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December 18, 2013 Practice Points

Coming to a Court Near You—Restricted Discovery

By Eric S. Johnson

Discovery can be expensive and burdensome. In an attempt to streamline the process, the Judicial Conference Advisory Committee recently proposed several changes to the Federal Rules of Civil Procedure to clarify the federal rules while reducing discovery. Unfortunately, the changes to Rule 26, including eliminating the "reasonably calculated" standard, would not only abolish an integral part of federal discovery but also reduce judicial discretion over the discovery process. Although these changes pose immediate concern for federal practitioners, states frequently model their rules after the federal rules, so all litigators need to understand the impact.

Federal judges have traditionally had broad discretion to allow or limit discovery. They are empowered to consider practical concerns like proportionality and burdensomeness when supervising discovery. The proposed changes eliminate that discretion by making proportionality a threshold requirement rather than a simple consideration. This standard will require the requesting party to make an initial showing that the information sought is proportional to the burden and expense of the opposing party and a "likely benefit" to the case at large.

The new requirement is concerning because it shifts the burden to the requesting party to demonstrate that the opposing party will not be excessively burdened. This creates a situation in which the party with limited knowledge of its opponent's capabilities, capacity, financial resources, and access to electronically stored information is now required to make a proportionality representation to the court based on imperfect knowledge and generalized assumptions. Furthermore, the proposed changes will largely shift the burden of discovery onto judges and their staff through more requests for leave and hearings on discovery disputes.

Eliminating the reasonably calculated standard is particularly problematic in complex litigation like pharmaceutical, environmental, or intellectual property cases, in which almost all of the documents and information needed to prove liability lie within the control of the defendant. Moreover, it is not uncommon for a million-page discovery production to result in only a handful of trial exhibits. That is not only inevitable but also a reality of complex litigation—not a flaw in the federal rules. Reducing the scope of discovery, thereby reducing the knowledge shared between the parties, will impede settlement and force parties to try cases with incomplete information.

If the purpose of discovery is to search for the truth, codifying categorical limits serves only to obstruct that pursuit rather than to promote it. Stripping federal judges of their discretion and restricting the ability of parties to meet their burden will never be an adequate alternative to professionalism.

Keywords: litigation, solo practitioners, small firms, Federal Rules of Civil Procedure, federal rules, discovery, reasonably calculated standard, judicial discretion

Eric S. Johnson is with Simmons Browder Gianaris Angelides & Barnerd LLC in Alton, Illinois.

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