The eDiscovery frenzy that has gripped the American legal system over the past decade has become increasingly expensive. Particularly costly to both clients and courts is the process of preserving, collecting and producing documents. This was supposed to change after the Federal Rules of Civil Procedure (FRCP) were amended in 2006. After all, weren’t the amended rules designed to streamline discovery, allowing parties to focus on the merits while making discovery costs more reasonable? Instead, it seems the rules have spawned more collateral discovery disputes than ever before about preservation, collection and production issues.
As a solution to these costs, the eDiscovery cognoscenti are emphasizing the concept of “proportionality.” Proportionality typically requires that the benefits of discovery be commensurate with its corresponding burdens. Under the Federal Rules of Civil Procedure, the directive that discovery be proportional is found in Rules 26(c), 26(b)(2)(C) and Rule 26(b)(2)(B). Under Rule 26(c), courts may generally issue protective orders that limit or even proscribe discovery that causes “annoyance, embarrassment, oppression, or undue burden or expense.” More specifics are set forth in Rule 26(b)(2)(C), which enables courts to restrict discovery if the requests are unreasonably cumulative or duplicative, the discovery can be obtained from an alternative source that is less expensive or burdensome, or the burden or expense of the discovery outweighs its benefit. In the specific context of electronic discovery, Rule 26(b)(2)(B) restricts the discovery of backup tapes and other electronically stored information that are “not reasonably accessible” due to “undue burden or cost.”
Despite the existence of these provisions, they are often bypassed. The most recent and notable example of this trend is found in Pippins v. KPMG (S.D.N.Y. Oct. 7, 2011). In Pippins, the court ordered the defendant accounting firm to continue preserving thousands of employee hard drives. In so doing, the court sidestepped the firm’s proportionality argument, citing Orbit One v. Numerex (S.D.N.Y. 2010) for the premise that such a standard is “too amorphous” and therefore unworkable. Regardless of cost or burden, the court reasoned that “prudence” required preservation of all relevant materials “until a more precise definition [of proportionality] is created by rule.”
The Pippins order and its associated costs for the firm – potentially into the millions of dollars – has given new fuel to the argument that an amended federal rule should be implemented to include a more express mandate regarding proportionality. Surprisingly enough, a blueprint for such an amended rule is already in place in the State of Utah. Effective November 1, 2011, Utah implemented sweeping changes to civil discovery practice through amended Civil Procedure Rule 26. The new rule makes proportionality the standard now governing eDiscovery in Utah.
Proportionality Dictates the Scope of Permissible Discovery
Utah Rule 26 has changed the permissible scope of discovery to expressly condition that all discovery meet the standards of proportionality. That means parties may seek discovery of relevant, non-privileged materials “if the discovery satisfies the standards of proportionality.” This effectively shifts the burden of proof on proportionality from the responding party to the requesting party. Indeed, Utah Rule 26(b)(3) specifically codifies this stunning change: “The party seeking discovery always has the burden of showing proportionality and relevance.” This stands in sharp contrast to Federal Rules 26(b)(2) and 26(c), which require the responding party to show the discovery is not proportional.
The “standards of proportionality” that have been read into Utah Rule 26 incorporate those found in Federal Rule 26(b)(2)(C). In addition, Utah Rule 26 requires that discovery be “reasonable.” Reasonableness is to be determined on the needs of a given case such as the amount in controversy, the parties’ resources, the complexity and importance of the issues, and the role of the discovery in addressing such issues. Last but not least, discovery must expressly comply with the cost cutting mandate of Rule 1 and thereby “further the just, speedy and inexpensive determination of the case.”
Proportionality Limits the Amount of Discovery
To further address the burdens and costs of disproportionate discovery, Utah Rule 26(c) limits the amount of discovery that parties may conduct as a matter of right based on the specific amounts in controversy. For those matters involving damages of $300,000 or more, parties may propound 20 interrogatories, document requests and requests for admissions. Total fact deposition time is restricted to a mere 30 hours. For matters between $50,000 and $300,000, those figures are halved. And for matters under $50,000, only five document requests and requests for admissions are allotted to the parties. Fact depositions are curtailed to three hours total per side, while interrogatories are eliminated.
If these limits are too restrictive, parties may request “extraordinary discovery” under Rule 26(c)(6). However, any such request must demonstrate that the sought after discovery is “necessary and proportional” under the rules. The parties must also certify that a budget for the discovery has been “reviewed and approved.”
A Potential Model for Federal Discovery Rule Amendments
Utah Rule 26 could perhaps serve as a model for amending the scope of permissible discovery under the Federal Rules. Like Utah Rule 26, Federal Rule 26 could be amended to expressly condition discovery on meeting the principles of proportionality. The Federal Rules could also be modified to ensure the propounding party always has the burden of demonstrating the fact specific good cause for its discovery. Doing so would undoubtedly force counsel and client to be more precise with their requests and do away with the current regime of “promiscuous discovery.” Calcor Space Facility, Inc. v. Superior Court, 53 Cal.App.4th 216, 223 (1997) (urging courts to “aggressively” curb discovery abuses which, “like a cancerous growth, can destroy a meritorious cause or defense”).
Tiering the amounts of permitted discovery based on alleged damages could also reduce the costs of discovery. With limited deposition time and fewer document requests, discovery of necessity would likely focus on the merits instead of eDiscovery sideshows. Coupling this with an “extraordinary discovery” provision would enable courts to exercise greater control over the process and ensure that genuinely complex matters are litigated efficiently.
If all of this seems like a radical departure from established discovery practice, consider that the new Model Order on E-Discovery in Patent Cases has also incorporated tiered and extraordinary discovery provisions. See DCG Systems v. Checkpoint Technologies (N.D. Ca. Nov. 2, 2011) (adopting the model order and explaining the benefits of limiting eDiscovery in patent cases).
For those who are seeking a vision of how proportionality might be incorporated into the Federal Rules, new Utah Rule 26 could be a blueprint for doing so.