Disir
Platinum Member
- Sep 30, 2011
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But that’s what is deceiving about this latest move to reshape federal litigation procedure and similar efforts that preceded it. Those responsible for reforming such procedure over the past 40 or so years have been masters at employing neutral-sounding principles in service of rules that in truth restrict the ability of the injured and the wronged from accessing courts to vindicate their legal rights.
The purpose of discovery in litigation is for the parties to exchange information that could assist each side in making their case. Typically, in David versus Goliath situations, the defendant is the party with most if not all of the significant information to be discovered. Preserving, reviewing and producing such information can be costly and time-consuming for large corporations and — even worse — can reveal evidence of liability. Corporate defendants have thus complained to their legislative representatives and to those in command of the federal civil rulemaking process that the rules must be changed to protect them against such discovery.
So Roberts and the committee of judges and lawyers that craft the rules have obliged. Now, discovery will be narrower in scope than before. Pesky document requests that defendants believe are too expensive to be justified can be rebuffed. And if defendants happen to “accidentally” or even recklessly lose documents that would have helped plaintiffs prove their claims, the rules will now shield them from any meaningful consequences. That is the import of the most recent amendments the chief justice praises.
These changes are in line with a long string of moves by the rulemakers and the Supreme Court to restrict access to justice — whether it be limiting the power of class action lawsuits, enforcing arbitration agreements that make claims unenforceable, or raising the bar for what information plaintiffs must present in order to initiate a claim in federal court.
The consequence of these and other similar reforms is not more fairness but less enforcement of important legal rules that govern the conduct of corporations and others in our society. We rely on private enforcement to deter and remedy corporate violations of consumer protection, products liability, securities, anti-discrimination and other laws. But this enforcement is becoming increasingly untenable as the Supreme Court and rulemakers persist in erecting barriers to initiating and maintaining a viable lawsuit in federal court.
Spencer: Chief Justice John Roberts and the Loss of Access to Justice
I really dislike Roberts. I think people are going to regret this man in the end.
The purpose of discovery in litigation is for the parties to exchange information that could assist each side in making their case. Typically, in David versus Goliath situations, the defendant is the party with most if not all of the significant information to be discovered. Preserving, reviewing and producing such information can be costly and time-consuming for large corporations and — even worse — can reveal evidence of liability. Corporate defendants have thus complained to their legislative representatives and to those in command of the federal civil rulemaking process that the rules must be changed to protect them against such discovery.
So Roberts and the committee of judges and lawyers that craft the rules have obliged. Now, discovery will be narrower in scope than before. Pesky document requests that defendants believe are too expensive to be justified can be rebuffed. And if defendants happen to “accidentally” or even recklessly lose documents that would have helped plaintiffs prove their claims, the rules will now shield them from any meaningful consequences. That is the import of the most recent amendments the chief justice praises.
These changes are in line with a long string of moves by the rulemakers and the Supreme Court to restrict access to justice — whether it be limiting the power of class action lawsuits, enforcing arbitration agreements that make claims unenforceable, or raising the bar for what information plaintiffs must present in order to initiate a claim in federal court.
The consequence of these and other similar reforms is not more fairness but less enforcement of important legal rules that govern the conduct of corporations and others in our society. We rely on private enforcement to deter and remedy corporate violations of consumer protection, products liability, securities, anti-discrimination and other laws. But this enforcement is becoming increasingly untenable as the Supreme Court and rulemakers persist in erecting barriers to initiating and maintaining a viable lawsuit in federal court.
Spencer: Chief Justice John Roberts and the Loss of Access to Justice
I really dislike Roberts. I think people are going to regret this man in the end.
