Academic journal article Defense Counsel Journal

The Proportionality Principle after the 2015 Amendments

Academic journal article Defense Counsel Journal

The Proportionality Principle after the 2015 Amendments

Article excerpt

Rule 26(b)(1) was revised as part of the 2015 Amendments to the Federal Rules of Civil Procedure1 to promote "proportional discovery"2 by the incorporation of proportionality factors, then located in Rule 26(b)(2)(C), into the text of (b)(1), with the factors slightly re-adjusted and a new factor added.3 Rule 26(b)(2)(C)(iii) now requires a court to limit the frequency or extent of discovery when "[iii] the burden or expense of the proposed discovery is outside the scope permitted by Rule 26(b)(1)."4

The revised scope permits discovery of non-privileged information only if it is both "relevant" to the claims or defenses of a party and is also "proportional to the needs" of the case. The renewed emphasis on proportionality, enforced through active case management, reflects a desire to achieve the goals of Rule 1. As Chief Justice Roberts put it in his 2015 YearEnd Report, the amended rule "crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality."3

I. Cases Interpreting the New Rules

The flood of post-December 1 decisions on the scope and implementation of Rule 26(b)(1) and related changes is best summarized in the following categories, although the cases themselves need to be consulted as well.

A. Relevancy

The relevancy of discovery sought to the claims or defenses continues to be the primary issue determining the "scope" of discovery. If the information sought is not relevant, courts need not focus on proportionality. For example, in LightSquared v. Deere & Co. the court acknowledged the amended rule but denied the discovery based on a lack of relevance.6 Courts refuse to ask a party to "run down a rabbit hole chasing irrelevant information on collateral matters."7

The threshold for discovery relevancy under the amended rule remains relatively low,8 in contrast to the enhanced showing of relevance required in some Circuits for purposes of securing an adverse inferences.9 Some courts cite the terms of Federal Rules of Evidence 401, under which evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable.10 Moreover, as Judge Francis and others have held, relevance is still defined broadly by pre-December 1 case law, including the 1978 Supreme Court decision in Oppenheimer Fund v. Sanders,11 which is often cited for that 12 proposition.

B. Proportionality

A limit on the scope of discovery, designed to guard against "redundant or disproportionate discovery," has been part of the Federal Rules of Civil Procedure since 1983.13 After the 2010 Duke Litigation Conference, the Rules Committee acted on its conviction that "discovery in civil litigation would more often achieve the goals of Rule 1 through an increased emphasis on proportionality," enforced through active case management.14 Although the initial Draft Committee Note described this as a "change" designed to "limit the scope of discovery,"15 the final version of the Committee Note more accurately states that it merely "restores the proportionality factors to their original place in defining the scope of discovery."1

A number of cases have explicitly denied discovery of otherwise relevant information based on proportionality grounds, involving a variety of contexts. In Henry v. Morgan's Hotel Group, the court refused to enforce subpoenas against former employers as not proportional to the needs of the case where it was not even "remotely apparent" what relevance the information would have to the allegations in the case.17 In another, discovery requests were denied because they was "precisely the kind of disproportionate discovery that Rule 26 - old or new - was intended to preclude."18

In Wilmington Trust v. AEP Generating.,19 the court concluded that the "rule of proportionality" would be violated if it ordered an additional search which might produce 200K documents that would have to be searched manually. …

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