Proportionality — don’t overlook Rule 26(b)(2)(C) when attempting to control your e-discovery costs

April 15th, 2010 | By Steve Puiszis

Bellinger v. Astrue, 2010 WL 1268063 (E.D.N.Y. April 2, 2010)

Some lawyers take a “Turkish Bazaar” approach to discovery requests, seeking more than they really need while willing to negotiate down to what they want. Other lawyers lace their otherwise reasonable discovery requests with magnifying terms such as “any and all,” “touching upon,” or “relating to” a particular topic or subject matter.

Lawyers responding to these types of requests will typically, and rightfully, object to the requests as being overbroad and unduly burdensome. Principle 1.03 of the Seventh Circuit’s Electronic Discovery Pilot Program further provides that requests for production of electronic information should be “reasonably targeted, clear and as specific as practicable.” That principle provides another basis to object to burdensome discovery requests.

But how many lawyers think to raise Rule 26(b)(2)(C)’s proportionality standard when addressing a burdensome discovery request? Rule 26 applies to all discovery, not just to inaccessible information. Attorneys who fail to consider Rule 26’s proportionality standard are overlooking an important tool in controlling ediscovery costs, as the decision in today’s post explains.

Bellinger involved a Title VII claim in which plaintiff alleged that she was denied a promotion and received unequal pay because of her gender. In discovery, plaintiff sought “detailed information about the job status and career histories” of various groups of other employees. The district court sustained the defendant’s objection, noting that the burden of complying with the interrogatory seeking this information was “substantial” and that “[t]he likely benefit of the discovery . . . is slight or non-existent, particularly in light of the narrow scope of plaintiff’s claims and the broad range of discovery that has already been produced.”

Additionally, plaintiff in Bellinger sought “detailed and technically complex” information about the defendant’s electronically stored information. Again, notions of proportionality prevailed. The court concluded that responding to those interrogatories would be “extremely burdensome” and that the information sought in those interrogatories was “unlikely to be of significant value, especially in light of the discovery that the defendant has already provided.”

Practical tips for asserting Rule 26(b)’s proportionality standard

Rule 26(b)(2)(C) provides:

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden of expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Bellinger is one example of how Rule 26(b)’s proportionality standard can be applied to supplemental discovery requests. When raising a proportionality objection to a supplemental discovery request, counsel should endeavor to provide the court with specific information as to the costs and burdens of the discovery that has already been provided as well as the anticipated costs of the supplemental discovery response. Be specific, do not provide the court with broad generalizations as to the costs and burdens involved. In addition to the anticipated cost of responding to this supplemental discovery, provide the court with information as to the number of pages or documents produced in discovery, the number of depositions that have been taken and the actual expense the client has already incurred in preserving and producing information in connection with your opponent’s prior discovery requests.

Raising a proportionality objection during the early stages of a case when the client may incur significant costs responding to the initial discovery requests can be more complicated. One of the factors that a court is required to take into consideration under Rule 26(b)(2)(C)(iii) is “the amount in controversy.” Frequently, that is unknown to defense counsel. There is no amount-in-controversy requirement with federal question jurisdiction, Arbaugh v. Y& H Corp., 546 U.S. 500 (2006), and diversity jurisdiction only requires pleading that the amount in controversy exceeds $75,000, exclusive of interest and costs under 28 U.S.C. §1332. However, there are options available when raising a proportionality objection.

One option is to borrow a page from Judge Paul Grimm’s playbook in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (E.Md. 2008). Judge Grimm in Mancia noted that the record before him lacked the type of factual information he needed to make a proportionality determination. Therefore, he ordered counsel to meet and confer as to the likely range of provable damages that could be foreseeably awarded to the plaintiffs if they prevailed at trial. 253 F.R.D. at 364. Because your opponent is likely to provide an inflated value as to a case’s worth at the outset of any lawsuit, try thinking outside the box when considering this option.

Many district judges are more than willing to provide as much case management to a given matter that the parties request. Consider asking the court to require each side to provide the same type of information ordered by Judge Grimm in Mancia. Also, review 15 U.S.C. §6607 for specific guidance. There, Congress required a party provide “specific information as to the nature and amount of each element of damages [being claimed] and the factual basis for the damages calculation” in a statement that accompanied any pleading in a Y2K action. Such a paper, signed by counsel after having been ordered by the court is more likely to contain a realistic evaluation of the amount in controversy than if you simply solicited a settlement demand from opposing counsel.

Should a district court be unwilling to supplement its typical case management procedures and require the provision of this type of information, provide the court with information about verdicts and settlements in similar cases. In the absence of reported verdict or settlement information, provide your considered opinion as to the recoverable damages when arguing your opponent’s discovery requests are not proportional. Don’t forget to address the other Rule 26 factors that a court must consider, including the needs of the case, the importance of the issues at stake in the litigation, and the importance of the discovery in resolving those questions.

Years earlier, Judge Easterbrook of the Seventh Circuit Court of Appeals foresaw the very problem confronting Judge Grimm in Mancia. Judge Easterbrook then wrote:

The plaintiff files a sketchy complaint . . . and discovery is launched. A judicial officer does not know the details of the case the parties will present and in theory cannot know the details. Discovery is used to find the details. The judicial officer always knows less then the parties, and the parties themselves may not know very well where they are going or what they expect to find. . . . Judicial officers cannot measure the costs and benefits to the requestor and so cannot isolate impositional requests. Requestors have no reason to disclose their own estimates because they gain from imposing costs on rivals (and may lose from an improvement in accuracy). The portions of the Rules of Civil Procedure calling on judges to trim back excessive demands, therefore, have been, and are doomed to be, hollow. We cannot prevent what we cannot detect; we cannot detect what we cannot define; we cannot define “abusive” discovery except in theory, because in practice, we lack essential information.

Frank H. Easterbrook, Discovery As Abuse, 69 B.U.L.Rev. 635, 638-39 (1989).

Until some obvious gaps in the Rules are filled, it is up to counsel to seek creative approaches to provide the court with information relevant to a proportionality analysis. Putting the time and effort at the front end should certainly save your client significant costs, especially when addressing the costs and burdens of electronically stored information.

Unlike attempting to buy a rug at a Turkish Bazaar, in federal court you cannot simply walk away from your opponent’s unreasonable demands. Be sure not to overlook the important tool Rule 26(b)(’s) proportionality standard provides in attempting to control the burdens and costs of ediscovery in your cases.

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