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
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.
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
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.