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Duquesne Law Review

Article Title

Mountain or Molehill?

Abstract

The 2015 amendments to the Federal Rules of Civil Procedure were the latest maneuver by the conservative Supreme Court to protect big corporations, and will result in a meaningful restriction of access to justice for individuals and those with limited means. Or, perhaps, they were nothing more than minor language tinkering that leaves judges free to continue their passive bystander approach to case management-tinkering that does little to curb the abusive discovery that leads defendants to make substantial settlement payments to resolve meritless cases simply to avoid exploding litigation costs. Stakeholders reading the same text and the same Advisory Committee Notes regarding the 2015 amendments forecast these polar, antithetical outcomes. So, who was right?

Data now exist to begin to understand how parties and courts are actually applying the amended provisions: the amendments have been in effect since December 1, 2015. The early results suggest a staggering change in the frequency with which parties and courts are applying proportionality to discovery requests to eliminate or narrow discovery not because it is irrelevant, but because it is too burdensome. Of course, the data do not reveal whether this change is permanent, and leave other questions unanswered, but they certainly suggest at least a short-term seismic shift in the application of proportionality. As to the other changes, the data are more mundane. This article presents the empirical data for all of the material 2015 amendments. It also describes some of the softer gloss and themes emerging from these opinions.

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