Occam's Phaser: Making Proportional Discovery (Finally) Work in Litigation by Requiring Phased Discovery

Abstract

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is over inclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right sized.” This Article proposes that parties should be required to “phase” discovery by first setting the initial scope of discovery in a case as small as practicable and focused on the most important, outcome-determinative facts, and then following this small scope of discovery with additional “phases” if needed. The scope of discovery will then become incrementally broader in scope during each phase, but will only do so upon a showing of need for additional discovery. Phased discovery is used sporadically in litigation, often with success. This Article discusses these successes, considers potential drawbacks of phasing, and asks the key question: why wouldn't it work?