Last month two federal court of appeals judges sucking up to speaking at the Federalist Society Convention advocated no discovery in cases worth less than $500,000. From the Slate article:

Thomas Hardiman, a judge on the 3rd U.S. Circuit Court of Appeals, made what should have been viewed as a shocking declaration for a federal judge. Hardiman told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” The audience applauded. A fellow panelist, Judge Amul Thapar of the 6th Circuit, chimed in, “Can I say amen?” Thapar later repeated his endorsement of the idea.

My Take:

Thank god those guys aren’t orthopedic surgeons. “Your knee hurts? I’ve got just the solution. We’ll chop off your leg.

I doubt they were serious. In a tactic known well to touring musicians and professional wrestlers, this sounds like ‘cheap heat’ playing to the crowd. Ever heard “It’s great to be here tonight in Memphis, Tennessee” (or wherever you saw the show)?

I don’t know who is in the crowd at a Federalist Society Convention. But if it was lawyers and judges, I doubt their cheers were serious either. The judicial system is not known for embracing change.

I know it was not a bunch of insurance company people. The last thing in the world insurance companies want is to roll the dice in a trial where they haven’t been able to evaluate the risks due to insufficient information.

The first problem I see is who and how is it determined that a case is worth less than $500,000? Are we talking the amount the plaintiff is suing for, or the value of the case factoring in possible outcomes?

There are cases where plaintiffs sue for $2 million, but the case is worth less than $500,000. There are cases worth less than $500,000, where the plaintiff recovers $2 million. There are cases worth $2 million, where the plaintiff recovers $0.

District and Magistrate Judges have their fingers on the pulse of litigation enough to understand this. Court of Appeals judges? Let’s just say they view the landscape from a height far above reality on the ground.

I am all for improving the litigation system. I agree that discovery is not efficient. But the main reason it is not efficient is that in a system designed to prevent trial by ambush, many litigants try to conceal evidence and conduct trial by ambush.

Maybe we should try to improve the system work before we eliminate it?

In many cases, there is way too much mindless discovery conducted. Every witness in every case does not need to be deposed.

Why depose someone who you know what they are going to say? Some would respond that they don’t know what someone will say until they depose them. I disagree. Most witnesses say what you would expect them to say.

Deposing experts, in particular, is often counter-productive for the party taking the deposition. Think you are going to flip an expert in a deposition? Of course not.

Does there need to be a 7 hour time limit for depositions in all cases? Isn’t 3 hours plenty of time in most cases?

Should the mandatory disclosure system be updated and improved?

Should there be two summary motion deadlines in case management orders, one for affirmative defenses not dependent on discovery and a later deadline for other grounds?

These are just a few ideas off the top of my head. The system can definitely be improved. I’m just not sure a blanket ban on discovery in cases deemed to be small potatoes is the best way to do it.