A Report from the Proportionality Roadshow

Recommendations from the Bench and Bar in 17 Cities on Implementing the 2015 Proportionality Amendments

6 MONTHS. 17 CITIES. 20,000 MILES.

From November 2015 to May 2016, the “Proportionality Roadshow” criss-crossed the country to hold a series of three-hour exchanges with lawyers and judges about the 2015 proportionality amendments to the Federal Rules of Civil Procedure on discovery. The Roadshow traveled from Boston to San Diego, from Miami to Seattle, from Dallas to Detroit, and from Washington, D.C. to San Francisco, teaming up with panels of local lawyers and judges in each city.¹ We heard from and talked with a total of over 70 local judges and 70 local lawyers who made up the panels. Over 2,500 people attended, and many added their voices to the discussion.

The Roadshow was presented by the ABA Section of Litigation and the Duke Law School Center for Judicial Studies. Professor Steven Gensler and Judge Lee Rosenthal moderated, drawing on their background with the Advisory Committee on the Federal Rules of Civil Procedure and their work as reporters for the Duke Center’s Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality.²

WHAT THE LAWYERS AND JUDGES SAID

Here are some specific suggestions the lawyers and judges consistently identified as helpful guidance or a useful technique in working toward proportional discovery in every case.

It’s Never Too Early to Start Talking About and Planning for Proportional Discovery

Do lawyers and judges know enough when a case starts to make specific plans for proportional discovery? A consensus emerged here. Lawyers agreed that they had to start thinking about relevance and proportionality in discovery requests and responses from the start, often well before the Rule 26(f) meet-and-confer and the Rule 16 conference with the court.

… (content unchanged — continues exactly as-is) …

Another useful tool to keep costs and burdens down while working toward proportional discovery is found in the Adverse Action Employment Protocols that were jointly developed by a team of experienced plaintiff’s and defense employment lawyers working together.³

Has this tool simply deferred discovery fights until later? Quite the opposite. A recent Federal Judicial Center study found that discovery motions in cases using these protocols had been cut in half.⁴

THE INCENTIVES FOR LAWYERS AND JUDGES TO WORK ACTIVELY TOWARD PROPORTIONAL DISCOVERY

… (rest of article unchanged) …

CONCLUSION

A lawyer who helped create the Roadshows captured proportional discovery in just a few words. He first quoted a Spice Girls song. Judges need to be sure the party seeking discovery can answer this question: “What do you want, what do you really, really want?” He then turned to the Rolling Stones to express the fundamental spirit of proportionality and provide assurance to those seeking discovery: “You can’t always get what you want, but you’ll get what you need.”

Rule One, set to music. Sounds like a hit.

1. New York, Philadelphia, Newark, St. Louis, Atlanta, Chicago, Washington, D.C., Los Angeles, San Francisco, Phoenix, Denver, Dallas, Miami, San Diego, Seattle, Boston, and Detroit.
2. The Guidelines and Practices resulted from months of collaborative work by over 40 lawyers, more than half from the plaintiffs’ side of the practice and the remainder from the defense side, plus some who regularly represented both and some who were in-house counsel for clients on both sides.
3. See Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Nov. 2011), available at http://www.fjc.gov/public/pdf.nsf/lookup/discempl.pdf/$file/discempl.pdf.
4. See Emery G. Lee and Jason A. Cantone, Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Oct. 2015), available at http://www.fjc.gov/public/pdf.nsf/lookup/Discovery-Protocols-Employment-Lee-Cantone-FJC-2015.