Seeking Proportional Discovery: The Beginning of the End of Procedural Uniformity in Civil Rules

After more than two decades of vigorous debate, the original Federal Rules of Civil Procedure became effective on September 16, 1938 and ushered in broad provisions for discovery. The need for discovery, however, was not a central theme of the debates that preceded the original codification. Rather, the proponents of the new rules asserted that the Conformity Act of 1872 created uncertainty regarding the procedure that would apply in federal court, causing unnecessary expense and delay, particularly for interstate corporations that felt compelled to retain specialized counsel in every state. Proponents asserted that adoption of trans-substantive rules of procedure in federal courts would result in national procedural uniformity, both horizontal and vertical, as states voluntarily adopted similar rules for their own procedure. Since the adoption of the Federal Rules of Civil Procedure, most states have in fact adopted rules of procedure that mimic the federal rules in large respects, including expansive provisions for discovery. This article argues that the characteristics of federal and state caseloads are so dramatically dissimilar today that national procedural uniformity no longer makes sense, and may actually contribute to inefficiency and unfairness.