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July 31, 2017 Practice Points

Proportionality Depends on Needs of Case, Not Just Time and Money

Even if the evidence you seek is easily and inexpensively retrieved, it might still be disproportionate to the needs of the case.

By Andrew J. Felser

When proportionality is at issue under Rule 26(b), use both sides of your brain. It’s not just a left-brain calculation of time and money. See, for example, the recent case of Gordon v. T.G.R. Logistics, Inc., Case No. 16-cv-00238-NDF (D. Wy. May 10, 2017).

Gordon suffered personal injuries when a tractor-trailer struck her car while travelling at or near highway speed. TGR filed a motion to compel Gordon to produce her entire Facebook account history from three years before the collision to the present time. TGR reasoned that the material was easy and cheap to obtain, and that it might contain information about her emotional condition and physical activities before and after the accident. Gordon argued that she should only have to produce her Facebook history from after the collision, and only to the extent it related to her damages. Without those restrictions, Gordon argued, the request was unreasonably burdensome, too broad in scope, and unduly invaded her privacy.

In a closely reasoned decision discussing the law in some depth, the court granted TGR’s motion but narrowed the scope. “Just because the information can be retrieved quickly and inexpensively does not resolve the issue,” the court stated. “Discovery can be burdensome even as it is inexpensive. Courts have long denied discovery of information which was easy to obtain, but which was not discoverable.” For example, the court noted, Rule 26(c)(1) permits a court, for good cause shown, to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” “The recent inclusion of proportionality within [Rule] 26(b)(1) further emphasizes this point.”

The court went further to state that the ease of retrieval does not mitigate the cost of using the information in depositions or trial. “It’s not difficult to imagine a plaintiff being required to explain every statement contained within a lengthy Facebook history in which he or she expressed some degree of angst or emotional distress or discussing life events which could be conceived to case emotional upset, but which is extremely personal and embarrassing.” These concerns must be weighed against the defendant’s “legitimate interest in discovery which is important to the claims and damages it is being asked to pay.”

The court’s solution in this case was to order Gordon to produce her Facebook history—but post-accident only—broader in scope than she wanted but narrower in scope than TGR wanted.

This case, which is worth reading in its entirety, teaches that proportionality truly is an open set of considerations. Each case is different. Counsel must bring creative thinking to the question of where the court should draw the line in each case.

Andrew J. Felser is an attorney with Felser, P.C. in Denver, Colorado.

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