JUDICATURETHE SCHOLARLY JOURNAL FOR JUDGES

VOLUME 100 NUMBER 4 WINTER 2016

STEA

DY AS SHE GOES

Duke’s Revised

Guidelinesand Practices

chart the course to

proportionalityalso:

HOW COURT FEES AND FINES CAN UNDERMINE PUBLIC TRUST –

AND WHAT JUDGES CAN DO ABOUT IT

Published by the Duke Law School Center for Judicial Studies

IN HIS 2015 END-OF-THE-YEAR REPORT, CHIEF JUSTICE ROBERTS EXHORTED the “entire legal community, including the bench, bar, and legal academy, [to] step up to the challenge of making real change” and embrace the discovery proportionality rule amendments. Instead of wasting time and money demarcating the maximum limits of conceivably relevant discoverable information at the start of litigation, the amended rules aim at “focus[ing] discovery . . . on what is truly necessary to resolve the case.” Have the bench and bar heeded the Chief Justice’s exhortations since the amendments took effect 11 months ago?

It appears so, or at least that is the impression from the 17-city discovery proportion- ality roadshow programs held before 2,500 lawyers and judges. Follow-up informal discussions have only strengthened the growing evidence that the bench and bar are indeed

paying serious attention in reaching reasonable discovery. Reported case law, as reflected in the annotated Discovery Proportionality Guidelines and Practices (available on the Duke Law Center for Judicial Studies website) also manifests judges’ willingness to comply not only with the letter but also the spirit of the amendments.

AND YET NO ONE IS DECLARING VICTORY. For one thing, experience has shown that it takes five to ten

years before all practitioners and even all judges become aware of and familiar with new rule amendments. The discovery amendments are no exception.

Take, for example, the continuing bench-bar knee-jerk reaction, defining the scope of permissible discovery to reach any information that is “reasonably calculated to lead to admissible evidence.” The phrase was misleading, caused confusion, and was deliberately deleted from the rule. The Committee Notes could not be clearer: “The former provision for discovery of relevant but inadmissible information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the ‘reasonably calculated’ phrase to define the scope of discovery ‘might swallow any other limitation on the scope of discovery.’”

Notwithstanding the amendment’s clear intent, more than 20 reported cases, with at least one in every circuit, have favorably cited the deleted phrase. With only a few exceptions, however, these decisions merely reference the phrase almost in passing, e.g., “discoverable information is [an] item that is ‘relevant or may lead to the discovery of relevant information.’”1 Ten reported cases got it right and go in greater detail, explaining the dele-tion and rejecting reliance on a pre-amendment Supreme Court decision as authority for the contrary proposition.2

Only time will tell whether the persistent judicial invocations of “reasonably calculated to lead to admissible evidence” represent only reflexive, unthinking remarks, or whether they reflect an entrenched, institutional intransigence that will stymie the Chief Justice’s “chal-lenge of making real change.”

John K. RabiejDirector, Duke Law Center for Judicial Studies

Published by the Duke Law Center for Judicial Studies

DIRECTOR

John K. Rabiej

ACADEMIC DIRECTORS

Jack Knight Frederic Cleaveland Professor of Law and Political Science, Duke University

Mitu Gulati Professor of Law, Duke University

Margaret H. Lemos Robert G. Seaks LLB’34 Professor of Law,

Duke University

CENTER BOARD

Carolyn Kuhl Judge, Superior Court of California,

County of Los Angeles

John W. Lungstrum Judge, U.S. District Court, District of Kansas

Lee H. Rosenthal Judge, U.S. District Court, Southern District of Texas

John R. Tunheim Chief Judge, U.S. District Court,

District of Minnesota

David F. Levi Dean and Professor of Law,

Duke University School of Law

MANAGING EDITORMelinda Myers Vaughn

CENTER COORDINATORAnn M. Yandian

Editorial AssistantsLeah Brenner, Lora Beth Farmer,

Zachary Newkirk

JUDICATUREVOLUME 100, NUMBER 4

ISSN 0022-5800 © 2016 Duke University School of Law.

All rights reserved. This publication, or any part thereof, may not be reproduced without written permission

from Duke University. Views expressed herein do not necessarily reflect the views of Duke Law School

as an entity or of its faculty.

Requests for reprints may be sent to: Duke Law Center for Judicial Studies

210 Science Drive | Box 90362 Durham, NC 27708-0362

Phone: 919-613-7073 | Fax: 919-613-7158 Email: judicature@law.duke.edu

AS I SEE IT

1 (See Endnote 4, annotated Discovery Proportionality Guidelines and Practices – https://law.duke.edu/judicialstudies/confer-

ences/publications/.) 2 See Cole’s Wexford Hotel, Inc. v. Highmark Inc., 2016 WL 5025751, at *10 (W.D. Pa. Sept. 20, 2016) (noting that reliance on Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340, 351 (1978) is misplaced); see also In re: Bard IVC Filters Prod. Liability Litig., 2016 WL 4943393, at *2 (D. Ariz. Sept. 16, 2016) (“Despite this clear change, many courts continue to use the phrase. Old habits die hard.” Campbell, J., chair of Advisory Committee on Civil Rules at time of rule amendment promulgation).

The Duke Law Center for

Judicial Studies updates the

Discovery Proportionality

Guidelines and Practices each

month with annotations to

new caselaw. Find the latest

document at law.duke.edu/judicialstudies/conferences/publications.

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