Two Top Conservative Judges Offer Plan to End Discovery for Most Litigants

Side-by-side photos of Thomas Hardiman and Amul Thapar
Federal judges Thomas Hardiman and Amul Thapar Photo illustration by Slate. Photos by the 3rd U.S. Circuit Court of Appeals and 6th U.S. Circuit Court of Appeals.

Last month, while a new crop of freshmen House representatives were changing our vision of who belongs in halls of Congress, two high-ranking judges at a convention down the street shared their views about who deserves to be heard in federal court.

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.

The Federalist Society is the conservative organization that for decades has had outsized influence in grooming and promoting conservative lawyers for the federal judiciary. It most famously helped prepare a list of potential Supreme Court nominees for President Trump that included Brett Kavanaugh as well as Hardiman and Thapar. This is an organization with a frighteningly strong track record of accomplishing what it says it will.

The 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.

Discovery is a key element of our current adversarial system. Often, it’s how people get evidence of legal violations, via admissions in sworn testimony, or smoking-gun documents, or memos demonstrating wrongdoing. Discovery is especially critical in today’s economic marketplace, where deception and predatory conduct are likely to be papered over. Discovery is needed to level the playing field to help ordinary plaintiffs have access to information that large corporations may bury. For example, discovery would be necessary to determine that a car dealer had packed an agreement with predatory fees or that an employer shaved hours of employees’ time. In other words, discovery is critical to our civil justice system and especially crucial for everyday Americans affected by complex forms of wrongdoing.

Of course, there are valid critiques of the discovery process: lawyers can inappropriately use it as a fishing expedition, or run up their clients’ meters with excessive inquiries. And as the judges commented on their panel, discovery often takes a very long time. But these concerns exist in high-dollar cases, too. And while there are reasons to treat cases of modest magnitude differently, that’s why there are already rules about what goes to federal, versus state, versus small claims courts. Perhaps most importantly, federal rules already require that discovery must be “proportional to the needs of the case,” when various factors are considered, including the importance of the issues and the dollar amount at stake.

These judges seem to forget, or ignore: Our civil justice system is supposed to be blind to the income levels of the people involved in disputes. Many important cases that end up in court don’t involve what some well-off people would consider to be buckets of money. Besides, federal law is passed by Congress, and access to courts in a meaningful way requires discovery, in order to pursue the rights which Congress has bestowed.

Imagine a system like the one these judges propose, in which no discovery were allowed for disputes involving less than $500,000. What cases would be affected?

Consider the minimum wage. The current federal rate is $7.25 per hour, so a worker who’s been completely stiffed on wages—paid nothing at all—would have to be unpaid for 68,965 hours before reaching Hardiman and Thapar’s threshold for discovery.

Often cases involving important rights, like constitutional rights or religious rights, are not really about the money but rather about the ideals of our country. Does anyone think about the dollar amount involved in Brown v. Board of Education, which resulted in school desegregation? What about in Gideon v. Wainwright, which established the right of the accused to have court-appointed counsel? We can all recite our Miranda rights, but do we know whether that case resulted in a payout? Or to use a more recent example, think about Floyd v. City of New York, a case about New York City’s use of stop and frisk that sought primarily to reform police practices.

Even when important public cases are actually even partly about the money, the dollar amount may not be astronomical. Lilly Ledbetter sued her employer, the Goodyear Tire and Rubber Company, based on pay discrimination. She was awarded a total of $360,000 by the lower court before her quest was thwarted by the Supreme Court. Her case, though, ultimately led to a new federal law expanding equal pay rights throughout the nation.

Also, some important laws limit the amount of money plaintiffs can recover, so those cases will almost never reach a $500,000 value. For example, in cases of intentional employment discrimination, the maximum amount of compensatory and punitive damages allowed is $300,000, and this is only for very large employers with more than 500 workers. Under the federal law prohibiting debt collectors from using unfair or abusive practices, victims can recover only the actual money they lost, plus $1,000 in statutory damages.

Many cases filed by small businesses would also fall below the judges’ threshold, since small outfits often have annual gross receipts below $500,000.

In reality, most Americans—left, right, center, blue, red, urban, rural—will never have a dispute about anything close to $500,000. Indeed, these comments by Hardiman and Thapar reveal a disturbing perspective about access to justice for ordinary people, both middle-class and poor.

These judges also spoke on the panel about their concern about making sure people have access to trials, about speeding up the sluggish pace of litigation. These are important concerns. But what does it mean when their conclusion is knock cases out from discovery unless they involve a fortune? What does that say about who the federal judicial system is meant to serve?

In so many cases, there’s a lot more at stake than just dollars and cents, which is why discovery shouldn’t be available for high-end litigants only.

That’s not what our nation’s founders—the original federalists—had in mind. And that’s not the kind of justice system most of us want, either.