Stapling Proportionality

Proportionality and costs are not a great argument when you are complaining about your own databases.


Webb v. Ethicon Endo-Surgery, Inc., is a product liability case over a surgical stapler that misfired during a surgery, resulting in complications to the Plaintiff’s recovery. Webb v. Ethicon Endo-Surgery, Inc., 2015 U.S. Dist. LEXIS 8275, 2-3 (D. Minn. Jan. 26, 2015). The Magistrate Judge attempted surgery on the scope of discovery, resulting in the Defendant arguing the scope was too broad, and the Plaintiff arguing it was too narrow, over three specific discovery requests. The District Court upheld the Magistrate Judge’s order on the scope of discovery.

The Defendant offered a declaration from their risk manager to support their argument to narrow discovery based on proportionality. The Defendant argued that they had made the line of medical staplers for 18 years and the records were stored in multiple databases. Webb, at *14-15.

The Defendant further argued that it would cost $62,400 to search the multiple databases, which was disproportional to the Plaintiff’s damages “in excess” of $50,000. Webb, at *16. This argument failed.

The Court cited that the producing party has the burden of complying with discovery requests and “a corporation [that] has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Webb, at *16-17, quoting Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) and citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

The Court held that the Magistrate Judge properly determined the scope of discovery in evaluating the expense, burden, and likely benefit of the information sought for the subject discovery requests. Webb, at *17.

Bow Tie Thoughts

Searching databases is expensive. Many judges do not care for arguments from a producing party that searching multiple, or even dissimilar, databases make the cost of relevant discovery prohibitively expensive. This is like arguing a party should be protected from its own self-inflicted wound on how they manage different databases.

Technology is constantly improving, thus methods of storing data change over time. If a company maintains electronically stored information going back potentially decades, they should be prepared have the ability to search it in litigation in a cost effective manner.

  1. Thank you for reporting on this decision. Based on your writeup, the reasoning in it is absurd. The very purpose of the proportionality rule is to acknowledge that systems can be expensive to search. Business systems are built for business purposes. They are designed to answer specific questions that are relevant to operations. They are NOT designed to answer open-ended questions that might someday be relevant to some unknown future lawsuit.

    While you could not deliberately design your company’s systems to be “ligitigation-hostile”, there is no requirement in the law or in any rule of the court that anything special be done to make them somehow “litigation-friendly”. To be blunt, even if a court imposed such a law, it would be impossible to fulfill. One simply cannot know today what fields or data elements will be relevant to every possible litigation for the next two decades. That’s not how computers are designed.

    And while Josh is correct that data storage technology is changing rapidly, not all legacy systems can or should be converted. Again, businesses are formed to support business purposes, not litigation.

    Think of it this way. In a request for production, the company is required to turn over documents that it has. It cannot be compelled to make new documents if no responsive document exists in the environment. The implication of this decision is the equivalent of requiring a company to create new documents. The implication is a requirement to convert legacy information to some new and different (and presumably more searchable) form as a hedge against future litigation needs even though there is no business purpose to spend that money.

    I would be less sympathetic if the Judge’s decision had said that he considered the facts and disagreed with the Defendant about proportionality. The quote above, however, gives the strong impression that the Judge either doesn’t understand or simply disagrees with the very idea of proportionality. If companies are not allowed to argue proportionality in situations like this, then the entire concept is a paper tiger.