Litigation often involves lengthy battles over the proper scope of discovery. Defendants with substantial resources frequently find themselves on the receiving end of unreasonable discovery requests in an attempt to overwhelm the party and stall litigation. A recent district court decision in In re Xarelto, along with the latest amendments to the Federal Rules of Civil Procedure, may help to curb this practice in the future.
Federal Rule of Civil Procedure 26 governs the scope and limits of discovery, allowing discovery into “any nonprivileged matter that is relevant to any party’s claim.”[1] As early as 1983, the Advisory Committee has addressed the “problem of over-discovery” and attempted to ameliorate this issue through amendments to the Federal Rules.[2] However, the problems associated with discovery overuse have only worsened over the years with the increased prevalence of electronically stored information. The most recent amendments to the Federal Rules attempt once again to address this problem.
2015 Amendments to Rule 26
The 2015 amendments included a significant change to Rule 26. The amended Rule includes an increased emphasis on the role of proportionality in discovery. Prior to this amendment, the discussion on proportionality was located in section 26(b)(2)(C). Section 26(b)(2) sets forth limitations on the frequency and extent of discovery. The 2015 amendments moved the proportionality requirement to section 26(b)(1), which governs the scope of discovery in general. By moving the language on proportionality to the general scope of Rule 26, the drafters indicated the importance of this requirement.
The amended Rule still allows for discovery into relevant, nonprivileged matter, but adds that the information must also be “proportional to the needs of the case.” Proportionality is measured by several factors, including “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 the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”[3]
This substantial amendment places more emphasis on the responsibility of the court and the parties to assess the importance of each discovery request, and to balance the importance of discovery against the burden on the producing party. Despite these substantial amendments, their practical effect depends on the extent to which courts implement these changes into the resolution of discovery disputes.
In re Xarelto
A district court in Louisiana recently had the opportunity to interpret amended Rule 26 in the context of a discovery dispute.[4] The plaintiffs in this case sought to depose defendants’ employees and requested production of the employee personnel files. According to plaintiffs, the employee personnel files were relevant to employee bias and plaintiffs’ theory that the drug Xarelto was “rushed to the market.” Defendants opposed the discovery request, claiming the personnel files were not relevant to the claims and defenses in this case, and that the interest in discovery was outweighed by employee privacy interests.
The court cited to amended Rule 26(b)(1) in its analysis of the case. Specifically, the court noted that “Rule 26(b) commands that all discovery be both relevant and proportional.” The court also cited to Fifth Circuit privacy law in balancing the interests of both parties. Noting that personnel files contain personal and potentially embarrassing material, the court concluded that the privacy concerns implicated by releasing personnel files to plaintiffs would be substantial. In contrast, plaintiffs had failed to demonstrate the relevancy and particularity of its requests under both Rule 26 and privacy law. Thus, the court denied plaintiffs’ discovery request for deponent personnel files.
The court stated that plaintiffs could file a separate motion for in camera review of the personnel files. If this were requested, the court indicated that it would “balance privacy against the relevancy and particularity of the sought information” before it was released. This balancing of the burdens and benefits to each party is precisely what the Rule 26 amendments call for. The court in In re Xarelto denied an overbroad discovery request in favor of an appropriate balancing of interests. Accordingly, it sets a good example for proper interpretation of proportionality under the amended rules.
Impact of Amended Rule 26 and In re Xarelto
Prior to these developments in the law governing discovery, defendants were often inundated with an enormous volume of discovery requests. Under amended Rule 26, it will be more difficult for plaintiffs to use discovery requests as a tactic in litigation. The court in In re Xarelto properly considered the changes to Rule 26 in determining that the discovery request at issue was overbroad. Due to the clarity of the intention behind the Rule amendments, federal courts should adopt this interpretation in the future.
Parties should be diligent in objecting to discovery requests that are not proportional. However, the Advisory Committee Notes specifically state that “boilerplate objections” will not be permitted under the Rule.[5] Thus, parties faced with disproportional discovery requests should clearly indicate the reasons for their objections. At the very least, the amended Rules require courts to take a closer look at unduly burdensome discovery requests that were once commonplace.
[1] Fed. R. Civ. P. 26(b)(1).
[2] Advisory Committee’s Notes to 1983 Amendment.
[3] Fed. R. Civ. P. 26(b)(1).
[4] In re Xarelto (Rivaroxaban) Products Liability, 2016 WL 311762 (E.D. La. Jan. 26, 2016).
[5] Advisory Committee’s Notes to 2015 Amendment.
