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Unless you have been living under a rock or hypnotized by the recent presidential election, most of the litigating world understands and acknowledges that the Federal Rules of Civil Procedure (FRCP) were amended and adopted on December 1, 2015. Yet, while most practitioners have heard about the FRCP changes, many struggle to advocate strong positions for their clients. From preservation to production, proportionality is the name of the game.

Counsel must work to educate the entire court system (e.g. judges and clerks) to avoid meaningless pre-2015 citations to old rules and outdated case law. Below are just a few tips for moving the ball forward for broader adoption of much-needed proportional standards in litigation.

1. Litigants should quickly point to the death of “reasonably calculated” language and strike at misguided citations to Oppenheimer Fund, Inc. v. Sanders. The scope of discovery is neither liberal nor broad, but 26(b)(1) requires that discovery be proportional.

Requesting parties that define the scope of discovery as “liberal” and “broad” instead of proportional is contrary to the unambiguous language of Rule 26(b)(1), the supporting Advisory Committee Notes, and Chief Justice Roberts’ 2015 Year-End Report on the Federal Judiciary. Rule 26(b)(1) makes explicit that “Parties may obtain discovery… that is relevant to any party’s claim or defense and proportional to the needs of the case….”

Parties must now deploy a two-part “relevant and proportional” analysis to identify the permissible scope of discovery. Judge David G. Campbell, who also serves as chair of the Advisory Committee on the FRCP, recently clarified the scope of discovery under the 2015 Amendments in In re: Bard IVC Filters Products Liability Litigation with two key cites:

  • “The 2015 amendments thus eliminated the “reasonably calculated” phrase as a definition for the scope of permissible discovery. Despite this clear change, many courts continue to use the phrase. Old habits die hard.”
  • “The 2015 amendments also added proportionality as a requirement for permissible discovery. Relevancy alone is no longer sufficient—discovery must also be proportional to the needs of the case.”

Producing parties should be quick to point out that Rule 26(b)(1)’s emphasis on proportionality is so important that courts are sanctioning attorneys for referencing the outdated “reasonably calculated” language, such as in Fulton v. Livingston Fin. LLC.

2. Discovery on discovery is rarely appropriate. Only upon specific evidence of a deficiency should courts consider unduly burdensome discovery on discovery.

In-house counsel know all too well that “discovery on discovery” is the broad range of discovery tactics requesting parties deploy, designed to deflect from merits-focused litigation and onto electronically stored information (ESI) production issues. Courts have historically frowned upon wasteful practice, and litigants should consider these cases:

  • As early as 1998, Judge John M. Facciola explained in Hanan v. Corso that discovery is not usually “itself a fit subject for discovery. To add another level of discovery” by authorizing discovery on discovery “in every case is fraught with peril.”
  • Other courts (such as the Northern District of Texas in Martin v. Allstate Ins. Co.) have prohibited discovery unrelated to the merits, particularly when the party seeking such discovery has not shown the deficiency of its adversary’s discovery efforts.
  • At the very least, courts (like the Southern District of New York in Orillaneda v. French Culinary Inst.) have required a showing of deficiency in discovery with specificity

To avoid discovery on discovery gamesmanship, counsel should consider precocious navigation of ESI protocols, in-depth protective and standing orders while focusing on meeting discovery obligations with lines in the sand based upon proportionality arguments. Counsel should also point out to courts that never in the history of litigation have requesting parties been permitted to over-the-shoulder spot check a producing attorney’s work. The civil litigation system is based upon counsel conducting a “reasonable inquiry” under 26(g)—not perfection.

3. While 26(b)(1) states the scope of proportional discovery, 26(g) mandates that counsel must adhere to the litigation pilings of reasonableness and proportionality—and certify that they are doing so.

Rule 26(g) sets the stage for counsel’s interaction with the court and litigation adversaries. While requesting parties often use broad sweeping words like “every” and “all” in ESI search mandates, the true response requirement under Rule 26(g) requires counsel to conduct a “reasonable inquiry” not a scorched-earth perfect ESI production.

Similarly, Rule 26(g)(1)(B) requires the parties to certify that discovery is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation…” Courts are specifically instructed to reject discovery that is “unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”

Rule 26(g)(3) requires courts to enforce these needlessness and disproportionality prohibitions with an “appropriate sanction.” In 2000, the Northern District of Iowa ruled in St. Paul Reins. Co., Ltd., CNA v. Commercial Fin. Corp. “Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.” Accordingly, a court must impose sanctions against a requesting party that propounds unreasonable requests.

The sanctions mandate of Rule 26(g) adds a proportionality bite to Rule 26(b)(1)’s bark. Counsel should use 26(g) to set the standard of care parties must adhere to when both requesting and producing information.


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Unless you have been living under a rock or hypnotized by the recent presidential election, most of the litigating world understands and acknowledges that the Federal Rules of Civil Procedure (FRCP) were amended and adopted on December 1, 2015. Yet, while most practitioners have heard about the FRCP changes, many struggle to advocate strong positions for their clients. From preservation to production, proportionality is the name of the game.

Counsel must work to educate the entire court system (e.g. judges and clerks) to avoid meaningless pre-2015 citations to old rules and outdated case law. Below are just a few tips for moving the ball forward for broader adoption of much-needed proportional standards in litigation.

1. Litigants should quickly point to the death of “reasonably calculated” language and strike at misguided citations to Oppenheimer Fund, Inc. v. Sanders. The scope of discovery is neither liberal nor broad, but 26(b)(1) requires that discovery be proportional.

Requesting parties that define the scope of discovery as “liberal” and “broad” instead of proportional is contrary to the unambiguous language of Rule 26(b)(1), the supporting Advisory Committee Notes, and Chief Justice Roberts’ 2015 Year-End Report on the Federal Judiciary. Rule 26(b)(1) makes explicit that “Parties may obtain discovery… that is relevant to any party’s claim or defense and proportional to the needs of the case….”

Parties must now deploy a two-part “relevant and proportional” analysis to identify the permissible scope of discovery. Judge David G. Campbell , who also serves as chair of the Advisory Committee on the FRCP, recently clarified the scope of discovery under the 2015 Amendments in In re: Bard IVC Filters Products Liability Litigation with two key cites:

  • “The 2015 amendments thus eliminated the “reasonably calculated” phrase as a definition for the scope of permissible discovery. Despite this clear change, many courts continue to use the phrase. Old habits die hard.”
  • “The 2015 amendments also added proportionality as a requirement for permissible discovery. Relevancy alone is no longer sufficient—discovery must also be proportional to the needs of the case.”

Producing parties should be quick to point out that Rule 26(b)(1)’s emphasis on proportionality is so important that courts are sanctioning attorneys for referencing the outdated “reasonably calculated” language, such as in Fulton v. Livingston Fin. LLC.

2. Discovery on discovery is rarely appropriate. Only upon specific evidence of a deficiency should courts consider unduly burdensome discovery on discovery.

In-house counsel know all too well that “discovery on discovery” is the broad range of discovery tactics requesting parties deploy, designed to deflect from merits-focused litigation and onto electronically stored information (ESI) production issues. Courts have historically frowned upon wasteful practice, and litigants should consider these cases:

  • As early as 1998, Judge John M. Facciola explained in Hanan v. Corso that discovery is not usually “itself a fit subject for discovery. To add another level of discovery” by authorizing discovery on discovery “in every case is fraught with peril.”
  • Other courts (such as the Northern District of Texas in Martin v. Allstate Ins. Co.) have prohibited discovery unrelated to the merits, particularly when the party seeking such discovery has not shown the deficiency of its adversary’s discovery efforts.
  • At the very least, courts (like the Southern District of New York in Orillaneda v. French Culinary Inst.) have required a showing of deficiency in discovery with specificity

To avoid discovery on discovery gamesmanship, counsel should consider precocious navigation of ESI protocols, in-depth protective and standing orders while focusing on meeting discovery obligations with lines in the sand based upon proportionality arguments. Counsel should also point out to courts that never in the history of litigation have requesting parties been permitted to over-the-shoulder spot check a producing attorney’s work. The civil litigation system is based upon counsel conducting a “reasonable inquiry” under 26(g)—not perfection.

3. While 26(b)(1) states the scope of proportional discovery, 26(g) mandates that counsel must adhere to the litigation pilings of reasonableness and proportionality—and certify that they are doing so.

Rule 26(g) sets the stage for counsel’s interaction with the court and litigation adversaries. While requesting parties often use broad sweeping words like “every” and “all” in ESI search mandates, the true response requirement under Rule 26(g) requires counsel to conduct a “reasonable inquiry” not a scorched-earth perfect ESI production.

Similarly, Rule 26(g)(1)(B) requires the parties to certify that discovery is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation…” Courts are specifically instructed to reject discovery that is “unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”

Rule 26(g)(3) requires courts to enforce these needlessness and disproportionality prohibitions with an “appropriate sanction.” In 2000, the Northern District of Iowa ruled in St. Paul Reins. Co., Ltd., CNA v. Commercial Fin. Corp. “Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.” Accordingly, a court must impose sanctions against a requesting party that propounds unreasonable requests.

The sanctions mandate of Rule 26(g) adds a proportionality bite to Rule 26(b)(1)’s bark. Counsel should use 26(g) to set the standard of care parties must adhere to when both requesting and producing information.


Join thousands of legal leaders at the only legal event that brings together the entire legal team to drive the business of law forward!

Introducing Legalweek, The Experience. Taking place January 31 – February 2, 2017 at the Hilton Midtown, NY, Legalweek brings together the entire team that manages the business of law through seven strategic areas of focus. Learn more about how Legalweek can help you face the biggest challenges and issues facing legal professionals.