A lot has been written about the now almost five-year-old amendments to the Federal Rules of Civil Procedure, which provide that the scope of permissible discovery itself is limited to non-privileged information that is both relevant to the claims and defenses and proportional to the needs of the case. Yet despite this change, many feel discovery practice has not substantively changed and seems to often be as potentially overbroad and disproportionate as ever, depending on their opposing counsel. Well, here are five surefire ways to use proportionality law in order to streamline discovery and get a bit closer to the promise of Federal Rule of Civil Procedure 1 (that the federal rules are meant to secure “the just, speedy, and inexpensive determination of every action.”)
Cooperate with Opposing Counsel
Or at Least Let Them Be the Unreasonable One
If you view being unreasonable in discovery as a tactical tool to achieve a desired end in litigation—stop. “The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 Advisory Committee Notes (2015) (emphasis added). If you think your adversary does act unreasonably—the best way to neutralize it is to attempt to cooperate in good faith. That will allow you to position discovery disputes for the judge so that the judge, hopefully on his or her own, comes to the same conclusion you have. You want the narrative as best as it can be and corroborated in writing, that you’ve been reasonable and offered practical alternatives that are going nowhere. Use Rule 26(f) and any case management or Rule 16 conferences as opportunities to seek and request cooperation (and, if necessary, use the court) to get discovery done in a fair and reasonable manner.
Document Your Cooperation and Disputes
It is best to memorialize agreements and disputes in correspondence (or stipulations). If done via correspondence, keep in mind your ultimate audience—the court. That means fewer adjectives and more facts. You and opposing counsel start with the premise that you’re both going to be reasonable—and if not, then you will be so, and leave it to the court to decide the dispute.
Meaningfully Respond to Discovery Requests
Don’t Just Say What You Won’t Do. Discuss What You Will Do
To the extent possible, avoid boilerplate written responses. It may not be totally unavoidable – especially if you’re dealing with voluminous and expansive requests. If a request is seeking relevant information, but is overly burdensome or disproportionate, provide a more fulsome explanation on how the request is inappropriate. Additionally, if you can, consider crafting a response that narrows the request, and then say what you will do in response to that narrowed request that is proportionate and reasonable. It may turn out that opposing counsel is satisfied with your narrower response. If not, you can show that you did provide a response with some detail on what a proportionate and reasonable search should be.
Support Any Discovery Motions with Specific Facts
If you’re headed to court over truly disproportionate discovery, then be ready to show it with specific and provable facts, demonstrating the improper burden. Parties seeking relief bear the burden of proof, so provide specific details to allow the court to evaluate the costs and benefits of searching and producing identified sources. If necessary consider getting evidentiary support by affidavit or otherwise and consider the use of independent e-discovery vendors to provide you with the information to support and corroborate your position.
Consider Reasonable Parameters to Discovery and What Will Be Searched
In a world with so many electronic records (exponentially increasing with time), perfect is not the standard. Parties have long used search terms to narrow the documents that need to reviewed or searched for production. But this often results in far too many hits to be realistically reviewed and produced. Though every case is different and rests on its own facts, it is still worth considering in a document intensive case whether there are alternative ways to limit the burdens of discovery in a way that both sides can agree to. One might be to identify the key individuals who are likely to possess the vast majority of the relevant information on both sides and limit requests to those custodians, by agreement, out of the gate. Another might be to narrow the time frames for searching for relevant information, or to search in stages depending upon how useful the information retrieved from an initial search stage might be.
In short, incorporating proportionality can go a long way to efficiently obtaining the discovery you need, while allowing you to maintain professional obligations during the discovery process.
Paul M. Kessimian is a partner at Partridge Snow & Hahn LLP in Providence, Rhode Island.
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