Avoiding Unnecessary Costs: Court Reminds Parties to Narrowly Tailor Discovery Requests
As previously highlighted by this blog, discovery is best effectuated through cooperation by the parties in a litigation. A baseline to cooperation is adhering to the discovery rules set forth in the Federal Rules of Civil Procedure. The Supreme Court of Idaho recently issued a reminder to parties that discovery requests must be narrowly tailored in proportion to the needs of the litigation and that serving overly broad discovery requests is not a court-approved negotiation tactic. Further, prior to seeking court intervention, the parties should cooperate in an effort to resolve any discovery disputes by meeting and conferring with sincerity.
In Oswald v. Costco Wholesale Corp., the plaintiff was struck by a car and pinned against another car in one of the defendant’s parking lots, causing significant and permanent injuries. The plaintiff sued the defendant, alleging the parking lot was unsafe in its design and construction. In discovery, the plaintiff propounded extremely broad discovery requests, requesting that the defendant disclose “on a nationwide basis any incident [involving] a vehicle impacting anything.” In turn, the defendant sought a protective order asserting the discovery requests were overly broad and unduly burdensome. The court agreed with the defendant, stating that the plaintiff inappropriately used the “hearing as a sort of negotiation whereby the court is expected to replace plainly unreasonable discovery requests with . . . [requests] that would be reasonable.”
While the court in Oswald interpreted the Idaho discovery rules, these rules largely mirror their federal counterpart, Fed. R. Civ. P. 26. Although Fed. R. Civ. P. 26 does not require discoverable information to be admissible, parties must be cognizant of the proportionality requirement imposed by the Rule and forgo drafting overly broad discovery requests as either a “fishing expedition” or a negotiation tactic. As a reminder, Fed. R. Civ. P. 26(b)(1) provides the permissible scope of discovery, limiting it to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case . . . .” In crafting discovery requests within the confines of proportionality, the drafting party must consider (1) the importance of issues at stake in the case; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of discovery in resolving the case; and (6) whether the burden or expense of the discovery outweighs its benefit.
As the defendant illustrated in Oswald, a responding party seeking a protective order in light of broad discovery requests should focus on these proportionality factors and propound arguments, for example, that focus on the burden and expense imposed to substantively respond to the request, the lopsided relationship between the amount in controversy and the cost of the requested discovery, and the lack of a material relationship between the requested discovery and the claims or defenses at issue in the litigation. Further, under Fed. R. Civ. P. 26(g), the responding party may seek sanctions against the drafting party for failure to consider proportionality in drafting the requests, which may include payment of reasonable expenses related to the violation.
Oswald also reminds parties not to shirk their duty to meet and confer when shaping the universe of discovery for a particular case. After the plaintiff served revised discovery requests, the defendant filed another motion for a protective order without ever attempting to meet and confer with the plaintiff. While Oswald applied a pre-motion meet and confer requirement under Idaho rules, Fed. R. Civ. P. 26(f) requires parties to meet and confer to develop a discovery plan to guide the litigation, such as identifying relevant categories of electronically stored information (ESI). Through cooperation, parties are more likely to prevent costly motion practice if these meet and confer requirements are taken seriously.
In short, Fed. R. Civ. P. 26 requires parties to put time and effort into the front-end of the discovery process. By doing so, the parties decrease the likelihood of discovery disputes that lead to motion practice, thereby lessening the burden on the court and reducing litigation costs for their clients. Therefore, prior to serving discovery requests, parties need to carefully consider the relevant scope of discovery and the relative time and expense that will be imposed on the responding party to substantively respond to their requests.