June 26, 2018 Articles

Tiered Discovery: An Efficient Proportionality Solution?

A tiered system of discovery has different rules to handle different cases depending on their size and complexity.

By Steven C. Bennett

A debate rages among civil procedure academics, policy makers, and practitioners about the best means to achieve “proportionality” in the discovery process. One promising method is “tiered” discovery.

Proportionality: Two Methods of Discovery
Over the past several decades, the framers of the Federal Rules of Civil Procedure have increasingly emphasized the value of judicial case management, premised on the notion that parties, with the active involvement of district courts and magistrate judges, can “right size” the discovery process to fit the needs of the individual case. The underlying assumption of the Federal Rules of Civil Procedure is that a uniform, but broadly worded, set of rules—sometimes called “trans-substantive,” in the sense that they apply without regard to the substance of the particular dispute—should be adapted, as appropriate, by parties and courts rather than applying specific subsets of rules depending on the characteristics of the specific case.

A contrary assumption, which has gained significant support, especially at the state court level, is that a tiered system of discovery, with different rules to handle different cases depending on their size and complexity, can more easily and efficiently produce proportionality in discovery. This kind of system—sometimes called “differentiated case management” or “tiered” discovery—acts on the recognition that a very large percentage of state court cases involve relatively small amounts of money and present relatively straightforward questions of law and fact. Indeed, at the state court level, statistics suggest that a majority of cases involve at least one party unrepresented by counsel (and thus relatively unfamiliar with court processes) and that a very large percentage of cases may be resolved without any judicial intervention (e.g., by default judgment). For many of these cases, the preferred proportionality solution is not more judicial case management; rather, the solution is simple, clear directions as to the form of essential disclosures, with the possibility (but only where necessary) of additional judicial supervision.

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