Shook and Sanofi Attorneys Examine Disproportionality in State Courts

Shook, Hardy & Bacon Washington D.C. Partner Patrick Oot, Associate Christopher Casolaro and Sanofi Senior Counsel Christopher Liwski authored a June 2 Inside Counsel article, “Disproportionality in State Courts,” explaining why proportionality in civil discovery is important to ensure efficiency and fairness in state courts.

The federal judiciary’s new and improved Federal Rules of Civil Procedure were enacted on December 1, 2015; the reforms aimed to “inject proportionality into the civil discovery process.” More from the authors:

The changes were designed to lower the costs of litigation by encouraging and enforcing proportional discovery limited to information relevant to “claims and defenses,” and to establish a uniform national standard for preservation obligations and a safe harbor for parties that take reasonable steps in good faith to preserve electronically stored information (“ESI”). Proportionality, or rather its emphasis in Rule 26(b) is not a new concept, but is now at the forefront as part of the very definition of permissible discovery in order to combat skewed discovery with high costs and burdens.

The authors explain that while some states such as Minnesota, Pennsylvania and Utah have “implemented proportionality standards into their civil rules,” most states still have “procedural rules that reflect the burdensome concept of discovery relevance contained in the old federal rules.” Explaining further:

Many states permit discovery so long as the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Unfortunately, many states have yet to enact substantive changes to their civil discovery rules to match the new proportionality language in the federal rules. Given the lengthy process to amend procedural rules in many states, it is imperative that lawmakers and stakeholders begin the amendment process now. State courts’ continued application of expansive, outdated discovery rules can—and do—lead to disproportionate results.

To ensure efficiency in state courts, the authors add,” states must amend their civil discovery rules to reflect the federal rules’ demand for proportionality rather than force litigants to undertake unduly burdensome discovery (or to endure costly litiatoin challenging such orders).” Oot, Casolaro and Liwski conclude, “In order to guarantee proportionality and fairness in discovery, and preserve balance between federal and state courts, states must begin the process of amending their procedural rules now.”