"Just a Bit Outside!": Proportionality in Federal Discovery and the Institutional Capacity of the Federal Courts

I. Introduction 655II. A Short History of the Federal Discovery Rules 664III. Case-Specific Decisions on Proportionality Take Center Stage 671A. Proportionality Returns to Rule 26(b)(1) 6731. Proportionality in Discovery: 1983 to the Present... 6732. Proportionality as the Primary Constraint on Discoverable Matter 675B. Additional Amendments to Rule 26(b)(1) Eliminate Remaining Imprints of Liberal Discovery 684IV. Proportionality and the Institutional Capacity of Federal Courts 687A. Institutional Limits of District Courts 6891. Limited Normative Decision Making Authority 6892. Lack of Access to Information 6913. Little Opportunity for Meaningful Appellate Review 693B. Moving Forward with Proportionality 694V. Conclusion 702IntroductionFederal discovery reform is yet again at the forefront of procedural debate. As has been said about personal jurisdiction, discovery "used to seem so easy."1 The original Federal Rules of Civil Procedure, as adopted in 1938, were intended to minimize procedural default and promote resolution of cases on the merits.* 2 The discovery rules had two oft-articulated goals-to assist in ascertaining the truth and to permit courts to do justice.3 4 Pleading was deemphasized, requiring only notice to the opposing party of the conduct giving rise to the claim, with the majority of the sorting of strong and weak claims to occur in discovery. The original discovery rules enabled these goals by allowing parties to obtain all relevant, non-privileged information before trial,5 but little heed was paid to the costs that broad discovery might create.The discovery provisions of the original Federal Rules played an important role in the federal courts' transition from trial by surprise-the so-called "sporting theory of justice"-to trial on the merits.6 As some concluded, the advent of discovery allowed litigants in the federal courts to play their hands "with all the cards on the table."7Those that sought to limit discovery under the nascent Federal Rules claimed the Rules allowed fishing expeditions; however, courts and commentators alike concluded that discovery requests were not '"fishing expedition^],' if there appealed] any reasonable possibility that there [might] be a fish in the pond."8 Broad discovery had become an essential element in the federal courts' commitment to doing justice.The civil litigation landscape has changed dramatically since the original Federal Rules were promulgated. Cases now vary widely in size and in kind.9 Litigation and discovery strategies have changed, trials are rare,10 and attorneys sometimes wonder if truth can be defined in the litigation context." Even methods of creating, saving, and using information have changed, resulting in an avalanche of information that is available-in varying formats-for discovery. Moreover, there is disagreement about the extent of discovery costs: indeed, although it has been contended for decades that discovery costs have soared, empirical research has established that discovery costs are not "significant or disproportionate," except in a small number of complex, high-stakes cases.12 As it has become apparent, however, that federal discovery will not and perhaps should not provide for obtaining all relevant discovery in all cases, the debate focuses on appropriate methods for calibrating discovery.The Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee) recently responded to renewed contentions that discovery is often disproportionate to the needs of cases filed in federal court in a manner consistent with rulemakers' responses since the early 1980s: by proposing amendments to the discovery rules13 and judicial-case-management provisions14 of the Federal Rules of Civil Procedure. The 2015 Federal Rule amendments (2015 Rule Amendments) became law on December 1,2015.15 The 2015 Rule Amendments include multiple changes to the discovery and case management features of the Federal Rules: (1) promotion of earlier discovery, which is intended to permit more informed discussions between the parties at the Rule 26(f) conference and with the judge at the initial case management conference, and to facilitate earlier judicial case management;16 (2) encouragement of direct communication between judges and attorneys;17 (3) encouragement of greater cooperation by parties in achieving Rule l's goals of "just, speedy, and inexpensive resolution of every action";18 and (4) facilitation of greater proportionality between the needs of a case and the permissible extent of discovery through amendments to the scope-of-discovery provision in Rule 26(b)(1). …