The Concept of Proportionality in the New Federal Rules of Civil Procedure

November 19, 2015

FCRP updateThe changes in discovery practice in the Federal Rules of Civil Procedure that will go into effect December 1 seem to center on a concept of “proportionality,” which is mentioned very prominently in new Rule 26(b): the disclosures are to be “proportional to the needs of the case.”   The concern among plaintiffs’ lawyers is that the courts will read too much into this concept.

Take, for example, a product liability case, where a plaintiff claims an injury from a medical device.  Her discovery production might be a few hundred pages, mainly medical records.  She seeks from defendant all of its records relating to the design, testing, manufacturing, and sale of the device, together all side effect reports.

The defendant tells the court the plaintiff’s  proposed discovery involved an estimated 1.5 million pages, all ESI (electronically stored information), and that it will be very expensive, perhaps hundreds of thousands of dollars, to collect it and make it available on a hard drive for the plaintiff. If the concept of “proportionality” were to be taken literally by the court, it might order that defendant provide a few hundred pages itself, perhaps focused on one issue, and that the balance of discovery be paid for by the party seeking it.

Fortunately, the revisers of Rule 26(b) have added five factors that the court is to consider in making its rulings. Several of these factors can be utilized by plaintiffs to attempt to level the playing field.  Main among these is “the parties’ relative access to relevant information” and “the parties’ resources” (keeping in mind the party is the plaintiff and not her law firm).  Other factors may not be so helpful,  such as “whether the burden or expense of the proposed discovery outweighs its likely benefit.”

It is inherent in product liability litigation that the defendant is in possession of the information the plaintiff needs to support her case.  This is in contrast to a business versus business law suit, let’s say involving a patent  infringement claim, where there is general equality of information and resources.  In the tort case, counsel should feel free to point to the inherent asymmetry and the need for information, to be produced by the defendant.

In the mass tort setting, as I discuss in my book, chapter 8, there is more symmetry in the discovery, since the hundreds or thousands of plaintiffs are a counterbalance to the discovery sought from the defendant.  Nonetheless the changes to Rule 26 and other rules going into effect  will affect discovery in ways which will play out over the next few years as the courts apply them to individual cases.

Titles by This Paul Rheingold