Discovery is intended to be an efficient, truth-seeking process with the ultimate goal of achieving just, speedy, and inexpensive dispute resolution. However, the consistent and extensive abuse of discovery has cast a shadow on the intended purpose of the process. For various ill- and well-intentioned reasons, attorneys abuse the process by conducting unnecessarily excessive and expensive discovery. One such reason for excessive and expensive discovery—and the focus of this Article—is the over-zealous advocacy of attorneys who leave no stone unturned out of fear of legal malpractice claims. To combat such excessive and expensive discovery, the Federal Rules of Civil Procedure emphasize a proportionality principle to limit the scope of discovery. But, despite the many revisions and amendments, the practicalities of the proportionality principle still remain ambiguous.
In an attempt to resolve ambiguity, this Article offers realistic methods attorneys can implement to achieve proportionality in discovery, such as early case assessments, fact-finder assessments, written agreements with clients, and early judicial involvement. Furthermore, this Article proposes an ethical safeharbor to be added to the ABA Model Rules of Professional Conduct to protect well-intentioned attorneys who utilize the suggested proportionality methods. With these suggested proportionality methods and the proposed safe-harbor, this Article endeavors to curtail discovery abuse, protect attorneys, and allow for greater access to affordable and attainable justice.
Stephen L. Rispoli, James E. Wren, and Daniella McDonagh,
When to Leave the Stones Unturned: Using Proportionality to Navigate Discovery Efficiently, Effectively, and Ethically,
107 Marq. L. Rev. 487
Available at: https://scholarship.law.marquette.edu/mulr/vol107/iss2/6