Tuesday, June 28, 2016

How the Current Version of Rule 5 Frustrates Public Access to Discovery in the “Trump University” Lawsuit and Other Cases

            Most people know by now that Cohen v. Donald Trump, No. 3:13-cv-02519, is a class action in federal court in San Diego alleging that Trump University defrauded thousands of consumers who purchased real estate courses.  What is less widely reported is that the complaint alleges that Donald Trump violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a federal statute passed in 1970 to make it easier to prosecute members of organized crime – e.g., the Mafia.  Specifically, the complaint alleges that Donald Trump violated RICO by conducting Trump University (the alleged criminal enterprise) through a “pattern of racketeering activity” consisting of crimes of mail fraud and wire fraud. 


The Discovery Sought by the News Media

            What does this have to do with the Federal Rules of Civil Procedure?  Well, hang on.  One of the latest skirmishes in the case is that major news media organizations (CNN, The Washington Post, CBS, and several others) have moved to intervene for the purpose of modifying the protective order so that the videotaped depositions of Donald Trump taken in the case may be released.   

            Earlier, the plaintiff tried to file portions of the videos in court as exhibits to his brief opposing Trump’s motion for summary judgment. The court returned the videos to the plaintiff for failing to comply with a court rule.  The plaintiff promptly moved to file “a series of electronic files of video excerpts from the depositions of Trump, taken on December 10, 2015, and January 21, 2016.”  Trump opposes the motion. 

            But meanwhile, plaintiff’s motion revealed the existence of two days of depositions of Trump in videotape form, of which plaintiff is only seeking to file a fraction.  The putative intervenors (the news media) want it all. 


Rule 5 Prohibits the Filing of Discovery in Court Until “Used in the Proceeding

            Perhaps one of the most somnolent of the Federal Rules of Civil Procedure is Rule 5, “Serving and Filing Pleadings and Other Papers.”  Since 2000, Rule 5(d)(1) has prohibited the filing in court of discovery requests and responses (including initial disclosures, depositions, interrogatories, requests for documents, and requests for admission).  From 1980 to 2000, Rule 5 allowed local courts to prohibit the filing of discovery.  (Of course, once a party “uses” the discovery “in a proceeding” – for example, as an exhibit to a summary judgment motion – it must be filed in court.) 

            In contrast, before 1980, Rule 5 required the filing of discovery – depositions, interrogatories, and so forth – in court.  The only reason that was publicly stated for the change to prohibiting the filing of discovery in court was that the copies for filing could be expensive and that the courts did not have enough physical storage space.  But now that everything is digital, it would seem that the issues of expense and physical storage space are moot.   

            Interestingly, the reason the Advisory Committee in 1980 did not immediately prohibit the filing of discovery (leaving it up to the judge instead) was that “such [discovery] materials are sometimes of interest to those who may have no access to them except by a requirement of filing, such as members of a class, litigants similarly situated, or the public generally.”  The media’s request to see Trump’s videotaped depositions seems the perfect example.  Under the pre-1980 version of Rule 5, these depositions would have been filed in court as a matter of course (unless there was a protective order).

            More generally, it occurs to me that sunshine in discovery might be a good disinfectant.  Consider whether returning to the days when discovery was required to be filed in court would improve “cooperation.”  Parties might be embarrassed to publicly file some of the discovery dreck that they now routinely serve privately.  For example, boilerplate responses objecting to every single request or interrogatory would now be on file for anyone to find on PACER.

            If a repeat player had to file discovery, plaintiffs with similar claims involving the same facts could conceivably pull up the discovery filed in an earlier case, rather than having to start from scratch.  Is it possible that would contribute to the “just, speedy, and inexpensive determination of every action”?  At least, it might level the playing field a bit for the “have nots.”


The Advisory Committee’s Proposed Amendments to Rule 5 to be Published for Comment This Summer 

            As we mentioned earlier, the Civil Rules Advisory Committee has proposed that amendments to Rule 5 be published for comment.  (It is my understanding that the Standing Committee has approved the amendments for publication, but I can’t find it online yet.)  The currently-proposed amendments to Rule 5 do not address the issue of public access to discovery.

            The proposed amendments only address issues concerning electronic filing.  The proposal is undoubtedly necessary, but less than scintillating.  According to the draft Advisory Committee notes, there will be “a uniform national rule that makes e-filing mandatory except for filings made [by a pro se party],” with certain other exceptions.  Also, “[t]he proposal deletes the requirement of consent when service is made through the court’s transmission facilities on a registered user.”  Finally, “[t]he amendment provides that a notice of electronic filing generated by the court’s CM/ECF system is a certificate of service on any person served by the court’s electronic-filing system.”  The complete proposed amendment to Rule 5 appears at the end of this post.


A Hypothetical Amendment to Rule 5 to Expand Public Access to Discovery

            Why not liven up the amendments to Rule 5 as follows:

         (d)  Filing * * *

(1) Required Filings: Certificate of Service.

(A)  Papers after the Complaint.  Any paper after the complaint that is required to be served — together with a certificate of service— must be filed within a reasonable time after service.  But  This includes disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.  [Note to anyone skimming this: this paragraph is not the real proposal from the Advisory Committee.  See Appendix below for that.]

            If this were the rule, the media would no longer have to intervene to obtain access to discovery that is of great public interest – like the video depositions of the presumptive Republican nominee in a case alleging that he committed mail fraud and wire fraud.  

            The presiding judge, Judge Gonzalo P. Curiel, will hear argument on the media’s motion to intervene in the Trump case on July 13, 2016.


Appendix: The Real Proposed Amendments to Rule 5

            The following redline shows the actual proposed deletions from the current rule as strikeouts and additions to the current rule as underlined.

Rule 5. Serving and Filing Pleadings and Other Papers

* * *

(b) Service: How Made. * * *

(2) Service in General.  A paper is served under this rule by:


(A) handing it to the person * * *

(E) sending it to a registered user by filing it with the court’s electronic-filing system or sending it by other electronic means if that the person consented to in writing—in either of which events service is complete upon filing, but is not effective if the serving party learns that it did not reach the person to be served; or * * *

(3) Using Court Facilities. If a local rule so authorizes, a party may use the court’s transmission facilities to make service under Rule 5(b)(2)(E).

(d)  Filing * * *

(1) Required Filings: Certificate of Service.

(A)  Papers after the Complaint.  Any paper after the complaint that is required to be served — together with a certificate of service— must be filed within a reasonable time after service.  But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed * * *.

(B)  Certificate.  A certificate of service must be filed within a reasonable time after service, but a notice of electronic filing constitutes a certificate of service on any person served by the court’s electronic-filing system.

(2) Nonelectronic Filing How Filing is Made—In General.   A paper not filed electronically is filed by delivering it:

(A) to the clerk; or

(B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.

(3) Electronic Filing and Signing , or Verification.

(A)  By a Represented Person—Generally Required; Exceptions. A court may, by local rule, allow papers to be filed, signed, or verified A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule. by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States.

(B)  By an Unrepresented Person—When Allowed or Required. A person not represented by an attorney:

(i) may file electronically only if allowed by court order or by local rule; and

(ii) may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions.

(C) Signing.  The user name and password of an attorney of record, together with the attorney’s name on a signature block, serves as the attorney’s signature.

(D) Same as a Written Paper.  A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules.


Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink


Texas Civ Pro Rule 76a defines court records to include some discovery not filed of record.

Posted by: jeff parness | Jun 29, 2016 8:23:36 AM

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