What Does Rule 26 Say about Scope and Proportionality?
In 2015, when the Federal Rules of Civil Procedure were amended, the issue of scope and Rule 26 was a hot topic of discussion, mainly around the issue of costs. But proportionality doesn’t just apply to the cost of discovery. With concerns around privacy becoming a daily headline due to data breaches, privacy laws, and the use of personal data by large corporations and governments, will the cry of “privacy” take the place of “burdensome costs” in proportionality rulings?
Before the 2015 amendments, it was common that broad discovery requests were submitted, which if carried out, would end up costing way more than the lawsuit was worth in the first place. For organizations with deep pockets, large discovery requests became a tactic similar to continuing to raise the bet in a poker hand until your opponent had no choice but to fold.
But since 2015, broad discovery requests or “fishing expeditions,” have been essentially banned. With the new rule, the burden to prove proportionality lies with both the requesting and responding parties. And the first two questions that should be answered are:
- Is the information requested relevant to the outcome of the case?
- Is the information privileged?
If the data in question passes these two tests (yes, it’s relevant to the case, and no, it’s not privileged information) then the courts look at the following six factors laid out in FRCP Rule 26(b)(1) to help determine rulings on proportionality.
- The importance of the issues at stake
- The amount of information in controversy
- The parties’ access to the information in question
- The parties’ resources to obtain the information
- The importance of the discovery in resolving the issues
- Whether the burden or expense of the proposed discovery outweighs its likely benefit
How Does Privacy Fit into the Discussion of Scope and Proportionality?
Henson v. Turn, Inc (US Court, Northern Dist. California, 10/22/2018) is a fairly recent case that deals specifically with proportionality and privacy. In it, the plaintiffs brought a class action against the defendant, claiming that the defendant engaged in the practice of using “zombie cookies” which users cannot delete, block, or opt out.
In response, the defendant requested the plaintiffs:
- Produce their mobile devices for inspection or produce complete forensic images of their devices
- Produce their full web browsing histories from their devices
- Produce all cookies stored on or deleted from their devices
The court ruled that the defendant’s request to directly inspect the plaintiffs’ mobile devices or for complete forensic images of the devices “threatens to sweep in documents and information that are not relevant to the issues in this case, such as the plaintiffs’ private text messages, emails, contact lists, and photographs.”
And because the parties had protocols in place for producing information from the plaintiffs’ devices or forensic images, the defendant issued nine requests for specific information from the plaintiffs’ devices, which the plaintiffs carried out.
The same happened with the request for the browsing histories and cookies. The plaintiffs produced or offered to produce their web browsing history and cookies associated with the defendant’s partner websites and the date fields of all other cookies on their mobile devices. The plaintiffs also offered to meet and confer with the defendant to consider requests for specific cookies.
And the court ruled with the plaintiff.
What is the Role of Technology in Scope and Proportionality?
So why does this matter? The key here is not about scope and proportionality or even privacy. Yes, that’s the topic of the case. But the bigger issue at stake is how will the creators of legal technology respond. With Rule 26, it’s all about specificity. I want this specific data, from that specific custodian, from these specific date ranges, because it affects the case in this way. After that, it’s just an issue of having the tools to get those specific items easily and cost effectively.
In Henson v. Turn, the judge cited a case from 2006 (Sony BMG Music v. Arellanes), where a request was made for an imaging of an entire hard drive, and it was determined that the production would reveal irrelevant data, when all that was needed were specific emails. Now we have technology which allows us to target specific emails and other data on a computer. We can deNist and deDupe, we can redact, we can do all kinds of things within our eDiscovery tools which keep data within the scope and proportionality of a request. It wasn’t always so. It took the creators and innovators of technology to make it a relatively easy and standardized process.
This technology made the cries of “overburdensome discovery” seem moot. No discovery is overburdensome these days when you can pinpoint the exact data that is relevant in the case. You just have to ask for it. With the onus on the requester to follow the guidelines of Rule 26, if you make a request that’s overburdensome, you’re just being lazy. And judges aren’t having it.
With this case’s highlighting of the role of privacy in Rule 26, I think leaders in the eDiscovery industry should be looking ahead in the same way that at least some of them were in 2006. How can we create tools that allow the handling of electronic data through the entire litigation process? Only now, instead of hard-drives full of emails and word documents, it’s data from a number of unique sources that live across platforms available on mobile devices and the Internet of Things.
The guidelines for proportionality and scope are very clearly laid out in the FRCP. The only difference is the need for tools that make the process easier considering the digital landscape that exists in 2019, not just the one in 2006.