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What Is the Appropriate Scope of Discovery?

On February 18, 2014, the public comment period closed on the proposed amendments to the Federal Rules of Civil Procedure. To date, almost 3,000 comments have been published, many of which addressed the appropriate scope of discovery under Rule 26(b)(1).

Numerous commenters believed that the rule should not be amended to include proportionality. For example, U.S. District Judge Shira Scheindlin believed the rules changes to be premature. Furthermore, she believed the inclusion of proportionality in Rule 26 would create a “nightmare for the court.” Allowing “producing parties to withhold information based on a unilateral determination that the production of certain information is not proportional to the needs of the case” would prompt parties to file additional motions and increase costs and delay. Moreover, she noted the burden of the new rule will most likely fall on plaintiffs, who “typically . . . have less resources than defendants,” making it “a significant new expense to be considered when bringing a case in federal court.”

Similarly, U.S. District Judge J. Leon Holmes characterized the proposed amendments as “unwise.” He expressed concern about moving the reference to proportionality to Rule 26(b)(1), which “almost certainly will increase the number of discovery disputes” and create a subjective standard that renders those disputes “less susceptible to principled resolution.” Moreover, the information required to assess the disputes—“an understanding of the value of the case and the information available through other avenues”—is usually unavailable until the end of discovery.

However, the defense bar strongly supports the inclusion of proportionality; many have also asked the committee to include a reference to materiality in the rule. For example, the Association of Corporate Counsel recommends allowing parties to “obtain discovery regarding any non-privileged matter that is relevant [and material] to any party’s claim or defense.” A number of law firms agree, including one national law firm, which explained that in its experience, “opposing counsel is usually unwilling to invest the same amount of resources to review or utilize the material it required the company to produce. As a result, we regularly encounter motions to compel from opposing counsel seeking the identification of specific documents within the production and documents used in document preparation, effectively requiring our clients to prosecute the case against [themselves].” The firm asserted that a materiality requirement would “eliminate this practice.”

In deciding the matter, the Committee should study the various courts that have already taken action to control discovery through the use of model discovery orders—most of which require a proportionality analysis. For example, the Federal Circuit’s Model Order for use in patent cases shifts the costs of disproportionate discovery to the requesting party, the Seventh Circuit’s Model Discovery Plan instructs parties “to consider the factors affecting proportionality under Rules 1 and 26,” the Eastern District of Michigan’s Model Order suggests applying the proportionality standard in Rule 26(b)(2)(C) “when formulating a discovery plan” and when preserving data, and the District of Delaware’s Default Standard for Discovery, Including Discovery of Electronically Stored Information expects parties “to use reasonable, good faith, and proportional efforts to preserve, identify, and produce relevant information.” The success these courts have had in limiting the costs and burdens of discovery is compelling evidence of the power of proportionality.

Chris O’Brien is chief operating officer at Conduent. He can be reached at