As we have previously reported here and here, the Federal Rules of Civil Procedure have recently changed. One of the major changes to the rules is the new definition of scope of discovery under Rule 26:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
In her June 9, 2016 order in the FTC v. DirecTV, Inc., U.S. Magistrate Judge Maria Elena-James stressed the importance of the new proportionality requirement. The following is a summary of the issue in dispute. DirecTV asked for all consumer complaints received by the FTC pertaining to ten different companies, and the FTC challenged the scope of the request. The parties were ordered to meet and confer regarding the scope of the request. Following negotiations, DirecTV limited its request to three of its competitors, but it still requested all complaints. A query run by the FTC showed that “all complaints” pertaining to the three competitors included over 200,000 complaints, and the FTC again pushed back on the scope of the request and proposed that random sampling of the complaints be conducted to determine whether they are relevant. Judge Elena-James concluded as follows:
Having reviewed the parties’ positions, the Court finds the FTC’s sampling proposal more closely comports with Rule 26’s demand for proportionality. Rule 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “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.” Id. Under Rule 26, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015 amendments). Thus, there is “a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a “collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor their efforts to the needs of th[e] case”).
She ultimately agreed with the FTC that sampling was appropriate as “the relevance of these materials is largely speculative and a random sample therefore gives DIRECTV what it seeks through these Requests for Production while rendering the FTC’s burden reasonably proportional to the materials’ purported evidentiary value.”