Page 18

Bulletin Winter 2016

Civil Procedure Lloyd Gathings Proportionality, Viewed From A Slightly Different Angle Finding a CLE program or a paper on proportionality in Electronic Discovery in multi-million dollar cases is about as easy as walking into a field and finding a rock. They are everywhere. The Sedona Conference has done its usual magnificent job studying this subject. But little has been written on the subject of proportionality as applied to smaller cases -- automobile soft tissue injury cases, trip and fall cases, products cases large enough to file but not large enough to jump into discovery as you would in a products liability death case. If the courtrooms are to stay open for such cases, then proportionality in all phases of the litigation, not just electronic discovery, has to be considered. The Alabama Rules of Civil Procedure do not contain the terms “proportional” or “proportionality”. However, the rules certainly incorporate the principle of proportionality: Rule 1(c) provides for proportionality in the statement that “these rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” The Committee Comments note that “the purpose of amending Rule 1(c) to add the words ‘and administered’ is to recognize the affirmative duty of the court and attorneys, as officers of the court, to ensure that civil litigation is resolved not only fairly, but also without undue cost and delay.” The Circuit Court judges in Jefferson County have largely left this function to the lawyers, probably due to the trust our judges have afforded our Bar throughout the years. However, a good argument can be made that we have not performed this function with the ardor we should have and that the trust afforded us has been misplaced in this regard. In more and more cases, the amount of money spent preparing and defending the case equals or exceeds the amount the case is worth. And that should not sit well with the Bench or the Bar when the purpose of Rule 1(c) is considered. Discovery out of proportion to the value and importance of the case eventually denies justice to a large class of litigants. Rule 26(a) of the Alabama Rules of Civil Procedure provides for discovery by depositions, interrogatories, requests for production and requests for admissions. Proportionality is accounted for in Rule 26(b)(2)(B), which allows the Court to limit discovery “that is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources and the importance of the issues at stake in the litigation.” While large corporations commonly complain about the burden of electronic documents numbering in the hundreds of thousands, taking two or three extra depositions in a small case could be as burdensome on a Plaintiff. Rule 26(f) again entertains the idea that the amount of necessary discovery should be discussed at a discovery conference and that the Court at that conference may set limitations on discovery. The Birmingham Differential Case Management Plan also envisioned that discovery be limited according to the type of case. Discovery in cases assigned to the Expedited Track is limited to “50 singlepart discovery request items . . . for each party whether involving interrogatories, 18 Birmingham Bar Association


Bulletin Winter 2016
To see the actual publication please follow the link above