The next generation: upgrading proportionality for a new paradigm.

• Author: Dawson, Martha J.

SOMETIMES, it takes a while for an idea to catch on, even a really good one. The first versions of the automobile ran on steam and then electricity, and it took a long time for inventors to determine that gasoline was a superior fuel. (1) Then things really took off. Similarly, the lightbulb wasn't always the safe, bright, long-lasting light source we know today; it took a lot of tweaking to get things just right. (2)

Like the automobile and the lightbulb, the principle of proportionality is a really good idea. But, also like the automobile and the lightbulb, it's been slow to catch on and has required some changes along its way. The proposed amendments to the Federal Rules of Civil Procedure seek to make those last few adjustments that will finally encourage the widespread application of proportionality in discovery. If everything goes as planned, the future of discovery is bright.

The proposals come none too soon. In recent years, the problems of discovery have reached a critical tipping point and contribute greatly to the oft-repeated sentiment that "[o]ur discovery system is broken" (3) and that our civil justice system is in "serious need of repair." (4) These problems find their source in a diversity of circumstances, but are perhaps most affected by the modern rise of technology and the resulting explosion in the volume and variety of electronic information in the world today. A recent study of the "digital universe" reports that "[l]ike the physical universe, the digital universe is large--by 2020 containing nearly as many digital bits as there are stars in the universe. It is doubling in size every two years, and by 2020 the digital universe--the data we create and copy annually--will reach 44 zettabytes, or 44 trillion gigabytes." (5) The effects of this dramatic information growth are increasingly felt by parties, counsel, and courts alike and underlie the inevitable conclusion that modern discovery is different and that traditional notions no longer apply.

Despite its inevitability, there is no denying that "the process of change ... is tortuous and contentious" (6) and that the effort to shift the discovery paradigm will therefore be substantial. There is good news, however; much of the work has been completed already. Indeed, the principle of proportionality--arguably present in the rules since their development--has been re-designed and improved over many years. Unfortunately, the practical application of the principle of proportionality has continuously met with strong resistance where traditional notions of broad and liberal discovery remain entrenched in the jurisprudence surrounding questions related to scope. Accordingly, the United States Judicial Conference has once again undertaken to reincorporate proportionality into the design of the Federal Rules.

This article will explain the principle of proportionality and its purpose, discuss the changes in the proposed new design and their intended effects, and provide some advice on how to put the principle to use.

1. A Brief History

   Although relevance is widely recognized as the keystone of discovery, the principle of proportionality has long existed in the rules as a restraint to overbreadth, abuse, and misuse. Even the original rules drafters recognized the need for limitations on discovery and, pursuant to Rule 30(b), for example, allowed a court to dictate limitations on depositions "to protect [a] party or witness from annoyance, embarrassment or oppression." Per the original Committee Note, such limitations were available in recognition of the need for "a safeguard for the protection of parties and deponents on account of the unlimited right of discovery given by Rule 26." (7)

   In subsequent years, further limitations to discovery were adopted and the principle of proportionality, although never explicitly named, became an established component of the discovery analysis. In 1983, for example, several of the now-familiar factors of the proportionality analysis were adopted for the first time with the intention of guarding 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 subjects of inquiry." (8) Rule 26(g)'s signing/certification requirement was also adopted in 1983, imposing an "affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37" (9) and obliging "each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection." (10) In 1993, additional proportionality factors were adopted "to enable the court to keep tighter rein on the extent of discovery" (11) recognizing that "[t]he information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay and oppression." (12)

   In 2000, in the face of persistent dissatisfaction with the discovery process and growing complaints regarding its expense, the committee turned its attention to the possibility of narrowing the scope of discovery--a solution first proposed (and seriously considered) more than 20 years prior. The resulting amendments created the current discovery model, in which the presumptive scope of discovery is limited to information relevant to any party's claims or defense but may be expanded to the subject matter involved in the action upon a showing of good cause. A cross-reference was also added to the rule directing that "[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii) [current Rule 26(b)(2)(C)]"--that is to say, to standards of proportionality.

   From these examples, the point is clear: proportionality is not new, and expansive discovery is not inevitable and has never been absolute.

2. The Persistence of Tradition

   Despite repeated attempts to rein in the breadth of discovery, the traditional notion of broad and liberal discovery perseveres. Six years after the scope of discovery was presumptively narrowed absent a showing of good cause, a court observed that "[t]here seems to be a general consensus that the Amendments to Rule 26(b) 'do not dramatically alter the scope of discovery'" (13) and that "[m]ost courts which have addressed the issue find that the Amendments to Rule 26 still contemplate liberal discovery, and that relevancy under Rule 26 is extremely broad." (14)

   More recent expositions of the standards of discovery reveal the persistence of this traditional interpretation. Even in 2015, when the ills of over-discovery are well known to the courts and counsel, if not the parties themselves, pronouncements regarding the broad and liberal nature of discovery remain common. Recently, a court in the Northern District of Iowa reasoned that "[t]he Federal Rules of Civil Procedure authorize broad discovery," that "Discovery Rules are to be broadly and liberally construed in order to fulfill discovery's purposes of providing both parties with 'information essential to the proper litigation of all relevant facts, to eliminate surprise, and to promote settlement'" and that "[d]iscovery requests are typically deemed relevant if there is any possibility that the information sought is relevant to any issue in the case." (15)

   Even in cases in which courts acknowledge and apply limitations on the scope of discovery, they are often accompanied by a statement that the scope of discovery is nonetheless subject to broad interpretation, (16) fueling the general (mis)understanding that proportionality is a reactionary analysis in response to claims of overbreadth, rather than a fundamental consideration of discovery from the outset. Opposition to the new amendments further illustrates ongoing resistance to the shifting discovery paradigm and the entrenchment of the relevance-only analysis with regard to questions of scope.

3. The Tipping Point

   The historical failure of proportionality to address the problems of discovery begs an important question: Why will it work now? The answer is that it must.

   The effects of the information explosion on litigation have been dramatic. A recent letter from the Microsoft Corporation to the Court Rules and Procedures Committee in Washington State, which was considering proposed amendments to the state rules of procedure, illustrates these effects. In that letter, Microsoft revealed that between 2011 and 2013, the amount of information preserved in an average case grew from about 787 GB of data to a staggering 1,355 GB (approximately 59,285,000 pages). (17) As a result, Microsoft reported that between 30%-50% of its out-of-pocket litigation costs are attributable to the discovery process. (18) Unfortunately, this significant investment in...