August 28, 2018 Practice Points

Narrowing Your Discovery Request in Advance of Court Intervention

If lawyers do not take the proportionality factors in Rule 26 into consideration, the courts will do it for them.

By Andrew M. Toft

A recent Minnesota district-court decision demonstrates the wisdom of evaluating and re-evaluating discovery served on opposing parties in light of the proportionality factors increasingly used to resolve discovery disputes since the 2015 amendments to Rule 26. McKey v U.S. Bank National Association, Civil No. 17-5058 (D. Minn., July 9, 2018).

McKey sued U.S. Bank alleging that she was terminated because of her age subsequent to making a report to U.S. Bank’s human-resources department that she was being subjected to age discrimination. McKey served discovery seeking production of the complete personnel records of every employee who had reported to McKey’s supervisor for over five years. Shortly after that, McKey narrowed the scope of the discovery requests to records pertaining only to five specific areas and shortened the time period by two years. The court reviewed the standards of Rule 26 and then evaluated McKey’s requests for production in light of U.S. Bank’s refusal to answer and McKey’s motion to compel.

The court determined that McKey’s narrowed requests were both relevant and proportionate to the needs of the case, taking into consideration the nature of McKey’s claims and what evidence she would need to show that she was treated differently from other employees. The court also considered the fact that McKey could not obtain the information in the disciplinary records of other employees anywhere else. U.S. Bank failed to show that producing the records would be unduly burdensome when compared against the value of the information to the litigation. In particular, while U.S. Bank estimated how long it would take to compile the requested information from each file, it did not monetize the estimated time. Finally, the court determined that McKey’s narrowed requests, along with an existing protective order, protected the privacy interests of the non-party employees. In summary, McKey was entitled to the narrowed scope of the documents requested.

If lawyers do not take the proportionality factors in Rule 26 into consideration, the courts will do it for them. McKey is an example of how an attorney can voluntarily narrow the scope of discovery requests to the client’s advantage and successfully argue that the narrowed scope is proportional to the needs of the case notwithstanding an opponent’s objections.


Andrew M. Toft is an attorney in Denver, Colorado.

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