After seemingly endless years of rulemaking, the first decisions applying the amended Federal Rules of Civil Procedure have begun to trickle out. Not surprisingly, there have been no game changers to date, but early signs point to a heavy emphasis on the principles of proportionality, a concept entrenched in the Rules since the 1980s but given new life with the amendments to Rule 26.
Indeed, in January alone federal district courts in New York, California and Georgia all looked to the proportionality principles contained in Rule 26(b)(1) in deciding discovery disputes.
In Henry v. Morgan Hotel Group, 2016 WL 303114 (S.D.N.Y. Jan. 25, 2016), the court concluded that a third party subpoena was improper, in part, because it failed to apply amended Rule 26(b)(1) which emphasizes “the need to analyze proportionality before ordering production of relevant information.” Similarly, in California, the court in ChriMar Systems v. Cisco Systems, 2016 WL 126556 (N.D. Cal. Jan. 12, 2016), credited the producing party’s objection that a request was disproportionate where it sought “information from anywhere in the world without any temporal limitation.” Finally, a Georgia court granted a motion to compel, awarded attorneys’ fees and ordered counsel to familiarize themselves with the amendments, noting that the amendments “elevate[…] the proportionality factors previous found in Rule 26(b)(2)(c).” See Herrera v. Planation Sweets, 2016 WL 183058 (S.D. Ga. Jan. 14, 2016).
While it will likely take several years for the full impact of the amendments to be felt in the case law, litigants beware—proportionality is back and the courts are taking notice.