The Proportionality Standard: Reasonably Calculated to Lead to Efficient Civil Discovery in Federal Court

Winter 2017
Kelly Calder Mowen
Voice of The Civil Defense Bar, Defense Trial Counsel of West Virginia

As practitioners know, the scope of discoverability under the Federal Rules of Civil Procedure was amended in December 2015; the standard that a request needed to be “reasonably calculated to lead to the discovery of admissible evidence” was omitted and the definition of discoverability became circumscribed by proportionality. Under amended Rule 26, parties may obtain discovery of relevant, nonprivileged information so long as the information sought is 

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 discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1) (Dec. 1, 2015). Of course, proportionality in conducting discovery is not a new or novel concept – proportionate discovery has been embedded in the rules since 1983. The question, then, is whether this “new” proportionality standard makes any difference for discovery moving forward. After nearly a year since this rule came into effect, and even though some courts have viewed amended Rule 26(b)(1) as a fresh coat of paint on the same old house, the answer is “yes.”

The purpose behind this amendment was to streamline discovery. Comments to the amended rule establish that implementing the proportionality test and erasing the “reasonably calculated” language in Rule 26(b)(1) was designed to curb costly discovery and protect against fishing expeditions and obstructive tactics. See, e.g., 2015 Advisory Committee Notes to Rule 26(b)(1). Indeed, the amendments came into effect in large part due to the increased prevalence of e-discovery; costs ballooned as information and documents (emails, shared files, etc.) multiplied in virtually every sector. See id. Many commenters have opined that the change to Rule 26(b)(1) was to remind courts (and, more importantly, litigants) that proportionality is the gold standard in determining whether a discovery request should be enforced. See, e.g., Sibley v. Choice Hotels Int’l, 2015 WL 9413101, at *2-3 (E.D. N.Y. Dec. 22, 2015). In fact, as noted in multiple district court opinions, the change to the rule was not so much about creating a new test as it was to restoring to prominence the proportionality requirement, which has been present in Rule 26 for the last thirty years. See id.; and see Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 n.2 (W. D. Va. 2016); and Vaigasi v. Solow Mgt., 2016 WL 616386, at *13 (S.D.N.Y., Feb. 16, 2016). 

Several opinions from the United States District Court for the Southern District of West Virginia have emphasized the proportionality standard under the new Rule 26(b) as a limitation on the scope of discoverability. See, e.g., Scott Hutchinson Enters., Inc. v. Cranberry Pipeline Corp., 2016 WL 5219633, at * 2 (S.D. W. Va. Sept. 20, 2016) and see In re: Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., 2016 WL 4411506, at *3 (S.D. W. Va. Aug. 17, 2016). Judge Eifert, while observing that the discovery rules overall remain subject to broad and liberal construction, has noted that “the recent amendment to Rule 26(b)(1) reminds parties that discovery must also be proportional to the needs of the case, . . . [t]his rule cautions that all permissible discovery must be measured against the yardstick of proportionality.” In re: Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., 2016 WL 4411506, at *3 (internal citations and quotations omitted).

Amended Rule 26(b)(1) has not been discussed at length by the United States District Court for the Northern District of West Virginia, but Judge Stamp has described the amendment as “explicitly incorporating proportionality into the scope of discoverability.” Trans Energy, Inc. v. EQT Production Co., 2016 WL 355492, at * 1 (N.D. W.Va. Jan. 1, 2016). We can (and should) expect additional opinions interpreting and applying the proportionality standard in discovery disputes, particularly since the amended rule was not required to be applied to pending litigation at the time the amendment took effect (but it does apply to all lawsuits filed after December 1, 2015). See Order Implementing Amendments to Federal Rules of Civil Procedure, April 29, 2015.

As discussed above, many courts have viewed the new rule as simply reinforcing an continued from page 6 already existing standard. But, according to the United States Supreme Court and a growing number of district courts, civil discovery in federal courts has undergone a paradigm shift; gone are the days of fishing expeditions and obstructive tactics designed to drive up discovery costs. See 2015 Year-End Report on the Federal Judiciary, 11 (Roberts, C.J, Dec. 31, 2015). Expect discovery to become more efficient and courts better equipped to resolves disputes as they arise. The bottom line is that even if this change has not yet impacted your practice, it will.

This article was originally published in the Defense Trial Counsel of West Virginia Newsletter.

Practice Areas