For health care industry clients involved in litigation, discovery is often the most protracted and expensive phase of a lawsuit. Discovery enables each party to request documents and other information from other parties in the case, as well as from people who are not parties but who have relevant information.
A December 2015 change to the Federal Rules of Civil Procedure portended potentially major shifts in the way discovery in federal lawsuits is conducted. New Rule 26(b) required that all case discovery be “proportional to the needs of the case.”
Proportionality, of course, is in the eye of the beholder. The amendment left uncertain how to define what is proportional in any particular case. Yet, in the months since it took effect, new Rule 26(b) has proven useful in cutting down the time, effort, and cost involved in meeting the legal obligation to produce information in a civil lawsuit:
- Citing new Rule 26(b), courts have not hesitated to limit or reject requests based on whether the scope of the results would be proportional to the issues in the case. See Gilead Sciences, Inc. v. Merck & Co., Inc. (N.D. Cal. Jan. 13, 2016).
- For example, in a product liability case against a pharmaceutical company, the judge rejected as disproportional a number of the plaintiff’s discovery requests based on the “volume of reports” the requests would return, “the amount of irrelevant information likely to be included,” and the number of employees of the pharmaceutical company “who would have to be questioned.” Vallejo v. Amgen, Inc. (D. Neb. May 20, 2016).
- The amendment has forced attorneys making discovery requests to be wary that a court could deem them disproportional. Attorneys cannot as easily request massive haystacks merely because they may contain one or two relevant needles.
- The proportionality requirement can be particularly helpful to a client who is not a party in a lawsuit, but who receives a subpoena for information to be used in the lawsuit. The requirement adds to the argument that the client, who otherwise has no involvement in the case, should not be burdened any more than absolutely necessary.
In just a few months, new Rule 26(b) has already made discovery in health care lawsuits at least somewhat more efficient. That’s good news for health care clients—and good news for their case budgets.