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    The Lawletter Blog

    CIVIL PROCEDURE: Achieving "Proportionality" in Discovery

    Posted by Paul A. Ferrer on Tue, Jul 26, 2016 @ 11:07 AM

    The Lawletter Vol 41 No 7

    Paul Ferrer, Senior Attorney, National Legal Research Group

          For many years, trial attorneys were familiar with the broad scope of discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provided that unless otherwise limited by court order, parties could "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." As indicated in Rule 26(b)(1), the scope of discovery could be limited by the entry of a protective order if the court determined, among other things, that "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii) (amended), quoted in EEOC v. Thompson Contracting, Grading, Paving, & Utils., Inc., 499 F. App'x 275, 281 n.5 (4th Cir. 2012). As part of the "Duke Rules" package of amendments to the Federal Rules of Civil Procedure, which took effect on December 1, 2015, that language was moved out of Rule 26(b)(2)(C)(iii) and into Rule 26(b)(1), which now provides that

    [u]nless otherwise limited by court order, [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and 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.

    Fed. R. Civ. P. 26(b)(1) (emphasis added). Will the change have a dramatic effect on the scope of discovery in federal cases? It appears that the answer is "not really."

          The Advisory Committee Notes accompanying the 2015 amendment specifically state that "[r]estoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality[.]" This language was cited by one of the first courts to consider the effect of the change in deciding that preamendment cases considering proportionality under former Rule 26(b)(2)(C)(iii) are "still applicable" in resolving disputes concerning the scope of discovery under amended Rule 26(b)(1). See Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 n.2 (W.D. Va. 2016). The court did, however, indicate that it would "put a greater emphasis on the need to achieve proportionality" in determining whether to grant a motion to compel discovery under Rule 26. Id.

         Notably, this increased emphasis on the need to achieve proportionality "does not place on the party seeking discovery the burden of addressing all proportionality considerations." Id. at 209-10 (quoting Fed. R. Civ. P. advisory committee's note to 2015 amendment). Rather, "[t]he 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. advisory committee's note to 2015 amendment. Including the court in this process emphasizes, perhaps to the displeasure of federal courts everywhere, that "[r]estoring proportionality as an express component of the scope of discovery . . . contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis." Id. Under this process, it is up to the parties, if they cannot themselves resolve a discovery dispute, to provide the court with the information—why discovery is unduly burdensome or expensive, on the one hand, and why the information is important to resolve the issues, on the other—needed to make a "case-specific determination of the appropriate scope of discovery." Id. In the Eramo case, for example, the court examined in detail the information sought by the plaintiff from a third party before concluding that most of the information was discoverable because the plaintiff had "made a prima facie showing of relevance and proportionality, which has not been sufficiently refuted by" the third party. 314 F.R.D. at 211.

         The change to Rule 26 was just one of a number of amendments made to the Federal Rules of Civil Procedure in 2015. If you need assistance in determining the effect of any of the amendments, give us a call and ask to speak to one of our experts on civil procedure.

    Topics: Paul A. Ferrer, civil procedure, discovery, The Lawletter Vol 41 No 7, proportionality to case

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