The Arc of the Discovery Rules is Long, but it Bends Toward Proportionality

The concept of “proportionality” in discovery began its modern ascendance in  Bell Atlantic Corp v. Twombly, with observations such as these: “Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no ‘reasonably founded hope that the [discovery] process will reveal relevant evidence’ to support a § 1 claim.”  127 S.Ct. 1955, 1968 (2007).

Over time, the “proportionality” concept has moved from the discovery rules to pervade the entire system of federal procedure.  Consider Advisory Committee Note to revised Federal Rule of Civil Procedure 1 (approved by the Judicial Conference in September 2014 and now before the Supreme Court): “Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”

While arising under state law rather than the Federal Rules, the recent Texas Supreme Court of In re National Lloyds Ins. Co. illustrates the concept of proportionality in a highly practical context. The plaintiff in an insurance bad faith case sought evidence about similar claim denials, arguing “that the trial court’s discovery order was (1) limited in time, because it compelled only production of evidence relating to the two storms at issue, and (2) limited by location, because it involved only properties in Cedar Hill.”  ___ S.W.3d ___, No. 13-0761 (Tex. Oct. 31, 2014) (per curiam).

That Court disagreed: “Scouring claim files in hopes of finding similarly situated claimants whose claims were evaluated differently from [plaintiff’s] is at best an ‘impermissible fishing expedition.’ . . . [Plaintiff] is correct that discovery must be reasonably limited in time and geographic scope.   But such limits in and of themselves do not render the underlying information discoverable.”   It concluded that there were still too many likely differences between this set of claims and the plaintiff’s case to justify the discovery request.

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