Scope of Discovery: Amended 26(b)(1)

Zach Kurzhals, Associate Member, University of Cincinnati Law Review

In 2015, the United States Supreme Court adopted amendments to the Federal Rules of Civil Procedure (FRCP). Among these changes was an amendment to FRCP Rule 26(b)(1) adding the component of proportionality to the existing component of relevance. FRCP Rule 26 governs civil discovery and 26(b)(1) specifically deals with the scope of discovery.[1] The interpretation and application of Rule 26(b) is a critical component to the cost of litigation. Attorneys must understand how courts apply 26(b)(1) to accurately estimate the costs of litigation for their clients.[2]  This is especially true in the age of electronically stored information where lawsuits can require parties to turn over millions of documents.[3] There appears to be two approaches to interpret the new Rule 26(b)(1). In the first approach, the Arizona district court splits the analysis into two parts.[4] The second approach focuses on relevance and is almost identical to the approach utilized before the 2015 amendment.[5] An examination of the amended rule and the Advisory Committee notes suggests the Arizona court’s approach better addresses the Committee’s concerns.

The Amendment: Then and Now

Rule 26(b)(1) prior to the 2015 amendment provided for the scope of discovery to be dependent on relevancy and limited to discovery requests that “appear reasonably calculated to lead to the discovery of admissible evidence.”[6] This language was explicitly discarded and replaced by a proportionality standard that includes six considerations for parties and courts to utilize when discovery conflicts arise.[7]

The Amended Rule: Arizona

The Arizona district court specifically addressed the amendment to Rule 26(b)(1) in an order denying a discovery request.[8] In In re: Bard IVC Filters Products Liability Litigation patients brought a products liability action against a medical device manufacturer.[9] The patients sought discovery of all communications between the defendant and foreign regulators.[10] The court determined the majority of requested communications originated inside the U.S. and Bard’s proffered search would disclose those communications.[11]  However, the plaintiffs hoped to find inconsistencies between domestic communications and the communications originating from Bard’s foreign entities.[12] The discovery dispute centered upon requests regarding foreign originating communications.[13] The court split its analysis into two sections: a relevancy section and a proportionality section.[14]

The court found the discovery sought to be marginally relevant, then addressed proportionality.[15] For the court’s proportionality analysis, it specifically addressed three of the six factors outlined in Rule 26(b)(1).[16] The court found that the relative access to information favored compelling discovery, but the court also reiterated that the importance of the additional discovery for resolving the issues appeared to be marginal.[17] However, Bard presented the court with specific details illustrating the burden accompanying the discovery requested.[18] These specifics persuaded the court to find the discovery request to be too burdensome and expensive in comparison to the benefit of “a mere possibility of finding . . . inconsisten[cy].”[19] Because the request was not proportional to the needs of the case, the court concluded Bard need not comply with the request.[20] According to the court, the burden of proving proportionality was not placed on the party seeking discovery.[21] Instead, this inquiry is the responsibility of the parties and the court.[22] It appears in Arizona, a party embroiled in a discovery dispute should be prepared to present specifics supporting their position on proportionality, regardless of the position they hold on the discovery request.[23]

The Difference in Texas

In considering a motion to compel discovery the Texas district court addressed the amended Rule 26(b)(1). In Carr v. State Farm Mutual Automobile Insurance Company, the plaintiff was injured in an automobile accident and was denied coverage on some claims. [24]  The insurance company was seeking to compel answers to interrogatories and document requests. According to the district court, the new version of 26(b)(1) made no material changes to proportionality. Additionally, the court stated that a party seeking to resist discovery bears the burden of making specific objections regarding proportionality.[25] Furthermore the party seeking discovery may still need to make its own showing of proportionality factors.[26]

The court discussed its general understanding of a few proportionality factors in the rule.[27] The court’s discussion relied heavily on the previous Committee Notes for the rule’s amendment in 1983,[28] when proportionality was first considered within Rule 26, and Committee Notes from 1993.[29] Thus the court applied the same interpretation and utilized the rule in the same fashion as district courts over the last two decades. As a result, the Texas court did not feel compelled to articulate application of its understanding of the proportionality factors in its analysis. This created an appearance that the District Court’s basis for granting discovery was almost entirely dependent on relevancy. It appears in Texas, a party embroiled in a discovery dispute need only be prepared to argue whether or not the requested material is relevant.

Arizona Approach v. Texas Approach

The committee notes pertaining to the new version of 26(b)(1) explicitly stated the goal of the amendment is “to stimulate greater judicial engagement when discovery approached the margins of what might be relevant to the case.”[30] The experience of the Committee suggested a more dramatic step was needed to ensure a more consistent and diligent application of discovery limits by the courts.[31] This step was to remove the “reasonably calculated” language and insert the proportionality language directly into 26(b)(1), thus raising the perception of proportionality.[32]

The two approaches discussed above have two major similarities that align with the revised rule. First, they both refrain from incorporating the phrase “reasonably calculated” in their analyses.[33] Second, both courts agree the burden of discovery is not placed on the party seeking discovery.[34] However, in the application of the new version of Rule 26(b)(1), the courts differ greatly. The Arizona court decided discussion of discovery requires analysis be split into two parts, with one part focusing on proportionality. The Texas Court maintained proportionality as an inherent consideration under relevancy.

The Arizona District Court explicitly listed and discussed various factors of proportionality and provided findings in consideration of those factors in support of its ultimate decision.[35] The Texas District Court only summarized its understanding of a few factors of proportionality and did not explicitly apply them in its analysis of the discovery requests.[36] There could be various explanations for this less involved approach that would harmonize the two courts. For example, perhaps the Texas Court did not feel the discovery in dispute approached the margins of what may be relevant in the case. However, most of these explanations are defeated when looking at subsequent decisions of the Texas court:[37] the court continues to almost entirely disregard proportionality in its analysis.[38] This approach causes parties to focus almost entirely on relevance, despite the intention of revising Rule 26(b)(1) to add emphasis on proportionality.[39] By separating the analysis into two distinct parts, the Arizona approach will prove to more effectively address the problems that the amended Rule 26(b)(1) was intended to address.

If district courts adopted a stance similar to Arizona’s District Court in Phoenix and created a two part approach to addressing discovery, it is certainly more likely these courts will develop a consistent and diligent application of discovery limits.[40] Although this may require a more in-depth analysis for every discovery dispute, this is an analysis that is not typically time consuming. For discovery disputes concerning what some consider an apparent proper outcome, courts would only have to devote as much time to proportionality as the parties could bring arguments with supporting facts. Additionally, the committee notes make clear the intent was to garner greater judicial involvement in discovery.[41] This inherently requires more time and effort by District Courts. Therefore, this new burden to District Courts has already been considered by the Advisory Committee and the Supreme Court when adopting this revision. The Texas approach appears to simply languish in the pre-amendment language and this is evidenced by the heavy reliance the Texas Court placed on Committee Notes of 1983 and 1993 while almost completely ignoring the 2015 Committee Notes. It is certainly true the 1983 and 1993 Committee notes can explain,[42] and are in fact referenced by the 2015 notes when explaining, the different factors of proportionality.[43] However, if over-discovery is to be remedied as the Advisory Committee hopes to remedy it, with greater judicial involvement, the new approach is required.

The real change to Rule 26(b)(1) can be found in the notes and it is not a substantive change to the rule. The Arizona District Court out of Phoenix, utilizing the 2015 Committee Notes, recognized the Committee’s attempt at reinvigorating proportionality and increasing judicial engagement.[44] Clearly the revision was an attempt to change how courts address disputes concerning the scope of discovery. It is for this reason the Arizona approach, a new analysis to considering scope of discovery, is preferable to that of the Texas approach, which appears to maintain the status quo from the previous 15 years.

[1] Fed. R. Civ. Pro. 26(b)(1)

[2] 20 Paula Hannaford-Agor & Nicole L. Walters, Estimating the Cost of Civil Litigation 4-7 (No. 1 2013).

[3] Drone Techs., v. Parrot S.A., 838 F.3d 1283, 1296 (Fed. Cir. 2016) (Defendant produced over 14 million pages of documents).

[4] In re: Bard IVC Filters Products Liability Litigation, 317 F.R.D. 562, 566 (D. Ariz. 2016) (Phoenix Division).

[5] Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 472 (N.D. Tex. 2015) (Dallas Division).

[6] Fed. R. Civ. P. Rule 26(b) (2000).

[7] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“That language had been misread and misunderstood by many.”); Id. (“[I]t was no longer sufficient to show that the proposed discovery was relevant.”); The rule lists the following six considerations for proportionality: 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 the discovery in resolving the issues; whether the burden or expense of the proposed discovery outweighs its likely benefit.

[8] In re: Bard, 317 F.R.D. 562, 566 (D. Ariz. 2016).

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 563.

[13] Id. at 565.

[14] Id. at 564 (“Relevancy alone is no longer sufficient—discovery must also be proportional to the needs of the case.”).

[15] Id. at 566.

[16] Id. (discussing the importance of the discovery in resolving the issues, relative access to relevant information, and whether the burden or expense of the proposed discovery outweighs the benefit).

[17] Id.

[18] Id. In order to comply with the discovery request Bard asserted they would have to identify applicable custodians of the foreign communications, from entities in eighteen different countries for the last thirteen years, collect ESI from them, and search for and identify communications with foreign regulators.

[19] Id.

[20] Id.

[21] Id. at 564 (“[T]he amendment does not place the burden of proving proportionality on the party seeking discovery.”).

[22] Id.

[23] See Id.

[24] 312 F.R.D. 459, 472 (N.D. Tex. 2015).

[25] Id. at 466 (“burdens to show undue burden or lack of proportionality have not fundamentally changed.”).

[26] Id. at 468.

[27] Id. at 467-68 (discussing relative access to relevant information; the amount in controversy; the parties’ resources; and the burden or expense of proposed of proposed discovery).

[28] Id.

[29] Id. Accordingly, relative access to relevant information focused on “information asymmetry” and discovery bears heavier on the party with more information. The amount in controversy, the court explained, is only one factor to be balanced against others, such as vitally important personal and public values. Consideration of the parties’ resources, the court continued, does not foreclose discovery requests to poor parties or justify unlimited discovery from wealthy parties. Lastly, the court stated that the burden or expense of proposed discovery should be determined in a realistic way and that new advancements in computing and electronically searching information should be considered.

[30] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015)

[31] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“not to impose any new limits or alter the parties’ duties but rather to increase awareness of the limits and duties that have existed—but have too often been overlooked or ignored—since 1983.”).

[32] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“That language had been misread and misunderstood by many as a statement about the scope of discovery.”).

[33] In re Bard, 317 F.R.D. 562, 565-66; Carr, 312 F.R.D. 459, 469-72.

[34] In re Bard, 317 F.R.D. 562, 564; Carr, 312 F.R.D. 459 467.

[35] In re Bard, 317 F.R.D. 562, 566.

[36] Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 472 (N.D. Tex. 2015) (Dallas Division).

[37] Gondola v. USMD PPM, LLC, 223 F. Supp. 3d 575, 581-92 (N.D. Tex. 2016) (separating the court’s analysis into eleven separate parts, without utilizing the word proportional and discussing a single factor of proportionality once).

[38] See Gondola, 223 F. Supp. 3d 575, 581-92 (N.D. Tex. 2016); See also, e.g., Samsung Elecs. Am., Inc. v. Yang Kun Chung, No. 3: 15-CV-4108-D, 2017 WL 2832621, at *46 (N.D. Tex. June 26, 2017).

[39] Carr, 312 F.R.D. 459, 471 (“Defendant explains that ‘[t]the policy under which Plaintiff seeks to recover includes an “Other Insurance” provision’ . . . and asserts ‘[t]hese requests are directly relevant to any offsets to which State Farm may be entitled.”).

[40] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“[T]o get judges and parties to more consistently and more diligently fulfill their longstanding obligations.”).

[41] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015).

[42] Fed. R. Civ. P. 26(b) advisory committee’s note (1993); See also Fed. R. Civ. P. 26(b) advisory committee’s notes (1983).

[43] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015).

[44] See In re Bard, 317 F.R.D. 562, 564-565.


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