Academic journal article Vanderbilt Law Review

Application of the New "Proportionality" Discovery Rule in Class Actions: Much Ado about Nothing

Academic journal article Vanderbilt Law Review

Application of the New "Proportionality" Discovery Rule in Class Actions: Much Ado about Nothing

Article excerpt


On December 1, 2015, changes to the Federal Rules of Civil Procedure ("Rules") governing discovery became effective.1 Most importantly, those rules make "proportionality" front and center in defining the scope of discovery.2 In drafting the new rules, the Advisory Committee on Rules of Civil Procedure ("Advisory Committee") followed its normal practice of preparing explanatory notes ("Committee Notes").3 Those notes reflect that the purpose of the changes was not to overhaul existing discovery practices, but to fine-tune existing limitations on discovery to deter serious abuse. In those notes, the Advisory Committee emphasized that the amendments merely return proportionality to its original role as an "express component of the scope of discovery" and do "not change the responsibilities of the court and the parties to consider proportionality."4

Notwithstanding the Advisory Committee's comments about the focused and nuanced nature of the amendments, the response from the bar and the academic community has been strident and hyperbolic. It is no exaggeration to say that there has been panic on the plaintiffs' side and euphoria on the defense side. Indeed, rarely have proposed procedural rules resulted in so many submissions by members of the bar. The proposed rule change resulted in 2,345 written submissions.5 In addition, more than 120 witnesses testified live before the Advisory Committee at hearings designed to elicit input and concerns from the bar and the academy.6 Similarly, the proposals generated a myriad of articles and blog posts.7 By way of contrast, a recent proposed amendment to the Federal Rules of Civil Procedure, which included the changes to the class action rule (Rule 23), resulted in ninety-one written submissions.8

Both supporters and opponents of the discovery amendments agreed that the changes would be sweeping, differing only on whether that result would be good or bad for the legal community and the public at large. Members of the plaintiffs' bar (and most of the comments from the academy) expressed concern that the new rules-especially with respect to the proportionality changes-would devastate plaintiffs' discovery efforts, require more frequent motions to compel, and offer defendants an unfair advantage by depriving plaintiffs of discovery necessary to pursue their claims.9 Members of the defense bar, by contrast, applauded the amendments and predicted that the new rules would lead to significantly less burdensome discovery obligations on defendants.10 Both sides agreed that plaintiffs would be disproportionately harmed-and defendants would be disproportionately helped-even though the Rules, by their terms, apply to discovery sought by both sides.

The plaintiffs' bar, the defense bar, and the academy are not alone in viewing the new discovery rules as representing an important change. The Chief Justice of the United States, in his 2015 annual report, devoted special attention to the new rules. He portrayed them as "mark[ing] [a] significant change, for both lawyers and judges, in the future conduct of civil trials."11 He noted that "[t]he amendments may not look like a big deal at first glance, but they are.'12 He explained, however, that the amendments were not designed to prevent legitimate discovery but instead were focused on curtailing "creatively burdensome requests" and preventing parties from "evading legitimate requests through dilatory tactics."13

With almost three years of experience, it is worth examining the initial impact of the new rules. There are already several thousand cases discussing the new rules. Virtually all of these opinions are by district judges and magistrate judges. Analysis of this case law would be beyond the scope of a single article for this symposium. Thus, I focus on a subset of the cases: post-amendment class actions. Given the vast scope of many class actions, discovery expectations on both sides are at their zenith. If defendants were going to reap substantial benefits from the proportionality amendment, one would presumably see such benefits in cases in which plaintiffs are seeking the most extensive and burdensome discovery. …

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