It is hard to get plaintiff’s lawyers and defense lawyers to agree on anything. If one likes red wine, the other will take white. If one likes red meat, the other will eat grilled chicken. If a plaintiff’s lawyer enjoys the beach, a defense lawyer would rather go to the mountains.
However, there is one thing that seems to be generating some agreement. Proposed changes to the discovery rules of the Federal Rules of Civil Procedure are gaining traction. The primary changes involve (1) limiting depositions to 4 hours; (2) limiting interrogatories to 15; and (3) limiting requests for production to 25. It seems that everyone is calling foul.
After reviewing these changes, I sent out an email to my colleagues in our law firm asking for their comments. I also sent out an email to some of my friends who are defense lawyers. The responses were somewhat mixed, but everyone seemed to have concerns.
Plaintiff’s lawyers generally like the idea of limiting the duration of depositions. There seems to be a common belief that much of a plaintiff’s deposition is a fishing expedition. There is thought that it largely harasses the plaintiff. Moreover, in sexual harassment cases, it can be viewed as a way to punish a sexual harassment victim. Defense lawyers, by contrast, are adamantly opposed to limiting the duration of party depositions. One defense lawyer told me that 4 hours would virtually eliminate the effectiveness of a deposition because a plaintiff could provide evasive answers and effectively “run out the clock. “
While plaintiff’s lawyers and defense lawyers seem to disagree on the proposal for limited duration of depositions, they seem uniformly concerned about the limitations on written discovery. A couple of plaintiff’s lawyers felt that limiting the scope of written discovery would prevent abusive discovery requests and “documents dumps.” Their belief was driven largely by the thought that a lot of discovery requests are redundant in light of the mandatory disclosure requirements of Fed. R. 26(a).
However, the majority of plaintiff’s lawyers seem to share the same concerns as defense lawyers. In other words, a 15 interrogatory and 25 requests for production limit is simply unreasonable in light of the proliferation of electronically stored information. One plaintiff’s lawyer also said, “Look, the defendants have all the documents. We should not be limited in what we can ask for when we have no way of knowing what is out there.”
It will be interesting to see what the final version of the rules look like. In the interim, plaintiff’s lawyers and defense lawyers may be sharing a cold brew at a local tavern and commiserating about one of the few things they are actually able to agree upon.