes, 

I think, to what you have raised, Senator Franken, is when we look 

at this what has been called ‘‘modest proposal’’ to change discovery 

rules, where should our attention be focused? Should it be focused 

on the small slice of cases in which there may be judicial management problems that err on the side of one party or another? Or 

should we be looking at that class of cases for which the Rules of 

Procedure are elevated in importance? Those cases in which the 

claimants, whether they are civil rights plaintiffs, whether they are 

workers, whether they are those who do not have the resources to 

litigate long and hard, for those people, the only thing that equalizes them in the process are the Rules of Procedure. That is what 

makes them equal to the other side. 

And so the ability to obtain the information, not to have to now 

litigate another motion about proportionality, but to obtain the information in order to prove their claim, a claim that at least from 
22 

our perspective most often will be fought, lies in the discovery process and lies in our ability to move the claim forward so that we can 

obtain the information that will support our claim, particularly 

given the reality that summary judgment is bearing down on us. 

We all know what we have to do in that process of discovery. 

And as I testified earlier, our experience is that judges are actually quite active in managing that process, in managing the process 

of discovery, in making sure that things move quickly, in making 

sure that costs are contained. 

And my concern is: Are we going to throw out the baby with the 

bath water? Are we going to, because of a small slice of cases—you 

will remember the Twombley decision was originally supposed to 

just be about antitrust cases, and then Iqbal came and it was about 

everything. 

So are we going to take a small slice of cases and the problems 

that may arise in those cases, and are we going to impose a solution that will have the effect of essentially cutting off claims? Because I really want to be clear, in the civil rights context, if we do 

not have free access to the information in discovery, it is the end 

of the claim. The defendants hold the information. They have the 

information. If you are raising a claim of intentional discrimination, which often you have to prove through circumstantial evidence that is within the power of the defendant, and you do not 

have access to that information, your claim cannot go forward. 

So for civil rights claimants, this is not modest. It is a potential 

death knell for a whole variety of claims. 

Senator FRANKEN. Thank you. 

Mr. Chairman, I have to go back to the HELP Committee. I got 

a message from staff that you would indulge me another question, 

but I am way over, so—well, I have got a question that is brief, but 

might warrant a long answer. Do you want to risk it? 

[Laughter.] 

Senator FRANKEN. Senator Sessions says no, and I do not want 

to push this. Okay. Well, Professor Miller, what is your theory of 

justice—no. 

[Laughter.] 

Senator FRANKEN. Okay. Professor Miller, the Federal Arbitration Act and reform of it has been one of my top priorities, and I 

think that the need for it has become clearer since the Italian Colors decision last term. In a footnote in your written testimony, you 

wrote, ‘‘There has been an extraordinary expansion of the Federal 

Arbitration Act, far beyond its original scope, by the Supreme 

Court.’’ 

Can you elaborate on that? In your view, what was the FAA’s 

original scope and purpose? And how has that changed given cases 

like Italian Colors and Concepcion and others? 

Mr. MILLER. The 1925 Federal Arbitration Act was designed to 

deal with inter-corporate disputes, two sophisticated combatants 

going to arbitration rather than to the great courthouse in the sky. 

As you well know, the string of Supreme Court decisions which 

end with Concepcion and Italian Colors has simply taken that and 

expanded it to embrace every conceivable contractual situation, 

even though we know that when you or I rent a cell phone or do 

much of anything in society, we are now subjected to adhesive arbi-
23 

tration provisions. And now the court says you cannot deal with 

this in the aggregate, knowing that the individual claim on a consumer fraud or a product defect or an employment situation is economically unviable. 

So, in effect, what we have had is to cushion shop. First we move 

dispute resolution out of the courts to arbitration. Then we say you 

can only arbitrate one by one, good-bye. Good-bye. 

Now, Senator Sessions earlier did make the point that yours is 

a political body. I suggest that there is a role for this political body 

in thinking about revising the 1925 statute. So it says there are apples and there are oranges; there are commercial contracts between 

sophisticated parties, and there are adhesive contracts. And the 

two should not be subjected to the same rules with regard to taking 

the right of the day in court, the right of the trial, the right of the 

jury trial away from citizens. 

In addition, by the way, Senator, I think it is time for Congress 

to consider removing the word ‘‘general’’ from the Rules Enabling 

Act, because that word prevents the establishment of special rules 

for this thin band of complex cases that should be treated differently because of their resource consumptiveness and that are 

completely contorting our discussion about the 95 to 98 percent of 

the cases involving civil rights, consumers, et cetera, et cetera. 

It was a good idea in 1938, but transsubstantivity, which I think 

is a word created at the Yale Law School, may have gotten long 

in the tooth and one size does not fit all anymore. That to me is 

another area that Congress should consider. 

Senator FRANKEN. Thank you, and sorry it took so long, but 

‘‘transsubstantivity’’—— 

Mr. MILLER. It is a Minnesota word. 

Senator FRANKEN [continuing]. Took a long part of that. That 

was a long part of that. Thank you. 

[Laughter.] 

Chairman COONS. Thank you, Senator Franken. 

As I said in my opening statement, there are essentially four 

questions before us in this hearing today, and I will close with a 

few questions around this basic theme. 

First, what are these reforms designed to accomplish? What are 

the problems or abuses alleged? And, second, how effectively would 

they actually accomplish those changes? But, third, are there collateral costs to our system of justice? And if there are these collateral costs, how do we strike a fair and appropriate balance? 

If I might, Ms. Ifill, if restrictive procedural changes reduce your 

ability to challenge civil rights violations, are there other viable alternatives open to Americans seeking to advance or protect their 

civil rights or any of the other range of statutes? Are there other 

viable options if these changes preclude access to the courthouse? 

And if the costs of discovery, which are not allocated entirely on 

the producing party, are a significant burden, can you just speak 

something, as you have before, to the resource limitations that are 

natural drivers that reduce an excessive discovery initiative by 

those seeking redress of fundamental claims like civil rights? 

Ms. IFILL. Well, we simply do not have the kind of resources to 

engage in delay of any litigation that we are involved in. We do not 

take cases unless we believe we possess the resources to litigate 
24 

them adequately. But as I said, our interests are always in keeping 

costs down and moving the litigation forward. Therefore, there are 

certain kinds of discovery that are particularly important to us. 

Discovery like interrogatories and requests for admission, which 

are the cheapest form of discovery—they are not the most surgically efficient as depositions are, but they do provide us with information at very low cost to us and, frankly, at very low cost to 

the defendant as well, to give us information that allows us to continue, you know, some of the digging ourselves. We obviously use 

a lot of public records and other kinds of materials that can support our claims and that do not cost either side any money. 

So anything that would limit our ability to use the cheapest 

forms of discovery would be deeply problematic for civil rights 

plaintiffs and for those who lack abundant resources in the litigation of claims. 

You know, what we have talked about today and what I think 

we all agree on is that there are issues that involve judges and 

their management of cases and their management of discovery. 

And the question is: Where is the place, the appropriate venue, the 

appropriate forum to begin to address that issue? I think, Senator 

Coons, at the very beginning, you talked about training issues and 

other means of ensuring that judges are able to appropriately manage cases. I will tell you that over the course of my career as a civil 

rights lawyer, when I first began litigating cases, as I recall, in 

those days discovery even was filed, and so people had the opportunity to see, you know, deposition transcripts and so forth, and 

that went by the wayside. But, you know, there are many things 

that have emerged that at least in my view have made things better. The assignment of magistrate judges and sometimes, Senator 

Sessions, settlement magistrates to complex cases in certain jurisdictions to begin to move that process along at a very early stage, 

to get the parties talking with one another, to figure out what are 

the essential pieces of information we need to bring the case to a 

posture where we can even talk credibly in an equal way about 

what a settlement might look like, those are some of the changes 

that have already happened and that I think actually are working. 

So I think the place—if our concern is about judges and their 

management of trials, I do not think this is the way to encourage 

judges to do that, that judges need the training to be able to do 

it, I think your point at the very outset about judges being overworked, particularly as we have an increase in federal crimes and 

you have the speedy trial requirement, civil cases are crunched in 

that. And we do need to have our bench filled with judges where 

they are necessary in order to manage the workload so that they 

can appropriately manage cases. 

So I think those are all the ways in which we can move that 

process forward if that is the problem. And we should meet the 

problem where it exists, not invade the federal rules in ways that 

are going to deeply and, quite frankly, negatively affect civil rights 

plaintiffs. 

Chairman COONS. Thank you, Ms. Ifill. 

If I might, I am going to suspend for a moment. Senator Sessions 

wanted to make a brief statement before he departs. 
25 

Senator SESSIONS. Well, thank you, Mr. Chairman. You always 

conduct fair and good hearings, and you are so thoughtful on all 

the issues that come before us. 

I think proportionality, as in this rule, does seem to bring the 

judge in. Some judges are good, some magistrates, you know, bring 

cases to expeditious, fair solutions early that are just. But people 

can hold out. They can refuse to settle. So we want to ask ourselves: Is this a dramatic change in the rules? And if so, what is 

the impact of it? Ultimately we will be called on to be counted on 

it. 

Ms. Ifill, you have submitted testimony to the Committee, which 

I salute you for, and others have that opportunity, and they will 

evaluate all of those comments, I know, as they go forward. And 

the pendulum is always—I think we always should analyze it. People have a right to file a lawsuit against the biggest corporation in 

America, as Senator Whitehouse said, and hold them to account. 

But other systems have the ‘‘loser pay.’’ I think Senator Graham 

and some others favor ‘‘loser pay’’ legislation here. That would be 

a dramatic change in the ability we have that when you win—if 

you sue and you lose against a corporation, you cost them $10 million, you do not have to pay anything unless it is abusive, deliberately abusive. 

So I do not know. I think we have a good legal system. I am 

proud of it. I believe the court system is correctly analyzing discovery. I hear a lot of complaints about it. I hope they have wisdom 

in the course of it, and I look forward to further discussions. 

Thank you again. I have a budget issue with the Defense Department, and I have to get to that. 

Chairman COONS. Thank you, Senator Sessions, and I, too, have 

a meeting of the Appropriations Committee, which has already 

begun. But I just have a few more questions I really want to get 

through, so with the forbearance of our witnesses, if I might, Ms. 

Ifill, thank you for summarizing. There are other ways other than 

these rule changes to manage the significant costs of discovery on 

a small band of cases. And if I hear you right, the potential impact 

on a wide range of plaintiffs who are seeking redress and where 

access to a key piece of information is for legitimate reasons going 

to be difficult and unlikely and inobvious, these rules may have a 

significant burden, and they do not have other good alternative 

ways to seek justice. 

If I might, Mr. Pincus, if the federal courts are overburdened— 

and I certainly agree that many of them are. Our previous hearing 

was about the significant number of judicial vacancies and the Judicial Conference report on the need for even more judgeships 

given the steady increase in caseload. To what do you attribute the 

overload? And would you just briefly reflect on whether you would 

support raising the amount of controversy for diversity as a way of 

easing the burden on the federal courts? Because a significant 

amount of cases, I believe it is 75,000 today, so a significant number of cases end up in federal courts that could just as easily be 

resolved in State court. 

Mr. PINCUS. Well, just to take your last question first, Mr. Chairman, I think the problem is that State courts are even worse, 

frankly. I mean, whatever the burdens are of the federal courts, es-
26 

pecially in the most recent round of budget crises that have sort 

of ricocheted across the country, the closings of courts, especially 

trials courts, have been quite dramatic in States like California— 

but all across the country. So I think the problem is you are just 

putting the monkey on someone else’s back if you do that, and the 

litigants who have at least an opportunity to get into court will 

really be thrown into a very, very large pot. So I would be very 

worried about that solution. 

You know, I think that the courts are very crowded right now. 

Obviously criminal cases take priority, and I think—and I am sure 

you hear this from your constituents. The problem is, because of 

the Speedy Trial Act, civil cases have to move to the back when 

there are criminal case demands, and criminal dockets are large. 

And so that dynamic really creates a problem in the processing of 

civil litigation, and I think more judgeships would certainly help 

with that and I think would help judges to have the time for either 

them or magistrates to get engaged in the process. 

I wonder if I might make just one observation about the two 

parts of the proposal that we have been talking about, just talking 

first about the presumptive limits. I think the Advisory Committee’s goal in the presumptive limit numbers was really to focus in 

on the cases that we are talking about, the relatively small number 

of cases that consume the largest resources. And, in fact, the numbers, for example, of depositions were based on a study of sort of 

what is the median, what is the routine of depositions in cases. 

And I think they would be very interested in comments that say 

the presumptive limits that are proposed for interrogatories and requests for admissions are going to affect a wide range of cases because I do not believe that is the intent. But I think the intent is 

to really focus in on the cases—to have the wide range of cases be 

within the presumption, and the cases that we are worried about 

that really consume a lot of resources, so the ones where you want 

to get the judge involved, and that is where there is an effort to 

move past the presumption. 

And I think just one anecdote is the initial thought on deposition 

limits was 4 hours because there had been some very good experience on that in the State courts, and there was commentary before 

the Advisory Committee that that really was not going to be 

enough for this sort of median federal case, and so they went up 

to 6 hours. So I really think that is the goal of that part of the 

process. 

Chairman COONS. Thank you, Mr. Pincus. 

Professor Miller, as the person not just before us today but probably more broadly with the longest and deepest experience with 

this process by which the Judicial Conference reviews rules, as the 

person who was involved—I think you described yourself as an 

‘‘unindicted co-conspirator’’ in the 1983 addition of proportionality—should we have any concern that the courts will, subsequent 

to an enactment or an adoption of some revision to the rules, that 

they will interpret them going forward even more restrictively than 

they appear on their face? Several Senators have referenced the 

whole series of decisions over the years since 1983 that have suggested more and more hostility to class actions, to plaintiffs, to, as 

you put it, a variety of stop signs being erected on the pathway to-
27 

ward the courthouse. Should we have concern that these modest 

proposals will subsequently become immodest, be interpreted and 

applied in ways that are even more restrictive in the future? 

Mr. MILLER. Yes. It is the law of unintended consequences, and 

we have seen it over the years. A modest revision to Rule 11 in 

1983 produced a cottage industry of sanction motions. You just cannot predict. 

What I think you have to worry about in the context we find ourselves in this morning is I am not the only one who has seen the 

stop signs. You have seen the stop signs. And if you are a United 

States district judge, you can read tea leaves. You can see the sequential movement of disposition earlier and earlier in the case. 

And I think what we run the risk of is analogous to what I think 

is happening in the summary judgment and motion to dismiss context, namely, everybody is making the motions, and judges I think 

are moving closer and closer to pretrial merit determinations based 

on fact finding or factual conclusions, which is exactly what you are 

not supposed to do on either a motion to dismiss or a summary 

judgment motion. 

I think there is a mode or a force toward disposition that is 

trenching upon the right to trial and the right to jury trial, because 

judges are reaching conclusions earlier and earlier and earlier 

based on less and less and less information. And the fear I would 

have is that judges will read this, ‘‘I do not believe it is a modest 

proposal.’’ I believe when you bring proportionality up to a plane 

of equality with relevance, you will find more and more judges 

making what are really fact-dependent decisions at the threshold 

of the case as to what is proportional and what is not proportional. 

I do not understand how a judge, just after the pretrial motion to 

dismiss, can decide what is proportional, what the needs of the case 

are. So that is the risk I see that these signals will be read as more 

than they are intended to be. 

Chairman COONS. I share those concerns, and before I welcome 

Senator Blumenthal, I just want to ask unanimous consent to include statements from Chairman Leahy, from the Alliance for Justice, and from Professor Paul Carrington of the Duke Law School. 

[The information referred to appears as a submission for the 

record.] 

Chairman COONS. If I might, Mr. Pincus said the cases we are 

talking about, the cases I have been trying to have us talk about 

here today, are not the small number of cases in which discovery 

costs are, arguably, massive but those cases where there is a demonstrable problem, and then the much wider, much broader 

range of cases where changes to the rules may end up denying any 

access to justice. Balancing those two, finding a path that is appropriate, and ensuring that we do not deny access to justice for those 

who are aggrieved and who are vital and whose interests are central, and weighing that appropriately really was my focus of concern for today. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman, and thank you 

for having this hearing. Thank you all for being here on a very, 

very important subject and one that really should have the attention of many more of our members than perhaps is evident today, 
28 

and I hope it will. And I have been following a lot of the testimony 

and have read your written testimony. 

Let me ask you, Mr. Pincus, when I read your testimony, what 

I expected to see was evidence that the costs of discovery are generally astronomical. What I found was evidence that some extremely large businesses, which presumably have a lot of resources, 

have high costs for electronic discovery. So if the problem is electronic discovery, why not go back to the drawing board and develop 

reforms targeted just at electronic discovery? For example, I see no 

reason to limit requests for admissions in response to a problem 

with the cost of electronic discovery, and the same goes for other 

proposals. 

Mr. PINCUS. Senator, I think there are two issues. I think one 

is electronic discovery, and I think that is a principal reason for the 

moving of the proportionality standard to a place of more prominence, because I think that is the place where that determination 

could be made, because as you say, that is the place where the very 

large costs, this $1.8 million median cost, can arise, and where 

there is an opportunity to have some focus. 

With respect to the presumptive limits on depositions, interrogatories, and requests for admission, I think what the Advisory 

Committee’s thinking was there—and, frankly, the record on which 

they based their decision—was an effort to establish presumptive 

limits that would not apply, that would not be reached in the wide 

range of cases, the cases that Chairman Coons was talking about 

that do not present a huge discovery morass, and to try to use 

those presumptive limits to distinguish the cases, the wide range 

of cases from these fewer cases that need more judicial attention 

and the request to exceed the presumptive limits would be the device that would get the judge involved in making that decision. 

And, in fact, on the deposition limit, for example, they based their 

proposal for five depositions on some research that the Federal Judicial Center did on the sort of median deposition level and their 

evidence, at least that they had, was that will not affect the large 

number of cases. 

Now, the comment process obviously might turn out to be the 

fact that the information they had before them was wrong, in 

which case my guess is they are going to look at the limits, because 

as I mentioned earlier, I think before you came in, their initial 

thought on the time limit for deposition was 4 hours. There had 

been some experience in the Arizona State courts, and several 

other State courts have that presumptive limit, and the experience 

was that in the federal courts in Arizona, parties routinely agree 

to that because it worked well for them. They had some commentary from the public saying, Gee, for the sort of median federal 

case, that seems like it is going to be a little short, and so they 

went to 6 hours on the theory that that is really a full day. 

So I think what the Committee is looking for in this comment 

process that is underway is: Have we gotten those presumptive 

limits right? Have we done something that will leave the bulk of 

cases untouched but bring the judge in on the cases that the judge 

should be brought in on? And I think that is what the comment 

process is going to find out. 
29 

Senator BLUMENTHAL. And let me ask you and perhaps the other 

folks as well, you know, we have all these rules, we have a lot of 

smart people looking at the rules. Do we have any objective data, 

anything comprehensive about how much discretion judges use in 

enforcing those rules, how much they adhere to the rules, how 

much they make exceptions to the rules, and to what degree the 

rules are actually effective and fair in the way that they operate? 

Mr. PINCUS. I do not think we have empirical experience. Unfortunately—and Professor Miller is much wiser on this subject than 

I am—the entire justice system would benefit greatly from a lot 

more empirical data because a lot of things are talked about without really empirical data to make a reasonable decision. I think 

this latest study on electronic discovery course finally gives us 

some empirical data, but I think we could use a lot more. 

So I think the short answer is we do not know. We have anecdotal information from lawyers. Two groups that I think have been 

very focused on this—the American College of Trial Lawyers and 

the Sedona Conference on Discovery—both of which are made up 

of plaintiff side lawyers and defense side lawyers who are frequently in trial situations, and both of those groups have said we 

have a big problem here in terms of judges using the discretion 

that they have in an effective way. 

Senator BLUMENTHAL. Would you agree, Professor Miller? 

Mr. MILLER. Mr. Pincus and I are old friends, so this is almost 

a love feast between us. I agree with him. We have no empiric 

data. None. The surveys that are run are generally impressionistic 

or anecdotal. Fortunately, I think the system, through the Federal 

Judicial Center and Sedona, is starting to get very sophisticated 

about this. 

My experience with district judges ranges from judges who think 

that the rules are suggestive and read it like the Constitution, and 

other judges who think it is Holy Scripture and read it like the Tax 

Code. And the world of judging is between those two goal posts on 

electronic discovery. It is so frightening to everyone, but I think 

that fear is clouding our thinking about it. There is every reason 

to believe—and some district judges have already sort of drunk the 

Kool-Aid—that there are technological solutions to electronic discovery—not real solutions but ways to use artificial intelligence, 

highly sophisticated programming and analytics really to bring the 

cost of electronic discovery way down from what our sort of firstgeneration experience with it is. 

I was blessed when I became the reporter with the advice of my 

Chair, Judge Walter Mansfield of the Second Circuit, and my sainted senior co-author, Charles Alan Wright, both of whom—and this 

was our view: Do not tinker. Do not tinker. This reduction of interrogatories and discovery strikes me as sheer tinkering. And do not 

make proposals until you have a demonstrated need for one, and 

make sure it is the least draconian of all the possibilities. 

Ms. IFILL. Just very briefly, Senator Blumenthal. 

Senator BLUMENTHAL. Yes, thank you. 

Ms. IFILL. I think your question actually is a really important 

one, because I think it draws our attention to what we are doing, 

what is at stake here. Without empirical data demonstrating that 

there is a widespread problem that must be addressed through the 
30 

rules, we stand at the precipice of changing the rules in a way that 

we know will have a particular effect on those for whom the rules 

are the most important. Those who lack the resources, who lack the 

power, who cannot play the war of attrition, the rules are their 

equalizer. And so every time we tinker with the rules, we are essentially affecting those claimants. And if we are to do it, we 

should be doing it on the basis of a demonstrated problem and on 

the basis of a solution that we have figured out will actually address the problem. 

And instead, frankly, to my view as a civil rights lawyer leading 

an organization of civil rights lawyers who litigate in courts all 

over this country, you know, we basically get to be the staging 

ground. We get to be kind of thrown under the bus. We are basically thrown under the bus in favor of very dramatic stories about 

the $1 million in discovery costs from one piece of litigation or another. And those anecdotes are driving a view about litigation—earlier this conversation about what it means to go to trial, about 

what it means to face a jury, our clients want their day in court. 

They do not enjoy bringing these claims. For every claim we bring, 

there are thousands that will never be brought. People have 

learned to take discrimination on the chin. That is what they are 

taught. When they decide to file a claim, it is because they believe 

they must do it. And we are essentially taking the claims of those 

individuals who, frankly, have the courage to engage the system, 

and we are making it harder and harder for them to use the means 

that we all want them to use, right? We all want them to use the 

legal means to vindicate their claims. We want them to play in the 

system. And yet we are increasingly changing and transforming the 

system to make it a hostile territory for them to have their claims 

heard and vindicated. And I think it is important just by that question that you asked that we pause and that we recognize what we 

are preparing to do and to whom we are preparing to do it. 

Senator BLUMENTHAL. Thank you. I really appreciate those comments from all of you. The lack of empirical data really concerns 

me because any of us who have practiced law have war stories and 

anecdotes and, you know, they can be used so misleadingly for 

changes or to resist change. So I thank you all for those comments. 

Thank you, Mr. Chairman. 

Chairman COONS. Thank you, Senator. 

I would like to thank the witnesses on behalf of the Subcommittee on Bankruptcy and the Courts for your testimony today. 

As the Judicial Conference moves forward with their proposed 

rules changes, I hope they will consider the lessons of this hearing 

and ask themselves: What problems are we really trying to solve? 

What empirical evidence is there that these changes will actually 

solve those problems? And at the same time, what are the collateral costs or potential harms? And are there ways to achieve their 

stated goals while reducing or eliminating those harms? 

Professor Miller, you said in passing that some judges apply the 

Tax Code as Holy Scripture. If it is the Tax Code and not the Constitution that is applied as Holy Scripture, we are in bigger trouble 

than I thought. 

I am concerned that because the Rules Enabling Act gives Congress the opportunity to review proposed rules even after the Con-
31 

ference acts, some say that we still have a central role here, but 

most often the legislative calendar means the decision of the Conference may well be the final word. So I believe it is critical the 

Conference be certain to consider the interests of all Americans, 

and especially those who critically depend on the courts being open 

to them to resolve disputes on a level playing field, especially those 

disputes that are at core enforcing constitutional protections and 

not a place where needless barriers or stop signs are erected that 

add expense while obscuring truth. 

The record of this hearing will remain open for members who 

wish to submit additional testimony, and this hearing is, therefore, 

adjourned. 

[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

(33) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF HON. CHRISTOPHER A. COONS
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PREPARED STATEMENT OF HON. PATRICK J. LEAHY
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PREPARED STATEMENT OF HON. JOHN CORNYN
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PREPARED STATEMENT OF ARTHUR R. MILLER
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PREPARED STATEMENT OF ANDREW PINCUS
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PREPARED STATEMENT OF SHERRILYN IFILL
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QUESTIONS SUBMITTED BY SENATOR FLAKE FOR ANDREW PINCUS
80 

RESPONSES OF ANDREW PINCUS TO QUESTIONS SUBMITTED BY SENATOR FLAKE
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MISCELLANEOUS SUBMISSIONS FOR THE RECORD
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Æ