Supreme Court thinks proportionality will help eDiscovery, but not everyone agrees

Originally published by Peter S. Vogel.

In support of the 2015 Amendments to the Federal Rules of Civil Procedure Chief Justice John Roberts said that “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.”  On December 31, 2015 the Supreme Court released the “2015 Year-End Report on the Federal Judiciary” in which the Chief Justice made many comments about the 2015 Amendments and specifically regarding eDiscovery and called for a “change in legal culture.”  He highlighted proportionality:

The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery.

The New York Times reported that not everyone agrees with the Chief Justice’s assessment:

Arthur R. Miller, a law professor at New York University said “This provision will be used to restrict a citizen’s access to the information that often is critical to establishing a grievance, whether it be a civil rights claim or an economic or personal injury claim.”  

Stephen B. Burbank, a law professor at the University of Pennsylvania, said the new rules were a poor fit for many lawsuits and will often prove counterproductive. “Continuing a trend that goes back decades, these amendments take a problem that arises chiefly in complex, high-stakes litigation between corporations, and devise solutions that necessarily apply to all federal litigation,” he said. “As a result, the layers of additional expense that active judicial management can impose make litigation costlier for litigants less able to afford it, including most importantly individuals.”

Time will tell how the 2015 changes to the Federal Rules will really work out.

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