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Winning Your Discovery Disputes – How to Tailor Your Arguments to the New Rule 26(b)(1) Proportionality Test in the Third Circuit

September 07, 2022
Client Alert

“This case provides a classic example of how discovery gamesmanship can backfire…[a]fter the Pughs first requested hospital records in April 2020, the Northampton Defendants stonewalled, blanketly asserting that the straightforward interrogatories were somehow ‘vague, ambiguous, overly broad and unduly burdensome.’” – Pennsylvania Magistrate Judge Timothy R. Rice, Pugh v. Community Health Sys., et al., No. 5:20-cv-00630 (E.D. Pa. Jan. 8, 2021).

Litigators know that cases are rarely won at trial; they are won and lost on the discovery battlefield. In federal court, the traditional notion of relatively unconstrained discovery has given way to the explicit “proportionality” test of Fed. R. Civ. P. 26(b)(1), a rule that was most recently amended in 2015. While the scope of discovery under the Federal Rules of Civil Procedure is “unquestionably broad,”1 federal district courts must balance a party’s right to relevant information against the possibility of wasteful and abusive discovery. The tension between knowledge and efficiency is addressed by Fed. R. Civ. P. 26(b)(1), which provides that a party may obtain discovery on any matter that is both “relevant to any party’s claim or defense” and “proportional to the needs of the case.” As one court stated, “The district court’s role under Rule 26, then, is to discern that middle ground between two countervailing pressures, the optimal solution to the information-cost equations.”2 This article analyzes how district courts within the Third Circuit have treated the “proportionality” issue in the wake of the 2015 amendments to Rule 26(b)(1).

Renewed Emphasis on Proportionality
Maintaining proportionality has taken on greater importance since Rule 26(b)(1) was amended in 2015. Significantly, the Advisory Committee added the proportionality clause to the first sentence, taking a provision that it had previously located – with almost identical language – in Fed. R. Civ. P. 26(b)(2)(C)(iii). The Advisory Committee stated that the amendment “restores the proportionality factors to their original place in defining the scope of discovery” and “reinforces” the parties’ obligation to consider proportionality factors.3 Although the Advisory Committee emphasized that the amendment did not change the duties of the parties and court, the change was widely viewed as an effort to restrain excessive and wasteful discovery and encourage judges to be more aggressive in policing discovery.4 Chief Justice John Roberts wrote in his 2015 year-end report that the amended Rule 26(b)(1) “crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality” and “states, as a fundamental principle that lawyers must size and shape their discovery requests to the requisites of a case.”5 Read more...

1  United States v. Nobel Learning Communities, 329 F.R.D. 524, 527–28 (D.N.J. 2018).

2  Fassett v. Sears Holdings Corp., 319 F.R.D. 143, 153 (M.D. Pa. 2017).

3  Advisory Committee’s Note on the 2015 Amendment.

4  26 A.L.R. Fed. 3d Art. 2.

5  Chief Justice John Roberts, “2015 Year–End Report on the Federal Judiciary,” Dec. 31, 2015 (Roberts Report), at 6-7, available at

Information contained in this publication should not be construed as legal advice or opinion or as a substitute for the advice of counsel. The articles by these authors may have first appeared in other publications. The content provided is for educational and informational purposes for the use of clients and others who may be interested in the subject matter. We recommend that readers seek specific advice from counsel about particular matters of interest.

Copyright © 2022 Stradley Ronon Stevens & Young, LLP. All rights reserved.

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