Demystifying The “New” Proportionality Requirement For Rule 26 Civil Discovery

Demystifying The “New” Proportionality Requirement For Rule 26 Civil Discovery

On December 1, 2015, the latest amendments to the Federal Rules of Civil Procedure took effect.  The most significant changes was an amendment to Federal Rule of Civil Procedure 26(b)(1), which defines the scope of permissible discovery.  Gone is the familiar phrase used in discovery arguments for years:  the  “reasonably calculated to lead to the discovery of admissible evidence” standard.  The new standard calls for “proportionality” of discovery requests and explicitly mandates the discovery to be tailored to the needs of the case based on a cost-benefit analysis.  The new text of Rule 26(b)(1) provides:

Parties may obtain discovery that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to 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.  Information within this scope of discovery need not be admissible in evidence to be discoverable.

The Advisory Committee Notes explain that under the revised Rule “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”  See Adv. Comm. Notes to 2015 Amendment to Rule 26(b)(1). Although the new proportionality standard has caused some uncertainty among litigators, the first district courts to reach it have not used it to change discovery practices dramatically, but have treated it as a clearer expression of a preexisting policy.  Dao v. Liberty Life Assurance Co. of Boston, No. 14-CV-04749-SI (EDL), 2016 WL 796095, at *3 (N.D. Cal. Feb. 23, 2016).  In fact, as the court in Gilead Scis., Inc. v. Merck & Co, Inc., 2016 WL 146574, at *1 (N.D. Cal. Jan. 13, 2016) explained, the proportionality in discovery under the Federal Rules is nothing new.  Id.  Old Rule 26(b)(2)(C)(iii) clear stated that a court could limit discovery when burden outweighed benefit, and old Rule 26(g)(1)(B)(iii) mandated that a lawyer was obligated to certify that discovery served was not unduly burdensome.  Id.  New Rule 26(b)(1) simply takes the factors explicit or implicit in these old requirements to describe the legitimate scope of all discovery demands in the first instance.  Id.  Thus, the amended Rule may not be substantially different from the previous “reasonably calculated to lead to the discovery of admissible evidence” standard.  What is different, as the Committee Notes make clear, is that the revised Rule places an explicit requirement and 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.  See Adv. Comm. Notes to 2015 Amendment to Rule 26(b)(1), see also Starline Windows Inc. v. Quanex Bldg. Prod. Corp., No. 15-CV-1282-L (WVG), 2016 WL 4485568, at *9 (S.D. Cal. Aug. 19, 2016), Salazar v. McDonald’s Corp., No. 14-CV-02096-RS (MEJ), 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016), Goes Int’l, AB v. Dodur Ltd., No. 14-CV-05666-LB, 2016 WL 427369, at *1 (N.D. Cal. Feb. 4, 2016).  Other words, although the differences between the old Rule and the new Rule may be subtle, under the explicit requirement of the new Rule the litigators should be prepared to conduct a cost benefit analysis while propounding and responding to the discovery in the first instance, and not just once a dispute over burden or proportion raises.  We can only hope that such analysis will result in more efficient and less expensive discovery phase.

Evelina Gentry

Evelina Gentry is an associate with Brown White & Osborn LLP.She specializes in both federal and state civil litigation with focus on civil rights, bankruptcy, and First Amendment issues.