Unnecessarily broad discovery has become a serious problem for companies embroiled in litigation. Commercial parties often must incur exorbitant costs to collect and produce huge volumes of documents, sometimes millions of pages in a single case. Recent amendments to Federal Rule of Civil Procedure 26(b)(1) clarified the scope of permissible discovery, limiting discovery to matters that are both “relevant to any party’s claim or defense” and “proportional to the needs of the case.” Institution of the amended Rule 26(b)(1) has led to cautious hope that courts would recognize their ability assert more control over the discovery process and address the problem of burdensome discovery. In two recent cases, courts have invoked the proportionality factor to restrict discovery, suggesting that the new amendments may produce a significant impact on discovery practices.
In Pertile v. General Motors, LLC, (D. Colo. March 17, 2016), U.S. Magistrate Judge Nina Y. Wang denied a discovery request for proprietary computer models developed by General Motors related to the development of vehicle components and systems. The plaintiffs, who had asserted product liability claims aimed at the design of a Chevrolet truck in which they were injured, argued the computer models were relevant to their claims because they would reflect information available to General Motors during the vehicle design process. General Motors, in opposing the discovery, argued that it had already produced 150,000 pages documents including engineering reports derived from the models. Significantly, the parties agreed that the computer models were relevant to the plaintiffs’ claims at issue.
The Court’s analysis focuses on whether access to the computer models was necessary to the plaintiff’s case. Judge Wang observes that the requested computer models did not necessarily show information General Motors knew when designing the truck and that information showing what General Motor’s knew or should have known during the design process was reflected in engineering reports and CAD drawings that General Motors had already produced. Based on these findings, the Court concludes that the production of the modeling technology was “not proportional” and outside the scope of discovery.
Even more recently, U.S. District Judge David G. Campbell used the proportionality factors set forth in amended Rule 26(b)(1) as the basis for denying a request for discovery. In re Bard IVC Filters Products Liability Litigation, (D. Ariz. Sept. 16, 2016) addressed discovery of information held by a corporate defendant’s foreign divisions and subsidiaries. Judge Campbell, who chaired the Federal Rules Advisory Committee during the 2015 amendment process, begins the analysis by noting that the 2015 amendments eliminated from Rule 26(b)(1) the phrase that discovery extended to inadmissible evidence if it “appears reasonably calculated to lead to the discovery of admissible evidence.” That purposeful deletion sought to clarify that the scope of permissible discovery is limited to relevant evidence. Proportionality adds another constraint. As Judge Campbell notes, “Relevancy alone is no longer sufficient – discovery must also be proportional to the needs of the case.”
Applying this understanding of the scope of allowable discovery to the specific document requests at issue, the Court first examines the relevancy of the materials sought and concludes that, for plaintiffs who were exposed and allegedly injured by the defendant’s product within the United States, documents reflecting communications and actions taken by the foreign divisions and subsidiaries would have only marginal evidentiary value and such discovery would “be only potentially relevant.” As to proportionality considerations, the process of gathering the requested materials in more than a dozen countries spread across five different continents would entail a substantial burden and considerable expense. Given the limited value of such discovery to the claims asserted, as well as the likely overlap of those materials with documents already produced in the case, Judge Campbell ruled that “the proposed discovery is not proportional to the needs of the case.”
The Pertile and Bard orders suggest that federal courts have begun to shift their perspective on discovery and may be more willing to impose meaningful limits following the 2015 amendments. While the concept of proportionality in discovery has been a part of the federal rules for some time, it appears the 2015 amendments are inciting courts to address these considerations with fresh eyes.