Civil Rules Roundtable: A Discovery Sideshow?

Tuesday, December 1, 2015 - 16:24

New amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. One of the most significant amendments redefines the scope of discovery to expressly incorporate the concept of proportionality. Under the new version of Rule 26(b)(1), parties may obtain discovery of “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Factors to be considered in assessing proportionality include:

-  the importance of the issues at stake in the action,

-  the amount in controversy,

-  the parties’ relative access to 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.

The notion of proportionality – and the specific factors listed – are not new to the rules. In the current version of Rule 26(b)(2)(C), the limits on the scope of discovery include these concepts. But by moving proportionality front and center into the definition of what’s discoverable, the Rules Committee hoped to bring greater attention to the concept and ensure more cost-effective, more appropriately tailored discovery.

While the intent of the rule amendment is laudable, DiscoverReady’s corporate clients have expressed two main concerns about the application of Rule 26(b)(1). First, corporations with ample resources worry that requesting parties seeking broad discovery will use “the parties’ resources” as a bludgeon, and that this factor will outweigh all others. To be sure, it seems somewhat perverse that information discoverable in one case is not discoverable in another, simply because the producing party in the first case has more money in the bank. But this factor currently exists in Rule 26(b)(2)(C), and smart litigators know how to leverage the other factors to prevent disproportionate discovery that is more burdensome than beneficial. Under the new rule, similar arguments will carry the day.

Second, our clients fear that fights about proportionality will generate new motion practice, making discovery more – not less – expensive. Contributing to this worry is the absence of clear guidance in the new rule around which party bears the burden of proving (or disproving) proportionality. According to the Committee Note about the amendment:

[T]he change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.

Some judges expressed this same concern during the amendment drafting process, wondering if their dockets would become clogged with filings about proportionality. But I believe that conscientious judges, with good case management practices, can prevent proportionality fights from becoming a discovery sideshow. They can do so by:

-  forcing parties to conduct meaningful, in-person Rule 26(f) conferences and meet-and-confer sessions about discovery disputes (no more “drive-by” meetings and unproductive, poison-pen email exchanges);

-  requiring informal submissions to the court about discovery disputes before permitting formal motions and

-  insisting on objective, fact-intensive proof around the proportionality factors (and rejecting unsupported conclusions and hyperbole).

In today’s corporate environment, with ever-increasing volumes of electronic information flowing into litigation workflows, we need proportionality in discovery more than ever. My hope is that good lawyers – and thoughtful judges – will use the newly amended Federal Rules to bring proportionality to more cases and reduce the burden of litigation for more corporate litigants.


Maureen O’Neill is Senior Vice President at