Discovery Costs Reduced and Litigation Simplified? Courts Applying New Federal Rules Give Hope


By: Ryan Babcock

On December 1, 2015, the Federal Rules of Civil Procedure were amended, and the federal district courts across the country are starting to apply them to pending cases. In a nutshell, those amendments were in large part aimed at raising the profile of the concept of “proportionality” in the discovery process.  This common sense concept now pervades the rules, and directs the federal trial courts and the litigants before them that, for evidence to be discoverable, the information sought must be relevant and proportional to the needs of the case. See, e.g., Federal Rules of Civil Procedure 26, 30-34.  Chief Justice Roberts has explained this concept as requiring a “careful and realistic assessment of actual need.”  2015 Year End Report on the Judiciary at 7 (Dec. 31, 2015).

The amended rules provide several factors to consider in determining whether the discovery sought is proportional, including:

  • the importance of the issues at stake in the action
  • the amount in controversy
  • the parties’ relative access to relevant information
  • the parties’ resources
  • the importance of the discovery in resolving the issues, and
  • whether the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case.

Fed. R. Civ. P. 26(b)(2)(c)(iii).

In a recent product liability decision, relying at least in part on the amended Rule 26’s proportionality language, the court rejected the plaintiffs’ discovery demand for the personnel files of several of the defendant’s employees, all of whom the plaintiffs intended to depose. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., ---F.R.D. ---, MDL No. 2592, 2016 WL 311762, at *4 (E.D. La. Jan. 26, 2016).

Although the plaintiffs claimed that the personnel files were relevant to “rush to the market” and employee bias issues, the defendant argued that they were not relevant, and were not discoverable under the amended Rule 26, unlike a work-related custodial file, for example. The defendant also argued that privacy interests weighed against this discovery, as the plaintiffs demanded “performance reviews, self-reviews, annual compensation information, incentive information, bonus information, post-employment information, the reason for the employee's termination (if applicable), and the existence (or lack thereof) of a non-disparagement clause.”  Id. at *1, *5 n.4.

Notwithstanding the plaintiffs’ counsel’s assurance that they had received similar information in prior MDLs, id. at *2, the court rejected the plaintiffs’ broad discovery request, stating that:

[A] plaintiff in a products liability MDL cannot discover a non-party employee’s personnel file without an individualized showing of relevancy, proportionality, and particularity.  Plaintiffs have failed to make this showing in both their memorandum and proposed pretrial order. Rule 26(b) commands that all discovery be both relevant and proportional.

Id. at *4.

As such, the court mandated that plaintiff show discoverability of the personnel files “on a witness-by-witness basis.”  Id.

In another substantial shift, when responding to written discovery requests, the amended rules make clear that it is no longer appropriate to make “boilerplate objections.” Instead, a responding party must specify why the request is, for example, overly broad (e.g., such as explaining how it would require searching an unnecessarily broad range of custodians, and/or some elaboration on the particular problem with the request and the work it would take to comply therewith).  Likewise, the responding party must state whether responsive documents are being withheld, and generally must provide a reasonable date certain by which the responsive documents will be produced, if they are not being produced with the responses.  The responding party will also generally need to specify the form in which documents will be produced (i.e., electronic or hard copy). See Fed. R. Civ. P. 34(b)(2).

In another recent decision, issued by a Magistrate Judge in the District of Colorado, the court enforced these new provisions in a long-running case. Specifically, the court took both sides to task, explaining that it was not appropriate to submit “omnibus” requests, and no boilerplate objections were appropriate in response, either. Kissing Camels Camels Surgery Center v. Centura Health Corp., Civil Action No. 12-cv-03012-WJM-NYW, 2016 WL 277721, *2 (D. Colo. Jan. 22, 2016).  The court also permitted the requesting party to specifically identify ten categories of documents in requests for production, and as for those categories, the responding party would have to provide bates ranges to identify the documents. Id. at *4.

Other practical considerations await further consideration by the courts as well:

  • To what extent will the parties’ decisions regarding whether to take a “kitchen-sink” approach in describing their claims and defenses undercut their subsequent arguments as to the proportionality limitations imposed by the rules?
  • Will the courts permit discovery about discovery (particularly, related to the defendant’s information technology and records management systems) to take place as a prequel to determining what discovery is proportional?
  • When negotiating about the scope of a response, and when dealing with the discovery dispute with the court, how much can defense counsel learn (and how much does counsel need to learn) from the relevant information technology professionals? In this respect, more information may be needed to help explain to the requesting party and the court not only how burdensome the request as drafted would be to comply with (in terms of hours needed to assemble, pages of documents, or gigabytes or terabytes, etc.), but also, thinking a few steps ahead in this area could be crucial, so that counsel can accurately explain the potential burden of any likely compromise positions that the court might order, and limit the potential for disproportional discovery to take place because of a lack of information.
  • When expensive, broad discovery is requested, which may only have tangential relationship to the claims at issue, will the courts issue cost-shifting orders to allocate the expenses of discovery under Rule 26(c)(1)(B)?

Other amended rules affect electronically stored information and spoliation, encourage faster case processing, and more direct management by the court. We are looking forward to rulings on those issues as well, to indicate that both litigants and the courts are taking the changes seriously, to encourage better, more effective discovery, as the amended rules promise.

One key will be effective advocacy on those points, where the amended rules change existing practices that many courts and counsel had grown comfortable with over the years, and as such are resistant to change. Beyond the language of the rules, and the cases interpreting them, parties and their counsel seeking to broadly implement the promised changes of the amended rules can find helpful, persuasive language regarding interpretation in many of the advisory committee notes accompanying the amended rules.  Likewise, the American Bar Association’s Section on Litigation has put together a helpful resource with links and analysis of the amended rules. As the courts interpret these rules, parties and their counsel should take advantage of these rules amendments to make the discovery process more efficient and effective.



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