On November 5, 2013, Sherrilyn Ifill testified before the Senate Judiciary Committee’s Subcommittee on Bankruptcy and the Courts.  The hearing was entitled, “Changing the Rules:  Will Limiting the Scope of Civil Discovery Diminish Accountability and Leave Americans Without Access to Justice.”  You can watch the hearing here. 

The hearing addressed proposed amendments to the Federal Rules of Civil Procedure under consideration by the Judicial Conference of the United States Advisory Committee on Civil Rules.  The Advisory Committee is in the midst of a public comment period; LDF has submitted comments and will testify at an Advisory Committee hearing later this week.  The proposed amendments will be reviewed by both the Judicial Conference and the Supreme Court.  Congress will have the opportunity to modify or reject any amendments.    

The Chairman of the Subcommittee, Chris Coons (D-DE), presided over the hearing.  Also in attendance were Senators Sheldon Whitehouse (D-RI), Jeff Flake (R-AZ), Jeff Sessions (R-AL), Richard Blumenthal (D-CT) and Al Franken (D-MN). 

Sherrilyn testified that the proposed amendments would significantly hamper discovery in civil rights cases and thus undermine enforcement of civil rights laws.  Adopted in 1938, the Federal Rules were designed to promote access to the courts.  Many of the seminal cases interpreting the scope of the Rules were civil rights cases.  Sherrilyn expressed concern that the proposed amendments were aimed at redressing discovery abuses in a small segment of cases, yet their widespread application would curtail our ability to prove discrimination.    

Sherrilyn referred to the important role of discovery in civil rights litigation where discrimination is often subtle and difficult to prove and yet plaintiffs must rely on information known exclusively to the defendant.  She cited Supreme Court cases relating to summary judgment, class actions and pleading standards, which have limited the ability of discrimination victims to have their day in court.  She expressed serious reservations about adding a “proportionality” requirement to existing rules governing the scope of discovery, in which defendants could decide which claim and which information was important and whether the amount in controversy warranted certain discovery.  “Throughout much of the history of this nation, the federal courts have played a vital role in protection the civil rights of African Americans and other minorities.  [T]he proposed amendments … threaten to undermine that great tradition.” 

LDF’s testimony can be found here.