Civil Rules Roundtable: Proportionality- Old Wine, New Bottle?

Tuesday, December 1, 2015 - 15:53

As discovery burdens have grown under the increasing weight of e-discovery, the revisions to Rule 26(b)(1) represent an effort to emphasize the need for “proportionality” between discovery and the particular circumstances of the case in which it is sought. The revised language to Rule 26(b)(1) is largely familiar, however, and it remains to be seen whether or how it will impact judicial management of discovery and the actual conduct of discovery.  

The current version of the rule provides, in relevant part:

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. ... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).”

Current Rule 26(b)(2)(C)(iii), in turn, requires a court to limit otherwise authorized discovery if it finds that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

The new Rule 26(b)(1) incorporates the Rule 26(b)(2)(C)(iii) requirements expressly rather than by reference:

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 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 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Its substance now subsumed by Rule 26(b)(1), new Rule 26(b)(2)(C)(iii) simply states that the court must limit otherwise authorized discovery upon a finding that it is “outside the scope permitted by Rule 26(b)(1).”

The only truly new language in the revised Rule 26(b)(1) is the word “proportionality” and the addition of “the parties’ relative access to relevant information” to the list of factors. As to the former, the Advisory Committee Notes make clear that “proportionality” is a new word for the same obligations: “The considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition.” And as for that addition – the “relative access” factor – according to the Committee, it merely “provide[s] explicit focus on considerations already implicit in present Rule 26(b)(2)(C)(iii).”

The Committee Notes also make clear that the revision is not intended to radically revise the parties’ roles: It neither “place[s] on the party seeking discovery the burden of addressing all proportionality considerations” nor “permit[s] the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional.”  

The “proportionality” language is a change in emphasis, however, and judges may take the revisions as a signal to moderate discovery burdens, particularly in smaller cases (although large institutions involved in significant litigation are unlikely to see much of a change from this revision). In addition, the Advisory Committee has noted its hope that the revisions will encourage courts to take a more active role in managing the discovery process. The Committee has emphasized that because “[t]he parties may begin discovery without a full appreciation of the [proportionality] factors,” those issues should “be addressed and reduced in the parties’ Rule 26(f) conference and in scheduling and pretrial conferences with the court”—and, if those efforts fail, resolved by the court on discovery motions. And the Notes repeatedly emphasize “the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management,” a need that has only been “exacerbated by the advent of e-discovery.”

Practitioners will be closely monitoring whether the open-ended reference to “proportionality” shifts discovery practice or simply becomes a new way to say the same old thing.

 

Anthony M. Candido is a Partner & Sarah A. Sulkowski an Associate at Clifford Chance. Anthony can be reached at anthony.candido@cliffordchance.com, and Sarah at sarah.sulkowski@cliffordchance.com.