A multi-part series reviewing decisions on proportionality in eDiscovery since the December 2015 amendments to the Federal Rules of Civil Procedure
In the first Part of this series, we reviewed the amendments made to Federal Rule of Civil Procedure 26(b)(1) in December 2015. In the second Part, we reviewed one of the first decisions applying the amended rule. In this Part, we continue our discussion of proportionality in eDiscovery with a review of the first four cases in our case law survey.
In this case law survey, we will briefly review a variety of cases from across 2016 and 2017 that have touched on proportionality in discovery since the December 2015 Amendments. We will review them in chronological order, beginning with these four from the first half of 2016:
The recently amended Rule 26(b)( 1) of the Federal Rules of Civil Procedure “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary 6 (2015). . . . As the Chief Justice’s comments highlight, a party is not entitled to receive every piece of relevant information. It is only logical, then, that a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld. [emphasis added]
Rule 26’s expression of the scope and limits of discovery has evolved over the last thirty years or so. Each time the language and/or structure of the “Discovery Scope and Limits” section of the rule was changed, it was to rein in popular notions that anything relevant should be produced and to emphasize the judge’s role in controlling discovery.
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This time, the proportionality factors the rules originally had expressed in 1983 (e.g., consideration of relative burden and expense, the amount in controversy, importance of issues at stake) were added back to the very first subdivision and sentence of “(b) Discovery Scope and Limits” and the limiting phrase, “proportional to the needs of the case,” was added in express and not just implicit language. The Committee Notes emphasize that the parties and the court “have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” [emphasis added]
She then analyzed the discovery sought, concluded it was disproportional to the needs of the case, and granted the requested protective order.
Scholarly evaluation of the Federal Rules and the impact of inclusion of the proportionality concept within Rule 26(b)(1)’s threshold scope of discovery indicate “that non-parties have greater protections from discovery and that burdens on non-parties will impact the proportionality analysis.”
. . .
Evaluating defendants’ subpoenas against these standards leads to the conclusion that the requests to Ellsworth to produce the broad array of materials sought in the subpoenas are excessive, seek much that is not relevant to the claims and defenses in this copyright infringement case . . . and are beyond what is necessary and beneficial to resolution of this case . . . .
. . .
As to proportionality specifically, although the parties’ resources appear more or less equivalent, Ellsworth is not a party to this action. The importance of his testimony as a non-party witness and his relevant materials, if any, is limited to the matters set out above and does not extend to the vast range of materials sought in defendants’ subpoena duces tecum or the subject matter of the state court litigation. The potential for burden, annoyance and oppression appears substantial, in light of the vast scope of the discovery requests served upon Ellsworth by defendants . . . . [internal citation and footnote omitted; emphasis added]
The Magistrate Judge then granted most of the protective limitation requests made by the third-party witness.
Here, Defendant has simply asserted that production of the files in native format rather than PDF format will require an additional expenditure of $2,000 for ESI processing and production, plus approximately $1,000 for hourly paralegal time, but it has not explained the reason for the additional costs. Consequently, the Court remains – as it was at the time of the teleconference – at a loss to understand why the production of native documents is more costly than production of PDF files. The Court therefore finds that Defendant has not made an adequate showing that production of the native files is cost prohibitive.
Additionally, the Court finds that even had Defendant made a showing that it costs $3,000 more to produce the native files than to produce the PDF files, Plaintiff has shown good cause for the Court to order the production. . . . Moreover, while it does appear that Plaintiff’s suit is unlikely to be of an especially high dollar value, the Court finds that the public value of allowing a civil-rights plaintiff opportunity to access information relevant and quite possibly necessary to her pregnancy-discrimination suit far outweighs the asserted $3,000 cost. [internal citations omitted; emphasis added]
The Magistrate Judge then ruled for the Plaintiff and ordered the requested native file production.
Upcoming in this Series
In the next Part of this series, we will continue our discussion of proportionality in eDiscovery with a review of several cases from the back half of 2016.