Judge Cheryl Zwart provided one of the best summaries of proportionality analysis in Hurd v. City of Lincoln. The case is an employment action against the City of Lincoln with allegations of adverse actions taken on the Plaintiff after he filed discrimination and retaliation complaints. The Plaintiff had deposed five out of the six named defendants and other witness; the Defendants produced over 6,500 emails and attachments and over 49,000 pages of documents. The Plaintiff sought the deposition of the Mayor, which the Defendants opposed. Hurd v. City of Lincoln, 2017 U.S. Dist. LEXIS 210104, (D. Neb. Dec. 21, 2017).
The Court explained through the Federal Rules of Civil Procedure, case law, and secondary material, how to make a proportionality argument. As a preliminary matter, the burden of demonstrating the proportionality of the sought discovery is the “collective responsibility between the parties and the court.” Hurd, *2-3, citing Elizabeth D. Laporte & Jonathan M. Redgrave, A Practical Guide to Achieving Proportionality Under New Federal Rule of Civil Procedure 26, 9 FED. CT. REV. 20, 40 (2015).
The party seeking the discovery must show the information is “important for the issues and resolution of the case.” The responding party must demonstrate the expense and burden to responding to the discovery request. It is then the Court’s responsibility to balance the parties’ interests consistent with the proportionality principles in the Federal Rules of Civil Procedure. Id.
The Plaintiff argued that the Mayor’s testimony was relevant to the claims of the lawsuit and unavailable from any alternative sources, because the Mayor “may have” made important decisions in the investigation involving the Plaintiff. Hurd, at *3. However, the Plaintiff failed to prove that the information the Mayor had could not be obtained from other witnesses in the case. Moreover, the over 40 hours of deposition testimony included the deponents’ knowledge of meetings with the Mayor. Furthermore, of the 6,500 emails produced, none were to or from the Mayor. Hurd, *4.
Based on proportionality, the Court held that the Plaintiff failed to show the Mayor’s deposition was proportional to the needs of the case. The Court granted the Defendants’ motion to quash, but allowed the Plaintiff to bring their motion again in the event the mayor’s subordinates’ testimony was insufficient.
Bow Tie Thoughts
Proportionality requires answering a basic question: why is the sought discovery necessary? The answer cannot be mere speculation. Give the Court specifics, not what you wish the discovery to be. For the party opposing the discovery, the issues of costs should be specific or at least estimates based in fact. No judge wants to hear “it’s expensive.” Provide the court numbers of records sought, time it would take to review, and estimated fees for the review.
The document review from the above case included that there were no emails to or from the mayor. This could be determined from a searching for email addresses and noting there were no results. This fact clearly favored the Defendants to not depose the Mayor. These are the sort of facts a judge needs to fully balance the proportionality interests between the parties in order to rule on a discovery motion.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.