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So What’s a “Proportional” Document Request Nowadays?




As detailed in prior posts (here and here), last year’s amendments to the Federal Rules of Civil Procedure emphasize discovery proportionality. Under revisions to Rule 26, the scope of permissible discovery in litigation is limited to information relevant to a claim or defense that is proportional to the needs of the case.


Courts are seizing on proportionality principles and discovery requests that might have been allowed before December 1, 2015, are coming under increasing scrutiny. Two cases below are good examples.


A New Mindset

In Gilead Sciences, Inc. v. Merck & Co, Inc., Case No. 5:13-cv-04057 (N.D. Cal. Jan. 13, 2016), a patent dispute, Judge Paul Grewal noted that the concept of discovery proportionality is not new. Prior versions of Rule 26 obligated attorneys to avoid unduly burdensome discovery. However, what Judge Grewal hopes is new is the “mindset” about proportional discovery. “No longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone. Instead, a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.”


Judge Grewal weighed in on proportionality in denying a motion to compel certain discovery as being “exactly the kind of disproportionate demands that Rule 26(f) proscribes.” Judge Grewal arrived at that conclusion after Merck requested that Gilead produce information about tubes of compounds that were the subject of expert testimony in a different case.  Merck sought the information because the compounds had the same molecular weight as the compound at issue in the dispute before Judge Grewal.


Gilead refused to produce information pointing out at that the tubes for which Merck wanted more information were entirely different compounds from those at issue in the patent dispute. Judge Grewal agreed that Gilead should not have to produce information about the unrelated compound tubes:


Merck’s demands are exactly the type of disproportionate demands that Rule 26(b)(1) proscribes. Sure, it’s possible that Gilead’s evidence confirming the compounds are not PSI-6130 is false and even concocted. But Merck offers no real evidence that this is the case, and as the court recently explained in denying a motion to compel by Gilead, “[w]ithout more specific information triggering some reason for doubt, the Court must take the producing party . . . at its word.”

And so that leaves Gilead in the position of having to produce discovery on all sorts of compounds that bear no indication of any nexus to the disputes in this case. This is untenable. It would be like requiring GM to produce discovery on Buicks and Chevys in a patent case about Cadillacs simply because all three happen to be cars. In the absence of any reason to doubt the proof Gilead has tendered about the identity of the disputed compounds, and given the cost and potential delay introduced by the requested production, Merck’s request is precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.


Proportional, yes. Tangential, no.

Judge Robert J. Bryan of Washington’s Western District also recently applied proportionality principles in Moore v. Lowe’s Home Centers, LLC, Case No. 14-1459 (W.D. Wash. Feb 19, 2016). In that case a former Lowe’s employee sued the company alleging discrimination. In discovery, among other items, the employee sought personnel records for other employees and also requested that the store perform additional searches of e-mail using terms supplied by the employee.


The court permitted the employee to discover the personnel file only for a district manager identified as an alleged harasser, but denied the request for other personnel files stating, “[a]s to the records of the other employees, they may have some minimal relevance; however that relevance is tangential and not proportional to [the employee’s] claims.”


Similarly, relying on proportionality principles, the court refused to order Lowe’s to run an additional search for e-mail. The employee sought to have Lowe’s run a search using 88 search terms complied by the employee’s attorney but without the employee’s name to limit the number of documents returned by the search.


The court rejected the employee’s request as being disproportionate:


Plaintiff’s request for email searches is overly broad and not proportional to the case. . . . Searching without the use of Plaintiff’s name would not be proportional in this single-plaintiff case. While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means.


The takeaway?

Judges are moving away from allowing broad discovery seeking any and all information “reasonably calculated to lead to the discovery of admissible evidence.” As a result, before sending out discovery, attorneys must now answer a threshold question: Is the information I am asking for really related to a claim or defense in the case? If it is not, or even if it is, but is overkill, a judge may not allow it.


Posted on May 4, 2016 in E-Discovery, Proportionality, Scope of Discovery

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.