The concept of proportionality has been part of the Federal Rules of Civil Procedure since 1983, when Rule 26(b)(1)(iii) was amended to “address the problems of discovery that is disproportionate to the individual lawsuit.” The only problem was, lawyers largely ignored the concept for the better part of the next 30 years. “For too long lawyers were largely unaware of their obligation to insure that discovery is proportional because it was buried in the Rules,” says Judge Paul Grimm, an influential member of the Advisory Committee for the Federal Rules of Civil Procedure.
The old rule 26(b)(2)(C)(iii) was clear that a court could limit discovery when the burden of discovery outweighed the potential benefit. However, new Rule 26(b)(1), implemented by the December 1, 2015 amendments, takes the factors in these old requirements and puts them at the heart of any discussion about the scope of discovery. In short, the revised scope of discovery means that non-privileged information is discoverable if it is both “relevant” to the claims or defenses of a party and is also “proportional to the needs” of the case.
As a member of the Advisory Committee for the Federal Rules of Civil Procedure, Grimm says that the amended Federal Rules regarding proportionality are designed to end lazy motion practice. “When lawyers make assertions to the court about the cost to do things, a ballpark number is just not consistent with their obligation to particularize their objections,” he says.
Is the New Rule Working?
Grimm first called attention to the need for proportionality analysis in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008). In that case, Grimm noted that under Federal Rule 26(b)(2)(C), parties ought to meet and confer in good faith to determine whether the goals of discovery could be accomplished in a manner proportional to what was at stake. “Parties always had an obligation to engage in a proportionality analysis, but now it at the heart of the scope of discovery,” he says. “What the rule change does is to raise the level of awareness of the issue, putting it in scope of discovery.”
When the rules were amended at the end of last year, many observers thought the proportionality amendments were likely to have little effect. After all, the rules were not new; they had just been tweaked a little and moved. “I was cynical that the proportionality amendment would take, but I see a lot more judges talk about proportionality and holding both sides to it,” says Mike Simon, attorney and e-discovery consultant with Seventh Samurai in Boston.
However, not everyone is so sure the rules are working just yet. In fact, some legal teams may have simply incorporated updated language referencing the amended proportionality rules into boilerplate motions. “In my limited experience I have not seen any real change or revamped motion practice,” says Craig Ball, and attorney and court appointed special master in many complex e-discovery cases. “I do think that you see lawyers still making lazy boilerplate arguments. Unfortunately, we as lawyers are often lazy, which is odd since we’re paid by the hour.”
It’s Not All About the Money
In Grimm’s view, lawyers need to take more time and care to provide more information and details about the cost and benefit of any discovery request. However, as the Advisory Committee Notes point out, “it is also important to repeat the caution that the monetary stakes are only one factor.” The amended Rule 26(b)(1) notes that “the importance of the issues at stake” is the first factor to consider when to consider when determining whether to proceed with discovery. The “amount in controversy,” or potential monetary value of the case, is the second.
According to Grimm and others, by building proportionality analysis into the scope of discovery, it means lawyers now have to provide more details and more information in order to make a claim that discovery is proportional to the needs of a case. That means more work, which means lawyers must dispense with vague, broad claims or objections. “It means that more lawyers need to put on their thinking cap for five minutes,” says Ball. “You need to understand your client’s systems and needs of the case.”
The New Rules of the Road
At a basic level, that means attorneys must be well-informed and avoid hyperbole or exaggeration. They must provide cost estimates from the client or vendors as well as declarations from witnesses with personal knowledge of the computer systems and data that may be discoverable for litigation. “The first step is to stop giving boilerplate objections,” says Simon. “Judge Grimm gave us Mayflower v. Mancia, which makes it clear boilerplate is not going to cut it. Specifics win. Give the judge a concrete, action plan, not bluster, and you are more likely to win your argument.”
An argument about the expense of production should include:
• Estimates outlining the proposed steps and the associated expenses.
• Suggestions for alternative forms of production, if preserving evidence poses a significant burden.
• Itemized expenses, including time and cost to help bolster arguments and proposals.
Grimm says that one of the most important things e-discovery professionals can do is to read the Advisory Committee Notes, which explain the revisions in plain language. As the Notes put it, “Framing intelligent requests for electronically stored information, for example, may require detailed information about another party’s information systems and other information resources.”
In addition, legal teams need to be aware that though the language of proportionality remains largely intact, the recent rule changes call into question some formerly relevant precedents. For example, before the rule change in December that eliminated “subject matter” discovery, allowing only discovery of facts relevant to the claims and defenses raised in the pleadings, Oppenheimer Fund, Inc. v Sanders, 437 U.S. 340 (1978) was an important precedent regarding the scope of discovery allowed under the civil rules. “Oppenheimer was the right standard before the rules changed,” says Grimm. “Parts of that case are still good law, but it should not be cited anymore for the proposition that the scope of discovery includes facts relevant to the “subject matter” of the litigation.”
Playing for Keeps
Perhaps the most important- and frightening- aspect of the rule changes is to emphasize that every disclosure and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name that a disclosure is complete and correct as of the time it is made or that an objection is consistent with these rules and warranted by existing law or by a non-frivolous argument.
The bottom line is that there is an emerging consensus that courts should place “greater emphasis on the need to achieve proportionality” to reduce unwarranted delay and excessive cost in civil cases, as Chief Justice Roberts wrote in his Year-End Report for 2015. “You can change the rules all you want, but when the Chief Justice of the United States says this is important, I hope everyone realizes it is time to listen,” Grimm says.
The proportionality analysis is getting a fresh airing thanks to the updated federal rules. While the language is familiar, the demands of the analysis are probably new to many in the legal profession. “The rules are simple. If evidence is relevant, but not privileged or work product protected, then you assess proportionality in determining whether it is discoverable”, says Grimm. “Maybe you get it, maybe you don’t. But you need to provide details to the court about your position and not just another boilerplate objection that production would be disproportionate.”
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