León Cosgrove

Origins and Implications of the New Rules on Proportionality in Discovery

By: Ellen Ross Belfer

Amendments to the Federal Rules of Civil Procedure relating to discovery and electronic discovery became effective on December 1, 2015. A number of lawyers and law firm websites have outlined and discussed the amended language regarding party cooperation, judicial oversight, and proportionality in discovery.

The idea of proportionality in discovery is not new. However, despite a long history of changes to the rules aimed at encouraging proportionality, courts have remained reluctant to implement it. And it is precisely this lack of implementation that the Advisory Committee on the Federal Rules of Civil Procedure gave as a reason for again amending Rule 26(b) and changing the location of the Rule’s proportionality language.


Background

The amendment process dates to 2010, when the Advisory Committee organized the Duke Conference to explore the current costs of civil litigation, particularly discovery, and to discuss possible solutions. The Duke Conference looked at empirical data and heard from judges, practitioners, and academics on the state of the civil discovery system. One prevalent theme was the need to change the default of discovery from “everything is discoverable” to “‘you only get what you need.’” Three concrete initiatives emerged to revise the existing rules: proportionality in discovery, more cooperation among the parties, and early judicial case management. While the three are interconnected, I will focus the discussion here on proportionality.


Limiting the Scope of Discovery

The heart of the proportionality amendments are changes to the scope of discovery under Rule 26(b). New Rule 26(b)(1) now specifically includes the term “proportional” in the definition of the permitted scope of discovery. But the amendment’s drafters recognized that the term “proportional,” by itself, was too open-ended and nonspecific. So, they moved the already existing proportionality factors within Rule 26(b)(2)(C)(iii) to Rule 26(b)(1). They also included an additional factor within Rule 26(b)(1): the parties’ relative access to the relevant information. The new rule reads as follows:

Parties may obtain discovery regarding any non-privileged 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 litigation, the amount in controversy, the parties’ relative access to the 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.

With these amendments, discovery must be relevant to a party’s claims or defenses and proportional. As a result of the new language, some litigants may be surprised to learn that they can no longer seek discovery of any matter relevant to the subject matter involved in the action—even for good cause.

In the Committee Notes, the Advisory Committee emphasized that most of the proportionality factors have been included within Rule 26 since 1983, and that they were also initially included in Rule 26(b)(1)’s definition of the scope of discovery. It has been widely recognized that federal judges, as a whole, have never fully embraced the Rule’s proportionality factors. So, according to the Advisory Committee, “[t]he present amendment restores the proportionality factors to their original place in defining the scope of discovery.”


Proportionality in Discovery Disputes

Nevertheless, the Committee also stressed that the movement of proportionality factors to the Rule 26(b)(1) definition of discovery will not change existing responsibilities of the court and the parties to consider proportionality in discovery disputes. In fact, “[t]he parties and the court have a collective responsibility to consider [] proportionality.”

The requesting party will not have the burden of addressing all proportionality considerations. Rather, under Rule 26(g), the parties have an obligation to consider the proportionality factors when making discovery requests, responses, or objections.

Likewise, amendments to Rule 34 will help enforce the Committee’s intent that the responding party not be permitted to refuse discovery with boilerplate proportionality objections. Amended Rule 34(b)(2)(B) requires that a responding party “state with specificity the grounds for objecting.” While this may be a new requirement in many districts in the U.S., the Southern District of Florida has required that a responding party object to a discovery request with specificity since 2003.


Enough for Real Change?

It remains to be seen whether the changes to the Rules regarding proportionality will bring about real change. This same proportionality language has been moved around within Rule 26 for thirty years—each time with the same goal—for parties and courts to apply these factors to discovery. For its part, the Advisory Committee has not clearly articulated how the newest change to the location of the proportionality language will fix the essential problem.

In my opinion, the new amendments over-emphasize the significance of the proportionality factors in the scope of discovery; this language means nothing without party cooperation and judicial case management to limit the scope of discovery. Unfortunately, the 2015 amendments on party cooperation and judicial case management do little to mandate either, and thus are simply not significant enough to drive the change in practice that the new proportionality language cannot effect on its own.

Some, like the influential U.S. Magistrate Judge Paul W. Grimm, argue that a major cultural shift in the conduct of civil litigation is necessary to achieve real change:

[T]he real change that is needed is a change in existing, inappropriate attitudes and behaviors; disproportionality in discovery is not expressive of a failure in the Rules themselves, but rather, must be viewed as an indictment of the parties, lawyers, and judges for allowing this to occur in the face of constraints that the Rules already provide. The problem is an absence of will.*

But it is not clear when or how this cultural shift will take place. It may eventually be the increasingly widespread burdens of electronic discovery that will propel a change in attitude. The mounting volume of ESI in all areas of our individual and corporate lives will necessitate real changes to the system—changes that may finally achieve the proportionality in discovery that has so long been sought.

*Hon. Paul W. Grimm, The State of Discovery Practice in Civil Cases: Must the Rules Be Changed to Reduce Costs and Burden, or Can Significant Improvements Be Achieved Within the Existing Rules?, 12 Sedona Conf. J. 47, 50, 53 (2011)

 

Ellen BelferEllen Ross Belfer, of counsel at León Cosgrove LLC, focuses her practice on complex commercial litigation in federal and state courts nationwide. ebelfer@leoncosgrove.com