How Courts Are Handling the Proportionality Requirements of Rule 26(g)

–by Steven Yurkonis

Sources: Fed. R. Civ. P. 26 (2015); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357 (D. Md. 2008).

Abstract: The changes to discovery procedures in the Federal Rules of Civil Procedure have been in effect for over a year. This article evaluates the impact of the revised Rule 26 proportionality requirement and the mandatory sanctions for failure to comply.

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On December 1, 2015, the amendments to the Federal Rules of Civil Procedure went into effect that brought a number of changes to the way that discovery is handled in a federal civil case. One of the changes was to focus discovery and avoid wasteful spending.

Rule 26(b)(1) outlines the scope, or what is included, in discoverable information. The biggest change that came with the amendment was the inclusion of the proportionality requirement. The rule now states that the discovery must be “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.”

This proportionality requirement is not new to the discovery rules, as the movement of the proportionality requirement to 26(b) reinforces the Rule 26(g) requirement that attorneys consider the above factors prior to making discovery requests and objections. This has had the effect of either not changing much of anything, or changing everything in the way the courts have handled discovery disputes. The rule now requires that sanctions must be used if discovery is done for improper purposes.

This requirement of mandatory sanctions is a form of judicial supervision over carelessness and intentional gaming in discovery. In one of the seminal cases on this rule, Mancia v. Mayflower Textile, United States District Court Judge Grimm discussed how discovery abuses led to the changes in Rule 26 and the mandatory sanctions. He discussed how “kneejerk” requests and responses for discovery that are overbroad is a common practice and must be put to an end. Simply bringing it to the forefront of litigants’ minds may be enough to stop these types of requests.

Even worse than reactional and not-thought-out requests are intentional gaming of discovery, such as the classic “document dump” in discovery intended to bury opposing litigants in work. These types of actions now require sanctions by the judge, although the judge has discretion to impose the level of sanctions he or she considers necessary.

Ultimately we haven’t seen how the amendments are going to change discovery overall because there hasn’t been enough time for it to play out in the courts, but within the next year or two we should have more of an idea of how judges and litigants are going to respond to the proportionality requirement and the mandatory sanctions.

Posted in Civil Practice, Legal Pulse