by Professor Suja A. Thomas
As has been widely reported, for a decade General Motors knew about an ignition problem in its cars that could turn off the engine and disable power steering and air bags. However, it issued a recall only last year.
The recall stemmed from a lawsuit by the family of Brooke Melton, a woman who died in a crash of a GM Cobalt. Only after information about the ignition problem surfaced did GM take steps after years of inaction resulting in consumers’ injury and death. If GM has its way, in the future, GM and other defendants in products liability cases will not be forced to give up information like this but instead will decide on their own what information plaintiffs who sue will receive, which will result in even fewer civil jury trials than occur now.
The Melton lawsuit and related investigations required GM to disclose documents that showed internal inquiries and a significant change to the ignition switch demonstrating GM knew about the problem many years ago. Without these disclosures, the recalled cars very well may be on the road today.
When a lawsuit is brought, the parties search for and exchange relevant information. In the federal courts where large corporations tend to prefer to litigate, GM, Ford, GE, Pfizer, Exxon, and Microsoft, among others, have pressed to change the rules governing this process. They or organizations representing their interests testified before a federal committee in favor of a rule that permits them to decide not to search or produce relevant documents that they deem not “proportional” to “the needs of the case.” In other words, even if documents are relevant, the companies think that they should be able to withhold information in lawsuits simply for example because they consider the burden to them of producing the information to be greater than the benefit to the plaintiff of receiving the information.
Under the proposal being pushed by these large companies, they would have no obligation to let plaintiffs know what information or “discovery” as it is called in the rules has been withheld. Without knowing this, plaintiffs like the family of Brooke Melton will have little ability to challenge big companies when they improperly keep important documents from them. Currently, many cases are dismissed before trial through a procedure referred to as summary judgment. For example, federal judges dismiss over 70% of employment discrimination cases on summary judgment. Under the proposed rule, without relevant information, courts are even more likely to dismiss these cases and other cases similar to the Melton case before trial. Also, if cases are not dismissed before trial and end up before a jury, the cases will continue to be more difficult to win without relevant information.
This new proposed rule contrasts with the rule that is in place. Currently, companies can refuse to produce relevant information only if it falls under a recognized evidentiary privilege such as a communication between a lawyer and the client. The defendant must further provide a detailed account of any documents it withholds helping the plaintiff determine whether the defendant is abusing the rule.
The proposed change has been initiated because companies have proclaimed that costs in litigation are too high. However, repeated studies by the Federal Judicial Center, an agency of the federal judicial system, shows costs for most cases are proportional to the stakes in those cases. In half of the cases, plaintiffs and defendants respectively spend less than $15,000 and $20,000 on producing information in discovery, and in 95% of the cases, costs for plaintiffs and defendants are equal to or less than $280,000 and $300,000.
The proposals come from a federal advisory committee, appointed by the Chief Justice of the United States, whose members largely represent or have represented corporations for significant periods of their careers and/or have worked on complex cases–what I have called “atypical” or “oddball” cases–not typical cases in which discovery is proportional. Those representing the interests of plaintiffs and corporations have been hugely divided on whether this change and other similar changes should be approved. In the public comment period, over 2000 comments were submitted, more than six times the number of comments than were submitted in the past. Despite the cost study and the debate over the change, the committee approved the proposed changes. The proposed rule change could be adopted soon unless Congress acts.
If the rule is changed, corporations will be able to decide what information they produce in cases, including in ones alleging serious bodily injury and death. This rule will ultimately result in judges dismissing more cases, and juries not deciding them.
Professor Suja A. Thomas (University of Illinois College of Law) testified regarding the proposed changes before the Advisory Committee on the Civil Rules. She is working on a forthcoming book, The Other Branch, Restoring the Jury’s Role in the American Constitution (Cambridge University Press).