In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that appear quantifiable over those that do not (“the evaluability hypothesis”). I argue that the social benefits of discovery are not mere abstractions or the stuff of formal models. They are the intended fruits of conscious legislative policy. If proportionality is not to become a deregulatory tool in cases in which federal regulatory policy is implicated, judges must resist the temptation to give short shrift to those elements of the analysis that, because they are out of sight, are also out of mind, or are difficult to quantify -- in particular, social benefits.
Jonah Gelbach, Bruce Kobayashi, The Law and Economics of Proportionality in Discovery, Sean Farhang, discovery retrenchment, regulatory policy, private enforcement, legibility, cost-benefit analysis
Burbank, Stephen B., "Proportionality and the Social Benefits of Discovery: Out of Sight and Out of Mind?" (2015). Faculty Scholarship at Penn Law. 1522.