These concepts link nicely to the concept of proportionality in discovery. Attorneys need to understand the new lexicon for addressing the discovery needs of each case and should jettison their old discovery “form” briefs and citations to cases that state the old standard. Judges are doing the same. The phrase “reasonably calculated to lead to the discovery of admissible evidence” is essentially banished from the vocabulary of discovery motion practice. Of course, it will be a while before there is circuit-level authority on the new conceptual framework for discovery. Accordingly, the federal magistrate judges who will be building the foundation of case law in this area are likely looking to the commentary on the rules topics, which is available on various federal court and rules websites, and to articles that comprehensively address the changes.
One very recent article recommended to the federal judges that comprehensively reviews the changes is “A Practical Guide to Achieving Proportionality under New Federal Rule of Civil Procedure 26,” by Judge Elizabeth D. Laporte and Jonathan M. Redgrave, and published this fall in the Federal Courts Law Review (Vol. 9, No. 2, at 20–78).
Judge Douglas E. Miller, editor at large of the law review, writes that the article’s authors provide a review of
the historical efforts to focus courts and parties on proportionality in discovery, analyze the reasons why prior efforts to do so have not succeeded, and explore the impact that the amended Rules of Civil Procedure that are set to take effect on December 1, 2015, are likely to have on discovery efforts and disputes. After reviewing this background, the authors propose a systematic approach to mastering proportionality in conjunction with the new Federal Rules of Civil Procedure. First, the authors offer a standardized “proportionality assessment matrix” that provides an analytical framework, which practitioners and judges can use to position and decide discovery disputes in any given case. Second, the authors identify ten best practices reflecting their joint distillation of experience into commonsense applications. The authors anticipate that by following this framework and these best practices, lawyers and judges can apply proportionality in a more standardized manner, leading to a more consistent body of law and more predictability for parties as they make preservation and production decisions.
Specifically, authors Laporte and Redgrave state that “[a]chieving a standardized approach to proportionality will further the goal of inexpensive and speedy resolution of litigation. Thus, applying a consistent proportionality methodology to guide meet and confers, arguments and decisions across all cases is a step towards realizing the promise of proportionality in more cases and fulfilling the intent of the Federal Rules.” Laporte & Redgrave, supra, at 47. To this end, the authors provide a matrix that allows judges and practitioners to analyze each case in a framework of factors that applies each of the rules elements. The matrix serves as “a protocol for embodying best practices that preserves needed judicial flexibility while offering greater predictability, transparency, and accountability for counsel, parties, and courts.” Id.
The authors then provide their “Ten Best Practices for Counsel (And Clients) to Better Understand and Apply Proportionality Factors to Civil Discovery Disputes”:
1. Focus on the specific discovery at issue (micro-level analysis) and avoid arguments about discovery in general (macro-level analysis).
2. Recognize that proportionality and relevance are conjoined considerations for civil discovery.
3. Understand that proportionality is a consideration that can support a multi-faceted approach to discovery.
4. Respect that non-parties have greater protections from discovery and that burdens on non-parties will impact the proportionality analysis.
5. Raise discovery scope and proportionality issues early in the litigation and continue to address and revisit them as needed.
6. Do not consider the “amount in controversy” factor to be determinative with respect to the proportionality of discovery requests or responses.
7. Do not approach discovery disputes with the notion that discovery is perfect or that it will result in the production of “any and all” relevant documents or information.
8. Do not address proportionality arguments by citing superseded case law, rotely reciting the rules, or making unsupported assertions of burden.
9. Do not get caught up in an academic dispute regarding the “burden of proving” proportionality as courts will expect that each side of the dispute will have something to contribute, although not necessarily equally, and the most reasonable position will likely prevail.
10. Do not forget that proportionality considerations also apply to preservation decisions and disputes.
Id. at 51.
This extremely valuable guidance by these experienced authors provides attorneys with the immediate opportunity to demonstrate “increased competence in their application of this hitherto elusive concept” of proportionality. The well-prepared attorney will take advantage of this opportunity.
Keywords: litigation, trial practice, Federal Rules of Civil Procedure, amendments, proportionality