The Federal Rules of Civil Procedure Amended to Address Proportionality of Discovery

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Relief may be in sight for the discovery costs of large corporate defendants involved in toxic tort litigation. As happens all too often in  toxic tort cases, a single plaintiff (or a group of similarly situated individuals) asserts claims against one or more large corporations that have been in business for many years. Due to the length of the corporation’s existence, there is a voluminous amount of corporate information and documents. When the plaintiff’s predicatably requests the entirety of these documents in the discovery process, the resulting burden and expense on the corporate defendant can be extreme, yet much of the information sought may bear little relevance to the alleged plaintiff’s claims. This problem can be further compounded when the alleged toxic substance has a long latency period. Many defendants frequently respond to such requests with standard “boilerplate” objections, and the plaintiff seeks court intervention to compel production.

Clearly sick of this process that slows down cases and wastes judicial resources, our federal courts may now see some relief, as the recent amendments to the Federal Rules of Civil Procedure address the proportionality of the discovery process. The text of Rule 26(b)(2)(1) now states, “Parties may obtain discovery that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” The final requirement speaks directly to the toxic tort litigant. The burden of the request on the defendant needs to be proportional to the benefit the sought information provides to the plaintiff.

Also gone with the amendments to the Federal Rules of Civil Procedure are the boilerplate objections used in discovery responses. Rule 34(b)(2)(c) now states, “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” A growing number of courts have made it clear since the enactment of the amendments that an objecting party needs to have a colorable argument to its objection; if not the court will not hesitate to sanction the objecting attorney. Further, the objecting party must identify that in fact materials have been withheld in addition to positing its objection. This will hopefully eliminate costly battles over requests that ultimately would provide no information.

In the toxic tort context, these changes to the federal discovery rules will force plaintiffs to hone in on the information that is truly relevant to their claims. For example, if a latent exposure was in a certain year, the plaintiff must focus on information relevant to that time frame generally, and not everything known to the corporation from the beginning of time to the present day. For information outside the relevant timeframe, the value to the plaintiff must be proportional to the burden on the defendant.

While we are still watching and learning to see how these new rules will play out and whether the scope of discoverable information will be drastically altered in the toxic tort arena, one thing, however, is clear. The courts recognize there is an issue regarding the proportionality in the discovery process, and these new rules have given both sides new standards and put an onus on cooperation between the parties.

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