Article Christine Durham: Catalyst and Supporter of Discovery Reform, 1217 UTBJ, Vol. 30, No. 6. 37

Author:Francis M. Wikstrom, J.
 
FREE EXCERPT

Article Christine Durham: Catalyst and Supporter of Discovery Reform

Vol. 30 No. 6 Pg. 37

Utah Bar Journal

December, 2017

November, 2017

Francis M. Wikstrom, J.

In December 2015, the Federal Rules of Civil Procedure were amended to great fanfare. Chief Justice Roberts hailed the changes to the discovery rules in his 2015 Year-End Report on the Federal Judiciary. The changes were designed to make discovery more efficient and less expensive. They were indeed significant. But they weren’t novel. The new federal rules reflected in large part changes that had been made four years earlier in Utah thanks to the inspiration and leadership of then Chief Justice Christine Durham.

In that year-end message, Chief Justice Roberts noted that Rule 1 had been amended to add eight simple yet significant words. As amended, the federal rules would be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Chief Justice Roberts, 2015 Year End Report on the Federal Judiciary [hereinafter, 2015 Report], 6, available at https://www.supremecourt.gov/publicinfo/year-end/ 2015year-endreport.pdf. The Utah Supreme Court amended our Rule 1 four years earlier to add just two words, but to the same effect: “[The Rules] shall be liberally construed and applied to achieve the just, speedy, and inexpensive determination of every action.” Utah R. Civ. P. 1 (emphasis added).

Chief Justice Roberts also pointed out that amended “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” 2015 Report, at 6. The 2015 federal rule limited discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case” and defined the factors that determine proportionality. Fed.R.Civ.P. 26(b)(1).

Four years earlier, the Utah Supreme Court amended our Rule 26(b)(1) to limit discovery to “any matter, not privileged, which is relevant to the claim or defense of any party if the discovery satisfies the standards of proportionality” defined in...

To continue reading

FREE SIGN UP