Discovery
Making A Plan
Select discovery issues that are important to the practitioner.
By Xavier Rodriguez and James Wes Christian
Successful commercial litigation today requires an effective
strategy, especially in obtaining the communications and documents
necessary to prove or defend your case. As such, coming up with a
cost-effective and streamlined discovery plan is a key component in the
implementation of your strategy.
This article will address a few items to consider in your streamlined
discovery plan. Specifically, this article will articulate limits of
discovery requests and provide proper procedures for asserting bona fide
objections in both federal court and Texas state court by looking to
developments in caselaw. The article will also address issues of
cost-shifting in responding to discovery requests.
Bona Fide Objections
Federal Court
Rule 26 of the Federal Rules of Civil Procedure permits discovery
regarding “any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case.”1
But discovery is not boundless. Discovery must be limited if: “(i) 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; (ii) the party seeking discovery has had
ample opportunity to obtain the information by discovery in the action;
or (iii) the proposed discovery is outside the scope permitted by Rule
26(b)(1).”2
The question then becomes how to properly object to impermissible
discovery requests. A review of Harper v. City of Dallas,
Texas,3 provides a great outline to follow on how to
object to discovery in federal court.
In sum, a party should only seek discovery that is relevant,
non-privileged, and proportional. If a producing party has failed to
produce discovery or production has been incomplete, a requesting party
should first attempt to confer with opposing counsel before filing a
motion to compel under Rule 37(a). The party resisting discovery must
show specifically how each discovery request is not relevant or
otherwise objectionable. A party resisting discovery must show how the
requested discovery is overly broad, unduly burdensome, or oppressive by
submitting affidavits or offering evidence revealing the nature of the
burden. If a party does not make this evidentiary showing, the objection
is merely conclusory.4 Courts have found discovery not to be
unduly burdensome where the responding party “did not offer any
specifics or even a rough estimate about the burden.”5 As
such, boilerplate objections are no longer permissible. Boilerplate
objections are effectively no objection at all,6 and parties
who use such language, waive each of its objections.7
Further, a party seeking to resist discovery on proportionality
grounds bears the burden of showing that any discovery request that is
relevant to any party’s claim or defense fails the proportionality
calculation mandated by Rule 26(b).8 Yet a court may decline
to compel, and at its option or on motion may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden, including forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery to certain
matters.
In Nece v. Quicken Loans,9 an attempted
class-action case, Quicken was alleged to have made calls to individuals
who had posted their phone numbers on the National Do Not Call Registry.
The plaintiffs sought all documents “of any type received by Defendant
or any third party from a proposed class member requesting that
Defendant not contact that consumer or customer.” Although the relevant
statute contained a four-year limitations period, plaintiffs refused to
limit their request. Quicken objected to the request on relevance
grounds and burden, asserting that such a production could necessitate
reviewing over 3 million emails and the expenditure of millions of
dollars. Without any reference to Rule 26, but apparently deciding the
matter on a “burden disproportional to the needs of this action,” the
district court vacated the magistrate judge’s order requiring
production.
In Physicians Alliance Corp. v. WellCare Health Insurance of
Arizona, Inc.,10 the plaintiff requested that the
defendant “produce all data from the backup tapes for the years
2003-2004 and 2011 at WellCare’s expense or, in the alternative, an
order permitting [Plaintiff’s] expert to conduct a physical examination
of WellCare’s backup tapes for the years 2003-2004 and 2011.” The
defendant filed numerous objections, including that “the discovery
sought is not proportional to the needs of the case on the basis that
the data is likely to be cumulative of prior productions, carries little
relevance, and is not reasonably accessible and may not be recoverable
at all.” Applying the proportionality factors in Rule 26(b)(1) and Rule
26(c) (wherein the court stated the “party seeking a protective order
has the burden to show the necessity of its issuance, which contemplates
a particular and specific demonstration of fact as distinguished from
stereotyped and conclusory statements”), the court found that the
discovery requests were proportional, the defendant’s initial estimates
of costs were substantially lowered (from $211,500 to $13,000), the data
was not duplicative, and the amount in controversy was large (in excess
of $20 million).11
Texas State Court
Rule 192.4 of the Texas Rules of Civil Procedure constrains the scope
of discovery stating that discovery should be limited if: “(a) the
discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive; or (b) the burden or expense of the
proposed discovery outweighs its likely benefit, taking into account the
needs of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the
issues.”12
Although the Texas Rules of Civil Procedure have no specific meet and
confer requirement akin to Fed. R. Civ. P. 26(f), the Texas Supreme
Court nevertheless suggests that In re Weekley Homes,
L.P.13 and Rule 196.4 include the directive that the
parties make reasonable efforts to resolve disputes without court
intervention.14 As summarized below, In re Weekley Homes,
L.P. sets forth the procedures for obtaining discovery of
electronic information under Rule 196.4.
When a party requests electronic information, Rule 196.4 requires the
responding party to either produce responsive electronic information
that is reasonably available in its ordinary course of business, or
object on grounds that the information cannot through reasonable efforts
be produced in the form requested. Once the Rule 196.4 objection is
raised, either party can request a hearing where the responding party
must present evidence to support its objection.15 The trial
court may order discovery, such as requiring the responding party to
inspect sources that may contain information identified as not
reasonably available, to determine whether the information is reasonably
available.
If the responding party fails to meet its burden, the trial court may
order production subject to discovery limitations in Rule 192.4. If the
responding party meets its burden, the trial court may nevertheless
order targeted production upon a showing by the requesting party that
the benefits of ordering production outweigh the costs.16 The
Texas Supreme Court also notes that to the extent possible, courts
should be mindful of protecting sensitive information and should choose
the least intrusive means of retrieval.
Cost Shifting
There is a presumption that the responding party must bear the expense
of complying with discovery requests.17
However, pursuant to Rule 26(c) of the federal rules, a district court
may issue an order protecting the responding party from undue burden or
expense by conditioning discovery on the requesting party’s payment of
the costs of discovery. Such an order may be granted only on the motion
of the responding party and “for good cause shown.” Further, “the
responding party has the burden of proof on a motion for
cost-shifting.”
In Estate of Shaw v. Marcus,18 the court ordered
the plaintiff to pay for 70 percent of forensic examination costs
(primarily due to discovery misconduct). However, the court noted that
“[a]s a general rule, where cost-shifting is appropriate, only the costs
of restoration and searching should be shifted,” and “not … expenses
incurred in the course of review.”
Additionally, counsel should carefully understand the implications of
any discovery protocols they enter into. In Bailey v.
Brookdale,19 the parties submitted an electronically
stored information, or ESI, agreement, which the court accepted.
Afterward, the plaintiff’s counsel discovered that in this employment
discrimination case he had inadvertently agreed to require his client to
bear the costs of certain email recovery and sought relief from the
earlier agreed-upon order. The court refused to void the earlier
agreement but did alter the cost-sharing arrangement to require
defendants to bear 40 percent of the costs.
Having a clear
grasp of the limits of discovery as a requesting party, knowing how to
properly and effectively respond and object if the information requested
goes beyond those limits as the responding party, and understanding
specific issues on how to shift the cost of discovery can better
facilitate a more cost-effective and streamlined discovery
plan.TBJ
XAVIER RODRIGUEZ
serves as a U.S. district judge in San Antonio.
JAMES WES CHRISTIAN
is the senior partner in Christian Smith & Jewell, a regional
litigation boutique firm in Houston. He is also the chair of the State
Bar of Texas Litigation Section.
