Walking out of the Constitutional Convention on its final day, back in 1789, Benjamin Franklin was (supposedly) asked what kind of government he had helped create for the new entity to be known as the “United States of America.”  He replied, “A republic – if you can keep it.”  

We find ourselves with a similar feeling regarding the amendments to the federal discovery rules that we’ve blogged about previously.  Whatever else anyone, on either side of the “v.,” might think of last month’s election result, the Republican capture of the Senate ended the last realistic prospect of derailing those amendments – which have passed every level of the judicial committee structure unanimously and now rest with the Supreme Court.  Among other things, these amendments enshrine the requirement that discovery be “proportional to the needs of the case” squarely in Rule 26(b)(1)’s definition of the scope of discovery, intentionally emphasizing a concept previously buried deep within Rule 26.  They should be in effect by December, 2015.

The other side hates it.  They lost, badly, on these amendments, but don’t expect them to give up.  Defense counsel need to anticipate where plaintiffs will try to go next – which is to try to make the proportionality requirement so costly and impractical that everyone, judges and defendants both, gives up on proportionality as a meaningful restriction on discovery.  That approach would be a direct violation of the intent of both the purposes of the proportionality requirement itself and of Rule 1 (which is also being amended), but are you really surprised by that?

The proportionality requirement reads in full:

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 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.

Thus, under the amended Rule 26(b)(1), “proportionality” is determined by the consideration of several factors.

What plaintiffs are planning to pull next, if their statements at recent discovery-related conferences is any guide, is to demand “evidence” pertaining to those aspects of proportionality that pertain to the defense-side criteria.

Those of us who practice in Pennsylvania have to put up with ridiculous procedural contrivances like preliminary objections to preliminary objections.  The concept plaintiffs are likely to push concerning proportionality – discovery about the scope of discovery – is equally ludicrous; more, actually, since the entire purpose of the proportionality requirement is to reduce the amount of discovery, not increase it.

Expect plaintiffs to use proportionality as an excuse to demand information about the details of defendants’ electronic data systems.  Expect plaintiffs to demand information about the cost of a defendant’s chosen discovery compliance techniques (electronic and otherwise).  Expect plaintiffs to begin second-guessing whether defendants are complying with discovery in the most cost efficient manner.  Don’t let them.

The premise for such discovery demands is absurd and pretextual.  Anyone and everyone who has litigated the right side of the “v.” knows that, for as long as we’ve been practicing law, our clients have diligently used any technique available to reduce discovery costs, and have pushed us and our outside vendors to invent quite a few new techniques.  Throughout the same period, plaintiffs have just as determinedly done everything they can to jack up those costs because their leverage increases with every penny they can make our clients spend.  The contention that “proportionality” somehow changes the fundamental dynamic that our clients like to save money makes no economic sense.  With or without proportionality, every discovery dollar saved by a client through more efficient discovery remains a dollar saved. It’s the total dollars spent that proportionality aims to reduce.

Also, the moment the other side starts second-guessing a client’s data management or compliance techniques under the guise of proportionality, we should take the dialogue back to first principles.  For many years ediscovery in particular has been influenced, if not directly governed, by the “best practices” laid out in the Sedona Principles .  Those principles include:

Sedona Principle 6:

Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

In other words, plaintiffs have no right to the sort of inquiry described above.

There’s a limit to what we can recommend that defendants do ahead of time, but any sort of generalized second-guessing of defense compliance and data management is directly contrary to fundamental discovery principles that every federal judge, by now, undoubtedly knows about (and most have probably cited).

Don’t be shy about telling the Court what to expect from the other side, and why they’re doing it.  If they are deterred (we doubt it, but one can always hope), so much the better.  Tell your clients what to expect.  Write articles about it.  Feel free to crib anything that we say here and embellish on it.  We don’t care about being cited or credited.  Our philosophy remains “a defense win anywhere helps defendants everywhere.”  That’s enough for us.