Application of the New "Proportionality" Discovery Rule in Class Actions: Much Ado About Nothing

The "proportionality" amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs' bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, I have reviewed every published judicial opinion (approximately 135) between December 1, 2015 and April 30, 2018 that applied the new proportionality rule in the class action context.

The analysis is necessarily anecdotal rather than empirical. Nonetheless, the results are striking. At bottom, the proportionality amendment has had little impact, at least in the class action context. Courts have generally indicated that the new rule does not fundamentally change the governing principles.

In ruling on discovery disputes in class actions, courts continue to conduct nuanced, highly fact-specific analyses with results that differ little from pre-amendment case law. The courts are especially liberal in allowing discovery that is relevant to class certification. In short, the class action discovery decisions thus far do not support the predictions that the proportionality rule would lead to a sea change.