September 10, 2019 Articles

How to Handle Disproportionate Discovery: An Update and Tips

Learn how to use a proportionality argument when dealing with electronically stored information.

By Paul M. Kessimian and Kelly J. Wilbur

Much has been written on the more recent amendments to the Federal Rules of Civil Procedure concerning proportionality. There is a rich history of rulemaking admonishing courts and litigants to conduct themselves in a manner to ensure that cases are litigated in as inexpensive a manner as can be had to ensure justice. Many feel the goal remains out of reach. Regardless, there is little doubt that the more recent amendments and developments in case law and practice provide ammunition for those seeking to hold the legal system to that standard. That ammunition includes the very history of the amendments to the rules themselves.

Proportionality—A Brief History

The concept of proportionality arguably has been an inherent part of the rules since their inception. The Federal Rules of Civil Procedure always were meant to secure “the just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1 (1938). Proportionality explicitly was included in the Federal Rules of Civil Procedure nearly 30 years ago with the 1983 amendments, with the intent to “guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.” See Fed. R. Civ. P. 26 advisory committee’s notes to 1983 amendments. From 1983 through 2015, the rules have been changed, in part, to provide federal courts with the authority they need to contain and limit discovery.

The explicit inclusion of proportionality in 1983 was not enough. In 1995, the rules were amended again to provide courts with broader authority to ensure discovery was proportional to the case in light of the rapidly growing amounts of data that came with the information age. See Fed. R. Civ. P. 26 advisory committee’s notes to 1993 amendments. In 2006, Rule 26(b)(2) was revised to address discovery of electronically stored information (ESI) when that information was not reasonably accessible in light of the costs and burdens related to extracting that information. See Fed. R. Civ. P. 26 advisory committee’s notes to 2006 amendments. Courts have the ability to limit or preclude discovery when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” See Fed. R. Civ. P. 26(b)(2)(C)(iii); Fed. R. Civ. P. 26 advisory committee’s notes.

The rise of cloud computing, social networks, and the ever-expanding size and scope of ESI of all types have resulted in the exponential expansion “of the universe of discoverable material.” See Zubulake v. U.B.S. Warburg, L.L.C., 217 F.R.D. 309, 311 (S.D.N.Y. 2004); see also George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?,” 13 Rich. J. L. & Tech. 10, at *2 (Spring 2007). In light of the rapid expansion and costs associated with discovery of ESI, the principle of proportionality takes on greater importance.

Again the need to amend the rules was apparent. The 2015 amendments to Rule 26(b)(1) provide that discovery must be

proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

This change reinforces the obligation of the parties and the court to consider the proportionality of all discovery in resolving discovery disputes. See Fed. R. Civ. P. 26 advisory committee’s notes. The placement of this change in Rule 26(b)(1) is important because it enshrines proportionality into the very scope of permissible discovery. Parties may obtain discovery only regarding any nonprivileged matter that is (1) relevant to any party’s claim or defense and (2) proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). If the discovery sought is not proportional, it is outside the scope of permissible discovery and is considered irrelevant to the claims or defenses in the case.

“[The] [a]mendments to Rule 26 were ‘intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse.” Winfield v. City of New York, 2018 WL 161336 (S.D.N.Y. Mar. 29, 2018) (acknowledging that request for additional discovery was relevant, but holding that the benefit of production was outweighed by the burden associated with its production and further delay of discovery) The change is meant to “put a greater emphasis on the need to achieve proportionality, in determining whether to grant [a] motion to compel.” Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016).

So what can one conclude from this history of amendments to the Federal Rules? One conclusion that seems inescapable is that, at least for the drafters of the rules, proportionality had been a desired outcome of the litigation process for a long time but had not been achieved in practice.

How to Use the Rule Amendments and Most Recent Case Law to Limit Disproportionate Discovery

Cooperation is the name of the game. For better or worse, courts are losing—if they had not already lost—patience with discovery disputes. Given the six considerations outlined in Rule 26(b)(1), discussions with opposing counsel should focus on tailored requests, the types of ESI stored and available to the parties, its relevance to the issues of the case, and the costs associated with producing and reviewing responsive data and documents.

These discussions are most effective prior to and at the case management conference phase of litigation. Orders limiting discovery may narrow the focus for producing ESI and aid in keeping the costs of discovery down. Affidavits from clients regarding the types of ESI used by the business, the volume of email traffic, and the potential costs of producing ESI can be critical to understanding the full scope of a potential production. See Arrow Enter. Computing Sols., Inc. v. BlueAlly, LLC, 2017 WL 876266 (E.D.N.C. 2017). Be specific—consider communicating to opposing counsel or the court your intended search terms or which potential custodians are most relevant to the issues. There are also several e-discovery litigation support companies with excellent tools and expertise that can be integral in reviewing and producing ESI.

Large amounts of ESI on both sides in a dispute provide both sides with an incentive to cooperate. In such circumstances, overreaching discovery and a refusal to negotiate disputes in good faith can be met with reciprocation—which only burdens both sides. However, there are circumstances where both sides do not have the same amount of data or where one side, despite the rules, is using discovery as a tactic to achieve a litigation objective (e.g., forcing ever-increasing expenses to negotiate a more favorable settlement). In such circumstances, counsel must be prepared to take the matter up with the court.

At every step, keep in mind that the dispute and the correspondence regarding it are likely to end up in front of the judge. Here are some practical tips to employ to give you and your client the best shot at prevailing, should motion practice be necessary:

  • Start with solid responses to discovery. Avoid boilerplate objections and provide as specific a basis for objecting to a request as possible. Courts generally do not approve of boilerplate objections. See, e.g., Schultz v. Sentinel Ins. Co., 2016 WL 3149686 (D.S.D. 2016). If a request is seeking relevant information but is disproportionate as drafted, consider drafting an objection that specifically addresses how it is disproportionate. Consider providing a response that lays out what you have searched for and what you have found. That way, if there’s a dispute, you can show that you did provide relevant information in a proportionate way.
  • In correspondence and conferences attempting to resolve the discovery dispute, communicate that you are reasonable and accommodating to relevant and proportionate requests. That way, when you are actually dealing with overbroad discovery or out-of-control counsel, you can point to examples that will enhance your credibility with the court, demonstrating that you tried to avoid consuming the court’s time and attention. As courts have lost patience with gamesmanship, the more reasonable and reciprocal one comes across, the better.
  • Support any motions with specific facts demonstrating the improper burden associated with the requested discovery, as the party seeking relief bears the burden of proof. See, e.g., Cartel Asset Mgmt. v. Ocwen Fin. Corp., C.A. No. 01-cv-01644, 2010 WL 502721, at *10 (D. Colo. Feb. 8, 2010) (noting “that objections to discovery must be made with specificity, and the responding party has the obligation to explain and support its objections”). “A party moving for a protective order must make a ‘particular and specific demonstration of fact’ in support of its request.” Aikens v. Deluxe Fin. Servs. Inc., 217 F.R.D. 533, 536–37 (D. Kan. 2002). That party must present sufficient details to allow the requesting party (and ultimately, the court) to evaluate the costs and benefits of searching and producing the identified sources. Id. at *15. In short, if you can support your objections on proportionality with affidavits and, if necessary, expert testimony—consider doing so.
  • If your case involves potentially dozens, hundreds, or thousands of custodians, consider agreeing to search a limited number of custodians and support that limit with reasoning. For example, if a dispute involves a contract implemented and negotiated primarily by 5–10 people, consider objecting to searching more than those people’s emails or electronic records. This type of approach is supported by model discovery orders. See Federal Circuit Court, An E-Discovery Model Order. If your case has legal thresholds that are amenable to phased discovery, consider seeking phased discovery to potentially avoid costs associated with claims that may not warrant discovery. If discovery on limited issues can dispose of an entire case or claim, consider arguing for phased discovery to potentially avoid full-blown discovery where it may not be necessary.

Conclusion

The breadth of ESI is growing daily. It is important that we, as lawyers, meet that growth by taking a critical look at which specific data sets—on both sides of the matter—are relevant to the pending litigation and can be retrieved in such a way that avoids exorbitant costs. Communicating with opposing counsel and addressing the court with practical, specific proposals and solutions will keep the process moving forward in an efficient, effective manner.

Paul M. Kessimian is a partner and Kelly J. Wilbur is an associate with Partridge Snow & Hahn LLP in Providence, Rhode Island.

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