Professor Suja Thomas (of Oddball Cases fame) has jumped into the debate over proportionality in discovery with a post over at Prawfsblawg. The debate, prompted by the upcoming amendments to FRCP 26, asks whether a party should be able to withhold discovery on the grounds that it is disproportionate to the needs (and the amount in controversy) of a given case.
Class action defendants have an obvious incentive to support the proportionality amendment. After all, between e-discovery and the asymmetric discovery that exists in class actions, defendants can face immense pressure to settle meritless claims simply to avoid the cost of responding to the plaintiff. The proposed amendment would firm up a defendant’s ability to limit its costs when faced with a plaintiff’s fishing expedition.
Professor Thomas recognizes that costly discovery is a problem in litigation, but worries that adopting a proportionality rule would lead to further bad outcomes:
If discovery is working in most cases, a rule change for all cases seems doomed to create problems for already proportional cases. Because of natural lawyer behavior, lawyers vigorously defend their clients, and under the proposed rules, they will aggressively decide not to search or produce discovery on the basis of lack of proportionality even when such discovery would have been otherwise produced or searched in the past.
Professor Thomas’s proposed solution is a "proportionality log," which would identify "where the party has not searched and why such searches would not be proportional to the needs of the case."
Professor Thomas’s proposed solution is an interesting one, but I’m not sure that it’s necessary. While they do not have the same firm grounding that a rule change would offer, there are already "proportionality" objections, specifically objections to relevance and undue burden. When a party makes those objections in producing discovery or responding to interrogatories, it does so in response to specific requests. Most adverse parties are diligent about following up when they see these objections, leading to a meet-and-confer process, and, potentially, a motion to compel. (A party may also use part of a Rule 30(b)(6) deposition to discover the universe of responsive documents.) These methods are not "no-cost," but they are comparatively low-cost, and they already exist in a form that provides the same information as Professor Thomas’s log. There’s little reason to ignore an already workable process in favor of adding yet another step to an already unwieldy process.
Regardless of how I feel about the merits of the proposal, it is always nice to see someone from legal academia engaging with how the actual practice of law plays out. For that alone, Professor Thomas’s post is worth a look.