CHAMPAIGN, Ill. — Recent changes to the federal rules of civil procedure were enacted to crack down on discovery tactics that have been described in part as “wasteful procedural maneuvers and teetering brinkmanship” by Chief Justice John Roberts in his 2015 year-end report on the federal judiciary. But a paper by a University of Illinois expert in civil procedure argues that changing the rules to curb discovery to save time and money is motivated more by the handful of atypical cases that account for the sometimes high costs incurred when exchanging information in lawsuits.
The amended rules that limit discovery to materials that are “proportional to the needs of the case” would negatively affect typical cases, says Suja A. Thomas, a professor of law at Illinois.
“Ultimately, the scope of discovery – that is, the information that’s provided in a lawsuit – was changed in this pretty radical way, which is adding a requirement that information isn’t produced unless it’s proportional to the needs of the case,” Thomas said.
It’s a rule change that was motivated by complex, high-cost cases, and provides an example of how atypical cases can motivate reform efforts at the expense of the vast majority of cases, Thomas said.
A Federal Judicial Center study found the median litigation costs of cases, including discovery and attorneys’ fees, were relatively low – $15,000 and $20,000, respectively, for plaintiffs and defendants. Moreover, attorneys viewed discovery as highly disproportionate in only about 6 to 15 percent of cases, “so you have a problem that affects a very small subset of cases,” Thomas said.
“Although the proportionality rule seems reasonable on the surface, it also affects these typical cases, including, say, a run-of-the-mill employment discrimination case that wasn’t out of control in terms of cost,” she said.
In the past, the discovery rules were much broader.
“If the information was relevant and it wasn’t privileged, you might be able to obtain that information through discovery,” Thomas said. “But now you’re adding this proportionality requirement, which is a pretty amorphous idea. Judges are supposed to use different criteria, including the importance of the issues at stake, the burden or the expense, to decide whether requested information is proportional to the needs of the case.”
But those are squishy concepts open to interpretation by individual judges who could each decide a case differently based on the variables, Thomas said.
“A problem is created through this rule that was motivated by atypical cases. A rule was made that is not appropriate for every case, and then it applies to every case – and then it’s inappropriately applied to cases which were never problematic in terms of cost,” she said.
The article suggests that rule-makers should avoid amendments that are motivated by atypical cases and would affect typical cases.
“The bottom line is, when rule amendments are passed that are borne out of atypical cases – the oddballs, the outliers of the legal world – high systemic costs arise,” Thomas said.
In the paper, Thomas argues that future changes such as broadening committee membership and a willingness to avoid one-size-fits-all rule amendments could eliminate the problems with the rules.
“The current advisory committee is largely dominated by individuals with complex litigation experience. Including lawyers with smaller practices and different practice areas would help shift the perspective away from the smaller subset of issues unique to complex cases and offer more perspectives on the litigation system,” Thomas said. “Rule-makers should also consider adopting special standalone rules for complex, problematic cases.”
Thomas’ co-author is former U. of I. law student Dawson Price.
Editor’s notes: To contact Suja A. Thomas, call 217-244-7614; email sathomas@illinois.edu.
The paper “How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process” is available online.
