magnifyingglass_000001973994_First Five QuestionsThe current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.

Today we start with Proportionality.

One of the purposes of the new amendments to the Federal Rules of Civil Procedure is to again address the problem of over-discovery. The 1983 and 1993 amendments to the Rules attempted to address this problem through an emphasis on proportionality, but found that a practical application was not always forthcoming when even “courts have not always insisted on proportionality when it was warranted.”[1] In particular, the amendments to Rule 26 serve to re-focus the scope of discovery on proportionality—and allowing parties to obtain the documents they truly need to prosecute or defend their case while simultaneously alleviating any unnecessary burdens on the opposing party. Proportionality is one of the central themes to the amendments, and several important questions relating to the effect of the amendments on this topic are addressed below.

  1. Have proportionality factors always been part of Rule 26?

Yes. Most of the factors were added to Rule 26 in 1983 as part of an effort to promote proportional discovery and discourage discovery overuse. The factors were moved to section 26(b)(2)(C) in 1993 when section (b)(1) was divided. Separating the factors into subdivision (b)(2)(C), however, had the unintended consequence of causing litigants to interpret them as only “limitations” and not an integral part of the scope of discovery.[2] As the Committee Notes indicate, “[t]he present amendment restores the proportionality factors to their original place in defining the scope of discovery.”[3]

It is important to note, however, that some of the factors do not date back to1983. For instance, the 1993 amendments also added two factors: whether the burden or expense of the proposed discovery outweighs its likely benefit; and the importance of the proposed discovery in resolving the issues.[4] Finally, the factor considering parties’ relative access to information is new in 2015.[5]

  1. How do the proportionality factors affect the scope of relevancy?

Rule 26 as amended has excised the former 26(b)(1) provision permitting discovery “reasonably calculated to lead to the discovery of admissible evidence,” and has replaced it with a scope based on proportionality. But this concept of proportionality should not operate to make any given document irrelevant, as a document is still relevant if it is related to a party’s claim or defense.[6] In our view, the proportionality factors require litigants to evaluate the level of the document’s relevance in the context of the burden to identify, review, and produce the requested documents or information. That said, this evaluation can be a slippery slope and the answer to the question of whether certain documents should be produced can be different to different attorneys as well as different fact finders. And, proportionality is but one factor in the determination.

  1. How and when should we be addressing these proportionality factors during discovery?

Proportionality should be addressed early and often. At the very least, it should be addressed during the parties’ 26(f) conference as well as scheduling and pre-trial conferences with the court. The parties should consider each factor when determining whether and what kind of discovery is truly needed in the case, and incorporate judicial guidance when provided through those conferences or other means. Indeed, the parties should anticipate more active judicial participation; the Advisory Committee on the Federal Rules of Civil Procedure provided just that instruction when explicitly stating that district or magistrate judges “must be considerably more involved in managing each case from the outset, to tailor the motions practice and shape the discovery to the reasonable needs of the case.”[7]

The proportionality factors may even be addressed by the parties during preservation; however, at an early stage, it is often difficult to evaluate the importance of certain documents or information to the case especially when comparing them with a preservation burden.[8] The proportionality factors should also be directly addressed in any motion to compel or discovery dispute over the relevance and/or burden of any particular discovery.

  1. How will courts apply the concept of proportionality?

Courts will continue to prefer those instances where litigants apply the proportionality factors and reach resolution of discovery disputes without court assistance. But the Committee Notes to the Rules amendments re-emphasize the notes from the 1983 and 1993 amendments which indicate that there should be greater judicial involvement in the discovery process given that it cannot always operate on a self-regulating basis.[9] When disputes do arise, the court will weigh the burdens of discovery against the potential benefit of the information to be produced in light of the facts of the case.[10]

The burden does not rest with the party seeking discovery to address all proportionality factors.[11] Rather, the parties and the court have a collective responsibility to consider the proportionality of all discovery in resolving such disputes.[12] Nor will courts interpret proportionality to mean that the burden of discovery will always be equal to both sides. As the Committee Notes also indicate, “the burden of responding to discovery lies heavier on the party who has more information, and properly so.”[13]

  1. Can technology help address proportionality?

The Committee Notes indicate that the relative burden of any discovery must be determined in a realistic way.[14] This means that the parties should at least consider computer-based methods or other technologies that could help alleviate the burden of discovery.[15] Using appropriate technologies to quickly identify and segregate truly relevant documents and information comports with the goal of proportionality by providing the requesting party with the documents and information necessary to prosecute or defend claims, and the producing party with cost savings.[16] Additionally, this is not a one-time discussion—parties should discuss various available technologies and their use to alleviate burdens throughout the discovery process as the case matures.

[1] See The Sedona Conference Commentary on Proportionality in Electronic Discovery, at 4 (Jan. 2013) [hereinafter Sedona].

[2] Judicial Conference Comm. on Rules of Practice & Procedure, Report of the Judicial Conference Committee on Rules of Practice and Procedure at B-39 (Sept. 2014) [hereinafter Judicial Conference Committee].

[3] Id.

[4] Id. at B-38.

[5] Id. at B-40.

[6] Fed. R. Civ. P. 26(b)(1).

[7] Judge David G. Campbell, Advisory Committee on Federal Rules of Civil Procedure, Proposed Amendments to the Federal Rules of Civil Procedure, at B-6 (June 2014).

[8] See Sedona, supra note 1, at 2 (“The burdens and costs of preserving potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.”).

[9] Judicial Conference Committee, supra note 2, at B-41.

[10] See Sedona, supra note 1, at 5 n.13 (citing cases).

[11] Judicial Conference Committee, supra note 2, at B-39.

[12] Id.

[13] Id. at B-40-41.

[14] Id. at B-42.

[15] Id.

[16] See Sedona, supra note 1, at 13-14.