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In December, 2015, new rules relating to the proportionality of evidence and discovery came into effect. Those rules provide guidance to judges and lawyers about whether it is appropriate for a judge to grant a discovery request. Duke Law Judicial Studies provided an extremely useful article providing Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality. In this post, I will summarize the guidelines and discuss the purpose behind them, relying heavily on Duke’s article for guidance.
When an attorney files a lawsuit, he needs to obtain, or discover, information from the opposing side to prove the claim. The defense attorney will want to discover information he can use to defend against the claim. In personal injury cases Lowenthal & Abrams, as the plaintiff, seeks to obtain information which will help us prove who is responsible for your injuries and why they are responsible. In a car crash case, this might mean we need the defendant’s insurance information, his cell phone usage at the time of the accident, perhaps his Facebook posts about the crash, and so on. In a medical malpractice case, we seek medical records, documents about internal hospital policies, statements and depositions from the defendant(s) and more. Discovery is a critical part of most lawsuits.
Discovery has become a complicated process. The amount of documents, including emails, medical records, audit trails, social media posts, etc., means that there can be a huge amount of data that one party will request from the other. In some cases, it is both difficult and expensive to provide the requested information. Because of this, the Federal Rules of Civil Procedure provide guidance to help the judge determine whether each party is required to provide the requested evidence. As the name suggests, the Rules of Civil Procedure, are the rules that control various actions in court. The federal government has one set of rules, and each state has its own rules. Many states model their rules after the Federal rules. (If you are interested, the Pennsylvania rules are available here. New York’s rules are here.)
In response to the complexity and expense of responding to discovery requests, the Federal Rules of Civil Procedure were amended in order to address issues of proportionality. The goal is to make the cost of providing the evidence requested and the importance of obtaining the evidence proportional to each other. The rule in question is Federal Rule of Civil Procedure 26(b)(1).
The changes to rule 26(b)(1) do not alter the responsibilities of the parties. What they do is provide guidelines to help judges and lawyers understand the balancing process in which judges should engage when trying to decide whether it is appropriate for a party to produce specific evidence during the discovery process. It is not the responsibility of the party seeking production to offer a show of proportionality when he requests production. Rather, it is the responsibility of the party seeking to avoid production to show why the burden is too great as compared to the benefit of the information it is being asked to provide. After the objection, the seeking party needs to explain why the request is proportional. (Duke article pp 51.) In balancing the factors, the standard for the judge is what is objectively reasonable. (Duke article pp 54.)
There are six factors to analyze when trying to determine the proportionality of evidence production. No one factor is more important than another. The order in which the factors are delineated is not relevant to their importance. In addition, as the case evolves, the leverage of the factors and proportionality decisions may change due to new information.
Evidence must be relevant to the matter and issue at hand, but it is also necessary to determine how important the issue in question is to the underlying claim. If the issue is of little importance and the evidence is challenging to produce, the judge will likely determine that the objecting party is not required to produce it. The more important the issue, the more likely the judge is to require production, even if doing so is extremely difficult.
The amount in controversy means the how much the parties “stand to gain or lose financially” in the case at issue. This number may evolve as the case evolves. If the claim is about other forms of action, such as an injunction, the value is set at the “pecuniary value of …relief.” (Duke article pp 51.) The greater the amount in controversy, the more likely the judge is to require production of relevant evidence.
It is quite common in a lawsuit for one party to have substantially greater access to relevant information than the other. For example, a hospital will have all of the medical records and documents surrounding its own internal policies. If there is no other way for the party seeking the requested information to obtain it, that is a factor that will weigh heavily in favor of the requesting party. The fact that one party happens to have access to a substantially greater amount of information than the other in general does not weigh into the decision. Neither party should be penalized because of “information asymmetry.” (Duke article pp 52.)
It is also common for one party to have substantially more resources than the other. Those resources might be financial, technological, administrative and so on. The party with more resources can be reasonably expected to be required to produce more information. It is necessary to evaluate the resources available to the parties. However, the fact that one party has extremely limited resources will not excuse it from providing information which meets the other guidelines. (Duke article pp 52.)
If something is critical to resolving the case it makes sense that a judge would be more likely to require the party to produce it. The more important the issue and the more important the requested item in resolving the issue, the more it makes sense for the holding party to produce it. If the issue is of marginal importance, or the information is not particularly valuable in resolving the issue at hand, it is less likely the party will be required to produce it. Of course, as with all of the guidelines, the importance will be balanced against the difficulty in obtaining the requested evidence. If an item is not particularly important, but is easy to obtain, a judge is more likely to require it be produced. If the issue is extremely important and the data requested is likely to resolve it, even if it is difficult and costly to produce, the judge is more likely to require its production. (Duke article pp 52.)
Similar to guideline 5, the judge will balance the burden of production versus the benefit providing it will have to the case. If the burden is great in terms of difficulty, time and cost, the benefit must be similarly great to resolving the case. The more important the information, the greater the likelihood its production will be required, regardless of the burden it creates on the producing party. (Duke article pp 53.)
If you are injured in Pennsylvania by a Pennsylvania defendant, chances are that your case will be in state court. This means that the federal rules will not control and the federal proportionality rule and guidelines will have no impact on your case. If, however, your case ends up in federal court due to jurisdictional or other issues, it is critical that your lawyer understands the proportionality rule and is able to show your judge why evidence should or should not be produced. Many judges already balanced the issues discussed when making decisions about whether to require production of evidence, therefore these concepts are not new to competent attorneys.
In terms of the cases we handle here at Lowenthal & Abrams, the evidence we tend to request is normally directly on the issue of liability in the cases of our clients. Therefore, it is more likely than not that judges will require defendants to produce the kind of documents and data we request. As a result the changes to Federal rule 26(b)(1) should have little impact on your lawsuits. Defense attorneys may seek to avoid production, but the relevance and import of the information we request is such that the judges should find our requests objectively reasonable.
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