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April 6, 2016

Closing the Loop on Unreasonable eDiscovery Requests

It has been fascinating to observe the rapid change in discovery rulings among the judiciary since the amendments to the Federal Rules of Civil Procedure were enacted late last year. Whereas courts used to intermittently reference proportionality standards in connection with discovery motions, they are now doing so with regularity. More significant, however, is that courts are routinely using the reinvigorated proportionality limitations found in amended FRCP 26 to temper unreasonable discovery demands. Proportionality is now invoked to reject discovery that is not focused on the needs of the case, that is unduly burdensome, or that is unreasonably cumulative or duplicative.

Gilead Sciences v. Merck

The Gilead Sciences v. Merck case exemplifies this trend. In that case, Merck brought a motion to compel Gilead to produce materials relating to certain chemical compounds. Merck asserted that the requested information regarding the compounds was essential to establishing its patent infringement claims. Merck additionally argued that the information was relevant to impeaching the credibility of a Gilead expert witness. The court, however, rejected those arguments because they failed to satisfy the threshold issue of proportionality. As the court explained, “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.”

The court first determined that the chemical compounds raised in Merck’s motion were in-apposite to the compound at issue in the lawsuit. Allowing discovery to proceed on matters that were obliquely related to Merck’s claims would undermine an important proportionality consideration: that the discovery have some importance to the issues at stake in the litigation. The court also ruled that the requested information need not be produced for impeachment purposes since the evidence would be cumulative of other materials Merck already had to challenge the expert’s credibility.

Wilmington Trust Company v. AEP Generating Company

A comparable result was reached by the court in Wilmington Trust Company v. AEP Generating Company. In Wilmington Trust, plaintiffs argued that defendants unreasonably limited the scope of their search for relevant electronically storied information (ESI). While defendants conceded that they did not conduct a general search for ESI during a two-year period (2009-2010), they argued that few if any documents of significance were generated during that time. According to defendants, custodian interviews revealed that information pertaining to plaintiffs’ claims was generally created in 2008 and again beginning in 2011. Plaintiffs countered by asserting that responsive ESI was likely generated during the 2009-2010 time frame if relevant information was created both before and after that period.

Despite the possibility that relevant documents may have been generated during the excluded time frame, the court refused to order their production. The court observed that plaintiffs failed to demonstrate how the production of such ESI would satisfy proportionality standards. For example, plaintiffs did not show that the ESI they sought was needed to prove their claims at trial. Nor did they explain how the requested ESI “would materially add to their existing collection of relevant documents.” In other words, they failed to show either that the benefits of production outweighed its burdens or that the production was not unreasonably cumulative or duplicative.

In contrast, defendants demonstrated that the production of ESI from 2009 and 2010 would be disproportionate. Beyond the substantial amount of ESI they had already produced, they advanced a fact specific explanation regarding why very few relevant documents would be found during the period in question. Moreover, they detailed why “any such documents would not be nearly as relevant as ones created at other times.” Since the proportionality scales tipped in favor of the responding party, the court refused to order the production of the requested ESI.

The Impact of Proportionality Trends

Gilead Sciences and Wilmington Trust represent a substantial number of cases in which courts have embraced the Advisory Committee’s directive to restore proportionality to its original place in defining the scope of discovery. This trend does not suggest that courts will deny requesting parties their right to relevant information that is proportionate to the needs of the case. In fact, several courts – including Wilmington Trust – have recently ordered the production of documents after finding that the requested discovery was proportional to the needs of those particular cases.

There is nothing incongruous about the developing jurisprudence on this issue. On the contrary, the orders requiring and rejecting production demonstrate that courts are finally viewing discovery matters through the lens of proportionality.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.