Proportionality and Early Planning

Proportionality and Early Planning

A lawyer who signs a discovery paper certifies under Rule 26(g) that it 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."¹ The certification, and the sanctions behind it, operate after the fact. A request is signed, served, and answered before anyone asks whether it was proper, and by then the other side has paid for the search, the review, and the motions. Rules that act once the cost exists can punish waste, but they cannot prevent it.

Two provisions act earlier. The first limits how far discovery may reach, measured against what the case needs, so that a lawyer has a yardstick before drafting a request. The second requires the lawyers to meet at the start of the case and plan discovery before either side serves anything. The two fit together because they share considerations: the amount in controversy and the importance of the issues appear in both the scope limit and the certification clause. A lawyer who measures a request against those considerations in advance has done most of what the signature later certifies.

Both provisions carry out, affirmatively, the duty that Rule 3.2 states in one sentence: a lawyer must make reasonable efforts to expedite litigation consistent with the client's interests.² Earlier sections taught that duty through what a lawyer must not do, such as stalling for convenience or serving requests meant to wear the other side down. Narrowing a request to what the case requires, and agreeing on a discovery plan at the outset, are steps that move a case toward resolution. The scope limit comes first below, and the early conference follows it.

Proportional Scope

Rule 26(b)(1) of the Federal Rules of Civil Procedure marks the outer edge of discovery: "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Information within that scope need not be admissible in evidence to be discoverable.³ The rule thus sets two requirements. Relevance asks whether the information bears on a claim or defense. Proportionality asks whether the cost of getting it is sensible in light of what the case involves and what the information is worth in resolving the dispute. A request must satisfy both, so relevant information can still fall outside the scope when its price is out of line with its value.

The second requirement exists because relevance alone sets no useful ceiling. Almost any request that touches a claim can be called relevant, so a party could keep demanding material that is connected to the case but does nothing to resolve it, and the responding party would pay for every search. Continual requests for information that is not essential but fits within the broad notion of relevance can be made to harass the opposing side, which is why the rules include several tools that encourage courts to protect against abuse.⁴ Proportionality is one of those tools. It works at the front end, putting a price on each demand and asking whether the information is worth what it costs. In Front Line Promotions and Marketing, Inc. v. Mayweather Promotions, LLC the court noted that discovery nevertheless has "ultimate and necessary boundaries," and it left the placement of those boundaries to the trial court's sound discretion.⁵

The rule names six considerations, and each marks a different way that a request can cost more than it is worth.

• The importance of the issues at stake: issues whose importance outruns the dollar figure can justify more discovery than the money alone would suggest.
• The amount in controversy: the sum at stake sets a rough budget, since a modest claim cannot sensibly absorb a very large search.
• The parties' relative access to relevant information: when one side holds most of the records, that fact can justify placing the burden of producing them on that side.
• The parties' resources: the same expense may be trivial for one litigant and ruinous for another, and the weighing takes that gap into account.
• The importance of the discovery in resolving the issues: information that could decide a disputed point earns more effort than information that only adds detail.
• Whether the burden or expense of the proposed discovery outweighs its likely benefit: the final weighing of cost against payoff.

No single factor controls, because they pull in different directions. A small amount in controversy argues for a modest search, while the importance of the issues may argue for a larger one, and the court weighs them together. Front Line Promotions shows the weighing in the burden-versus-benefit setting: the court listed the needs of the case, the amount in controversy, the parties' resources, the importance of the issues, and the importance of the proposed discovery in resolving the issues as the matters it must account for.⁶ That court treated the inquiry as a ground for limiting discovery under Rule 26(b)(2)(C). Under the rule as it now reads, the same weighing is the last factor inside Rule 26(b)(1), so a request that fails it lies outside the scope to begin with.⁷

Rule 26(b)(2)(C) turns these limits into an instruction to the judge: "On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule" when one of three grounds exists.⁸ Two phrases carry the reason. Must denies the court the freedom to let an oversized request stand because that seems easier than ruling. On its own lets the judge act when no one has asked, which matters because a party facing an oversized request may lack the money to fight it, and a limit that operated only for those who paid to invoke it would favor whichever side could spend the most. The three grounds are these:

1. The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.⁹
2. The party seeking discovery has had ample opportunity to obtain the information by discovery in the action.¹⁰
3. The proposed discovery is outside the scope permitted by Rule 26(b)(1).¹¹

Each ground has its own logic. The first targets waste in two forms: cumulative discovery piles more evidence onto a point already established, and duplicative discovery asks again for what has already been given. The word unreasonably keeps the ground from reaching ordinary overlap, since a deposition may properly probe a document that was already produced. The same ground reaches a request whose answer sits in a cheaper place, such as a public record the requester could pull without the other side's help. The second ground rewards diligence: a party that had a full chance to learn a fact through discovery in the action has no claim to a second round at the other side's expense, and without the limit, discovery on a topic would never end. The third ground incorporates all of Rule 26(b)(1), including relevance and the six proportionality factors, so it reaches a request that is neither repetitive nor late but still costs far more than the case can justify.

Two grounds apply to those interrogatories at once: they duplicate the sworn testimony, and the plaintiff already had ample opportunity to learn the dates. Overlap of that kind is common, because a request that repeats earlier discovery usually fails the cost-versus-benefit weighing as well, since a repeated question has little value to set against its cost.

The usual mistake with this rule is to treat expense as the violation, so that any costly request looks like one the court must cut. The factors compare cost with value, and a costly request is proportional when it reaches information the case turns on.

Both requests cost the responding party something, and both seek facts connected to the case. What separates them is whether the cost buys anything new. The interrogatories repeated what the plaintiff already had, while the logs are central, unavailable elsewhere, and cheap to produce.

The same weighing reaches the lawyer before any judge sees the request. Rule 26(g)(1)(B)(iii) has the signer certify that a request 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."¹² The court in Mancia read that clause and the court's duty under Rule 26(b)(2)(C) as two statements of one proportionality requirement, the first addressed to the lawyer and the second to the judge.¹³

The overlap in vocabulary shows the connection. The amount in controversy and the importance of the issues appear in both lists, and prior discovery in the case ties to the cumulative, duplicative, and ample-opportunity grounds, each of which asks what the requesting party already has. What differs is the actor and the timing. The judge applies the standard after a dispute has arisen, and the lawyer applies it before signing, so a lawyer who runs the factors before serving a request is predicting the ruling the court would otherwise have to make. A lawyer who skips that step risks the consequence taught in the sanctions section: a mandatory sanction when the certification fails without substantial justification.

Narrowing a request to what these considerations support is one of the reasonable efforts that Rule 3.2 asks of a lawyer, because a request that fits the case draws fewer objections and fewer motions and reaches resolution sooner.¹⁴ The Mancia court added that a lawyer who approaches discovery responsibly confers with the other side before initiating discovery and discusses the amount in controversy and how much discovery, of what type and in what sequence, would keep its cost proportional to what is at stake.¹⁵ That early conversation has a formal home in the rules, which the next subsection takes up.

Rule 26(f) Conference

Rule 26(f)(2) of the Federal Rules of Civil Procedure makes the early conversation about discovery a required event instead of a courtesy. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case, make or arrange for the initial disclosures that Rule 26(a)(1) requires, discuss any issues about preserving discoverable information, and develop a proposed discovery plan.¹⁹ The previous subsection ended on the point that a responsible lawyer confers with the other side before serving anything, and the Rule 26(f) conference is the formal home for that conversation. Its place at the start of the case ties it to the duty to expedite, because it settles scope, schedule, and preservation while no request has been served and no dispute exists to be delayed. The settlement item deserves notice too. Prompt resolution is the fastest end to a case, and putting it on the agenda forces the lawyers to ask early whether the case can end before discovery costs pile up.

The duty to make the conference happen belongs to everyone who has appeared in the case. The attorneys of record and all unrepresented parties that have appeared are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court, within 14 days after the conference, a written report outlining the plan. The court may also order the parties or attorneys to attend in person.²⁰ Joint responsibility closes a gap that a duty on the plaintiff alone would leave open. A party who preferred delay could wait to be invited, decline to engage with the proposals when they arrived, and later complain that the plan was one-sided. When every lawyer shares responsibility for the meeting and for the good-faith attempt to agree, silence and foot-dragging become that lawyer's own failure. A lawyer who stalls the planning process also works against the duty that Rule 3.2 states.²¹

The timing provisions place the conference ahead of the court's own scheduling. The default is a conference at least 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b), a default that the local-rule provision for expedited schedules presupposes.²² The two periods work together. A conference held exactly 21 days before the scheduling conference, followed by a report filed on the fourteenth day, delivers the plan to the judge a week before the court sets its schedule. That sequence lets the court's schedule rest on a plan the lawyers have already worked out, instead of the lawyers learning the schedule first and arguing about it afterward. Students often reverse the numbers, so it helps to attach each one to its anchor: 21 days runs backward from the scheduling conference or order, and 14 days runs forward from the conference.

The plan the parties develop must state their views and proposals on several topics, and two of them bear most directly on delay. One covers the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or limited to or focused on particular issues.²³ The other covers what changes should be made in the limitations on discovery imposed under the rules or by local rule, and what other limitations should be imposed.²⁴ Each gives the case a shape before discovery begins. A completion date puts an end on the process, which a duty to expedite needs in order to have something to measure against. Phasing lets the lawyers take first the issues that may resolve or narrow the case, so that expensive discovery on later issues may never be needed. The proposal on limits lets them fit the ordinary limits, which are written for cases in general, to this case's actual stakes, which is the proportionality weighing of the previous subsection done in advance.

An exam stem that opens with a lawyer serving discovery requests at the start of a case invites a debate about whether the requests are too broad, but the first question is about timing. A party may not seek discovery from any source before the parties have conferred as Rule 26(f) requires, unless the proceeding is exempted from initial disclosure under Rule 26(a)(1)(B) or the discovery is authorized by the rules, by stipulation, or by court order.²⁵ The bar is what gives the conference its force. If requests could go out the moment the case opened, a lawyer would be drafting them with little information to tailor them, and the result would be the broad, redundant requests that Mancia identified as a prevalent discovery abuse, each of which the other side would then have to answer or fight.²⁶ Holding discovery until the lawyers have talked forces the conversation about scope, sequence, and cost to happen before the first request is written.

The stipulation exception confirms the reasoning from the other direction. Lawyers who agree that a narrow set of requests may go out early have already had the conversation the bar protects, so their agreement removes the obstacle. The rules add that discovery by one party does not require any other party to delay its discovery, so once discovery opens, it can run in both directions at once instead of waiting its turn.²⁷

Courts run on different calendars, and the rule accommodates the faster ones. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may adopt a local rule that requires the parties to confer less than 21 days before the scheduling conference is held or the scheduling order is due.²⁸ A local rule may also require the written report to be filed less than 14 days after the conference, or excuse the written report and permit an oral report at the Rule 16(b) conference.²⁹ The shortening comes from the court by local rule, so 21 and 14 are the defaults that apply unless a local rule says otherwise. A court that sets its scheduling conferences quickly cannot wait for a plan on the standard timetable, and compressing the conference and the report keeps the plan from lagging behind the court's schedule.

The first two steps decide most stems, because the early-discovery bar is the part of the rule that produces a clear violation on the facts. The later steps matter when a stem describes a lawyer who refuses to engage or who blames the other side for a missing report. An answer that places the whole burden on the plaintiff has the wrong rule, since responsibility is joint. The next section turns to the protective order, which gives a responding party a formal tool when planning and limits have not prevented an abusive request.