The Next Generation: Upgrading Proportionality for a New Paradigm

Abstract

SOMETIMES, it takes while for an idea catch on, even really good one. The first versions of automobile ran on steam and then electricity, and it took long time for inventors determine that gasoline was superior fuel. (1) Then things really took off. Similarly, lightbulb wasn't always safe, bright, long-lasting light source we know today; it took lot of tweaking get things just right. (2) Like automobile and lightbulb, principle of proportionality is really good idea. But, also like automobile and lightbulb, it's been slow catch on and has required some changes along its way. The proposed amendments Federal Rules of Civil Procedure seek make those last few adjustments that will finally encourage widespread application of proportionality in discovery. If everything goes as planned, future of discovery is bright. The proposals come none too soon. In recent years, problems of discovery have reached critical tipping point and contribute greatly oft-repeated sentiment that [o]ur discovery system is broken (3) and that our civil justice system is in serious need of repair. (4) These problems find their source in diversity of circumstances, but are perhaps most affected by modern rise of technology and resulting explosion in volume and variety of electronic information in world today. A recent study of reports that [l]ike physical universe, digital universe is large--by 2020 containing nearly as many digital bits as there are stars in universe. It is doubling in size every two years, and by 2020 digital universe--the data we create and copy annually--will reach 44 zettabytes, or 44 trillion gigabytes. (5) The effects of this dramatic information growth are increasingly felt by parties, counsel, and courts alike and underlie inevitable conclusion that modern discovery is different and that traditional notions no longer apply. Despite its inevitability, there is no denying that the process of change ... is tortuous and contentious (6) and that effort shift discovery paradigm will therefore be substantial. There is good news, however; much of work has been completed already. Indeed, principle of proportionality--arguably present in rules since their development--has been re-designed and improved over many years. Unfortunately, practical application of principle of proportionality has continuously met with strong resistance where traditional notions of broad and liberal discovery remain entrenched in jurisprudence surrounding questions related scope. Accordingly, United States Judicial Conference has once again undertaken reincorporate proportionality into design of Federal Rules. This article will explain principle of proportionality and its purpose, discuss changes in proposed new design and their intended effects, and provide some advice on how put principle use. I. A Brief History Although relevance is widely recognized as keystone of discovery, principle of proportionality has long existed in rules as restraint overbreadth, abuse, and misuse. Even original rules drafters recognized need for limitations on discovery and, pursuant Rule 30(b), for example, allowed court dictate limitations on depositions to protect [a] party or witness from annoyance, embarrassment or oppression. Per original Committee Note, such limitations were available in recognition of need for a safeguard for protection of parties and deponents on account of unlimited right of discovery given by Rule 26. (7) In subsequent years, further limitations discovery were adopted and principle of proportionality, although never explicitly named, became an established component of discovery analysis. In 1983, for example, several of now-familiar factors of proportionality analysis were adopted for first time with intention of guarding against redundant or disproportionate discovery by giving court authority reduce amount of discovery that may be directed matters that are otherwise proper subjects of inquiry. …