Federalist Society Meeting: Judges Offer Plan to End Discovery for Most Litigants.
panel on which the judges spoke dealt with far ranging and important topics: the slow pace and high expense of litigation, people’s desire to have a day in court, the plummeting number of disputes resolved by full trials. In this midst of this high-minded and interesting discussion, it was telling to suddenly hear a proposal to end discovery for cases of less than $500,000. The proposal, the amen, and the applause, provide a window into the thinking of these two judges and their audience, showing a disdain for modest-dollar cases, which include many cases involving important rights, as well as cases affecting small businesses, middle-income, and low-income people. This depreciation reveals a worldview in which many, many people would not merit meaningful access to the full range of tools in federal court. And remember: The comments came from sitting appellate judges—one wonders how it will feel in the future to be a litigant with a modest-dollar case in front of their courts.
This is not an insignificant liberty these judges are seeking to curtail. In our legal system, discovery is the process by which both sides gather evidence before trial. It allows everyone to understand the often complicated facts underlying their case, and, as the American Bar Association explains, to avoid “trial by ambush” in which one side presents new evidence at trial, when the opponent can no longer gather evidence in response. Commonly used methods of discovery include taking depositions, or sworn testimony, ahead of time; requests or court-issued subpoenas to obtain documents; and interrogatories, which are lists of questions the recipients must answer.