Tipping the Scales of Justice
It’s becoming increasingly more difficult (it seems by the day) to seek redress for wrongs through the judicial system. Litigants are locked out because they have been forced to accept terms of service, and now terms of employment (see Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018)), that foreclose access to the judicial system entirely by requiring all claims to be arbitrated by private arbitrators—confidential, expensive, and lengthy processes that virtually always preclude class or any kind of representative actions.
Much has been written, on this site, on other legal websites, and even in some mainstream media, about the imposition of such terms. But there have been other changes that apply to litigation that can still proceed in courts that increase the burden on plaintiffs and in all likelihood will begin to deter meaningful and responsible litigation—leaving businesses and employers unchecked at the expense of the rest of us.
Just a few years ago, the Federal Rules of Civil Procedure were amended, as they periodically are. Of primary benefit to defendants, the 2015 amendments relating to discovery imposed a proportionality standard, whereby requested discovery has to be not only relevant to the claims and defenses, but also “proportional to the needs of the case.” See Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 30-33. The proportionality standard precludes discovery of relevant information, but it also leads to expensive motion practice, which inevitably delays resolution.
Following the 2015 amendments to the Federal Rules, at least some states have followed suit. In an interesting, and alarming, twist, Wisconsin not only implemented similar changes to its civil rules, but went further—and without following the customary practice of involving the Wisconsin Supreme Court or the Judicial Counsel in discussions about the implications of proposed amendments. Not surprisingly, but disconcertingly, this move was supported by several local and national business and advocacy groups.
Beyond adopting the proportionality standard imposed by the Federal Rules after 2015, Wisconsin has adopted and implemented (or soon will implement) a number of rules likely to disproportionately and negatively affect plaintiffs. For example, the Wisconsin Rules now include an automatic stay of discovery upon the filing of a motion to dismiss or a motion for a more definite statement. Wis. Stat. §802.06(1)(b). The stay lasts 180 days unless the pleadings motion is decided earlier. Id. So for up to six months-after the motion is briefed, which might already be months after a complaint is filed-no discovery will proceed.
The new Wisconsin rules also require a court to limit the frequency or extent of discovery if the discovery is deemed cumulative or duplicative—without regard for whether the discovery is nonetheless reasonable. Wis. Stat. §804.01(am). Prior to 2015, in federal courts, “unreasonably” cumulative or duplicative discovery could be prohibited. Under Wisconsin’s new rule, there is arguably no room to argue that in a particular case there might be a compelling reason to permit what might be termed cumulative or duplicative discovery. Or there might be instances in which what might otherwise be cumulative or duplicative could bear on credibility issues. No matter—in Wisconsin, the court “shall” limit such discovery, upon a motion to do so. Id. (“court shall limit the frequency or extent of discovery. . . .”) (emphasis supplied). There is also now a presumptive time frame of no more than five (5) years before the accrual of a claim from which discovery may be sought—exceptions can be obtained, but not without court consideration and intervention. Wis. Stat. 804.09(2)(a)(3).
The new rules further provide a list of ways that parties can avoid discovery of electronically-stored information. Wis. Stat. §804.01(2)(e)(1g). For example, a producing party can claim that such data cannot be retrieved without transferring it to another form before it is searched or that the data is not available in the ordinary course and is not reasonably accessible because of burden or cost. Id. Class certification decisions are also now appealable as of right, with an automatic stay of proceedings (except to permit parties to pursue settlement) during such an appeal. Wis. Stat. §803.08(11)(a)-(b).
Often states follow suit when there are federal rules changes. The move by Wisconsin to not only implement changes similar to those made to the federal rules, but to go beyond those changes without input from the normal sources, but with input from biased sources, is alarming. What’s more, for the average citizen, the importance of these changes is likely lost. Unless one has had significant experience with litigation, he won’t even realize the burdens and restrictions these changes impose until he finds himself in litigation, at which point it’s too late to protest.