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Respected judge’s view on discovery is dangerous and wrong December 8, 2018

A highly respected judge serving on the Third Circuit Circuit Court of Appeals recently 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?”

These judges are wrong. Their views on discovery, if sincerely held, are dangerous. Congress chose private parties – acting as private attorneys general – to enforce the laws requiring employers to pay what they owe and to treat people equally at work. Congress enacted fee-shifting rules to ensure lawyers would accept and litigate “small” cases – cases where the economic losses are less than $500,000 – because the social policies behind the laws are so important. Many economists would also argue that a $500,000 case to someone making $50,000 a year is much more important than a $50 Million case to Comcast, Apple, Amazon or GE.

When a case begins, the employer controls the witnesses, the documents, the emails, everything. Denying discovery would make cases that are already difficult on a good day impossible to win. No lawyer would agree to represent an individual in a civil rights case if the lawyer could not request documents from the employer or take depositions.

Any rule denying discovery in cases “worth” less than $500,000 would blow a hole through some of the most important federal laws ever written, deny justice to millions of working Americans, and make America less fair and less equal.

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