Proportionality and the Social Benefits of Discovery: Out of Sight and Out of Mind?

In a paper on the "Law and Economics of Proportionality in Discovery," Jonah Gelbach and Bruce Kobayashi do a superb job "elaborat[ing], from an analytical perspective, the economic considerations that arise from the [proportionality] standard as written."* 1 The paper is as refreshing as it is analytically acute. Claims concerning the private and social costs of discovery have dominated the discovery retrenchment campaign narrative that gained traction following the 1976 Pound Conference.2 These claims pay little, if any, attention to discovery's private and social benefits.3 Indeed, not even the methodologically sound empirical studies that have consistently undermined the costs story rigorously engage the question of benefits.4 Such a skewed view likely enabled the chair of the Judicial Conference's Standing Committee, without apparent irony, repeatedly to invoke discovery amendments that were proposed in 20135 as an important contribution to the goal of access to court.6Observing that "one effect of the partial extemalization of litigation costs is to generate litigation activity whose aggregate social costs exceed its aggregate social benefits," the authors quickly add that "this tendency to overuse the legal system may be offset by differences between the private and social benefits of litigation."7 The authors refer to statutes in which Congress provides "features such as damage multipliers and fee-shifting, which encourage litigation of statutorily created causes of action," suggesting that they "spring[] from a view that certain favored types of litigation bring substantial social benefits that are external to the litigants themselves."8The recent work by Sean Farhang that the authors cite for this proposition9 makes clear that the standard Chamber of Commerce anti-litigation narrative, of which the discovery abuse story is an important chapter, is radically incomplete, if not simply wrong.10 Farhang's work shows a tight correlation between the large increase in federal civil litigation that started in the late 1960s and the incidence of statutory fee-shifting or multiple damages provisions." It also demonstrates, both quantitatively and qualitatively, that congressional decisions to include such provisions were animated by concern, in periods of divided government, that exclusive reliance on public enforcement would put the new substantive rights that Congress created across the entire federal regulatory landscape at risk of subversion by an ideologically distant Executive.12The original Federal Rules on discovery reflected the social, political, and jurisprudential views of those who fashioned them. Their primary architect was Edson Sunderland, a member of the Advisory Committee, not the Committee's Reporter, Charles Clark. Sunderland was a Progressive before he was a legal realist, and he embraced the Progressives' campaign for "legibility," a central tenet of which was that effective regulation requires adequate information about the subject of regulation.13 Thus, it is no surprise that the 1938 discovery rules favored private enforcement even when that phenomenon was much more sparingly encouraged as a tool of federal regulatory policy.14 It is also no surprise that, when the Advisory Committee turned back to the discovery rules in the late 1960s, their efforts made the rules even more favorable to private enforcement.15 Evidence of the effectiveness of private enforcement was mounting, and with it, awareness of how central broad discovery is to that effectiveness.16The Supreme Court is fond of reminding us that Congress legislates against the background of the Federal Rules,17 which, in a world of both the goose and the gander, means not only that Congress is deemed to be aware of the procedural rules with which its statutes will interact (and must clearly manifest an intent to displace them), but that it may rely on those rules in devising regulatory policy. To be sure, those responsible for rulemaking under the Enabling Act18 are not forever saddled with their predecessors' policy choices. …