Mountain or Molehill

33 Pages Posted: 29 Aug 2018

See all articles by Steve Baicker-McKee

Steve Baicker-McKee

Thomas R. Kline School of Law of Duquesne University

Date Written: July 1, 2017

Abstract

The 2015 amendments to the Federal Rules of Civil Procedure were the latest maneuver by the conservative Supreme Court to protect big corporations, and will result in a meaningful restriction of access to justice for individuals and those with limited means. Or, perhaps, they were nothing more than minor language tinkering that leaves judges free to continue their passive bystander approach to case management—tinkering that does little to curb the abusive discovery that leads defendants to make substantial settlement payments to resolve meritless cases simply to avoid exploding litigation costs. Stakeholders reading the same text and the same Advisory Committee Notes regarding the 2015 amendments forecast these polar, antithetical outcomes. So, who was right?

Data now exist to begin to understand how parties and courts are actually applying the amended provisions: the amendments have been in effect since December 1, 2015. The early results suggest a staggering change in the frequency with which parties and courts are applying proportionality to discovery requests to eliminate or narrow discovery not because it is irrelevant, but because it is too burdensome. Of course, the data do not reveal whether this change is permanent, and leave other questions unanswered, but they certainly suggest at least a short-term seismic shift in the application of proportionality. As to the other changes, the data are more mundane. This article presents the empirical data for all of the material 2015 amendments. It also describes some of the softer gloss and themes emerging from these opinions.

Keywords: Federal Rules of Civil Procedure, Proportionality, Settlement, Civil Litigation, Judicial Case Management, Discovery, Spoliation

Suggested Citation

Baicker-McKee, Steve, Mountain or Molehill (July 1, 2017). 55 (2) Duq. L. Rev. 307-338 (2017)., Duquesne University School of Law Research Paper No. 2017-08, Available at SSRN: https://ssrn.com/abstract=3075981 or http://dx.doi.org/10.2139/ssrn.3075981

Steve Baicker-McKee (Contact Author)

Thomas R. Kline School of Law of Duquesne University ( email )

600 Forbes Avenue
Pittsburgh, PA 15282
United States

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