An Increased Emphasis on "Proportional Discovery"

Magistrate Judge Grewal has denied a motion to compel discovery because the requests were "disproportionate," alluding to the requirement in newly amended Rule 26(b)(1), F.R.Civ.P., that the discovery sought should be "proportional to the needs of the case." Gilead Sciences, Inc. v. Merck & Co., Inc., 5:13-cv-04057-BLF (NDCA January 13, 2016). This appears to be one of the first decisions under the amended rule, which was effective December 1, 2015, the same day as the motion hearing in the Gilead case.

According to Judge Grewal's Order and the motion papers, the defendant had learned in a related Canadian litigation of a photograph of various labeled tubes containing compounds. One of the labels indicated the same molecular weight as a compound of interest in the present case. But, said Judge Grewal, "lots of compounds share the same molecular weight." He also noted other evidence showing that the tubes in question contained "entirely different" compounds, and said that the defendant offered no "real evidence" that the plaintiff's evidence of the tubes' contents is false. Under the circumstances, he concluded that defendant's request for discovery about the tubes' contents and the different compounds "is precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude." (In an earlier generation, a judge might have called the requests a "fishing expedition.")

The Advisory Committee Notes to amended rule 26(b) indicate that the amendment was not intended to shift the burden of proof in discovery disputes. Judge Grewal's Order opens by saying, "Proportionality in discovery under the Federal Rules is nothing new" and the Order suggests that he would have reached the same result under the old rules. Nevertheless, it appears that the amendment may—in practice—place more of a burden on the party seeking discovery. In the past, lack of proportionality was an issue that the person opposing discovery could raise in seeking a Rule 26(c) protective order. Now, proportionality is up front, in Rule 26(b)(1), the first provisions regulating the scope of permissible discovery. As suggested by Judge Grewal's Order, a showing that a discovery request is proportional to the needs of the case may be considered necessary in a motion to compel that discovery.

Fish & Richardson P.C. represents Gilead in the case discussed above; however, this item was based solely on the public record. The author has no involvement in that case and the opinions expressed here are his own.

Author: John B. Pegram