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Proportionality Standards: The New Touchstone for Discovery?

Jan. 25, 2016, 1:42 PM

Editor’s Note: The author of this post is a discovery and information governance consultant.

By Phil Favro, Driven

With all of the hype last year surrounding the enactment of new amendments to the Federal Rules of Civil Procedure — which mostly affect the way e-Discovery is conducted — many lawyers wondered whether the rule changes would have any meaningful impact. Such skepticism was probably warranted given the nominal impact that the 2006 rule amendments have had in discovery.

Those doubts, however, appear unfounded as courts are embracing the new rule changes with vigor. In the nearly two months since the 2015 amendments became effective, several decisions have already focused on the changes. In those cases, the rule revisions that seem to be drawing the most attention are the proportionality-based modifications to rule 26(b)(1). New cases regularly cite to and rely on those standards, suggesting that proportionality could become the new touchstone of civil discovery practice in federal court.

The amendments, which mostly affect discovery, mark the most significant changes to the rules governing how

Siriano v. Goodman Manufacturing Co.

For example, the court in Siriano v. Goodman Manufacturing Co. invoked revised rule 26(b)(1) to order defendants’ production of documents relating to plaintiffs’ product liability claims. In the document requests at issue, plaintiffs sought discovery aimed at finding information pertaining to the design and manufacture of defendants’ products, which plaintiffs claimed to be defective. In seeking to stave off production, defendants argued that compliance with plaintiffs’ requests would be “unduly burdensome.” Defendants explained that producing the documents would require “well over 4,000 hours of lawyer review time” and would take several months to complete.

The court, however, was unsympathetic to defendants’ arguments. To properly address the issues raised by the motion, the court turned to the amended scope of permissible discovery. The court ticked through the various proportionality factors that the 2015 rule changes inserted into rule 26(b)(1) and found that they favored production of the requested information. For example:

  • The “discovery sought by Plaintiffs is directly related to their claims,”


  • The requested discovery is “easily accessible to Defendants but almost completely inaccessible to Plaintiffs,” and


  • “Defendants’ corporate resources vastly exceed Plaintiffs’, and, to date, Defendants have expended relatively little in complying with discovery in this matter.”

The court also rejected defendants’ undue burden argument, reasoning that the cost and length of review could not substantiate that argument in this instance. While those issues are significant, they could be mitigated by “alternative methods of discovery enabling some lesser degree of production, such as limiting the search to certain offices or files.” Invoking amended rule 1, the court urged the parties to cooperatively discuss other approaches by which defendants could make a proportional production of the information sought by plaintiffs.

Elliott v. Superior Pool Products

Another noteworthy case on the proportionality front is Elliott v. Superior Pool Products . In that wrongful termination action, the court drew upon the new proportionality factors in rule 26(b)(1) to reject nearly all of the discovery requested by plaintiff and defendant. After observing that the 2015 amendments “reasserted the concept of ‘proportionality’ in rule 26(b)(1),” the court held that most of the production requests that plaintiff propounded were “not relevant or proportional to the needs of this case considering the claims asserted by Plaintiff.”

More significant, however, was the court’s analysis of defendant’s motion to compel. The defendant sought all emails and text messages of any nature over a three-year period between plaintiff and a former colleague who brought an employment discrimination suit against defendant. The court sustained plaintiff’s relevancy objections, reasoning that defendant’s requests for production were overly broad and unduly burdensome. By seekingallsuch communications, regardless of their link to the claims and defenses in the action, defendant’s requests failed the proportionality test enshrined in amended rule 26(b)(1).

Litigating under a Proportionality Based Regime

TheSirianoandNguyencases represent a starting point for decisions that spotlight the role of proportionality standards in discovery disputes. These cases suggest that parties should be prepared to develop a proportionate discovery plan and adopt practices that are reasonably calculated to achieve the plan’s goals. Relying on disproportionate tactics like requesting “any and all documents” or interposing generalized relevance objections do nothing to advance that strategy and only serve to alienate adversaries and the court. Clients and their counsel should instead embrace proportionality standards, which should ultimately lead to handling discovery issues in a more efficient and cost-effective manner.

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