Is Proportionality of Discovery Good or Bad?

Alert readers of this blog will recall that amendments of the Federal Rules of Civil Procedure went into effect on Dec. 1, 2015, including a new requirement that discovery be “proportional to the needs of the case.”

The Institute for the Advancement of the American Legal System (IAALS) thinks that’s a good thing.  Critics, like Prof. Elizabeth Thornburg, think that’s a bad thing because the Rules Committee members appointed by Chief Justice John Roberts approve rules that “tend to favor the interests of large entities resisting discovery.”

Right on cue, Chief Justice Roberts issued his annual report on the federal judiciary, which celebrated the new discovery rules.  He noted that the rules grew out of a 2010 symposium which

identified the need for procedural reforms that would:  (1) encourage greater cooperation among counsel;  (2) focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case;  (3) engage judges in early and active case management;  and (4) address serious new problems associated with vast amounts of electronically stored information.

The report states that the revised rules “highlight[] the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes. . . .  The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.”

In reporting the Chief Justice’s report, the New York Times published an article citing Professors Arthur Miller, Suja Thomas, Stephen Burbank, and Judith Resnik criticizing the new discovery rules as overbroad, aimed at a small number of cases in which there is excessive discovery but inappropriately limiting discovery by plaintiffs in a large number of cases.

(Whatever you think of Roberts’s argument, you might enjoy his report, which reads more like an article than a government report.)

Many of us like the IAALS’s and Chief Justice’s goals of reducing the adversarial elements of litigation but also want to protect plaintiffs’ reasonable access to the legal system.

So are the new rules good or bad?

I don’t know.  I haven’t examined the subject carefully and I don’t have a definite opinion.

On one hand, I gather that there probably is a significant amount abuse of discovery and the proportionality theory generally makes sense.  On the other hand, I can imagine that defendants could use the facially neutral rules to limit plaintiffs’ appropriate discovery.  On the other other hand, I gather that some defense lawyers abuse discovery to harass plaintiffs by “defensing” their cases, so some discovery limits might actually be helpful to plaintiffs.

While I am concerned about plaintiffs’ interests, I think that defendants also have legitimate interests.  I gather that some plaintiffs’ lawyers use litigation procedures to harass even big businesses.  I don’t have a good sense of how the equities balance out in practice.

In the end, I suspect that the “haves” generally will come out ahead about the same in any case because they usually can take advantage of any rules.  (If you haven’t read Marc Galanter’s classic article, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Society Review 95 (1974), you should drop everything and read it NOW.  It provides a valuable analysis of dispute resolution, though most people in our field probably haven’t even heard about it.)

And, while distributional criteria are important, they aren’t the only ones to consider.

But what do I know?  Civ Pro geeks (and I say this in the best possible way), would you like to weigh in?  You never write.  You never call.

5 thoughts on “Is Proportionality of Discovery Good or Bad?”

  1. While I have not studied this issue in great depth, I do teach civ pro. From what I know the new approach is “bad” and part of this Supreme Court’s (largely successful) effort to close the courthouse doors to poor people, other “little guys,” and plaintiffs. In a lawsuit of an individual against a big company it is mostly the individual who needs discovery. The big company has access to its own documents and its own people but the individual has little access to information. For many years the fact that the scope of discovery was broad helped even that playing field at least a bit, but Justice Roberts et al are trying to limit that access just as they have tried to increase the grant of motions to dismiss and motions for summary judgment. And, the Supreme Court’s love affair with mandatory arbitration and its willingness to let companies use mandatory arbitration to insulate themselves from class actions fits in here too. The committees that come up with these rules are inordinately filled with big firm defense-side litigators, in part because they are the ones who can afford to spend time on such matters. Marc Galanter had it right, and things are sadly getting worse not better, in my opinion. Proportionality has a nice ring to it, like Mom and apple pie, but I think that nice word is being used to achieve a far more nefarious end.

  2. I think proportionality is definitely good. It is built into the AAA commercial arbitration rules, which have different versions, including provisions for discovery, depending on the amount in dispute. In my view, because the losing party generally does not have to pay the prevailing party’s attorneys fees, the party with the weaker case attempts to delay the proceedings and bury the other party in a mound of generally useless discovery. Especially in commercial matters, contemporaneous electronic communications between the parties generally provide a fairly reliable picture of what occurred.

  3. Thanks for your comments, Jean and Lisa. I think that you are referring to different situations – where businesses are in litigation with other businesses or with individuals.

    Galanter uses the terms “repeat-players” and “one-shotters,” which are more precise, though some businesses have little or no litigation experience and some powerful individuals have a lot. Even these terms don’t fully reflect power differences but they are good enough for my purposes at the moment.

    Some critics of the proportionality rule say that it is fine when repeat-players litigate against each other but not so much when a repeat-player litigates against a one-shotter. So I think that the issue is whether it is appropriate to have a general proportionality rule that applies to cases with substantial power imbalances.

    Jean, your arguments make some sense to me in theory, though I think that there are some countervailing theoretical considerations noted in my post and so I am not sure. This is where it would help to have good empirical data about actual patterns of discovery abuse and likely effects of this or other rule changes. Does anyone know of such data?

    More generally, I am somewhat skeptical about the impact of legal doctrine in affecting power dynamics. This is not to say that there are no effects or that all rules have the same amount of impact (or lack thereof). Some legal doctrine has major impact, like rules permitting preclusion of class arbitrations, capping damages, or limiting ability to organize unions. But given that legal doctrine is the stuff that lawyers and legal scholars focus on, I think that it would not be surprising for us to generally over-estimate its impact.

    I just saw the film, The Big Short, which I think is fabulous on many levels – including pure entertainment. Perhaps the perpetrators of the frauds and other behavior leading to the economic crash suffered the full effects of the legal rules. Some companies paid civil fines and it may have been too hard to criminally prosecute organizations, and particularly the top executives, when knowledge and responsibility are so diffused throughout organizations. And perhaps the financial industry’s lobbying efforts to shape the laws following the crash struck an appropriate balance between the banks’ interests and the public’s interests. This is another subject I haven’t studied and don’t have confident opinions. But I have a strong suspicion that the power of the financial industry substantially limited the impact of the existing rules and the potential for future regulation.

    Again, this is not to suggest that rules have no effect and we should not bother to adopt and enforce them. But people and businesses don’t simply follow rules – they try to achieve their goals regardless of the rules. This is reflected in some famous quotes, which I found in an article by Susan Diacoff:

    J.P. Morgan’s famous quote: “Well, I don’t know as I want a lawyer to tell me what I cannot do. I hire him to tell how to do what I want to do.” Rob Atkinson attributes a similar sentiment to Elihu Root, contemporary of Brandeis and founder of Cravath, Swaine & Moore’s predecessor firm [who said]: “The client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how.”

    Given this mindset of clients, especially powerful ones, the effects of rules may be less or different than we might expect.

    What do you think?

    1. Actually, my comments referred to both B2B and B2C arbitrations. As an arbitrator in both settings, I am committed to ensuring a fair and efficient process, which balances the need for access to information against the interests in ensuring that the process is expeditious and cost-effective.

  4. I agree with Jean that the Supreme Court is on a campaign to interpret procedural rules in a way that tends to systematically favor sophisticated parties and defendants. As a former commercial litigator who now teaches Civil Procedure, Electronic Discovery, and the Psychology of Conflict, if this is part of that campaign, I am not too sure how much difference the rule change will make as a practical matter. For a long time before the amendments, courts have expected that the parties would cooperate enough to be able to manage discovery on their own. And, particularly in the eDiscovery context, cooperation as to scope and process is considered essential (see e.g., the influential Sedona Principles). Notwithstanding this expectation, lawyers regularly drafted overly broad requests and provided overly narrow responses:

    “Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1. It persists because most litigators and a few real trial lawyers—even very good ones, like the lawyers in this case —have come to accept it as part of the routine chicanery of federal discovery practice.” Security Nat. Bank of Sioux City, Iowa v. Abbott Laboratories, 299 F.R.D. 595 (2014).

    For lawyers who did not get this message and were not already engaging in more cooperative discovery, the rule change is not likely to be a strong enough intervention to change the culture of practice.

    It does not seem likely to systematically disadvantage plaintiffs either in part because proportionality was already in the Rules. The proportionality language in the amended Rule 26(b)(1) defining the scope of discovery is basically the same as that in the pre-amendment Rule 26(b)(2)(C)(3) providing the basis for a protective order. Considering that the time when any discovery dispute is likely to come before a judge is on a motion for a protective order/to compel discovery, whether proportionality is in Rule 26(b)(1), Rule 26(b)(2), or both (as is the case given the internal reference post amendment), it has been and continues to be a relevant standard against which the judge is to weight her decision to order or preclude production.

    All that said, I do think that it is worth while thinking about what sort of rule-based intervention might change the current culture in discovery practice in a constructive way.

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