The Dec. 1, 2015 amendment to Federal Rule of Civil Procedure 26(b) offers employers and their counsel a powerful new weapon to attack overreaching written discovery by demonstrating that the burden of the discovery request is disproportionate to the needs of the case.

The general objection itself isn’t new – in fact, it has been around for decades – but it has been underutilized by counsel and federal judges. The disproportionality objection is particularly important to employment defense counsel, who often face onerous fishing expeditions by plaintiffs who possess few documents and are insensitive to discovery costs. However, mere boilerplate objections will be disregarded. Instead, under revised Rule 26(b), counsel must precisely describe the burden of the request and explain with particularity why it outweighs the likely benefit (if any) to the case.

Revised Rule 26(b)

The new Rule 26(b) expressly makes “proportionality” a limit on the scope of discovery. The rule does away with the notion that information is discoverable merely because it is arguably “relevant to the subject matter involved in the action.” The amended rule instead provides:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, 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.

Proportionality and Prior Rule 26 Practice

Proportionality ought to be old news. Since 1983, Rule 26(b)(1)(C)(3) has required courts to limit discovery in light of the very criteria now found in the new Rule 26(a). Although Rule 26(b) did not use the term “proportional,” the committee notes explain that the 1983 amendments were designed to address the problem of disproportionate discovery. Courts have since recognized Rule 26(b)’s “implicit requirement of proportionality.” See, e.g.Uppal v. Rosalind Franklin Univ. of Med. & Sci., 2015 U.S. Dist. LEXIS 112705, at *9 (N.D. Ill. Aug. 26, 2015). Further, by signing a discovery request, counsel already certify under Rule 26(g)(1)(B)(iii) that the request is proportionate to the needs of the case.

Why put proportionality into the scope of discovery now? The amendment is intended to address dissatisfaction with the perceived failure of courts to insist on proportionality in discovery. See S. Gensler & L. Rosenthal, Four Years After Duke: Where do We Stand on Calibrating the Pretrial Process?, 18 Lewis & Clark L. Rev. 643, 645-646 (2014). Incorporating the proportionality factors into Rule 26(a) “make[s] them more prominent, encouraging parties and courts alike to remember them and take them into account in pursuing discovery and deciding discovery disputes.”Report of the Duke Conference Subcommittee at 6, Advisory Committee on Civil Rules, April 10-11, 2014.

The Advisory Committee Notes and Case Law Guidance

The advisory committee notes to the 2015 amendments advise that the amendment “does not place on the party seeking discovery the burden of addressing all proportionality considerations.” It follows that the party seeking discovery bears the burden of addressing some proportionality considerations, but which ones?

The advisory committee notes offer guidance, based on the parties’ relative access to information:

  • Historically, the party alleging undue burden must demonstrate that the burden of producing the requested information would outweigh its beneficial value, and that remains the case. The committee notes explain that “[a] party claiming undue burden or expense ordinarily has far better information − perhaps the only information − with respect to that part of the determination.”
  • On the other hand, whether the burden of a request is “undue” depends largely on its expected benefit, which falls to the discovering party to explain: “[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.”

The advisory committee notes do not, however, explain who must prove that (a) the amount in controversy, or (b) the importance of the issues at stake in the litigation favor (or don’t favor) the requested discovery. Further, twenty years of litigation have not greatly illuminated these factors:

  • Courts have observed that potential damages in wage and hour collective/class actions, or EEOC lawsuits challenging an employer’s hiring practices, may be “significant” and therefore warrant more extensive discovery.
  • See, e.g.Dunkel v. Warrior Energy Servs., Inc., No. 2:13-cv-00695, 2015 U.S. Dist. LEXIS 73070, at *3 n.1 (W.D. Pa. June 5, 2015) (a FLSA/Rule 23 hybrid action, noting that 400 plaintiffs with potential damages of over $100,000 each would make a “really big case” and granting defendant’s request for additional discovery regarding actual and potential claimants);EEOC v. Dolgencorp, No. 13-cv-4307, 2014 U.S. Dist. LEXIS 102933, at *7 (N.D. Ill. July 29, 2014) (ordering production of information estimated to cost 160 man-hours and $16,000, where potential back pay at stake in a challenge to criminal background check practices that affected approximately 25,000 employees was deemed “significant”).
  • On the other hand, the amount in controversy in a single-plaintiff case may be “relatively small” and counsel against expansive discovery.
  • See, e.g.Patterson v. Avery Dennison Corp., 281 F.3d 676, 682 (7th Cir. 2002) (holding that the district judge did not err in refusing plaintiff’s request to depose a high-ranking corporate executive in defendant multinational corporation where the single plaintiff’s damages presented a “relatively small amount in controversy”); Thompson v. Workmen’s Circle Multicare Ctr., No. 11-civ-6885, 2015 U.S. Dist. LEXIS 74528, at *33 (S.D. N.Y. June 9, 2015) (denying plaintiff’s request for a forensic review of defendant’s email production where, among other things, plaintiff’s $17.34 per hour rate of pay for a 35-hour workweek resulted in a “relatively low” amount in controversy).
  • Very little guidance exists regarding what constitutes the middle ground between “significant” and “relatively small.” Counsel, therefore, must be prepared with facts to educate opposing counsel and the court as to why the likely damages in a given case do not justify the expected cost of invasive discovery requests.
  • “Employment practices” are generally thought of as an important area of public policy, and the committee notes observe that employment practices may have importance beyond the monetary amount involved. Of course, the fact that employment policy is important does not afford plaintiffs’ counsel carte blanche to conduct invasive discovery in all cases. Thus, defense counsel should be prepared to educate opposing counsel and the court that the employment decision complained of represents an isolated decision by a low-level supervisor or otherwise does not implicate any of the defendant’s generally applicable employment practices, such that public policy or broader interests are not at stake.
  • In multi-plaintiff or class /collective litigation with a significant amount in controversy and potentially broad employment practice or policy implications, defense counsel should focus on the anticipated costs of overreaching discovery and be prepared to offer more efficient, equally-probative alternatives.

Best Discovery Practices

So what should counsel do in light of new Rule 26(b)? The best practices under the old rule remain the best practices now:

  • Counsel should be prepared for more focused discussion of the anticipated scope of discovery (and discovery costs) at the Rule 26(f) conference and Rule 16 hearing. Courts have already recognized that “counsel should address the proportionality factors during the Rule 26(f) conference.” Witt v. GC Servs. Ltd. P'ship, 307 F.R.D. 554, 560-561 (D. Colo. 2014). This will require discussion with the client about the accessibility of potential sources of discovery and associated costs.
  • In an ordinary employment case, information asymmetry means that defense counsel has a much greater opportunity and obligation to develop facts regarding the burden and benefit of invasive discovery. The expense to a plaintiff or plaintiffs of producing all potentially discoverable information they possess may be negligible, while the corresponding burden and expense to an employer may be crippling.
  • Critically, boilerplate objections that requested discovery is “disproportionate” will (still) not suffice. The advisory committee notes specifically call out the practice of interposing boilerplate objections as improper: “[n]or is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional.” Objections should state specifically why the burden of locating and producing the requested information is high, including where possible a description of the efforts that would be required and an estimate of their costs. Counsel should also concisely explain why the requested information is of little or no value to the litigation.