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THE FEDERAL COURTS LAW REVIEW
Volume 9, Issue 2 2015
A Practical Guide to Achieving Proportionality
Under New Federal Rule of Civil Procedure 26
Hon. Elizabeth D. Laporte
Jonathan M. Redgrave^1
Table of Contents I. ABSTRACT ............................................................................................... 20 II. INTRODUCTION ................................................................................. 22 III. A BRIEF HISTORY OF PROPORTIONALITY IN THE FEDERAL RULES (PART I: 1937-1983) ............................................................. 24 IV. A BRIEF HISTORY OF PROPORTIONALITY IN THE FEDERAL RULES (PART II: 1983-PRESENT) ...................................................... 29 V. 2015 – PROPOSED RULE 26(B)(1) AND PROPORTIONALITY.............. 39 VI. THE FAILURE TO MASTER PROPORTIONALITY – (1983-PRESENT) ... 44 VII. A PROPORTIONALITY MATRIX METHODOLOGY: A GUIDE FOR ACHIEVING MASTERY OVER PROPORTIONALITY ASSESSMENTS AND ARGUMENTS ............................................................................. 47 VIII. TEN BEST PRACTICES FOR COUNSEL (AND CLIENTS) TO BETTER UNDERSTAND AND APPLY PROPORTIONALITY FACTORS TO
- Judge Laporte is a United States Magistrate Judge for the United States District Court for the Northern District of California. She serves on the Board of Governors for the Northern California Chapter of the Association of Business Trial Lawyers and the Executive Committee of the Litigation Section of the Bar Association of San Francisco. She is also a judicial observer for The Sedona Conference®^ Working Group on Electronic Document Retention and Production. Jonathan Redgrave is a partner with Redgrave LLP in Washington, D.C. He is Chair Emeritus of The Sedona Conference®^ Working Group on Best Practices for Electronic Document Retention and Production. The views expressed in this article are solely those of the authors. The authors express their thanks to the efforts of many over the last few years who assisted in discussing the ideas in this document and/or drafting or revising various sections of the article. The authors especially thank France Jaffe, a senior attorney in Redgrave LLP’s San Francisco office, for her tireless dedication to help us bring the drafting process to its final conclusion.
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CIVIL DISCOVERY DISPUTES ............................................................ 51 IX. CONCLUSION .................................................................................... 71 X. APPENDIX ............................................................................................ 73
I. ABSTRACT
The exponential growth of electronically stored information and the challenges it imposes on parties in civil litigation have increased the need for counsel to understand and effectively navigate proportionality arguments. Yet, few attorneys have mastered this aspect of civil discovery.^2 Achieving proportionality in civil discovery is critically important to securing the just, speedy, and inexpensive resolution of civil disputes, consistent with the edict of Federal Rule of Civil Procedure 1. Despite periodic changes in the civil discovery rules since 1980 to address claims of excess, burden, and abuse – as well as to provide explicitly for electronic discovery – respected authorities continue to express dissatisfaction with the handling of discovery issues and disputes. Arguably, much of this continued frustration is rooted in the perception that preservation and production burdens are not proportional to the lawsuits that generate the discovery. The authors submit that much of this frustration stems from the failure of attorneys to master the proportionality concepts embedded in the civil rules. In this article, the authors explore the evolution of proportionality in the civil rules and jurisprudence, as well as the criticism engendered by the ongoing failure of parties and their counsel to properly implement those rules, which in turn impeded the development of a coherent and predictable body of case law, frustrating practitioners and their clients. The authors conclude that the failed promise of proportionality is rooted in the absence of the consistent and explicit consideration and presentation of proportionality arguments and objections. In this context, the authors recognize the renewed call for greater attention to proportionality in new state rules of civil procedure adopted in Minnesota and Utah since the beginning of 2012, as well as the emphasis on proportionality in proposed changes to the Federal Rules that, absent congressional action under the Rules Enabling Act, will become effective as of December 1, 2015. This renewed consensus regarding the critical role of proportionality in civil discovery underscores the need for attorneys to master proportionality
- The guidance developed in this article is equally applicable under the existing Federal Rules as well as analogous state rules governing discovery under state law.
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II. INTRODUCTION
The concept of proportionality in discovery was formally embedded in the Federal Rules of Civil Procedure in 1983.^3 At that time, Rule 26(b)(1)(iii) was amended to “address the problems of discovery that is disproportionate to the individual lawsuit”^4 and the perceived tendency of litigants to abuse the discovery process in order to attain a tactical advantage. The amended Rule 26 required courts to limit discovery where “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.” The new language sought to bring about more tailored discovery – both in terms of requests and responses. The contemporaneous adoption of Rule 26(g), which paralleled the proportionality language of Rule 26(b), also sought to change the conduct of parties and their counsel in discovery. Of particular importance, this provision imposed an affirmative duty on counsel to engage in pretrial discovery in a responsible manner that was consistent with the spirit and purposes of Rule 1 and Rules 26 through 37. This affirmative duty is backed by the explicit availability of sanctions for abuse. Notwithstanding this watershed moment in the evolution of the Federal Rules, many litigants have seemingly been unable to master these proportionality concepts. As a result, the parameters of proportional discovery remain ill-defined. The lack of systematic application of proportionality by counsel when engaging in discovery, and by courts in ruling on discovery disputes, has impeded real change in the way in which discovery is perceived and experienced. The failure to master proportionality in discovery led to more acute problems with the exponential increase in electronic data discovery at the beginning of the 21st^ century. It is now beyond dispute that gathering and reviewing all available potentially relevant electronic data is a practical
Unless otherwise noted, all further references to the Rules or the Federal Rules are to the Federal Rules of Civil Procedure.
FED. R. CIV. P. 26, Advisory Committee Notes (1983) (“The elements of Rule 26(b)(1)(iii) address the problem of discovery that is disproportionate to the individual lawsuit as measured by such matters as its nature and complexity, the importance of the issues at stake in a case seeking damages, the limitations on a financially weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests, and the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. The court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.”).
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impossibility in most cases.^5 However, no generally accepted and consistent approach for paring down and targeting discovery requests in a fair and proportional manner has emerged. Notably, although the Federal Rules were amended in 2006 to address the unique burdens of electronic discovery, a fair and consistent methodology for discerning proportionality remains elusive. Recognizing the continued dissatisfaction with the discovery process, especially with respect to the perception that burdens and costs are frequently not commensurate with the needs of a case, the Federal Advisory Committee on Rules of Practice and Procedure turned its attention again to the concept of proportionality in 2010.^6 As evidenced by the discussions amongst scholars and practitioners, the new proposed rule that is set for enactment in December 2015 underscores the need to understand the concept of proportionality and find a practical approach for litigants to apply it consistently.^7 The writers accordingly propose a two-part framework that practitioners can adopt to help them master the elusive concept of proportionality. First, we recommend that practitioners adopt a uniform assessment matrix to consider proportionality (whether as a requesting or responding party) – a “proportionality matrix.” The matrix would function in a similar manner to the Rule 23(a) factors that parties and courts apply when assessing the appropriateness of certifying a class. Like all such devices, the proportionality matrix only provides an analytical framework, as each case is different; whether a particular discovery request is proportional will depend on an analysis of the particular factors applicable in that case. A more rigorous and structured approach to proportionality disputes by counsel should lead to more consistent results, increasingly meaningful judicial guidance over time, and more predictable outcomes for clients. Second, we identify a number of best practices to guide the assessment and decision-making process of counsel engaging in discovery
“[P]erfection in preserving all relevant electronically stored information is often impossible.” Comm. on Rules of Practice & Procedure of the Judicial Conference of the U.S., Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure , Rules App. B-61 at 41 (Sept. 2014). See infra pp. 41-43 and notes 136, 140.
Although this article recognizes the impact of the proposed amendments to FED. R. CIV. P. 26(b), the authors believe that the proportionality methodology set forth herein is equally consistent, appropriate, and applicable under the current civil rules.
The U.S. Supreme Court adopted the proposed amendments and transmitted the revised Federal Rules to Congress for final approval on April 29, 2015. Absent Congressional legislation to reject, modify or defer the rules pursuant to the Rules Enabling Act , the proposed amendments will become effective December 1, 2015. References to “proposed Rules” or “new rules” in this article refer to the proposed amendments that are scheduled to take effect in December 2015.
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Rules. In many ways, Rule 1 itself is a reflection of the balancing of interests that are required – “ just ,” “ speedy ,” and “ inexpensive ” – and this mandate has been in place since 1937.^10 For functional and utilitarian reasons, courts in the modern era have long employed some version of proportionality to resolve discovery disputes. Despite the primacy of the issue, the Federal Rules did not initially provide any guidance regarding the proper scope of “ proportional ” discovery beyond the aspirational goals of Rule 1. By the mid-1970s, however, it became evident that lawyers could exploit the broad provisions of the Federal Rules to make the discovery process as slow and laborious as possible. In short, “ mastery ” of discovery too often came to mean evading any measure of proportionality – for both requesting and responding parties. Worse, this gaming of the system disproportionately affected parties of limited means and imposed an increasingly profound hardship on courts tasked with mediating complicated, contentious, and unnecessary discovery disputes. In 1976, an ABA task force was established to address the unfair use of the discovery process.^11 The ABA committee concluded that discovery abuses broke down into three common complaints: (1) “discovery was too costly[;]” (2) “discovery procedures were being misused[;]” and (3) discovery was subject to “overuse.”^12 The 1980 amendments to the Federal Rules acknowledged some of these concerns, but fell short of addressing the widespread practice of discovery abuse.^13 Indeed, numerous commentators and legal organizations expressed concern that the 1980 amendments had failed to address the full scope of the problem, or to acknowledge the disproportionate effect abuse of the process had on litigants of limited means (or, conversely, on the ability of a single plaintiff to inflict disproportionate discovery costs on
The most notable change in the 77 years since adoption was the 1993 Amendment, which the Advisory Committee Note describes as follows: “The purpose of this revision, adding the words ‘and administered’ to the second sentence, is to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. As officers of the court, attorneys share this responsibility with the judge to whom the case is assigned.” FED. R. CIV. P. 1, Advisory Committee Notes (1993).
ABA, Report of Pound Conference Follow-Up Task Force , 74 F.R.D. 159, 192 (1976).
Frank F. Flegal & Steven M. Umin, Curbing Discovery Abuse in Civil Litigation: We’re Not There Yet , 1981 B.Y.U. L. REV. 597, 598 (1981) (citing to ABA, Comments on Revised Proposed Amendments to the Federal Rules of Civil Procedure 6-11 (1979) (unpublished)).
Id. at 616; But see , Proposed Amend to Federal Rules of Civil Procedure , 85 F.R.D. 521 (1980) (Powell, J., dissenting) (recommending against adoption of amendments because they did not go far enough to curb discovery abuse, including protecting persons of limited means against excessive discovery costs).
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large corporations).^14 Although little consensus emerged regarding how, precisely, the fledgling idea of “proportionality” might be attained, it was generally agreed that fairness and efficiency in complex litigation depended upon the development of more precise rules for eliciting relevant information in a balanced and efficient manner^15 , and that a critical component of the analysis must be an assessment of whether sought-after information was embarrassing, oppressive, or unduly burdensome. This inquiry would also take into account the nature and complexity of the case, the amount in controversy or other values at stake, and the extent to which discovery had already taken place.^16 In dispute, however, was whether the relative resources of the parties should also be taken into consideration.^17 In particular, some commentators were concerned that considering the financial means of the parties might lead to the granting of discovery requests that would otherwise be considered burdensome and oppressive simply because providing the requested information would not impose a significant burden on a large party “such as the government, a major corporation, or a wealthy individual[.]”^18 The 1983 Amendments to the Federal Rules were enacted in response to the many, continued, and frequent calls for reform.^19 In promulgating the 1983 Amendments, the Advisory Committee noted that “[e]xcessive discovery and evasion or resistance to reasonable discovery requests pose significant problems.”^20 Notably, the Advisory Committee removed the following sentence from Rule 26(b): “Unless the court orders otherwise under subdivision (c) of this rule, the frequency of use of these [discovery] methods is not limited.”^21 The stated purpose of eliminating the final sentence of the rule was to urge the court to identify and limit needless
See, e. g ., Maurice Rosenberg & Warren King, Curbing Discovery Abuse in Civil Litigation: Enough is Enough , 1981 BYU L. REV. 579; 580-81 (1981); ABA, Second Report of the Special Committee for the Study of Discovery Abuse (1980).
See, e. g ., Flegal supra note 11, at 608 (“No one can seriously disagree, we think, with the principle that the discovery that is allowable ought to be measured against the needs of the particular case.”).
Id ., at 608-09 (citing ABA, Second Report of the Special Committee for the Study of Discovery Abuse 16a, at 2a, (1980)).
Rosenberg supra note 13, at 590 (suggesting adding a factor to Rule 26 requiring consideration of “the resources reasonably expected to be available to the parties or persons involved[.]”).
Flegal supra note 11, at 610.
Edward D. Cavanagh, The August 1, 1983 Amendments to the Federal Rules of Civil Procedure: A Critical Evaluation and a Proposal for More Effective Discovery through Local Rules , 30 VILL. L. REV. 767, 780- 81 (1985). available at http://digitalcommons.law.villanova.edu/vlr/vol30/iss3/3.
FED. R. CIV. P. 26, Advisory Committee Notes (1983).
Id.
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attorney is certifying that it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
The Advisory Committee noted that Rule 26(g) was designed to make an attorney “pause and consider” the reasonableness of a discovery request or response.^26 This included a requirement that counsel make a reasonable inquiry into the factual basis of a discovery request or response.^27 As is clear from the text, 26(g)(1)(B) tracked the notions of proportionality reflected in Rule 1 and the contemporaneously added Rule 26(b)(1).^28
FED. R. CIV. P. 26, Advisory Committee Notes (1983).
Id.
Today, Rule 26(g) largely tracks the language implemented in 1983. The full text of the rule provides: (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name — or by the party personally, if unrepresented — and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention. (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.
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IV. A BRIEF HISTORY OF PROPORTIONALITY IN THE FEDERAL RULES (PART II: 1983-PRESENT) The 1983 Amendments brought about varied and specific changes. Despite the wide recognition of abuse both before and after codification, however, few courts were confronted with specific questions regarding the proper application of the newly amended rules. Even fewer courts appeared to enforce proportionality concepts with the powers available in Rule 26(g), and parties and their lawyers seemingly ignored the precepts of Rule 26(g).^29 In 1993, further amendments to Rule 26(b)(2) added two more factors to the proportionality analysis: whether “the burden or expense of the proposed discovery outweighs its likely benefit,” and “the importance of the proposed discovery in resolving the issues.” The 1993 Advisory Committee Note stated that “[t]he revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery * * *.” The Note also stated that the changes in Rule 26(b)(2) were designed “to enable the court to keep tighter rein on the extent of discovery.”^30 Although the rule change was met with some fanfare, its effect on discovery practice appears to have been muted.^31 As a result, neither courts nor litigants had attained any mastery over proportionality arguments before the tsunami of electronically stored information added layers of complexity to an already confused system of discovery in the late 1990s. Not only was such electronically stored information nearly limitless in scope, but it was also increasingly difficult to retrieve and produce because of its volume, its persistence, and the financial burden of review. Thus, while the need for a proportionality approach had become even more urgent, the ability to develop this approach had become more complicated in light of the explosion of electronically stored information. In response to these new challenges, Rule 26(b)(2)(B) was added in 2006 to address the issue of electronically stored information which was deemed “not reasonably accessible” due to the costs and burdens associated with its retrieval. The Advisory Committee recognized that although information may not be reasonably accessible, it nevertheless could be
See Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357-63 (D. Md. 2008) (in-depth discussion of the history of Rule 26(g) and its impact..).
FED. R. CIV. P. 26, Advisory Committee Notes (1993).
A search of Westlaw’s ALLFEDS database only reflected 120 cases between 1993 and 2006 that cite the rule after it was renumbered as 26(b)(2)(iii) (and before it was renumbered to its present day nomenclature of 26(b)(2)(C)(iii) in 2006).
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solutions “to secure the just, speedy, and inexpensive determination of every action and proceeding” and to contain “the current costs of civil litigation, particularly discovery.”^35 Although changes to the Federal Rules in 2000 and 2006 and the enactment of Federal Rule of Evidence 502 in 200836 were devised to keep up with changing technology and litigation landscapes, “the Advisory Committee determined that it was time again to step back, to take a hard look at how well the Civil Rules [were] working, and to analyze feasible and effective ways to reduce costs and delays.”^37 In addition to reviewing materials from previous rule amending committees, the Duke Conference gathered an “unprecedented array of empirical studies and data” to aid the debate.^38 Although the focus of the conference was on changes to the Federal Rules, there was a general consensus that “there [was] a limit to what rule changes alone [could] accomplish” and “[w]hat [was] needed [could] be described in two words — cooperation and proportionality — and one phrase — sustained, active, hands-on judicial case management.”^39 After noting that “the proportionality provisions of Rule 26(b)(2)... have not accomplished what was intended[,]” the Committee’s “discussion focused on proposals to make the proportionality limit more effective[.]”^40 Although the conference did not end with a specific proposal for Rule 26, it did “focus[] on proposals to make the proportionality limit more effective and at the same time... address the
See Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure, 2010 Conference on Civil Litigation Website available at http://www.uscourts.gov/RulesandPolicies/rules/archives/projects-rules-committees/2010-civil- litigation-conference.aspx (last visited January 30, 2015).
See Explanatory Note on Evidence Rule 502 (“This new rule has two major purposes: ... It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery.”)
Judicial Conference Advisory Committee on Civil Rules and the Committee on Rules of Practice and Procedure, Report to the Chief Justice of the United States on the 2010 Conference on Civil Litigation , at 2 available at http://www.uscourts.gov/file/reporttothechiefjusticepdf (last visited Jan. 30, 2015).
Id. at 1. The data showed that the average median cost for discovery in cases that lasted over 4 years and were tried was $15,000 for plaintiffs and $20,000 for defendants. Id. at 3. The data, however, also showed that cases in the top 5% of the survey, where both plaintiffs and defendants requested electronically stored information, had an average median cost of $850, for plaintiffs and $991,900 for defendants. Id. Other material and surveys relied upon at the conference reflected a “general dissatisfaction with current civil procedure” and the need for involvement of district or magistrate judges at the outset of each case “to tailor the motions practice and shape the discovery to the reasonable needs of that case.” Id. at 3-4.
Id. at 4.
Id. at 8.
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need to control both over-demanding discovery requests and under- inclusive discovery responses.”^41 After the conclusion of the Duke Conference, a subcommittee was “formed to implement and oversee further work on [the resulting] ideas.”^42 However, it was not until the spring of 2012 that the subcommittee presented initial drafts of the proposed rules to the full advisory committee.^43 The Committee stated that the draft “received a very favorable response” despite the subcommittee’s “intense disagreement as to whether any rule amendments [were] warranted, and almost as much disagreement about what those amendments should be.”^44 The subcommittee submitted the amendments to the full Committee, which approved the proposed amendments for public comment.^45 The rules were published for comment on August 15, 2013, and three public hearings were scheduled.^46 The subcommittee divided its proposal into three sets, the second of which centered on the reconfiguration of Rule 26(b) and sought “to enhance the means of keeping discovery proportional to the action.”^47 The proposed Rule 26 modifies the existing rule in several respects. For example, the new text omits a court’s ability “to order discovery of ‘any matter relevant to the subject matter involved in the action[,]’” and notes that this provision was rarely used. The new rule instead focused on the five factor proportionality analysis contained in Rule 26(b)(2)(C)(iii) (which was transferred to Rule 26(b)(1)), that requires discovery to be: proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden
Id.
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure 5 (Mar. 2011), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST03-2011.pdf
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure 24-25 (Sept. 2012), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2012.pdf
Id.
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure 18 (Sept. 2013), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2013.pdf
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure – Request for Comment (2013), available at http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0001.
Id. at 260.
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Committee Notes are not reproduced below, they provide a wealth of information and context; the authors highly recommend the reader consult the Notes extensively.^53 ) The Committee further detailed the reasoning for its overhaul of Rule 26(b) in the Notes.^54 The Committee stated that “[p]roportional discovery relevant to any party’s claim or defense” was more than sufficient to replace the authorization of a court to order “discovery of any matter relevant to the subject matter involved in the action.”^55 Additionally, the Notes expounded on the removal of “reasonably calculated,” stating that although the language was omitted, “[d]iscovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.”^56 Indeed, the combined revisions now put inadmissible and admissible evidence under the same proportionality limitations. The proposed rule changes proved polarizing, and the Committee received over 2,300 written comments.^57 A keyword search for “proportionality” returned nearly 600 of the comments.^58 Those opposing the rule changes feared that the new rules would increase the amount of discovery disputes; would over-emphasize the amount in controversy,
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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
- The proposed 2015 Advisory Committee Notes, pending approval, can be found in Memorandum from Hon. David G. Campbell, Advisory Committee on Civil Rules, to Hon. Jeffrey S. Sutton, Chair of Committee on Rules of Practice and Procedure, May 2, 2014. Further references to “FED. R. CIV. P. 26, Advisory Committee Notes (2015)” will refer to this document, available at www.uscourts.gov/file/17931/download?token=VGtuwb34.
- Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure – Request for Comment 296 (2013), available at http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0001.
- Id. at 296-97.
- Id. at 297.
- Comments available at http://www.regulations.gov/#!docketDetail;D=USC-RULES- CV-2013-0002. Some of these comments were of duplicate content submitted by different commenters. For perspective, when “Rule 45, the subpoena rule, and a conforming amendment to Rule 37, the rule dealing with failure to cooperate in discovery,” were circulated for comment in August 2011, the Committee received 25 comments. Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure 19 (Sept. 2012), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2012.pdf.
- The number does not include comments submitted in non-character recognizable formats. Comments available at http://www.regulations.gov/#!docketBrowser;rpp=25;po=350;s=proportionality;D=USC-RULES- CV-2013-0002.
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leading to denial of necessary discovery; would result in information being withheld; and could unfairly allocate the burden of proof.^59 Some commenters were concerned about discovery abuse. Judge Scheindlin^60 stated the proposed amendments would “increase costs and engender delay.”^61 She was concerned that the “rule invite[d] producing parties to withhold information based on a unilateral determination that the production... [wa]s not proportional to the needs of the case[,]” thereby increasing motion practice in the courts resulting in delay and higher costs to litigants.^62 She was joined in this critique by other commenters.^63 Commenters in favor of the changes argued there was already an overabundance of discovery disputes, the amount in controversy was not determinative, early discussions would be energized, and the burden of proof was insignificant. This faction predicted that the migration of the proportionality factors would not lead to any more litigation than that already taking place in the current landscape and “may actually serve to diminish the number of disputes” because it would “encourage meaningful discussion[s].”^64 Additionally, they pointed out that the proportionality factors already existed in 26(g) and requesting parties had to certify they
Generally, the plaintiffs’ bar opposed the amendments and the defense bar favored the amendments. Comments included more arguments, but they are beyond the scope of this paper.
Judge Scheindlin has been a member of the Federal Judiciary for over 25 years and has been one of the more well-known and influential members of the bar on eDiscovery and ESI issues.
See Shira A. Scheindlin, Comment to Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , REGULATIONS, 2 (Jan 14, 2014), http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0398.
Id. at 2-3. The Judge elaborated, stating that “[a]ddressing five factors in every motion will be burdensome and may not be particularly informative to the court in making an assessment of proportionality” prophesizing that “[t]he requesting party will say the case is worth one million dollars, and the producing party will say it is worth ten thousand dollars.” Id. at 3. She believed the proposed proportionality analysis would be a “nightmare for the court,” and went on to list actions a court may be forced to take in order to confront the proportionality analysis. Id. at 3-4. Several times she questioned how a court could make the proportionality determination at the outset of the case and said “[t]he proposal [was] not realistic.” Id. at 4.
See Ariana Tadler, Comment to Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , REGULATIONS, 4 (Feb 19, 2014), http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2173.(“[T]he ‘moving up’ of the concept of proportionality and the ordered articulation of the factors to be considered in Rule 26 will lead to discovery disputes which an already overtaxed judicial system cannot handle.”); see id ., Cmt. by David Starnes (Feb. 18, 2014) (“No human has the ability to fairly determine the importance of the issues at stake in the litigation during discovery.”); see id ., Cmt. by Dean Kawamoto (Feb. 18, 2014) (“Having to reach conclusions regarding the ‘importance’ of a federal case, particularly when discovery is just beginning, will be an indeterminate if not arbitrary process.”).
Proposed Amendments to the Federal Rules of Civil Procedure: Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure Judicial Conference Advisory Committee on Civil Rules , 63 (Jan. 9, 2014) (Statement of John Beisner).
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of the public hearings, after a member of the National Employment Lawyers Association argued that the “amount in controversy” should not be included in the factors, Judge Koeltl indicated his support for the factors when he noted they were not new and wondered aloud that “if judges had been able for 30 years to be able to look at the rule and to interpret it fairly.
.. why do we expect that judges faced with exactly those same considerations... would now begin to interpret them differently or establish priorities” which didn’t exist then.^71 The commenter acceded and, although he still felt the factor should be discarded, he asked that the Committee “at least move it down [in the analysis].”^72 Those in favor of the proportionality amendments noted that the proportionality analysis “is inherently and infinitely elastic[,]” allowing judges to tailor discovery to the needs of the case. For example, in an individual civil rights case with nominal damages, the proposed rule nonetheless would allow “for discovery that far exceeds the ‘amount in controversy.’”^73 The deletion of the relevancy language and the effect on access to information also generated controversy.^74 Many plaintiffs’ attorneys opposing the change raised concerns that the replacement of the relevancy standard with proportionality would restrict their ability to access information in cases with information asymmetry. They argued it was “critical that plaintiffs have the relevance tool” and that without it “defendants w[ould] be able to hide behind the excuse of burden or cost[.]”^75 Those in favor of the changes argued that it would force both sides to focus on the issues instead of “gotcha tactics”^76 and that it sensibly
Proposed Amendments to the Federal Rules of Civil Procedure: Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure Judicial Conference Advisory Committee on Civil Rules , 24 (Jan. 9, 2014) (Question by Judge Koeltl in response to statement by Joe Garrison). Judge Koeltl had organized and led the Duke Conference. See also Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, No. USC-Rules-CV- 2013-00002, Cmt. by Jonathan M. Redgrave, 5 (Feb. 16, 2014) (“[T]he underlying premise posed by some commentators that the federal judiciary, under the amended rule, will mechanistically deny needed discovery to individuals does a disservice to the language of the proposed rule and the trusted discretion that will remain vested in our district court judges and magistrate judges.”)
Proposed Amendments to the Federal Rules of Civil Procedure: Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure Judicial Conference Advisory Committee on Civil Rules , 25 (Jan. 9, 2014).
See Redgrave supra note 65 at 4-5.
We only focus on some of the arguments made. Additional comments and oral testimony, are available on the federal courts website: http://www.regulations.gov/#!docketDetail;D=USC-RULES-CV-2013-0002 (last visited April 16, 2014).
See David Hersh, Comment to Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , REGULATIONS (Feb 18, 2014), http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-1728.
Proposed Amendments to the Federal Rules of Civil Procedure: Public Hearing on
38 FEDERAL COURTS LAW REVIEW [Vol. 9
defined the scope of the discovery.^77 They argued that by scoping discovery with “proportionality” and using it as “an affirmative responsibility” of the parties, the revised rule “would compel parties to simply do a better job at the inception of litigation of analyzing and focusing their claims and defenses, for the purpose of conducting discovery that is narrowed and tailored to truly advance the resolution of the case.”^78 Another commenter stated that narrowing the scope of discovery was paramount to curing the imbalance where parties with virtually no information to be discovered used the rule to make “arguments that even the broadest requests may lead to ‘relevant’ evidence” and then leveraged the broad requests into “nuisance settlements.”^79 Still others pointed to the ambiguous effect that the current language had on the determination of what needed to be preserved and opined that “litigants need to be able to look to the allegations of the complaint rather than speculating about what ancillary information may need to be preserved for future unforeseen and unanticipated requests.”^80 Another point of contention was which party would bear the burden of proof in a dispute. Judge Scheindlin and others^81 were concerned the amendments were “burdensome and unfair” because they did “not specify which party bears the burden of proof.”^82 Her interpretation of the amendments was “that if a producing party makes a ‘proportionality’ objection, the burden of proof w[ould] be on the requesting party to show that the requested information is proportional to the needs of the case.”^83
Proposed Amendments to the Federal Rules of Civil Procedure Judicial Conference Advisory Committee on Civil Rules , 178 (Jan. 9, 2014) (Statement of Paul Weiner).
- See Mollie C. Nichols, Comment to Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , REGULATIONS, 3 (Feb 12, 2014), http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0801.
- Id.
- See David R. Cohen, Comment to Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , REGULATIONS, 2 (Feb 19, 2014), http://www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2174.
- See Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , No. USC-Rules-CV-2013-00002, Cmt. by Edward T. Collins, Allstate Insurance Company, 3 (Feb. 14, 2014).
- See Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , No. USC-Rules-CV-2013-00002, Cmt. by Ariana Tadler, 4 (Feb. 19, 2014) (“I, along with many other critics, believe that the proposed changes to Rule 26 will result in a shifting of the burden... to the requesting party, who is likely unable to meet that burden.”); see Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , No. USC-Rules-CV- 2013-0002, Cmt. by Bill Robins III, 2 (Feb. 18, 2014) (“the plaintiff is placed at an extreme disadvantage because the plaintiff would carry the burden of proof[.]”).
- See Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure , No. USC-Rules-CV-201300002, Cmt. by Hon. Shira A. Scheindlin, 3 (Jan. 13, 2014).
- Id. But Judge Scheindlin noted comments by certain Committee members suggested
