by Julie Pettit
Out with the old. In with the new. With the 2015 amendments to the Federal Rules of Civil Procedure came a wave of changes. Perhaps the most significant change was the change to Rule 26(b)(1). Rule 26 previously defined the scope of discovery as all matters “reasonably calculated to lead to the discovery of admissible evidence,” an objection that practitioners have recited in discovery objections for decades. In its place is a seemingly new standard—a “proportionality standard.” The new rule requires a party requesting discovery to tailor requests to account for the significance of the information requested and the cost of gathering the information.
The proportionality standard explicitly imposes a responsibility on litigants to tailor their discovery requests to account for the following:
(1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
Magistrate Judge David L. Horan explained that proportionality concept that is now present in Rule 26 was present in a different section of Rule 26 as early as 1983. Carr v. State Farm Mut. Auto. Ins., Co., 312 F.R.D. 459 (N.D. Tex. 2015).
Judge Horan also pointed out that the new rule potentially places a burden on the party requesting discovery to demonstrate proportionality once an objection is made. For this reason and others, defendants involved in complex corporate litigation, the return to the proportionality concept has likely been seen as good news.
On the other hand, of course, a party resisting discovery may not do so “simply by making a boilerplate objection that it is not proportional.” Fed. R. Civ. P. 26, 2015 comm. note. Instead, the resisting party “still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation” . . . by coming forward with specific information.” Robinson v. Dallas Cnty. Cmty. Coll. Dist., No. 3:14-CV-4187-D, 2016 WL 1273900, at *4 (N.D. Tex. Feb. 18, 2016).
In one recent example, a plaintiff resisting discovery argued that the defendant’s requests exceeded the scope of discovery, calling them “sweeping” and “not proportional,” while disclaiming what it called “a burden . . . to prove obviously improper discovery should not be permitted.” See Samsung Elecs. Am. Inc. v. Yang Kun “Michael” Chung, No. 3:15-CV-4108-D, 2017 WL 896897, at *3 (N.D. Tex. Mar. 7, 2017). The court disagreed, reasoning that: “under Fifth Circuit law, the party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable. . . . And the 2015 amendments to Rule 26 did not change this allocation of burdens.” Id. at *12–13.
The court also stopped short of stating that the burden to demonstrate proportionality is that of the resisting party alone, indicating “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Id. at *14 (quoting Carr, 312 F.R.D. at 467 (quoting Fed. R. Civ. P. 26, 2015 comm. note)).
No matter what new burden—if any—the amended rule places on the parties requesting or resisting discovery, it is forcing parties and the courts to address both the cost and expense of discovery in relation to its relevance and importance.
In one example, Judge Horan found 564 requests for admissions to be proportional where they were “well-parsed, discrete questions about relevant facts that present the likely benefit of facilitating proof as to the issues in this case and of narrowing its triable issues.” See McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., No. 3:14-CV-2498-B, 2016 WL 98603, at *15 (N.D. Tex. Jan. 8, 2016)
In another recent case, proportionality factors were looked at like a checklist. See RealPage, Inc. v. Enter. Risk Control, LLC, No. 4:16-CV-00737, 2017 WL 1165688, at *6 (E.D. Tex. Mar. 29, 2017).
So how do lawyers best prepare to fulfill their “collective responsibility” when it comes to proportionality?
From a practical standpoint, lawyers should be aware that: (1) a party requesting discovery must establish that its discovery requests satisfy the proportionality factors; and (2) a party responding to discovery must make sufficiently specific proportionality objections.
Julie Pettit is the founder of The Pettit Law Firm. She can be reached at firstname.lastname@example.org.