A disproportionate response? The 2015 proportionality amendments to Federal Rule of Civil Procedure 26(b).

• Author: Ciulla, Matthew T.

INTRODUCTION

When many people think of the American legal system, they think of a lawyer clamoring to "bury her opponent in boxes of documents" and to file a "blizzard of document requests, interrogatories, and deposition notices" in a dilatory effort to gain any trial advantage possible. (1) Popular media outlets frequently highlight anecdotal examples of overwhelming discovery productions, inevitably leading to the conclusion that our system of civil justice is out of control. (2) Indeed, the fabled "document dump" has become a common trope in American works of fiction. (3)

These societal concerns about the discovery process have not gone unnoticed by federal rulemakers (4): on December 1, 2015, a set of amendments to the Federal Rules of Civil Procedure took effect. (5) Among the most significant and contentious of these changes is the Rules' renewed focus on the concept of proportionality in the scope of discovery, added in an effort to curb perceived over-discovery. (6) Although 2014 Rule 26(b) (7)--the Rule best poised to "rei[n] in the cost, delay and burdens of discovery" (8)--could have been said to invoke the concept of proportionality, it did so in a bifurcated and implicit manner, (9) substantially undermining any purported ability the 2014 Rule had to make the discovery process more efficient or effective. (10) Additionally, the 2014 Rule allowed for broad subject-matter discovery on a showing of good cause, (11) which, in theory, broadened the scope of discovery and further blunted any proportionality protections inherent in the Rule. (12) Conversely, the amended Rule 26(b) explicitly requires all parties to a case--and the presiding judge--to limit the scope of discovery to

any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (13) As such, the Advisory Committee has explicitly endorsed proportional discovery. (14) This step addressed some of the discovery issues that the Committee has attributed to the previous structure of Rule 26(b), (15) including courts not applying the proportionality factors (16) and courts applying the factors without the "proportionality" label (17)--issues that the Committee believed only furthered the purportedly rampant issue of over-discovery.

This Note argues that the new Rule 26(b) is not likely to substantially further the Committee's professed goals. Specifically, this Note shows that, even if over-discovery is a rampant problem with proportionality as its solution--a contention that is not well supported by empirical evidence--the new Rule 26(b) does little that will effect change in federal civil litigation practice. Part I provides a brief historical perspective of Rule 26 with an emphasis on prior efforts to instill a proportional scope of discovery--albeit without the label--in the litigation process. Part II explores whether or not over-discovery is a prevalent problem, as asserted by the Committee. Part III analyzes the expected impact of the Rule change on parties requesting and resisting discovery in relation to the Committee's stated goal of curtailing what it sees as rampant over-discovery.

1. A BRIEF HISTORICAL PERSPECTIVE OF RULE 26 AND THE PROPORTIONAL SCOPE OF DISCOVERY

   1. The Inception of Modern Discover)

      Modern discovery has been available to federal litigants since the adoption of the Federal Rules of Civil Procedure in 1938. (18) Before these Rules, the realm of discoverable information was linked to trial admissibility, (19) which led to a "'cumbersome' system of elaborate fact recitation and highly technical code-pleading" at the inception of the litigation. (20) This arduous code-pleading process "disadvantaged poor or unsophisticated litigants, often resulting in resolution of claims on pleading technicalities instead of the merits of the case.'" (21) The Federal Rules removed this standard and adopted a far more liberal "notice pleading" standard, (22) promoting "citizen access to the courts and ... the resolution of disputes on their merits." (23) The resultant "liberalization of discovery" through the adoption of Rules 26-37 left the discovery process with "three distinct purposes," namely:

      (1) To narrow the issues, in order that at the trial it may be necessary to produce evidence only on a residue of matters that are found to be actually disputed and controverted.

      (2) To obtain evidence for use at the trial.

      (3) To secure information about the existence of evidence that may be used at the trial and to ascertain how and from whom it may be procured. (24)

      However, although a broad discovery scope may have served these goals, the ensuing years saw a new purported problem emerge: over-discovery. (25) Litigants in some trials began spending large sums of money and time on discovery (26)--sometimes for abusive reasons. (27) Because broad discovery was a natural corollary to notice pleading (28) and was so engrained in the ethos of American civil procedure, (29) it was difficult for many to envision a system that maintained the notice pleading standard while curtailing purported over-discovery. (30) Indeed, Fourth Circuit Judge Paul V. Niemeyer wrote in 1998: "Despite any temptation to engage in this debate, the Civil Rules Advisory Committee cannot, in any practical way, now attempt to undo the 1938 experiment of notice pleading coupled with broad discovery because that formula has become embedded in the infrastructure of American civil procedure." (31)

   2. Attempting to Curtail Purported Over-Discovery

      Despite these concerns, both the Advisory Committee and the Supreme Court have taken steps that have affected the scope of discovery. The first major recent attempt to circumscribe the scope of discovery came on December 1, 2000. (32) Before this date, parties were entitled to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." (33) Such "relevance" was interpreted very broadly, and "the reach of discovery extended to any matter that had a bearing upon ... any issue in the case." (34) Although requiring a showing of "relevance" could be said to be an early form of discovery scope narrowing, this supposed hurdle precluded only the most extremely inappropriate discovery requests, with one court stating merely that "[d]iscovery of information that has no conceivable bearing on the case" was barred. (35)

      The 2000 Amendments to the Federal Rules, however, significantly modified the language defining the scope of discovery. (36) Rather than pegging the relevance question to the subject matter at issue, the 2000 version of Rule 26(b) (1) allowed for discovery only regarding a matter "that is relevant to the claim or defense of any party." (37) Parties were still permitted to obtain relevant subject-matter discovery--the former default scope--but only with the court's finding of good cause. (38) The Committee therefore created a two-tier discovery process, in which parties were "free to engage in 'party-controlled' or 'attorney-managed' discovery," and, when they were "unable to agree as to whether a discovery request [met the] relevancy standard, the responsibility shift[ed] to the court." (39) This contentious (40) change was aimed at "[c]oncerns about costs and delay of discovery," especially when "parties seek to justify discovery requests that sweep [so] far beyond the claims and defenses of the parties on the ground that they nevertheless have a bearing on the 'subject matter' involved in the action." (41) It sought to address these concerns by "involv[ing] the court more actively in regulating the breadth of sweeping or contentious discovery," as "involvement of the court in managing discovery is an important method of controlling problems of inappropriately broad discovery." (42)

      As one can deduce, such a change, in isolation, would likely have had little effect, as litigants and courts would still be required to interpret the word "relevant," which was one of the main sources of ambiguity in the pre-2000 Rules. (43) However, the Committee included a second change to the nature of Rule 26(b) in the 2000 Amendments: the addition of the final sentence of 2014 Rule 26(b) (1), (44) explicitly subjecting all discovery to the limitations imposed by Rule 26(b)(2)(C).

      First added to Rule 26(b) in the 1983 Amendments, (45) these limiting factors, as they read in 2014, directed that the court "must" limit the scope of discovery if:

      (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

      (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

      (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (46)

      When originally inserting these limitations, the Advisory Committee sought "to deal with the problem of over-discovery" and to "guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper [i.e., 'relevant'] subjects of inquiry." (47) Touted as a "180-degree shift" from the former, pre-1983, rule--which barely curtailed discovery, if at all--the new factors aimed to obligate judges "to limit discovery" if "the evils of redundancy and disproportionality" became "manifest." (48) However...