Wednesday, October 31, 2012
Flipping the Discovery Presumption
Thanks to Dan and the crew for allowing me to blog here this month – it’s been fun. Before my time ran out, I wanted to circle back to the remarkable new set of civil rules in Utah, an issue I teased in a previous post.
In 2011, Utah passed a comprehensive new set of Rules of Civil Procedure, with major changes to the rules of discovery. The process involved four years of research, negotiation, and drafting. Utah’s rules had previously mirrored the Federal Rules of Civil Procedure, and gave rise to the same well-documented frustrations about excessive and abusive discovery that have haunted the Federal Rules for decades. At the core of the problem is a concern over disproportionate discovery: in too many cases, the cost of discovery is out of proportion to the amount in controversy or relative complexity of the case. Federal rulemakers have tried to address this problem for more than thirty years with everything from instituting presumptive limitations on certain discovery tools to giving judges broad authority to limit discovery on their own. As I have documented here, none of these rules changes have worked as intended.
Utah’s solution after the jump.
Like the federal discovery rules, Utah’s new rules also center on proportional discovery, but with an important twist: where the Federal Rules presume that discovery is allowable unless the rules or judge say otherwise, the Utah Rules flip the presumption and presume that discovery is prohibited unless the rules or judge say otherwise. The parties plead into one of three tiers of discovery at the beginning of the case, and the right to recover is limited by that pleading. The tiers strictly limit standard discovery: Tier 1 (for cases of $50,000 or less), for example, permits each side only 3 hours of fact deposition, 5 requests for production of documents, and 5 requests for admission. Tier 3 (for cases above $300,000) provides more, but is still sharply limited in comparison to the federal scheme: standard discovery maxes out at 30 hours of fact deposition, 20 interrogatories, 20 requests for production, and 10 requests for admission. Extraordinary discovery in any case is only permitted by stipulation or motion after the parties have completed standard discovery, and the burden is always on the party seeking additional discovery to prove the need for it.
Flipping the presumption of allowable discovery is a particularly clever way of enforcing proportionality because it forces the parties to focus from the outset on the discovery requests that are most relevant to proving their claims and defenses. It also would seem to increase the likelihood that cases involving less than $50,000, which might otherwise be priced out of court altogether, can be litigated to a satisfactory conclusion on the merits.
Tomorrow marks the first anniversary of the new Utah Rules, and rulemakers in other states and at the federal level should keep a close eye on the new system. The effect of the new rules on the conduct of discovery, litigant satisfaction, and access to the courts will certainly be worth watching.
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