Private: Duke Law and the New Discovery Proportionality Rule

by Suja A. Thomas, Professor, University of Illinois College of Law 

Today, the new proportionality amendment to the discovery rule goes into effect. Under this amendment, to obtain discovery, the requested material must be “proportional to the needs of the case.”

Recently, I wrote an op-ed in Law360 entitled Via Duke, Companies Shaping Discovery, which is set forth below. This introduction to that op-ed about the new discovery rule explains what led to the op-ed and briefly discusses the response to the op-ed.

The Law360 article publicizes the improper influence of privately-generated guidelines and practices (“private guidelines”) that purport to interpret the new proportionality rule. These private guidelines were created through a process led by a former leader and a former member of the Advisory Committee for the Federal Rules of Civil Procedure, the body that makes the rules, and the Duke Law Center for Judicial Studies—which is partially funded by major corporations and defense lawyers. As described in the Law360 piece, the guidelines favor corporations.

My involvement regarding the guidelines began in August 2015 when Duke solicited public comment on the guidelines. This struck me as odd. Public commentary is an important part of the official rulemaking process. On the other hand, public commentary generally does not occur for private initiatives. Why was public commentary sought for these private guidelines? This commentary period and other related actions by Duke appeared to attempt to portray these guidelines as an official part of the rulemaking process and thus an attempt to influence how judges interpret the proportionality amendment.

I wrote to the rule makers to express these thoughts. They responded that the guidelines were not official and that they would tell Duke to state this on the guidelines. I remained concerned, however, because this private effort was led by a former chair and member of the Advisory Committee. Regardless of whether the guidelines were official, to the outside world, they looked official.

Indeed, later, I learned that the private guidelines already had been used to train judges at a workshop of the federally-funded Federal Judicial Center. They were also being used to train judges in all of the major federal courthouses in the country.

Trying to stop the influence of these private guidelines on judges, I wrote to the chief judges of each of these courts stating my opinion that judges should not be trained on private guidelines. In response to my letter, the rule makers—who were copied on the letter—sent a letter to the chief judges stating that the courthouse programs were not official judge trainings.

After this response to my letter, I wrote the Law360 op-ed arguing that the trainings of judges were improper, and Duke responded on their website.

Among other things, Duke’s response attempts to portray the guidelines as neutral and its process of formulating the guidelines as equally involving plaintiffs’ and defendants’ lawyers. It did not. First, Duke did not obtain any input from plaintiffs’ lawyers on the guidelines prior to the training of 60 magistrate judges on a draft of these guidelines. Second, when plaintiffs’ lawyers participated, they disagreed with portions of the guidelines including early restricted discovery (described in the Law360 piece). However, there was no vote on what should be included in the guidelines. The leaders insisted on the inclusion of certain guidelines including early restricted discovery. Third, Duke’s advisory council, which led the invitation-only, secret conference from which the guidelines stem (described in the Law360 piece), includes 13 corporations, six defendants’ counsel, and six plaintiffs’ counsel. Nineteen to six is not equal, and thus the guidelines unsurprisingly are not neutral.

There are several problems here. First, corporations control the Duke Center. Second, the Federal Advisory Committee has been and is closely tied to the Duke Center. For example, the chief moderator of the courthouse programs who led the guidelines’ initiative is a former Advisory Committee Chair and a member of Duke’s board. Also, one of the current rule makers—the Chair of the Advisory Committee—is headlining the program on the guidelines in the federal courthouse in DC. All of this makes the programs appear official, not private. Finally, the Duke Center is at the core of a process that functions based on secrecy and influence. From the invitation-only conferences to the guidelines that have emerged from them, the Center exerts a disproportionate amount of control over how the Federal Rules of Civil Procedure are both made and interpreted.  This runs counter to the open and public process that is intended for the making of rules and the open and public process of judges interpreting them as they see fit. 

Judges are supposed to interpret rules. Now, instead, judges are being trained on private, largely corporate influenced guidelines in an attempt to influence judges’ interpretation of the proportionality rule. This intermixing of public and private processes involving judges requires change including new ethical rules. These would include the conditions for conferences and programs that judges attend (for example, no secrecy rules) and also strict limitations on the participation of former and current Advisory Committee members with respect to the private interpretation of federal rules on which they participated. 

Read the full op-ed here.