Rule 26(b)(1) was revised as part of the 2015 Amendments to the Federal Rules of Civil Procedure (1) to promote "proportional discovery" (2) by the incorporation of proportionality factors, then located in Rule 26(b)(2)(C), into the text of (b)(1), with the factors slightly re-adjusted and a new factor added. (3) Rule 26(b)(2)(C)(iii) now requires a court to limit the frequency or extent of discovery when "[iii] the burden or expense of the proposed discovery is outside the scope permitted bv Rule 26(b)(1)." (4)
The revised scope permits discovery of non-privileged information only if it is both "relevant" to the claims or defenses of a party and is also "proportional to the needs" of the case. The renewed emphasis on proportionality, enforced through active case management, reflects a desire to achieve the goals of Rule 1. As Chief Justice Roberts put it in his 2015 Year-End Report, the amended rule "crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality." (5)
Cases Interpreting the New Rules
The flood of post-December 1 decisions on the scope and implementation of Rule 26(b)(1) and related changes is best summarized in the following categories, although the cases themselves need to be consulted as well.
The relevancy of discovery sought to the claims or defenses continues to be the primary issue determining the "scope" of discovery. If the information sought is not relevant, courts need not focus on proportionality. For example, in LightSquared v. Deere & Co. the court acknowledged the amended rule but denied the discovery based on a lack of relevance. (6) Courts refuse to ask a party to "run down a rabbit hole chasing irrelevant information on collateral matters." (7)
The threshold for discovery relevancy under the amended rule remains relatively low, (8) in contrast to the enhanced showing of relevance required in some Circuits for purposes of securing an adverse inferences. (9) Some courts cite the terms of Federal Rules of Evidence 401, under which evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable. (10) Moreover, as Judge Francis and others have held, relevance is still defined broadly by pre-December 1 case law, including the 1978 Supreme Court decision in Oppenheimer Fund v. Sanders, (11) which is often cited for that proposition. (12)
A limit on the scope of discovery, designed to guard against "redundant or disproportionate discovery," has been part of the Federal Rules of Civil Procedure since 1983. (13) After the 2010 Duke Litigation Conference, the Rules Committee acted on its conviction that "discovery in civil litigation would more often achieve the goals of Rule 1 through an increased emphasis on proportionality," enforced through active case management. (14) Although the initial Draft Committee Note described this as a "change" designed to "limit the scope of discovery," (15) the final version of the Committee Note more accurately states that it merely "restores the proportionality factors to their original place in defining the scope of discovery." (16)
A number of cases have explicitly denied discovery of otherwise relevant information based on proportionality grounds, involving a variety of contexts. In Henry v. Morgan's Hotel Group, the court refused to enforce subpoenas against former employers as not proportional to the needs of the case where it was not even "remotely apparent" what relevance the information would have to the allegations in the case. (17) In another, discovery requests were denied because they was "precisely the kind of disproportionate discovery that Rule 26--old or new--was intended to preclude." (18)
In Wilmington Trust v. AEP Generating (19) the court concluded that the "rule of proportionality" would be violated if it ordered an additional search which might produce 200K documents that would have to be searched manually.
Burden of Proof
There is also little evidence that the changes in Rule 26(b)(1) have affected the practical burdens of proof involved, as both parties must play a role in addressing proportionality, depending on the circumstances.
The Committee Note makes it clear that the relocation of the proportionality factors does not "place on the party seeking discovery the burden of addressing all proportionality concerns." (20) Moreover, a party may not "refuse discovery simply by making a boilerplate objection that it is not proportional." (21) In Carr v. State Farm Mutual, the court held that a party seeking to resist discovery must come forward with "specific information." (22)
The party seeking discovery also may need to "make its own showing of many or all of the proportionality factors" to justify the request. (23) Thus, in Augustyniak v. Lowe's, a party seeking to justify further discovery was required to list what discovery would be sought, why the information was not already available and how the information would demonstrate the point sought to be established. (24) In Wilmington Trust v. AEP Generating, the court noted that the party had not presented "anything --either evidence or persuasive argument" showing it would materially add to the existing production. (25)
Each party is expected to provide information uniquely in their possession to the court, which then is expected to reach a "case-specific determination of the appropriate scope of discovery." (26) Amended Rule 37(e) is said to require a similar approach when the proportionality of preservation demands are at issue. (27)
There is no hierarchy implicit in the order of individual factors listed in Rule 26(b)(1); indeed, the "amount in controversy" was moved to behind "importance of the issues" to avoid any such inference. (28) This contrasts with the approach adopted by the court in Zubulake I (29) in redesigning a list of factors to discourage shifting the costs of production. (30) The 2015 Amendments addressed that issue by simply adding a neutral reference to the authority to "allocate costs" to Rule 26(c)(1)(B). (31)
The factors listed in Rule 26(b)(1) differ slightly from those listed in Rule 26(g), as well as those included in the 2006 Committee Note relating to production of ESI from inaccessible source under Rule 26(b)(2)(B). (32) That list is, in turn, largely ignored since even if production of accessible ESI is ordered for "good cause," it is not required if not proportional to the needs of the case. (33) No court has placed significance in the differences.
The new factor dealing with asymmetric access to information has received some limited attention in the cases. (34) In Doe v. Trustees of Boston College, the court interpreted the factor to mean that a party with superior access needed a "stronger showing of burden and expense" to avoid production. (35) Similarly, the importance of disparity in resources has been downplayed. In Salazar v. McDonald's, (36) the court emphasized that the financial resources available to handle discovery costs are essentially irrelevant, citing the Committee Notes. (37)
Neither the Committee Notes to Rule 26(b) nor to Rule 37(e) deal with the issue on of the impact of the renewed emphasis on proportionality as a limitation on the scope of discovery under Rule 26(b)(1). Presumably the Committee still believes, as it once stated, that "the outer limit of the duty to preserve" is set by the Rule 26(b)(1) scope of discovery. (38) One pre-amendment court conceded that proportionality would be relevant to a retroactive assessment of parties involved in a failure to preserve, but would not, especially in the pre-litigation context, be a very reliable basis for unilateral decision making, given that hindsight may apply.
The Committee deleted any hint that proportionality plays a role in preservation planning. The Initial Draft of the Committee Note made the point that "prospective litigants who call for preservation efforts by others should keep the proportionality principles [in Rule 26(b)(1)] in mind." (39) That was dropped from the final version, which does, however, caution that a party objecting to a demand for preservation on proportionality grounds may need to provide specifics in order to enable meaningful discussions of possible preservation orders.
Not all courts have yet caught the subtle distinction. One prominent commentator flatly states that "[d]emonstrating the 'relevance' of missing ESI [that should be preserved] will necessarily implicate proportionality factors." (40) However, it is highly unlikely that the author intended to convey that a party, acting in good faith, who ignores the need to preserve relevant evidence on proportionality grounds is thereby exempted from being questioned, with hindsight, about the accuracy and viability of that decision.
As noted, a related aspect of the renewed emphasis on...