Federal Rule of Civil Procedure 26(c)(1)(B) was amended in 2015 to state explicitly what was previously implicit: A court, for good cause, may shift discovery costs from the responding party to the requesting party. In a recent column, I noted the paucity of post-amendment cases in which courts employed this provision, and I questioned why it was not being more frequently used. I speculated about the various reasons—like the increased application of other 2015 amendments to control the expansion of expensive discovery, including the duty to cooperate under Rule 1; proportionality, narrowing the scope of discovery to information “relevant to a claim or defense,” and elimination of the language “reasonably calculated to lead to the discovery of admissible evidence” in Rule 26(b)(1); and the in terrorem effect of Rule 37(e) sanctions for willful e-discovery violations. But I had no evidence that this was happening, and in all events, utilization of these mechanisms required substantial judicial involvement in the discovery process, which was a development that I previously noted “remain[ed] to be seen.”
Coincident with the submission of my column, but unknown to me then, U.S. District Judge Paul W. Grimm, one of the leading lights on discovery in the federal courts, published an article in the University of Texas School of Law Review of Litigation that answered the question: Were the courts using the techniques provided in amended Rule 26(c)(1)(B) to achieve proportionality in discovery? His answer was no. Despite the drafters’ unceasing efforts over the years to bridle excesses in discovery, culminating in the most recent refinements in 2015, the bench and bar generally believe that the rule changes to achieve proportionality have been unsuccessful. The reason, posits Judge Grimm, is that most judges and magistrate judges view their role as adjudicatory. They wait until disputes are framed, and then they rule on them. In the main, they do not manage and monitor the discovery process—as it unfolds and before disputes have arisen—to achieve proportionality.
Why is that? Judge Grimm identifies several reasons. First, there is nothing that compels the court to assume management of discovery; a judge may handle cases however he or she wants. Second, many judges are overwhelmed by their caseloads, and simply lack the time and resources to do more than wait for a dispute to arise. Third, Judge Grimm believes that some judges lack the training to manage discovery. He notes, for example, that nearly half of the district court judges he surveyed received no training at all, since becoming a judge, in how to manage the discovery process. Further, he found that nearly three-quarters of the surveyed federal magistrate judges, who handle most of the discovery disputes, have had no training in the proportionality requirement in Rule 26 or how to manage cases to achieve it. Fourth, a significant number of federal judges come from an academic, criminal, administrative, or other non-civil litigation background that affords no exposure to civil discovery.
Judge Grimm concludes his article by advocating strongly for rigorous continuing education programs in management of discovery for all Article I and Article III judges. Simply put, as the rules are not self-executing, judges must be instructed on how to use them. While that makes eminent sense, it begs the two overarching issues that permeate the article: Why are more judges not interested in learning to manage discovery by utilizing the tools the rules afford? And how can the judicial system motivate judges to do so?
The answer to the first question seems self-evident. While finding the gem of a document in a production containing tens of thousands of electronically stored pages may be a thrill, overall, the discovery process can be tedious, repetitious, and boring. Small wonder that partners often consign discovery to entry-level associates and paralegals. If a partner is not willing to be “hands-on” in the minutia of discovery, why should a judge want to assume that role?
The central message of Judge Grimm’s article—and the answer to the first question as well—is found in the answer to the second question. At least 94 percent of federal lawsuits are never tried. Discovery is the means to a pretrial resolution via dispositive motion or settlement. Proportionality simplifies and shortens discovery. Cases end more quickly. Dockets decrease. It is in judges’ self-interest to embrace the newly amended rules. And, needless to say, it would benefit the trial bar as well, for the same reasons.
Charles S. Fax is an associate editor for Litigation News.
- Fed. R. Civ. P. 26, available at http://bit.ly/LN432-frcp26.
- Fed. R. Civ. P. 1, available at http://bit.ly/LN432-frcp1.
- Fed. R. Civ. P. 37, available at http://bit.ly/LN432-frcp37.
- Charles S. Fax, “Cost-Shifting in Discovery after the 2015 Amendments to Rule 26,” Litigation News, Vol. 43, No. 1 (Fall 2017), at 20, available at http://bit.ly/LN432-fall2017-fax.
- Paul W. Grimm, “Are We Insane? The Quest for Proportionality in the Discovery Rules of the Federal Rules of Civil Procedure,” 36 Rev. Litig. 117 (2017), available at http://bit.ly/LN432-grimm.
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