Needed Compromise In The Proposed Discovery Amendment War

The following was written by Suja Thomas (Illinois) on the proposed amendments to the discovery rules of the FRCP, which are a current topic of conversation among civ pro types

The discovery rules are hot.  The Advisory Committee of the Civil Rules has proposed several changes to the rules, and lawyers representing plaintiffs and defendants are deeply divided over many of the changes.  The changes may be a game changer.  Over 700 comments have been submitted, more than twice as ever before, and many law professors have weighed in.  Much of the commentary focuses on a proposed amendment to the scope of discovery in Rule 26(b)(1) under which parties can withhold discovery on the basis of lack of proportionality to the needs of a case.  

The Advisory Committee is motivated to make change here because discovery is out of whack is some set of cases.  However, a study by the Federal Judicial Center shows that discovery is disproportionate in at most 25% of the cases, and more likely, only 6-15% of the cases.  A further indication of the extent of the problem is a report of actual discovery costs. Plaintiffs and defendants reported median discovery costs of respectively $15,000 and $20,000 and discovery costs of respectively $280,000 and $300,000 at the 95^th percentile (costs equal to or higher than the costs in 95% of the cases). If discovery is working in most cases, a rule change for all cases seems doomed to create problems for already proportional cases. Because of natural lawyer behavior, lawyers vigorously defend their clients, and under the proposed rules, they will aggressively decide not to search or produce discovery on the basis of lack of proportionality even when such discovery would have been otherwise produced or searched in the past.  In a recent article in the Wake Forest Law Review, I argued that atypical cases can make bad law, and similarly here, atypical cases can make bad rules where the rules must be applied to typical cases. 

At the same time, the problem of disproportionate cases should be fixed.  It may be best fixed by a switch away from transubstantivity to address only the cases where discovery is disproportionate, a new rule that could be similar to the Class Action Fairness Act, which provides a different rule for very large cases.

If the proposed change to Rule 26(b)(1) (adapted from Rule 26(b)(2)(C)(iii)) goes forward, there is concern that when a party withholds discovery on the basis of lack of proportionality, the requesting party will possess insufficient information to assess whether to challenge the withholding.  In response, the Committee added a requirement borrowed from the interrogatory rule that the nonproducing party must state with specificity the grounds for objecting to a request.  However, comparing withholding on the basis of lack of proportionality to objections to interrogatories is not quite the right comparison.  Instead, the more appropriate comparison is privilege.

Under the current rule, parties need not produce relevant discovery that is privileged.  The proposed rule adds lack of proportionality as the other basis on which to object to the production of relevant discovery.  By analogy, then, similar information should be provided for discovery withheld on the basis of lack of proportionality as is provided for discovery withheld on privilege grounds.  As much or more information is actually needed when discovery is withheld on the basis of lack of proportionality.  Privilege is similar to a recipe.  If two lawyers (with the same information about the case) assessed the same discovery, the lawyers would withhold the same discovery as privileged with very few exceptions.  Lack of proportionality, on the other hand, is far from a recipe.  If two lawyers assessed discovery for lack of proportionality, they likely will not produce or not search different discovery.  In other words, proportionality is a much more vague concept than privilege.  Add to this, a requesting party will rarely challenge privilege because of the recipe nature of privilege.  However, because of the vague notion of proportionality, the requesting party will likely challenge assertions of lack of proportionality.

Rule 26(b)(5) requires particular information must be provided—what is often referred to as a privilege log—when relevant discovery is not produced on the basis of privilege.  Similarly, in the analogous context where relevant discovery is not produced or searched on the basis of lack of proportionality, parties will need information to decide whether to challenge assertions of lack of proportionality.  A proportionality log would provide such information.  The type of information that would be provided on such a proportionality log includes where the party has not searched and why such searches would not be proportional to the needs of the case.  While there would be some cost associated with such a log, this log would strike the right balance to permit the requesting party to assess the assertion of lack of proportionality, have discussions with the nonproducing party, and prevent unnecessary involvement of the court.  If the amendments are going forward, it is time for a compromise.