A Disproportionate Response: The 2015 Proportionality Amendments to Federal Rule of Civil Procedure 26(B)
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NOTE
A DISPROPORTIONATE RESPONSE? THE 2015
PROPORTIONALITY AMENDMENTS TO
FEDERAL RULE OF CIVIL
PROCEDURE 26(B)
Matthew T. Ciulla*
INTRODUCTION
When many people think of the American legal system, they think of a
lawyer clamoring to bury her opponent in boxes of documents and to file a
blizzard of document requests, interrogatories, and deposition notices in a
dilatory effort to gain any trial advantage possible.' Popular media outlets
frequently highlight anecdotal examples of overwhelming discovery produc-
tions, inevitably leading to the conclusion that our system of civil justice is out
of control.2 Indeed, the fabled document dump has become a common
trope in American works of fiction.3
* Candidate for Juris Doctor, Notre Dame Law School, 2017; Bachelor of Science,
Vanderbilt University, 2014. I would like to thank ProfessorJay Tidmarsh for his guidance
on this Note, my family for their endless support, and the Notre Dame Law Review team for
all of their work.
1 See, e.g., W. Bradley Wendel, Rediscovering Discovery Ethics, 79 MARQ. L. REv. 895, 901
(1996).
2 See, e.g., Kathy McCabe, Confidential Data Released as Saugus Legal Fight Grinds On,
Bos. GLOBE (June 5, 2016), https://www.bostonglobe.com/metro/2016/06/05/blowing-
whistle-saugus/EZHyCiWOKfosiXLRke6tlH/story.html (describing discovery production
of 49,000 pages of material, including copies of flu shot reminders and snow removal
notices and inadvertently-disclosed personal information, in an apparent document
dump intended to bury ... in needless material opposing counsel); Scott Morgan, judge
Blasts Prosecutors in Wells Fargo Mortgage Insurance Lawsuit, MREPORT (Apr. 8, 2015), http://
www.themreport.com/news/government/04-08-2015/judge-blasts-prosecutors-in-wells-
fargo-mortgage-insurance-lawsuit (explaining that prosecutors in a civil case were chided
for overwhelming the defendant with millions of documents, giving defendants no
time to review the documents so close to the discovery deadline).
3 See, e.g., JOHN GRISHAM, SYcAMoRE Row 436 (2013) (A 'document dump' was a
common dirty trick . . . , in which [a party] hid discoverable documents until the last
possible moment. They then dumped several thousand pages of documents on the oppos-
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A Disproportionate Response: The 2015 Proportionality Amendments to Federal Rule of Civil Procedure 26(B)
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