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I Heart Kozinski

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It’s not every day that I profess my adoration for a public official so, well, publically. Especially not for a sitting Ninth Circuit Court of Appeals Judge who is often called conservative.

But I heart Kozinski. 

It’s not because of his reportedly big personality, his colorful turn of a phrase, or his willingness to take on controversial topics.  I must confess; I often disagree with his politics and his findings.

It’s that he gets it.

At least he gets it when it comes to the critical importance of vigorous discovery in civil cases to plaintiffs . . . now that he’s involved in a consumer class action suit against Nissan Motors.

What made this otherwise conservative judge see the light?  It turns out that Judge Kozinski is unhappy with his attorney’s failure to delve into Nissan’s alleged illegal behavior before entering in what Judge Kozinski suggests is a “sweetheart” settlement deal in Klee, et al. v. Nissan North America, Inc., a class action on behalf of Nissan Leaf car owners for warranty and alleged battery defects.  He was so enraged with his attorney’s failure to delve into the knowledge of Nissan regarding these alleged defects before selling the vehicles to consumers that he filed a pleading asking the Judge to deny court approval to the proposed settlement.   In his thirty page opposition, he (and his wife) passionately made the case that “extensive” and “vigorous” discovery is needed to demonstrate liability of corporate defendants.

After deriding his high-powered attorneys for failing to obtain evidence that would be necessary to prove liability at trial, such as internal memos, emails, incident reports and prior complaints, Judge Kozinski wrote: “it’s the job of the lawyers suing to find out everything the company knows and hopes to conceal.”

Judge Kozinski took the words right out of my mouth.

His observation pinpoints the controversy over changes to federal rules now being proposed that would limit discovery in all civil cases, including those involving consumer, employment and civil rights claims, filed in federal courtroom across the country.  The proposed changes to the federal rules that govern discovery would cut the number of depositions allowed by half (from 10 to 5) and limit them to six hours each.  Documents requests are slashed imposing a limit of only to 25 requests; interrogatory requests from 25 to a paltry 15 and admissions having new numeric restrictions of only 25.

The proposed changes, recently submitted by the Judicial Conference of the United States to Congress are now open for public comment. Public hearings, which have already begun, are being held in Phoenix, Arizona on January 9, 2014 and Dallas, Texas on February 7, 2014.  Public comments received from civil rights, consumer rights, and environmental champions argue that the rules will effectively do away with the discovery needed to enforce laws for the protection of all citizens.

On the other side, comments received from representatives of big corporate interests complain that the cost of discovery is too high, requiring a “trim” of discovery for all cases in federal court.

If these proposed changes to the federal rules of civil procedure take effect, Americans who bring consumer, employment or civil rights claims against large corporate entities will feel Judge Kozinski’s pain.   An employee who was wrongfully fired for, say whistleblowing, won’t get to find out very much and certainly not what the company hopes to conceal.  Instead, it is far more likely that companies who are intent on doing bad things and firing employees who bring unlawful practices to light will play possum until the meager discovery afforded under the proposed changes are all used up in a game of “gotcha.”

Judge Kozinski’s experience as a class member in a consumer rights case has led him to provide a vivid example of how paramount discovery is to prosecuting cases that that are brought under federal laws enacted to protect the public from false claims or faulty products.  Judge Kozinski’s experience demonstrates how important this yawn-inducing technical “fix” to the discovery rules is to the general public.  People and their elected representatives should be paying attention too.

[To learn more about how the proposed changes to the Federal Rules of Civil Procedure would harm civil right cases, read Wendy Musell’s earlier blog post,Gaming the system: If you can’t beat em, change the rules.]

This article was originally printed on CELA Voice on November 24, 2013.  Reprinted with permission.

About the Author: Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey.  Stewart & Musell, LLP is a firm devoted to protecting civil rights in employment and in criminal law. Ms. Musell is committed to representing employees in public and private employment and protecting their civil rights.

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Super Conservative Judge Alex Kozinski Inadvertantly Undercuts Rationale For Corporate Proposals to Narrow Discovery Under Federal Rules

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Last week, an outburst by Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, one of the most conservative and generally pro-corporate judges in the country, showed that the corporate arguments in favor of amending the federal rules to make it harder for individuals to prove their cases are unfair and unwise.
Judge Kozinski didn’t make the statements in a judicial decision, but instead in a pleading while representing himself in objecting to a class action settlement some lawyers brought against Nissan involving an alleged defect in some cars.  Among the judge’s objections to the settlement were that it was the “job of the lawyers suing [Nissan] to find out everything the company knows and hopes to conceal.”  This strong statement sharply contrasts with the general argument that corporations are making to the Committee considering changes to the federal rules, where the Chamber of Commerce and its allies are all arguing that plaintiffs conduct too much discovery as it is and that it should be made much harder for them to do so.  The truth, as Judge Kozinski’s argument makes clear, is that if corporate America gets its way, plaintiffs’ lawyers won’t be able to “do their jobs” in representing their clients.
So what is going on with the discovery rules?  Why are Judge Kozinski’s angry opinions in this one case against Nissan of greater interest?  The answer is one of the latest initiatives in the series of corporate efforts to close the courthouse doors to individuals who have been cheated by, polluted upon, discriminated against, or otherwise been illegally dinged by corporations.  There are a set of proposals to sharply narrow the discovery available under the Federal Rules of Civil Procedure.  The dynamic driving this campaign is that the burden of proof is on plaintiffs bringing a case, but the corporations possess and control nearly all the documents that relate to most cases.  So if you can make it harder for plaintiff’s to ask for evidence, you can make it harder (or often impossible) for them to prove their cases, and push them right out of court.
The Chamber of Commerce and its various buddies say that narrowing discovery is necessary because it’s supposedly unfairly expensive for corporations to search through their computers for evidence relating to law breaking.  In fact, as Public Justice has argued in some detail, the costs have been exaggerated, and in any case the biggest cause of costs and problems is that corporations stonewall and cover up inconvenient evidence—not that cheated consumers (or workers or pollution victims, etc.) ask for too much information.  But will a lack of serious data get in the way of an exceptionally well financed Chamber effort to help wrongdoers hide the ball?  No one knows yet, but the last several rounds of “reforms” have always turned out to be heavily tilted in favor of corporate interests.
But Judge Kozinski’s lambasting the plaintiffs’ lawyers in his objections to a settlement involving Nissan are way off-message for corporate America.  The background is that Judge Kozinski was a member of a class in a case against Nissan where the plaintiffs and the defendants reached a proposed settlement.  The way class actions work, a settlement has to be approved by a court, and in the vast majority of cases, class members have a choice between being part of the settlement (and getting their share of whatever relief is provided under the deal), opting out of the settlement (which means that the class member has the choice of bringing their own case in an effort to do better than the settlement), or objecting to the settlement.  Judge Kozinski objected to this settlement.  And one of his biggest gripes is that he is mad that the plaintiffs didn’t take enough discovery.  His argument is that the deal is very suspect if the plaintiffs didn’t do enough work to find out a lot about how badly the corporation actually behaved.  There are cases where this can be a very good point; I don’t know enough about the settlement to say whether he is right or wrong here.
While he says a lot of colorful things (Judge Kozinski hasn’t become one of our more famous judges by lacking in personality), the best thing he says is this gem: “It’s the job of the lawyers suing them to find out everything the company knows and hopes to conceal.”  That sounds about right to me – good lawyers need to get to the bottom of what really happened in a case, and if a corporation acting illegally gets away with concealing key evidence, then that increases the risk that the people harmed won’t be made whole.
So how can Judge Kozinski’s point about the importance of searching discovery be squared with the corporate campaign to make it harder and harder to take discovery?  The answer is obvious.  Judge Kozinski’s statement that lawyers have to dig through the concealment to get to the truth is completely inconsistent with the campaign to make it harder for plaintiffs to take discovery.
The obvious corollary of the judge’s comment is that proposals to limit discovery conflict with the campaign to choke off a good deal of the discovery available to individuals.  In the judge’s own words, if plaintiffs’ lawyers can’t find out “everything the corporation knows and hopes to conceal,” then they can’t do their job.
I can see why corporations that break the law want to make it impossible for lawyers for human beings to do their job.  I hope the Federal Rules Advisory Committee won’t agree with them on this round.

This article was originally printed on Public Justice on November 18, 2013.  Reprinted with permission.

About the Author: F. Paul Bland, Jr. is a Senior Attorney at Public Justice since 1997, is responsible for developing, handling, and helping Public Justice’s cooperating attorneys litigate a diverse docket of public interest cases.

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