Journal Title
University of Pennsylvania Journal of Law and Public Affairs
Volume
9
Issue
3
First Page
298
Document Type
Article
Publication Information
2024
Abstract
In 2015, the Federal Rules of Civil Procedure pertaining to discovery were amended for the seventh time in 40 years–part of a cyclic effort to address the so-called “cost and delay” of litigation. The centerpiece of the amendments was the reconfigured requirement that requested discovery be “proportional to the needs of the case,” in addition to being relevant and nonprivileged. The concept of “proportionality” crystallized the 2015 amendments in a single mantra. The proposed amendments inspired passionate and polarized public reactions. Plaintiffs’ attorneys opposed them as an impediment to obtaining the discovery they needed to prove their case, particularly in civil rights cases and other cases with significant information asymmetry. Defendants’ attorneys favored the amendments as a welcome relief from the high cost of what they considered overbroad discovery, especially as it affected the preservation and production of electronically stored information (“ESI”). Academic writing mostly opposed the amendments, calling them “antiplaintiff” and worrying that they marked “a paradigm shift” unjustified by any serious empirical data showing that discovery in most federal cases actually caused undue cost and delay.
When the amendments became effective on December 1, 2015, despite opposition, Chief Justice John Roberts’ end-of-year report heralded them as “a big deal,” marking “significant change,” taking a “major stride toward a better federal court system.” (The Chief Justice also poetically compared discovery to 19th-century dueling.) Defense-oriented publications crowed about the “dramatic” and “revolutionary” amendments, implying that the scope of discovery had been greatly limited. The American Bar Association and the Duke Judicial Center sponsored an unprecedented thirteen-city “roadshow” starring some individual members of the Advisory Committee in their unofficial capacity. Announcements for the roadshow called the amendments “the most significant changes to discovery and case management practices in more than a decade.” Meanwhile, in its official capacity, that same Advisory Committee simultaneously declared that the amendments did not materially change existing law. Moreover, it seemed that the district court and magistrate judges did not, in written rulings, treat the amendments as the “big deal” Justice Roberts insisted on: they appeared to continue analyzing discovery motions much the same way as before. Commentators began to weigh in with tentative conclusions to the effect that the 2015 amendments had been “much ado about nothing.”
Part I provides a brief background of the 2015 “proportionality” amendments to the FRCP. Part II analyzes a wide (though far from exhaustive) cross-section of written rulings on MTCs by district courts and magistrate judges since the effective date of the 2015 amendments, focusing particularly on the stated impact of proportionality. Part III describes the WLA database and presents the results of the research questions according to that database, using descriptive statistics as well as a test of statistical significance known as an Interrupted Time Series Analysis. Part IV discusses the results in Part III and offers a compendium of potential sampling biases and confounding factors in the study. One of the most significant compounders is the sweeping use by federal district courts and judges of their own local rules, standing orders, “judge’s preferences,” and the like, which overlay the 2015 amendments with a raft of additional and ever-changing discovery requirements and techniques.28 The final part tentatively concludes that the descriptive results from WLA are probably somewhat valid, both because those results confirm theoretical predictions and because WLA’s data is drawn directly from federal electronic dockets. However, conclusions drawn about the effects of the 2015 amendments, especially through inferential statistics, may not be reliable.
Recommended Citation
Patricia W. Moore, Can Litigation Analytics Tell Us What Became of the 2015 Proportionality Amendments to the Federal Rules of Civil Procedure? 9 University of Pennsylvania Journal of Law & Public Affairs 298 (2024).