Drew presents at ABA Litigation Section joint Ethics and Class Action committees’ Roundtable on ethical implications of new discovery rules.

On Thursday, March 31, 2016, Andrew McGuinness participated in an ABA roundtable lunchtime presentation regarding the potential impact of the December 1, 2015, amendments to the Federal Rules of Civil procedures on class actions–including ethical implications. Co-panelists were Peter Breslauer of the Montgomery McCracken Walker & Rhodes firm (Philadelphia) and Scott Reiser of the Lum, Drasco & Positan firm (New Jersey).

Drew’s presentation focused primarily on what the new emphasis on “proportionality” means for class actions. The Roundtable was recorded and may be made available for replay through the ABA’s Litigation Section website.

I’ll share a couple of highlights here as well:

  • As the Advisory Committee notes make clear, “proportionality” is not a new concept in the discovery rules. The change in location (to Rule 26(b)(1)) is meant rather to highlight the previous rule;
  • Since most (though not all) class actions are larger, more complex cases, an increased emphasis on proportionality likely means greater (not reduced) access to discovery in class actions;
  • Disproportionate costs of discovery is a common phenomenon in class actions.  The December 2015 Rules changes were not meant to address this issue (beyond, indirectly, focusing all parties on discovery of relevant–though not necessarily admissible–information).  As the Advisory Committee expressly noted:
    • “Some cases involve what often is called “information asymmetry.” One party–often an individual plaintiff–may have little discoverable information. The other party may have vast amounts of information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.”

  • The first U.S. District Court to address the issue of class discovery under the new rules issued a thoughtful decision in Siriano v. Goodman Mfg. Co., L.P., 2015 U.S. Dist. LEXIS 165040 (S.D. Ohio Dec. 9, 2015), a copy of which is available here.

Drew