Federal Practice

• Publication year: 2016
• Author: By Jessica N. Leal and Geoffrey D. Wilson

Federal Practice

By Jessica N. Leal and Geoffrey D. Wilson¹

Old Things Are New Again with Amended Rule 26's Proportionality Standard

Effective December 1, 2015, the language of Federal Rules of Civil Procedure rule 26(b)(1), which governs the scope and timing of discovery, changed in several ways to improve a system of civil litigation that "in many cases [ ] has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts."² The rule no longer refers to information "relevant to the subject matter involved in the action," but rather information "relevant to any party's claim or defense." The rule no longer refers to information "reasonably calculated to lead to the discovery of admissible evidence," but rather information "proportional to the needs of the case." The 2015 amendments place a greater emphasis on active judicial involvement, and cooperation among counsel and their clients to limit the expense and burden of discovery while still providing enough information to allow parties to test claims on the merits. As Chief Justice Roberts wrote of the amendments, "The key here is careful and realistic assessment of actual need[,] [which may] require the active involvement of a neutral arbiter - the federal judge - to guide decisions respecting the scope of discovery."³

The Rules Committee has made clear that "[t]he present amendment restores the proportionality factors to their original place in defining the scope of discovery" and "reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses or objections."⁴ The Committee further explained that "[r]estoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality."⁵

Exploration of the comments of judges across the four California federal district courts reveals a consensus view that while the proportionality require-ment of the amended rule 26 was indeed part of the former rule 26, the new language requires renewed attention. These comments also highlight a revived focus on the shared responsibility of lawyers and clients to ensure that discovery is proportional to the needs of the case.

District courts are still refining the precise meaning of "proportional to the needs of the case" as it pertains to civil discovery. What is clear, however, is that the recent amendments to rule 26 have reempha-sized the importance of a cooperative assessment of proportionality as a joint responsibility of the parties in federal civil discovery.

Northern District of California

United States Magistrate Judge Paul S. Grewal issued one of the earliest orders addressing amended rule 26 in Gilead Sciences, Inc. v. Merck & Co, Inc.,⁶ which is frequently quoted. The plaintiff asserted that the defendant infringed its patents on a type of compound, and moved to compel discovery on many types of compounds that bore no nexus to the disputes in the case. Comparing the situation to "requiring GM to produce discovery on Buicks and Chevys in a patent case about Cadillacs simply because all three happen to be cars," Judge Grewal found the plaintiff's demands to be "exactly the type of disproportionate demands that Rule 26(b)(1) proscribes."⁷ The court stated: "Proportionality in discovery under the Federal Rules is nothing new. Old Rule 26(b)(2) (C)(iii) was clear that a court could limit discovery when burden outweighed benefit, and old Rule 26(g) (1)(B)(iii) was clear that a lawyer was obligated to certify that discovery served was not unduly burdensome. New Rule 26(b)(1), implemented by the December 1, 2015 amendments, simply takes the factors explicit or implicit in these old requirements to fix the scope of all discovery demands in the first instance. What will change - hopefully - is mindset.

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No longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. [ ] The present dispute offers a good example of the wisdom of the Advisory Committee on Civil Rules in elevating proportionality in defining the scope of permissible discovery."⁸ The motion to compel was denied, with the court characterizing the plaintiffs request as "precisely the kind of disproportionate discovery that Rule 26 - old or new - was intended to preclude."⁹

United States Magistrate Judge Maria-Elena James discussed amended rule 26 in Salazar v. McDonald's Corporation.¹⁰ In this wage and hour class action, the plaintiffs sought emails from selected store manager custodians. The defendant did not challenge the relevance of the information the plaintiffs sought but did challenge the costs of producing such information and its potential value. Weighing the parties' concerns, the court ordered the parties to further meet and confer over the narrowing of search terms. "Under the Court's reading, the revised rule places a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts."¹¹ The court held that rule 26(c) "'confer[s] broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.'"¹² This broad discretion, as the court pointed out, existed before the amendments, and continued "despite the recent amendment."¹³

United States Magistrate Judge Elizabeth D. Laporte applied amended rule 26 to a plaintiff's motion to compel interrogatory responses in Dao v. Liberty Life Assurance Company of Boston.¹⁴ In opposition, the defendants argued that the burden of responding to the requests outweighed any potential advantage to the plaintiff. The defendants noted that the plaintiffs actual damages were merely $2,000, while the amount of time estimated to answer the interrogatories exceeded 27,000 hours. The court held that the parties had an obligation both before and after the rule change to consider proportionality. While the language of the rule had changed, the new rule placed no greater burden on the parties with respect to their discovery obligations than the previous version of the rule.¹⁵ Citing Judge Grewal, Judge Laporte wrote: "'No longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone. Instead, a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.'"¹⁶ Balancing the amended rule 26 factors, the court found the burden and expense of the broad discovery outweighed the likely benefit.¹⁷

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Eastern District of California

Addressing a motion to compel in Centeno v. City of Fresno, United States Magistrate Judge Stanley A. Boone found certain requests not proportional to the needs of a case involving an alleged use of excessive force.¹⁸ The plaintiff sought documents related to all investigations and complaints involving two police officers, regardless of whether any such investigation or complaint involved excessive force. The court held such discovery would not be proportional to the needs of the case and denied the motion as to incidents that did not involve excessive force. The court stated: "The December 2015 amendment to Rule 26 was to restore the proportionality factors...