Practical Considerations for Litigating Discovery Proportionality

Jan 3, 2019 | ALI CLE Legal Journals, Litigation

After years of discussion regarding how the rules of discovery proportionality might be improved, amendments to the Federal Rules of Civil Procedure became effective on Dec. 1, 2015. One of the more prominent amendments involved Fed. R. Civ. P. 26(b)(1), which was updated to allow discovery of relevant, non-privileged information so long as such discovery is “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.”

Discovery Proportionality

In some ways, the amended rules simply recognize that in ruling on discovery issues courts have always had to understand and address the burdens associated with discovery of relevant information. However, by incorporating an explicit requirement that discovery must be “proportional to the needs of the case” and describing pertinent factors to be considered in assess- ing proportionality, the amended rules, leading up to the effective date of the amendment, garnered much speculation as to their impact on courts’ decision- making processes when addressing discovery. Now that the amended rules have been implemented for over two years, several themes have emerged regard- ing how practitioners might prepare for discovery disputes regarding proportionality and advocate more effectively for their clients.

CONTEXT IS CRITICAL

In order to evaluate proportionality, courts must be made aware of the circumstances impacting a party’s need for the discovery requested as well as the relative burden of responding to discovery. Under amended FRCP 26(b)(1), courts have increasingly relied on parties to provide context along with objective metrics for their arguments. Counsel arguing that the burden of responding to discovery requests is not proportional to the needs of the case should not simply rely on raw numbers to describe potential burdens to the court, but also provide context regarding the potential impact on their clients.

For example, in Royal Mile Co. Inc. v. UPMC & Highmark Inc., Highmark stated it required 13 employees to put forth a collective 100 hours of work and that it expected it to take hundreds of additional hours to restore older data in order to respond to only four out of the 11 years of data requested. Despite providing objective data regarding burden, the special master was not satisfied with Highmark’s argument, stating that it provided no context regarding the monetary cost of the documents produced and failed to provide sufficient information regarding the personnel costs of the production. The special master noted that a showing of less than eight hours per person to produce four years of material was hardly an overwhelming showing of hardship on its face, and pointed out that defendants provided virtually no information regard- ing its resources, either monetarily or with respect to personnel. The special master explained that without information as to how many employees the defendant has in its legal division, or how using a certain subset of those employees to complete these discovery requests would impact its operations, it could not evaluate the relative burden of producing the information requested.

In Mann v. City of Chicago, in a request for email documentation, the city agreed to search email records of two employees but objected that it would be overly “burdened with the time and expense of searching the email boxes of nine additional custodians.” However, the city did not offer additional details regarding its alleged burden and the court, in allowing discovery of additional custodians, held that “the City should have [at least] provided an estimate of the burden.”

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