Is There Hope That Discovery Might Be Subject To Reasonable Limits?

Proposed Amendment to Federal Rules and the Concept of “Proportionality”

The discovery aspects of civil litigation can be, and often are, extremely burdensome. This can be true both financially and with respect to the amount of time required of the lawyers and of the parties. Discovery can also be highly invasive. Plaintiffs often feel that the defendants try to bury them with costly, demanding discovery that is excessive, in light of the nature of the claim. Defendants, on the other hand, often feel that plaintiffs sometimes go out of their way to make discovery unreasonably demanding and expensive, as a way of encouraging the defendants to settle. Presently, the federal discovery rules and the rules for courts of unlimited jurisdiction in most states, including California, do not make any provision for regulating discovery based on practical considerations, such as the amount involved, the relative wealth of the parties or other important, real life considerations. A proposed amendment to the Federal Rules of Civil Procedure (FRCP) would specifically authorize courts to consider such factors in determining the scope of discovery that should be allowed.

The proposed amendment to FRCP 26 would add language to the existing provisions regarding the scope of discovery indicating that discovery should be “proportional” to such things as the needs of the case, the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources and “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Assuming that this proposed amendment is adopted, which seems likely, there will be, in the federal system at least, some hope of limiting discovery to what is reasonable under the circumstances of the particular case involved.

The Federal Rules of Civil Procedure are not binding in state court. However, many states often follow changes in federal procedures. A good deal of California’s statutory law regarding discovery is similar to what is in the federal rules. There is a good chance, therefore, that California and other states will follow the federal lead in this area, especially if experience shows the amendments to FRCP 26 work well. Therefore, there is some hope for litigants, especially in small to moderate size cases, that the idea of reasonable limits on discovery, based on proportionality, will come into play in the next few years.