Key Insight: Citation to Rule/caselaw that omits consideration of “proportionality” is reckless and sanctionable.
Nature of Case: Fair Debt Collection Practice Act (FDCPA) Action
Electronic Data Involved: Medical records
Keywords: “misstate[ment] [of] the law” “outdated caselaw” “recklessly misrepresented” “medical condition”
Key Insight: Proportionality, Fraud
Nature of Case: Non-compete enforcement
Electronic Data Involved: scope of discovery
Keywords: Sedona principles
Key Insight: Defendant alleges Plaintiff failed to produce documents and requests sanctions, including dismissal.
Nature of Case: Employment discrimination
Electronic Data Involved: ESI and scanned PDF documents and other documents.
Keywords: Proportionality, motion to compel (not filed)
Hello “Proportionality,” Goodbye “Reasonably Calculated”: Reinventing Case Management and Discovery Under the 2015 Civil Rules Amendments
Presented by: the ABA Section of Litigation & Duke Law
Join us in Seattle on April 29, 2016
The most significant changes to discovery and case management practices in more than a decade, the 2015 Amendments to Federal Rules of Civil Procedure 16, 26, 34 and 37, took effect on December 1, 2015. The American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies are jointly presenting this unprecedented, 18-city series of dialogues, led by national thought leaders and including local judges, magistrates, and top practitioners in each city. The goal: to further the understanding of the case-management techniques that will help courts and litigants realize the Amendments’ full potential to make discovery more targeted, less expensive, and more effective in achieving justice.
Based on local requests, this popular program has been expanded from the original 13-city tour to 18. Each three-hour program features leaders from the Rules amendment process, who walk the audience through the Amendments and their implications for civil litigation. Spirited panel discussions among local District Court Judges, Magistrate Judges, and leading litigators then explore the Amendments’ practical discovery implications and best practices for case management under the amended Rules. Each program’s attendees discuss application of the new rules to a variety of hypothetical cases and leave with a toolbox of techniques for putting the Amendments into practice.
Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-cv-01734-WTL-DML, 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016)
In this case, the court granted Plaintiff’s motion for a protective order and ordered that Defendant was prohibited from obtaining the discovery sought from Plaintiff’s shareholder by the at-issue subpoenas. In reaching its conclusion, the court undertook analysis of recently-amended Fed. R. Civ. P. 26(b)(1), highlighting the principle of proportionality, and ultimately concluded that Defendant’s subpoenas constituted “discovery run amok” and “fail[ed] the proportionality test under Rule 26(b).”
In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016)
In this opinion, the District Court considered Defendants’ proposal to redact or withhold certain irrelevant information from responsive documents and document families. In approving the proposal, the court cited Chief Justice John Roberts’ recent comments that recently amended Federal Rule of Civil Procedure 26 “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” Reasoning that such comments “highlight” that “a party is not entitled to receive every piece of relevant information,” the court concluded that “it [was] only logical” that “a party is similarly not entitled to received every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”
Key Insight: if the balance of the discovery requests outweighed their benefit
Nature of Case: Breach of contract, breach of covenant of good faith and fair dealing, fraud , negligent misrepresentation, declaratory relief and unfair competition.
Electronic Data Involved: responses of three interrogatories in light of changes to rule 26
Keywords: proportionality, motion to compel, balance of request, benefit of requested discovery
Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016)
In this case, the court addressed Defendant’s motion to compel production of additional discovery and, applying newly amended Fed. R. Civ. P. 26(b)(1), determined that Defendant’s request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.” Accordingly, the motion was denied.
Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015)
In this case, the court addressed Defendant’s Motion to Compel discovery responses and undertook substantial analysis of the effects of newly amended Federal Rule of Civil Procedure 26 on the burdens of parties’ resisting discovery, concluding they had not fundamentally changed.
Key Insight: Court overruled parties’ objections to Magistrate Judge’s order addressing scope of discovery where underlying court properly considered and applied the principle of proportionality; addressing defendant’s alleged costs of production, court reasoned in part that ?The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?
Nature of Case: Products liability
Electronic Data Involved: ESI
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