Rule 26(b)(1) – Proportionality, ESI and the December 2015 Amended Federal Rules
As the exponential growth of technology and computing power continues, the law frequently finds itself playing “catch-up”. This is especially true in areas surrounding eDiscovery and electronically stored information (“ESI”). In December 2015, the Federal Rules of Civil Procedure were amended. Specifically, Rule 26(b)(1) (governing the scope of discovery) was amended to read:
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non privileged matter 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.”
A recent case in the Northern District of Illinois, Hespe v. City of Chicago, 2016 U.S. Dist. LEXIS 173357 (N.D. Ill. 2016), analyzes the proportionality requirements of Rule 26(b)(1) at some length.
Plaintiff was a Chicago police officer who alleged that her supervisor sexually harassed her for years by pursuing a romantic relationship with her. Her supervisor was named as an individual Defendant, and took the position that the entire relationship had been consensual and that there was no unwelcome harassment or discrimination.
Following the deposition of Plaintiff, Defendants learned that Plaintiff’s mother was in possession of a large number of text messages and other pertinent records. Discovery was extended, and Defendants obtained an additional 5,748 text messages. Plaintiff was deposed again shortly before the close of discovery, after which Defendants moved to extend discovery and to compel Plaintiff to produce her electronic devices for inspection.
The Magistrate Judge denied Defendants’ request, and the Northern District of Illinois upheld his decision. In analyzing the Magistrate Judge’s ruling, the court stated:
“Judge Mason explained that defendants’ request to perform a forensic inspection of plaintiff’s electronic devices for ESI was not proportional to the needs of the case because plaintiff had turned over all the ESI defendants had requested, which was presumably all the ESI she possessed, and in any case “the burden and expense of inspecting plaintiff’s devices and online accounts likely outweigh any benefit because copies of the documents and communications are sufficient to defend [against] plaintiff’s claims in this discrimination case.” Moreover, Judge Mason explained, inspection of plaintiff’s electronic devices is not “proportional to the needs of this case” because any benefit the inspection might provide is “outweighed by plaintiff’s privacy and confidentiality interests.” (internal citations omitted).
The court went on to detail specifically how proportionality interplays with discovery requests. Citing Hedenburg v. Aramark Am. Food Servs., 2007 U.S. Dist. LEXIS 3443, 2007 WL 162716 (W.D. Wash. 2007), the court said: “The court recognized that it had permitted forensic imaging of computers in cases where the “contents of the computer go to the heart of the case,” such as in trade secret cases, where “one party demonstrate[d] the likelihood that trade secrets were forwarded to or sent by [the computer].”
In the instant case, the court found that Defendants were essentially seeking a search warrant of Plaintiff’s devices in an attempt to find statements with which to impeach her. Specifically, they sought statements which would support their own position that the relationship between Plaintiff and her supervisor was purely consensual. The court rejected this approach, finding that Defendants had already obtained testimony from Plaintiff that she had been in a sexual relationship with her supervisor, she believed she loved her supervisor at one time, and she told her supervisor she loved him in 2009. The court points out the importance of having a specific target when requesting intensely intrusive discovery, saying: “Importantly, defendants do not request to search for any specifically identified text message or messages with particular content that they have shown to have existed at one point and that if found, will conclusively resolve a contested issue in the case.”
At the end of the day, the court upheld the magistrate judge’s ruling, holding that “The evidence of fault is sparse at best, and, when this evidence is weighed against (1) plaintiff’s interest in protecting her privacy rather than allowing unfettered access to her personal devices and (2) the generic and apparently inconclusive nature of the unspecified ESI for which defendants want to search, it is insufficient to justify a forensic inspection. Judge Mason did not clearly err in ruling that the inspection defendants seek is not proportional to the needs of the case.”
What does this mean going forward? By analyzing the amended Federal Rules and emphasizing the role of proportionality, courts are considering the relative costs and burdens of obtaining ESI in a new framework. Given the sheer amount of data which can be stored on a personal computer alone, it is becoming increasingly important that requests for ESI be tailored specifically and clearly. An individual’s privacy concerns have weight, and, absent a showing of the relative importance or specificity of a particular request for ESI, courts are willing to uphold them.
The case law on this issue is likely to continue to develop over time, and staying on top of how courts approach ESI will help ensure that your cases go as smoothly as possible.
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