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<xTITLE>Is Proportionality of Discovery Good or Bad? </xTITLE>

Is Proportionality of Discovery Good or Bad?

by John Lande
January 2016


John Lande

Alert readers of this blog will recall that amendments of the Federal Rules of Civil Procedure went into effect on Dec. 1, 2015, including a new requirement that discovery be “proportional to the needs of the case.”

The Institute for the Advancement of the American Legal System (IAALS) thinks that’s a good thing.  Critics, like Prof. Elizabeth Thornburg, think that’s a bad thing because the Rules Committee members appointed by Chief Justice John Roberts approve rules that “tend to favor the interests of large entities resisting discovery.”

Right on cue, Chief Justice Roberts issued his annual report on the federal judiciary, which celebrated the new discovery rules.  He noted that the rules grew out of a 2010 symposium which

identified the need for procedural reforms that would:  (1) encourage greater cooperation among counsel;  (2) focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case;  (3) engage judges in early and active case management;  and (4) address serious new problems associated with vast amounts of electronically stored information.

The report states that the revised rules “highlight[] the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes. . . .  The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.”

In reporting the Chief Justice’s report, the New York Times published an article citing Professors Arthur Miller, Suja Thomas, Stephen Burbank, and Judith Resnik criticizing the new discovery rules as overbroad, aimed at a small number of cases in which there is excessive discovery but inappropriately limiting discovery by plaintiffs in a large number of cases.

(Whatever you think of Roberts’s argument, you might enjoy his report, which reads more like an article than a government report.)

Many of us like the IAALS’s and Chief Justice’s goals of reducing the adversarial elements of litigation but also want to protect plaintiffs’ reasonable access to the legal system.

So are the new rules good or bad?

I don’t know.  I haven’t examined the subject carefully and I don’t have a definite opinion.

On one hand, I gather that there probably is a significant amount abuse of discovery and the proportionality theory generally makes sense.  On the other hand, I can imagine that defendants could use the facially neutral rules to limit plaintiffs’ appropriate discovery.  On the other other hand, I gather that some defense lawyers abuse discovery to harass plaintiffs by “defensing” their cases, so some discovery limits might actually be helpful to plaintiffs.

While I am concerned about plaintiffs’ interests, I think that defendants also have legitimate interests.  I gather that some plaintiffs’ lawyers use litigation procedures to harass even big businesses.  I don’t have a good sense of how the equities balance out in practice.

In the end, I suspect that the “haves” generally will come out ahead about the same in any case because they usually can take advantage of any rules.  (If you haven’t read Marc Galanter’s classic article, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Society Review 95 (1974), you should drop everything and read it NOW.  It provides a valuable analysis of dispute resolution, though most people in our field probably haven’t even heard about it.)

And, while distributional criteria are important, they aren’t the only ones to consider.

But what do I know?  Civ Pro geeks (and I say this in the best possible way), would you like to weigh in?  You never write.  You never call.


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is

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