The Federal Rules of Civil Procedure underwent significant changes in December 2015. (See Jeff Bennion, "Everything You Need to Know about the New FRCP Amendments," Above the Law, Dec. 1, 2015.) These changes affected Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84. In particular, revisions to Rule 26 affected the scope of permissible discovery in litigation, which is now limited to information relevant to a claim or defense that is proportional to the needs of the case. Interestingly, some have noted that the "proportionality" requirement has narrowed the scope of discovery (XTO Energy, Inc. v. ATD, LLC, No. CIV 14 -1021 (D.N.M. 2016)), while others have noted that the proportionality approach to discovery is not a significant change, given that most of the rules changes to Rule 26(b) were adopted in 1983. Regardless of your viewpoint—whether the rule change is a renewed focus on the "proportionality" requirement or a brand-new element for evaluating discovery—the effect remains the same: Litigators need to be able to defend and attack discovery on proportionality grounds.
Scope of Discovery
Under Rule 26(b), the scope of discovery includes information that is relevant to the claims and defenses and is "proportional to the needs of the case." In addition, the courts "must limit the frequency or extent of proposed discovery [that] is outside the scope permitted by Rule 26(b)(1)." In Noble Roman's, Inc. v. Hattenhauer Distributing Co., No. 1:14-cv-01734-WTL-DML (2016), for example, the Southern District of Indiana found that even though the discovery sought might have been relevant, it "fail[ed] the proportionality test" because it sought information that was too far outside the scope of the contested issues in the litigation.
Rule 26(b) specific lists six proportionality factors: (1) importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties' relative access to relevant information, (4) the parties' resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. The court will typically analyze these six factors on a case-by-case basis.
The Duke Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality (Duke Guidelines) "explain amendments to Federal Rule of Civil Procedure 26(b) . . . and recommend useful, practical, and concrete implementing procedures and practices that build on the amendments' framework." The Duke Guidelines explain the six factors as follows:
- The first factor—the importance of the issues at stake—"recognizes that many cases raise issues that are important for reasons beyond any money the parties may stand to gain or lose in a particular case."
- The second factor—the amount in controversy—is typically "the amount the plaintiff claims or could claim in good faith."
- The third factor—access to information—"addresses the extent to which each party has access to relevant information in the case. The issues to be examined include the extent to which a party needs formal discovery because relevant information is not otherwise available to that party."
- The fourth factor—the parties' resources—"means more than a party's financial resources. It includes the technological, administrative, and human resources needed to perform the discovery tasks."
- The fifth factor—the importance of discovery—"examines the importance of the discovery to resolving the issues in the case."
- The sixth factor—whether the burden or expense outweighs the benefit—analyzes the "burden or expense of the discovery in relation to its likely benefit. There is no fixed burden-to-benefit ratio that defines what is or is not proportional."
Cases Applying the Proportionality Requirement
Courts might limit discovery if the parties already have enough information to meet their needs in the case. For example, a Colorado district court denied a plaintiff's request to require GM to produce complex modeling software that, while relevant, was not proportional to the needs of the case because the plaintiff failed to show that the other discovery the plaintiff obtained was not adequate. See Pertile v. GM, 2016 WL 1059450 (D. Colo. Mar. 17, 2016).
Courts may limit discovery to the product at issue. A Tennessee district court, for example, did not order Chrysler to produce documents related to its use of certain technologies on vehicles that were not the model vehicle at issue. See Turner v. Chrysler, 2016 WL 323748 (M.D. Tenn. Jan. 27, 2016).
Discovery directed at employees or documents of party affiliates, especially foreign affiliates, may run afoul of the proportionality requirements. For example, the plaintiffs in one case moved to compel the depositions of employees of the defendant's European affiliate and to compel production of documents from Europe. However, the Arizona district court denied both motions because (1) the requested depositions were not proportional to the needs of the case and (2) the document requests were not narrowly tailored to the needs of the case. See In re Bard IVC Filters Prods. Liab. Litig., 2016 WL 4943393 (D. Ariz. Sept. 16, 2016).
Shortcomings related to technology or programs used by clients may undermine the responding party's proportionality argument. A Virginia district court, for example, refused to prevent the search of 30,000 emails or shift costs on proportionality grounds where the party selected to use a system that automatically deleted information after three days. See Wagoner v. Lewis Gale Med. Ctr., 2016 U.S. LEXIS 91323 (W.D. Va. July 14, 2016).
In light of the proportionality requirements, litigators must become more precise when requesting information and documents to ensure that such requests are narrowly tailored to support their clients' claims and defenses. In addition, litigators should look for opportunities to challenge discovery from the opposition that is outside the proportionality limits of the case.
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