Friday, February 14, 2014

Proposed discovery limitations could harm whistleblowers

Today, I posted these comments to the Committee on Rules of Practice and Procedure about their proposal to limit discovery.  The Committee was inspired by a conference at Duke University to propose a new doctrine for, "proportionality in discovery." Last year, they released a draft of proposed changes to the Federal Rules of Civil Procedure (FRCP). These proposed changes would reduce the number of depositions, interrogatories and requests for admissions that parties could use.  

My comments point out that the FRCP serve as a model for litigating whistleblower claims at the U.S. Department of Labor (DOL) and the Merit Systems Protection Board (MSPB). "I am particularly concerned that whistleblowers will be put at a disadvantage," I stated.

The Federal Circuit recently noted that, “Congress understood that whistleblowers are at an evidentiary disadvantage in proving their cases.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Employers own and control the information that whistleblowers depend on to prove their allegations about violations of law. Indeed, whistleblowers sometimes suffer termination of their employment precisely because the employer wants to deprive them of access to the information. The employer also controls the information that would establish its deviations from normal practices, and disparate application of its standard of discipline.

My comments explain the wide variety of public interests that are served by whistleblower protections.  Congress has used them in laws governing workplace safety, environmental pollution, nuclear safety, transportation, corporate and consumer fraud, and the safety of pipelines, consumer products, car parts and food.

Discovery is a basic tool that helps to level the playing field in litigation, and whistleblowers need this level playing field as much as anyone.  Of course, other employees with discrimination and retaliation claims will also be affected.  There are already over 1,200 comments posted about these proposed rules. The deadline to submit comments is next Tuesday, February 18, 2014.  You can read the proposed changes, any of the posted comments, and even post your own comments here.

By Richard R. Renner.

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