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Amendments to the Federal Rules of Civil Procedure: Is “Proportionality” the Cure for Discovery Abuse?

Amendments to the Federal Rules of Civil Procedure: Is “Proportionality” the Cure for Discovery Abuse?

Since before 1980, the drafters of the Federal Rules of Civil Procedure have been trying to devise procedures and standards that would reduce discovery abuse in federal civil litigation. Yet, despite amendments in 1980, 1983, 1993, 2000, and 2006, surveys and studies continue to show pervasive concern about discovery abuse. Although the Rules have long empowered and encouraged the courts to limit excessive discovery and to impose sanctions for discovery abuse, lawyers have been reluctant to ask for discovery limits or sanctions, and courts have been even more reluctant to grant them.

The latest set of amendments to the discovery Rules, submitted to Congress on April 29, 2015 and scheduled to take effect on December 1, 2015, will continue to provide that discoverable matter must be “relevant to [a] party’s claim or defense” (as current Rule 26 (b)(1) now provides). However, the amended Rules will add the specific requirement that such matter must be “proportional to the needs of the case,” as measured by the criteria now contained for the most part in Rule 26 (b)(2)(C)(iii), which will be moved to Rule 26(b)(1).

The Advisory Committee apparently hopes that, by making “proportionality” part of the definition of discoverable matter rather than the basis for a court-imposed limitation on discovery already requested, the amended rule will forestall abuse instead of requiring the courts to correct it after the fact. But, while the amended rule uses the word “proportional” for the first time to describe the appropriate level of discovery, the concept of proportionality and the factors that define it have been part of the rules for several decades.

Prior to 1980, the Federal Rules allowed discovery of anything “relevant to the subject matter” of the action, and expressly provided that the discovery devices authorized by the rules could be used as often as the parties wanted. The Supreme Court interpreted this formulation broadly, stating that, “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.”

The “subject matter” standard, the Court said, “has been construed broadly to encompass any matter that bears on, or that could reasonably bear on, any issue that is or may be in the case.” This “more is better” attitude prompted the courts to reject limits on discovery, even in the face of increasing evidence that discovery was too expensive, overbroad, and overused.

The amendments to the Federal Rules of Civil Procedure will specifically require that all discovery must be “proportional to the needs of the case.”

Beginning in 1976, bar groups and legal scholars began an extensive series of studies to determine the existence and extent of discovery abuse, and to devise remedies. Although reports by committees of the American College of Trial Lawyers, the American Bar Association, the Federal Judicial Center, and others found that lawyers and litigants of all types believed that discovery was excessive, the resulting amendments that were proposed in 1980 were modest. Indeed, Justice Powell, in dissenting from the Order transmitting them to Congress in 1980, described the proposals as mere “tinkering” that he said would set back the cause of genuine reform.

After the 1980 amendments had been promulgated, the American Bar Association’s Special Committee for the Study of Discovery Abuse (the “Special Committee”), whose recommendations had not been adopted in 1980, continued its work. In its Second Report, it recommended that the idea of proportionality should be explicitly introduced into the discovery rules. The Special Committee recommended a rule that a lawyer’s signature on a discovery demand should constitute a certification that the proposed discovery was, among other things, “not unreasonably annoying, embarrassing or oppressive or unduly burdensome or unduly expensive given the nature and complexity of the case, the amount in controversy or other values at stake in the litigation.” Although the Special Committee’s proposed amendment would not have used the word “proportional,” it included most of the “proportionality” factors that now appear in the proposed 2015 amendments.

The Advisory Committee on the Federal Rules of Civil Procedure hopes that reorganizing the Rules will lead counsel to pay greater attention to the proportionality requirement and will lead courts to enforce it more vigorously.

On August 1, 1983, the discovery rules were amended again. One change eliminated the clause that had prohibited the court from limiting the “frequency of use” of the various discovery methods. The change was “an attempt to address the problem of ‘duplicative, redundant and excessive discovery and to reduce it.’” But the Special Committee’s recommendation on proportionality was not adopted in the 1983 amendments to the discovery rules.

However, Rule 26, as amended in 1983, did add a sentence “to deal with the problem of over-discovery.” It was “intended to encourage judges to be more aggressive in identifying and discouraging discovery abuse.” Thus, on its own motion or on a motion for a protective order, the court could limit discovery if it determined that the discovery sought “is disproportionate to the individual lawsuit as measured by such matters as its nature and complexity, the importance of the issues at stake in a case seeking damages, the limitations on a financially weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests, and the significance of the substantive issues, as measured in philosophic, social, institutional terms.” The amended Rule itself did not use the word proportion, and proportionality was not a factor in defining the scope of discoverable matter. Instead, it became one of the grounds on which the court could grant a protective order.

In 1993, the Rules were amended to require an extensive system of pre-request initial disclosures, disclosures of expert witness material and trial material. The definitions and restrictions on party-initiated “discovery” remained substantively unchanged.

In 2000, the Rules were amended again to establish a nationally uniform practice for initial disclosures. In addition, the Rules adopted a proposal that had first been made in 1978 to change the definition of discoverable matter from matter “relevant to the subject matter” of the action to matter relevant to a “claim or defense” of a party. The Rule continued to allow the court to order “subject matter” discovery on a showing of good cause.

More significantly for the “proportionality” issue, Rule 26 as amended in 2000 included a new sentence—in the subsection defining the scope of discovery—emphasizing that “[a]ll discovery is subject to the limitations imposed by Rule 26 (b)(2)(C),” that is, the rule setting forth the proportionality factors that had been adopted in 1983. The Advisory Committee explained this “otherwise redundant” cross reference by noting that, “the Committee has been told repeatedly that courts have not implemented these limitations with the vigor that was contemplated.” If the Advisory Committee expected this cross-reference to produce more vigorous enforcement of proportionality, it would have been disappointed.

In 2006, the Rules were amended again, this time to provide a new procedure for determining the discoverability of electronically-stored information. Under the new regime, the responding party may withhold information otherwise discoverable on the ground that the information sought is not reasonably accessible because of undue burden or cost. If the responding party sustains the burden of showing undue burden or cost, the requesting party may nonetheless obtain the discovery on a showing of good cause “considering the limitations of Rule 26(b)(2)(C),” i.e., the Rule setting forth the proportionality limitations. Thus, in 2006, the Rules imposed a threshold requirement of proportionality instead of using proportionality as a limitation on otherwise allowable discovery (but only for electronically stored information.)

The 2010 Duke Conference on Civil Litigation organized by the Advisory Committee on the Federal Rules of Civil Procedure generated reports and surveys on excessive discovery and discovery abuse that were strikingly similar to those produced thirty years earlier. The package of amendments that the Advisory Committee recommended as a result of the Duke Conference and subsequent committee work will, for the first time, require that all discovery must be “proportional to the needs of the case.” Other amendments included in the package are intended to encourage earlier and more active case management, earlier Rule 34 requests, and greater cooperation among counsel.

The Advisory Committee apparently hopes that, if the proportionality limitations are made a mandatory requirement for discoverable matter instead of a basis for a limitation on discovery imposed by the court after the fact, counsel will pay greater attention to these limitations and courts will enforce them with the “vigor” that was hoped for 35 years ago. It remains to be seen whether rearranging Rule 26 to move the proportionality factors from subsection (b)(2) to subsection (b)(1) will be enough to change priorities and attitudes that have governed discovery in federal courts since before the Supreme Court blessed the “more is better” philosophy of Hickman v. Taylor in 1947. At the very least, amended Rule 26 will encourage counsel to challenge disproportionate discovery requests at an early stage.

1 The Advisory Committee on the Federal Rules of Civil Procedure organized a May 2010 Conference on Civil Litigation at Duke University Law School. The Duke Conference received surveys and reports from, among others, the American College of Trial Lawyers (“ACTL”), the American Bar Association Section of Litigation (“ABA”) and the National Employment Lawyers Association (“NELA”). These are summarized in the Report, dated June 14, 2014, from the Advisory Committee to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The Report is attached as Appendix B to the Report of the Judicial Conference to the Chief Justice dated September 2014 and to the letters from the Chief Justice transmitting the proposed amended rules to Congress, dated April 29, 2015. The Report (hereafter “Rules Appendix B”) is available at http://www.uscourts.gov/rules-policies/archives/committee-reports/reports-judicial-conference-september-2014. 2 Among other findings summarized in the Report are these: In surveys by ACTL, ABA and NELA, “more lawyers agreed than disagreed with the proposition that judges do not enforce Rule 26(b)(2)(c) to limit discovery. … A primary conclusion from the [ACTL] survey was that today’s civil litigation system takes too long and costs too much. … Almost half of the ACTL respondents believed that discovery is abused in almost every case, with responses being essentially the same for both plaintiff and defense lawyers.” ( Rules Appendix B-6, emphasis added). 3 Current Rule 26 (b)(2)(C) provides that the court “must” limit discovery if it finds that “(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 an ample opportunity to 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 action.” The proposed amended rule would move the “proportionality” factors now contained in 26(b)(2)(C)(iii) up to 26 (b)(1) and make them (plus two additional factors) part of the definition of discoverable matter. 4Hickman v. Taylor, 329 U.S. 495, 507 (1947). 5 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). 6 See, e.g., Frank F. Flegel & Steven M. Umin, Curbing Discovery Abuse in Civil Litigation: We’re Not There Yet, 1981 BYU L. Rev. 597 (1981) (hereafter, “Flegel & Umin”); Maurice Rosenberg & Warren R. King, Curbing Discovery Abuse in Civil Litigation: Enough is Enough,” 1981 BYU L. Rev. 579 (1981) (hereafter, “Rosenberg & King”). 7 446 U.S. 997, 1000 (1980) (Powell, J., dissenting). 8 The Special Committee’s Second Report is quoted, discussed and summarized in Flegel & Umin, supra, note 5, at 608 et. seq. 9 Flegel & Umin, supra, note 5, at 607. 10 Fed. R. Civ. P. 26 (a), Advisory Committee note (1983). 11 Fed. R. Civ. P. 26 (b), Advisory Committee note (1983). 12 Id. 13 Id. 14 Fed. R. Civ. P. 26 (b)(1), Advisory Committee note (2000). 15 Supra, notes 1 and 5.



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