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Stopping the Madness: An Objective and Rational Analysis of the Proportionality Standard in the Federal Rules of Civil Procedure

By Marcus Neil Bozeman and George S. Bellas

Rule 26 of the Federal Rules of Civil Procedure received an inauspicious amendment in 2015: Basically, the rule was rearranged, with existing considerations of “proportionality” moved from one place to another. This amendment, though bland, has not stopped corporate interests from inaccurately asserting that it has wrought a remarkable change on the process of discovery in courts of the United States. This paper makes clear that no real changes came about as a result of the 2015 amendment, and it lays bare as false any claim that the amendment is the cause of any restriction in the scope of discovery.

In 1906, Dean Roscoe Pound lamented that the “delay and expense” attendant to lawsuits “have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible businessman in the community.” Robert Stein, Causes of Popular Dissatisfaction with the Administration of Justice in the Twenty-First Century, 30 Hamline L. Rev. 499, 503 (2007) (emphasis added). Much has changed in the 115 years since Dean Pound made this observation, but one thing has remained the same: Similar grumblings still emanate from the ranks of “sensible businessm[e]n.” See, e.g., Betsy Hendrick, et al., How to Leverage the In Situ eDiscovery Model to Win Proportionality Arguments, ACC Docket, May 2020, at 42, 47 (recounting that general counsel from large and medium-sized corporations are “tremendously frustrated by the time and expense of discovery” (emphasis added)), available at Griping about the burden and expense of litigation, it seems, is a time-honored tradition in American boardrooms.

This constant consternation, and attempts to counteract its root causes, have been memorialized, if inadvertently, by way of the various revisions to the Federal Rules of Civil Procedure since they first became effective in September 1938. See Daniel C. Hopkinson, The New Federal Rules of Procedure as Compared with the Former Federal Equity Rules and the Wisconsin Code, Marq. L. Rev. 159, 159-60 (1939) (tracing timeline of the Rules’ initial adoption). The meandering path of Rule 26 is one example. As originally promulgated, this rule was devoted exclusively to various aspects of deposition practice, id. at 171 (analyzing initial version of Rule 26, then entitled “Depositions Pending Action”), and in those days the Advisory Committee was quick to emphasize that “[t]he purpose of discovery is to allow a broad search for facts,” Fed. R. Civ. P. 26 advisory committee’s note (1946 Amendment). This theme of openness had already been tempered by the time of the rule’s amendment in 1970 to make it applicable to discovery generally, though, for at that juncture the Committee made it a point to mention that “courts have denied discovery” whenever “the party whose documents are sought shows that the request for production is unduly burdensome or oppressive.” Fed. R. Civ. P. 26 advisory committee’s note (1970 Amendment) (emphasis added) (citing Lauer v. Tankrederi, 39 F.R.D. 334 (E.D. Pa. 1966)). The Committee underscored the propriety and continued availability of such measures, advising that cases involving “serious burden or expense” would require a court to “exercise its traditional power to decide whether to issue a protective order.” Id. (emphasis added).

And so began a 50+ year obsession with the notions of “burden” and “expense,” factors featured in the official commentary accompanying virtually every substantive amendment to Rule 26 since 19701. See Fed. R. Civ. P. 26 advisory committee’s note (1980 Amendment) (“There has been widespread criticism of abuse of discovery.”); id. (1983 Amendment) (referring to discovery “practices that impose costs on an already overburdened system”); id. (1993 Amendment) (accentuating steps that could be taken to alleviate an “unreasonable burden” or something that would be “unduly burdensome”); id. (2000 Amendment) (“Concerns about costs and delay of discovery have persisted . . . .”); id. (2006 Amendment) (“[S]ome sources of electronically stored information can be accessed only with substantial burden and cost.”); id. (2015 Amendment) (“The parties and the court have a collective responsibility to consider the proportionality of all discovery.”). In 1983, the Committee coined a new term – “proportional[ity]” – to capture the essence of both “burden” and “expense,” and the overarching principle of “proportional” discovery has been a part of the Rules from that year forward.

When introducing the concept of proportionality almost 40 years ago, the Committee explained that it was targeting “excessively costly and time-consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake.” Fed. R. Civ. P. 26 advisory committee’s note (1983 Amendment) (emphases added). It is plain to see, then, that the age-old concerns of “cost” and “delay” (aka “burden” and “expense”) were at the heart of the push for “proportional discovery.” The Committee repeated the same thoughts when it slightly restructured Rule 26 in 1993, admonishing that discovery should not “be used as an instrument for delay or oppression.” Id. (1993 Amendment) (emphasis added). Similar language appeared alongside the 2015 amendment, which moved the provision requiring “proportional” discovery back to the original location where it had been placed in 1983, but did nothing to “change the existing responsibilities of the court and the parties to consider proportionality.” Id. (2015 Amendment).

The Advisory Committee has made it clear that it has done nothing intentional since 1983 to change how proportionality considerations affect determinations regarding the permissibility of discovery. And to repeat, the Committee specifically stated that the restructuring of Rule 26 in 2015 did not “change the existing responsibilities of the court and the parties to consider proportionality.” Fed. R. Civ. P. 26 advisory committee’s note (2015 Amendment). Academics and legal commentators recognize as much, see 1 Bus. & Com. Litig. Fed. Cts. § 11.2 (4th ed. 2020 update) (“[T]he 2015 Amendments are not unique or radical.”); Hales et al., W(h)ither Discovery, 9 No. 1 Disp. Resol. Int’l 29, 36 (May 2015) (“[T]he 2015 Amendments do not introduce sweeping changes to the American discovery regime.”), and the courts agree, Hibu Inc. v. Peck, No. 16-cv-1055-JTM-TJJ, 2016 WL 4702422, at *2 (D. Kan. Sept. 8, 2016) (“The consideration of proportionality is not new, as it has been part of the federal rules since 1983.”); Black v. Buffalo Meat Serv., Inc., No. 15CV49S, 2016 WL 4363506, at *6 (W.D.N.Y. Aug. 16, 2016) (“In effect, the concept of undue burden that has been in Rule 26 for the last thirty plus years has been replaced by proportionality . . . .”); Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088 (RMB)(HBP), 2016 WL 616386, at *13 (S.D.N.Y. Feb. 1`6, 2016) (“The 2015 amendments . . . did not establish a new limit on discovery; rather, they merely relocated the limitation from Rule 26(b)(2)(C)(iii) to Rule 26(b)(1).”); Gilead Scis., Inc. v. Merck & Co., No. 5:13-cv-04057-BLF, 2016 WL 46574, at *1 (N.D. Cal. Jan. 13, 2016) (“Proportionality in discovery under the Federal Rules is nothing new.”); Robertson v. People Magazine, No. 14 Civ. 6759 (PAC), 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16, 2015) (“[T]he 2015 amendment does not create a new standard . . . .”).

Unfortunately, despite the long history of proportionality as a factor to be considered when assessing the suitability of discovery, and widespread acceptance of the reality that the 2015 amendment to Rule 26 did not alter proportionality’s role when undertaking that analysis, many large corporations – along with the lawyers who represent them – insist upon falsely claiming that the 2015 amendment marked a significant contraction of the extent of permissible discovery. The preceding analysis reveals the fallacy of these representations, but this highly organized and well-financed coalition representing corporate interests is bent upon reshaping this country’s civil justice system to make it easier to withhold information from aggrieved parties. In doing so, this corporate alliance ignores the longstanding position that proportionality (to say nothing of the underlying concerns it addresses) has occupied within the Rule 26 framework, and instead seizes upon a biased misinterpretation2 of the Advisory Committee’s statement that the 2015 amendment “restores the proportionality factors to their original place in defining the scope of discovery.” Fed. R. Civ. P. 26 advisory committee’s note (2015 Amendment). From this flimsy reed, the corporate alliance is demanding that massive changes take place that would alter the Federal Rules’ traditionally “strong[]” preference for “full discovery whenever possible.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). The corporate alliance must be stopped before it does real damage to the nation’s judiciary.

It is hoped that this paper will be just one small part of an effort to expose the corporate alliance and thwart its shameless attempts to radically reform pretrial discovery. To that end, the remainder of this piece will focus on two primary aspects of that illicit campaign – the insistence that a corporation should independently employ proportionality considerations as early as possible to control and shape the discovery process, and the blatant ploy to reconfigure the proportionality analysis so that it neglects all other factors to focus exclusively on the “burden” and “expense” of proposed discovery – revealing how each is inappropriate and unsupported by the text and intent of Rule 26.

The Impropriety of Premature Proportionality Implementation. Prism Litigation Technology, a company that unabashedly markets itself as a “proportional discovery” advisor, is a leading voice in the attempt by the corporate alliance to transform civil discovery. In a recent brochure, Prism implored potential clients to “adopt a proportionality strategy early in the process,” declaring without citation that “[p]roportionality starting in the preservation phase is being embraced by both the judiciary and industry leaders.” Prism Litig. Tech., Proportionality: The Earlier, The Better 2, 6 (2019). By ipse dixit, Prism proclaims that a symptom of “over-discovery” must “certainly” be “over-preservation,” and it urges corporations to unilaterally “embrace[] and appl[y]” the “immediate use of proportionality,” even before “claims and defenses [have been] articulated.” Id. at 1-2. In particular, Prism instructs that a potential defendant should rank custodians and documents, respectively, according to its own estimation of relevance and ease of access, with the objective of releasing from a legal hold those custodians adjudged “not relevant.” Id. at 3. According to Prism, “[t]his early method of ranking greatly reduces the overall legal hold obligation.” Id.

Succinctly stated, the course of conduct championed by Prism flies in the face of pretty much everything envisioned by the 2015 amendment to Rule 26. This paper has already established that the amendment worked no substantive change to proportionality’s place in the discovery scheme, but the Committee stressed “the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management.” Fed. R. Civ. P. 26 advisory committee’s note (2015 Amendment). Stated another way, the amendment “serves to exhort judges to exercise their preexisting control over discovery more exactingly.” Robertson, 2015 WL 9077111, at *2; see also Black, 2016 WL 4363506, at *6 (“Another intention of this amendment was to have greater judicial involvement in the discovery process.” (quotation omitted)); Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC), 2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016) (“[T]he amended Rule is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse.” (quotation omitted)).

Nowhere in the text of Rule 26, or in its commentary, is a suggestion that a party should make and implement unilateral “proportionality” determinations during ongoing litigation, much less in the period before “claims and defenses [have been] articulated.” Prism Litig. Tech., Proportionality: The Earlier, The Better 2. In fact, with specific regard to electronically stored information (“ESI”), a leader in the field has advised that “[t]he failure to notify the requesting party that relevant ESI is being withheld on the basis of proportionality should . . . be weighed against the responding party.” The Sedona Conference, Commentary on Proportionality in Electronic Discovery, 18 Sedona Conf. J. 141, 161-62 (2017). Obviously, effective “notice” cannot occur if there is a decision, before discovery has even begun, to release custodians from a legal hold. Moreover, the Rules elsewhere3 make it very apparent that decisions regarding proportionality and preservation should emerge from a collaborative process, involving all parties and the court. See Fed. R. Civ. P. 37 advisory committee’s note (2015 Amendment) (explaining that parties should engage in “meaningful discussion of the appropriate preservation regime”); cf. Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary 6 (Dec. 31, 2015) (“[L]awyers – though representing adverse parties – have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.”).

To summarize, Prism is completely off-base when it directs clients to independently make proportionality conclusions and use those unilateral determinations to “greatly reduce[] the overall legal hold obligation.” Prism Litig. Tech., Proportionality: The Earlier, The Better 3. Like other components of the crusade to reshape discovery, this tactic is both dangerous and completely unsupported by authority. Prism Litig. Tech., Proportionality: The Earlier, The Better 2.

The Strategy to Redefine the Meaning of Proportionality. As defined by the Federal Rules, proportionality is something that takes account of “the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The Advisory Committee has left no doubt that “monetary stakes are only one factor, to be balanced against other factors,” when it comes to proportionality. Fed. R. Civ. P. 26 advisory committee’s note (2015 Amendment); see also Black, 2016 WL 4363506, at *6 (identifying undue burden as “one factor to determine whether the discovery demand is proportionate to the case” (emphasis added)). Nevertheless, and unsurprisingly, the corporate alliance chooses to hone in on a single factor – the “burden” and “expense” of discovery – when promoting its distorted view of proportionality.

The proposed agenda for an upcoming seminar sponsored by the corporate alliance provides a telling illustration: Every session during the 2-day event concentrates on a “New Framework” for a “Proportionality Model” zeroed in on things like “Degree of Burden” and “Discovery Cost.” Agenda, GW Proportionality Model – A New Framework (Mar. 25-26, 2021). This is a disturbing trend, and it bespeaks a desire to make proportionality about one thing – the cost and burden to corporate defendants – when it is actually about so much more. See, e.g., Capetillo v. Primecare Med., Inc., No. 14-2715, 2016 WL 3551625, at *2 (E.D. Pa. June 29, 2016) (“No single factor is designed to outweigh other factors in determining whether the discovery sought is proportional.” (quotation omitted)).

* * *

It has been well over a century since Dean Pound bemoaned the “delay and expense” which engendered a “deep-seated desire” in every “sensible businessman” to “keep out of court.” The same sort of “sensible businessm[e]n” have consistently voiced the same complaints over the decades, only today they seek to radically transform the way justice is administered in the United States. This paper has shown, in summary fashion, that their efforts rely on a biased interpretation of the Federal Rules and advocate measures unsupported by authority. For the sake of our treasured system of justice, this madness must stop!

1 The single exception is the 2010 amendment. See Fed. R. Civ. P. 26 advisory committee’s note (2010 Amendment).

2 The alliance acts as though the Advisory Committee’s allusion to a “restor[ation]” is substantive in nature, conjuring images of crowds celebrating the return of a previously deposed ruler. This is just not true. Instead, when the committee noted that the 2015 amendment “restores the proportionality factors to their original place,” Fed. R. Civ. P. 26 advisory committee’s note (2015 Amendment), it referred only to proportionality’s “relocat[ion] from Rule 26(b)(2)(C)(iii) to Rule 26(b)(1),” Vaigasi, 2016 WL 616386, at *13. This is evident from, among other things, the committee’s very next statement, which clarified that “[r]estoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties.” Fed. R. Civ. P. 26 advisory committee’s note (2015 Amendment).

3 Rule 37(e) “authorizes and specifies measures a court may employ if information that should have been preserved is lost.” Fed. R. Civ. P. 37 advisory committee’s note (2015 Amendment). As an example of potentially appropriate proportionality in the preservation process, the commentary surmises that “[a] party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms.” Id. (emphases added). Notably, the commentary falls well short of endorsing a party’s unilateral decision to release information from a litigation hold.