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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:
Fed. R. Civ. P. 26(b)(2)(c)(iii).
In a recent product liability MDL 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:
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.