Concept
Invoking the Limits
Scope of discovery, proportionality, and e-discovery
Invoking the Limits
Rule 26(b)(2)(C)(iii) directs the court to limit discovery that falls outside the scope Rule 26(b)(1) permits, and since 2015 that scope includes proportionality to the needs of the case.1 The duty binds the court even without a motion: the magistrate judge in Mancia v. Mayflower Textile Servs. Co. read Rule 26(b)(2)(C) as obliging the court to act sua sponte.2 Still, the parties appear before the judge during discovery only when a problem arises over the valid scope of an inquiry, and a dispute presented without facts tells the judge nothing about hours, systems, or dollars.3 The limits therefore take effect through what the parties put before the court. This section follows that path: who raises a limit, what an objection must contain, when it must be made, and what counsel can do at the outset, and by signature, to head off the dispute.
Who Raises the Limits
The court's power to act on its own is a backstop. The ordinary route runs through the responding party, which may object, move for a protective order, or oppose a motion to compel. A protective order under Rule 26(c) issues on a motion, made after a good-faith effort to confer, that shows good cause.4 The relief available ranges from confidentiality or a narrowed request to a different form of production or outright denial,5 and the rule now expressly authorizes the court to allocate expenses.6 The responder moves first because the facts that make a burden undue (staff hours, the systems that hold the data, a vendor's charges) sit in its own files, and the requester cannot supply them. For electronically stored information the rule says so directly: on a motion to compel or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.7
The same allocation of the burden governs outside the ESI setting. In Liguria Foods, Inc. v. Griffith Laboratories, Inc., the court restated its rule that “as long as the parties request information or documents relevant to the claims at issue in the case, and such requests are tendered in good faith and are not unduly burdensome, discovery shall proceed,” and that “[t]he party resisting production bears the burden of establishing lack of relevancy or undue burden.” It found nothing to suggest that a more restrictive view of the scope of discovery is now the norm.8 Because the burden to object rests on the responder, the requesting lawyer ordinarily may rely on it to control the scope of discovery by raising objections or seeking a protective order. The lawyer who makes unnecessarily broad requests may lose credibility with the judge and see the scope restricted, but an overbroad request does not trim itself.9 A responder that stays silent, or objects only in the abstract, leaves the court with its own residual duty and little else to weigh.
Specific Objections, Not Boilerplate
The objection that fails is the one every litigator has seen: a response calling a request overbroad and unduly burdensome and adding nothing more. Three Mancia defendants answered document requests that way, and a fourth answered an interrogatory in kind.11 Their responses also called the requests “not reasonably calculated to lead to the discovery of material admissible in evidence.”12 Rule 33(b)(4) requires the grounds for objecting to an interrogatory to be stated with specificity, and a ground not stated in a timely objection is waived unless the court excuses the failure for good cause. The court reasoned that the failure to particularize left two possibilities: the defendants either lacked a factual basis for their objections, which would violate Rule 26(g), or had one and waived it by not stating it. Neither alternative helped them, and either would justify an order requiring the discovery regardless of cost or burden, because proper grounds for objecting had not been established.13
The demand for particulars follows from the nature of proportionality, which compares burden with benefit, and a bare adjective supplies neither term of the comparison. The commentary to Rule 26(g), quoted in Mancia, bars an objection until the lawyer has “paused and consider[ed]” whether, on “reasonable inquiry,” there is a “factual basis” for it, and the court noted that boilerplate objections persist despite a litany of decisions holding them improper unless based on particularized facts.14 Courts likewise treat a bare assertion of undue burden as “ordinarily insufficient to bar production,” and one court was “not persuaded” by a burden claim where the objector gave no estimate of the hours or money compliance would take.15 Mancia dates from 2008 and quotes the pre-2015 formula, and the “reasonably calculated” language no longer appears in Rule 26(b)(1).16 The point about particularized facts does not depend on that wording.
A specific objection looks different. In Aguilar v. Immigration and Customs Enforcement, the defendants showed at a conference that restoring and reviewing the backup tapes generated by their decentralized e-mail system would be extremely burdensome, and the plaintiffs had not shown a likelihood of recovering important information not previously disclosed.17 The court weighed the bona fides of the defendants' representations along with the Rule 26(b)(2)(C) considerations, found the cost unquestionably high and the likely benefit low, and required no review or production of data from the tapes.18 The Aguilar defendants tied their burden to a feature of their own system, so the court could set it against the plaintiffs' failure to show benefit. The Mancia defendants gave the court nothing to weigh.
A's objection gives the court nothing to weigh, so the court may reject it and order production regardless of claimed cost or burden. B's showing invites the weighing Aguilar describes: the court credits the burden, sets it against what the plaintiff can show it would gain, and, if the plaintiff cannot show a likelihood of recovering important information not already disclosed, may spare B the tapes. The same request thus produces opposite results, and the difference lies in the responses, not in the request.
Timing of Objections
A well-supported objection can still be lost by making it at the wrong time. In Equal Employment Opportunity Commission v. SVT, LLC, the Commission designated the form in which it wanted ESI before production began, and at the parties' planning conference SVT's IT professional indicated that SVT could produce in that form. SVT reserved a right to object in the joint planning report and asked for three extensions without hinting at any objection. It then produced in a different form and objected afterward. The court held that SVT erred by not objecting or seeking a protective order before it produced, because a timely objection would have let the parties, or the court, resolve the dispute before the production was made.20 The court also found on the evidence that the data was not inaccessible because of undue burden or cost, and it declined to reach SVT's alternative request that the Commission share the expense, noting that cost shifting is potentially appropriate only when inaccessible data is sought.21
Timing matters because each of the court's tools works on choices still open. Before production, a court can narrow the request, change the form of production, or deny it, and it can allocate the cost.22 After production, the money is spent, and the only question left is who should bear it. For interrogatories the rule states the consequence outright: a ground for objecting that is not stated in a timely objection is waived unless the court, for good cause, excuses the failure.23 The lesson of SVT is to object, or to move for a protective order, before the work is done.
The dissent in CBT Flint Partners, LLC v. Return Path, Inc., a Federal Circuit appeal over whether the prevailing parties could recover their electronic discovery costs under 28 U.S.C. § 1920(4), makes the same point as commentary and not as a holding. Cisco had described the requester's initial requests as asking for, “in effect, every document in the company.” In the dissent's view, Cisco and Return Path could and should have sought an agreement on costs, or the court's help, when those requests arrived, and having never tried to shift or avoid the costs sooner, they should not be allowed to recover them now by stretching the statute.24 The Aguilar defendants show the better practice: they made their showing at a conference, and the ruling spared them the tapes altogether.25
Early Planning of Limits
The surest protection against a late objection is to raise the limits before any request is served. Rule 26(f)(3)(E) requires the parties' discovery plan to state their views on “what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed.”27 The conference does work that a motion cannot do as cheaply. The requester knows what it is looking for, the responder knows how its records are kept, and neither can tailor a request or an objection without the other.
The Mancia court made the point as a criticism of reflexive practice. Requesters say they do not know enough to tailor their requests, but that would not be so if lawyers met and conferred before initiating discovery and discussed the amount in controversy and how much discovery, of what type, in what sequence, would keep its cost to all parties proportional to what is at stake.28 Where the parties skip that exercise, a court may supply a rough version of it. One court used an admittedly rough estimate of the range of recovery to determine the amount in controversy and to quantify a workable “discovery budget” proportional to what was at issue.29
Early planning need not settle every question in advance. A court reviewing a predictive-coding protocol was asked what should happen if the final sample of documents deemed irrelevant turned up a “hot” document. It answered that one such document may require the software to be re-trained, while several that add nothing to the case might not matter, and that such questions are better decided “down the road,” when real information is available to the parties and the court.30 The parties who plan best agree on how later disputes will be decided as well as on what to produce.
Counsel's Certification Duty
Rule 26(g) turns proportionality from an ideal into a duty owed by the lawyer who signs. A signature on a discovery request certifies that, after reasonable inquiry, the request is consistent with the rules, is not interposed for an improper purpose such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, and is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”32 The duty extends to objections: a lawyer may not object until pausing to consider whether a reasonable inquiry yields a factual basis for the objection.33 The reference to prior discovery in the case echoes clause (ii), under which the court limits discovery when the requester has had ample opportunity to obtain the information.34
The duty has teeth. Rule 26(g) requires the court to impose a sanction on a violation that lacks substantial justification, and the sanction is meant both to penalize the noncompliant lawyer and to deter others. The Advisory Committee explained that, because of reluctance to sanction attorneys who abuse the discovery rules, the rule “makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it.”35 The sanction must be “appropriate,” however. In the Chudasama litigation against Mazda, the court of appeals sustained the finding that Mazda violated Rule 26(g) but called the sanction wildly excessive, given the plaintiffs' own overbroad discovery requests and the trial court's inaction. A court must take the needs of the case into account when it sets a sanction.36
The certification reaches both sides because the abuses it targets run in both directions. Mancia identified kneejerk requests served without regard to the cost to the responding party, and it observed that lawyers customarily serve requests far broader, more redundant, and more burdensome than necessary to resolve the case.37 A requester who signs a sweeping demand and a responder who signs a boilerplate objection have each certified something the facts do not support.
A lawyer who made the reasonable inquiry the rule calls for before signing would see that the request is out of proportion to the stakes and would narrow it by custodian, period, and term. The request as served, with no such inquiry behind it, exposes its signer to sanction absent substantial justification. The carrier's reply exposes its own signer to the same rule from the other direction. Because a sanction requires the absence of substantial justification, the exposure falls on the request or objection signed with no inquiry behind it, and a request that a court merely trims is not necessarily a violation.