In his best-selling book A Civil Action, author Jonathan Harr tells the dramatic story of how the residents of Woburn, Mass., won seven-figure settlements from two corporate defendants for dumping toxic chemicals into the town’s water supply. The book and the 1998 film adaptation show how the embattled plaintiffs lawyer, Jan Schlichtmann, used the pretrial process known as discovery to document the dumping and link it to a spike in cancers in the town.
The pretrial discovery was critical to the plaintiffs’ case, but the entrenched resistance from the corporate lawyers made it both time-consuming and expensive. Eventually, the costs forced Schlichtmann to settle the case against one of the companies for $1 million and then immediately invest the proceeds in litigating the case against the major defendant, W.R. Grace & Co. In the end, financial considerations forced Schlichtmann to accept a lower-than-expected settlement of $8 million from the Grace company, and he himself was forced to file for bankruptcy.
The story differs from the dominant critique of the discovery process propagated by business interests and the corporate bar. In their telling, plaintiffs’ lawyers bombard business defendants with bushel-basket requests for information difficult and expensive to track down and often of little relevance to the case at hand. Business groups such as the U.S. Chamber of Commerce’s Institute for Legal Reform argue that discovery “abuse” drives up the cost of litigation and often forces corporate defendants to settle questionable cases to cap their expenses.
From either perspective, a new rule for federal courts aimed at controlling discovery and touted by Chief Justice John G. Roberts Jr. in his annual report on the federal judiciary seems on the surface both sensible and salutary. The new rule allows discovery by either side only if the information or documents sought are “proportional to the needs of the case.”
In applying this proportionality principle, a judge is to consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
The new rule, the latest in a continuing series of tweaks to the discovery rule first adopted for federal courts in 1938, went into effect in December after Congress failed to object to changes that the court submitted for review in April. Roberts called the change “a major stride toward a better federal court system.” The new language, he said, “make[s] express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.”
Outside reviews of the changes were less enthusiastic. In his story on the new rules, the New York Times Supreme Court correspondent Adam Liptak collected criticisms from several prominent law professors. Arthur Miller, a civil procedure expert at New York University Law School, warned that the provision “will be used to restrict a citizen’s access to the information that often is critical to establishing a grievance, whether it be a civil rights claim or an economic or personal injury claim.”
Despite Roberts’ enthusiastic description of the new rule as “a big deal,” the proportionality principle actually dates back to 1983. But the new rule is seen as significant because it moves the proportionality requirement from a provision limiting discovery to an earlier provision defining the scope of discovery.
Even without that change, judges in the past few years have invoked proportionality in discovery cases more frequently than before, according to a law review article published in 2014 co-authored by University of Oklahoma law professor Steven Gensler and federal judge Lee Rosenthal. Gensler and Rosenthal found increased citations to proportionality following a widely noted conference on civil litigation held at Duke University Law School in 2010.
Duke’s role in the gestation of the new rule stirred controversy because the school’s Center for Judicial Studies is funded in part by such major corporations as GE, Pfizer, and ExxonMobil. Duke sponsored an invitation-only conference on implementation of the rule in December.
In their article, Gensler and Rosenthal, a federal judge in Houston named to the bench by President George H.W. Bush, acknowledged practical difficulties in applying the then-pending rule change but voiced confidence in judges’ abilities to use it to better control the discovery process. Rosenthal previously served under an appointment from Roberts as chair of the Judicial Conference’s Advisory Committee on Rules and Procedure.
Linda Mullenix, a prominent civil procedure expert at the University of Texas Law School, was more critical of the new rule in a draft paper published in late 2014. Mullenix depicted the rule as the result of “aggressive lobbying efforts by the corporate community.” She called the advisory committee’s repeated concerns about the cost of discovery in explaining the new rule “evidence of the corporate community’s pervasive influence on the rulemaking process.”
In a federal court system with more than 700 life-tenured trial-level judges, the application of the new rule is likely to vary widely. Roberts’ hopes and the critics’ fears may both prove to be exaggerated. But Mullenix rightly raises the question whether the rule will limit the courts’ search for truth. “It seems an odd affair,” she wrote, “for rulemakers to artificially constraint\ the pursuit of truth by reducing the permissible scope of such a search to a multi-factor test to be subjectively balanced by a judicial officer.”