The Proportional Request for Production

Magistrate Judge Howard Lloyd engaged in very granular analysis of discovery requests for email messages in a wage and hour case. This type or analysis is a mainstay in many motions over discovery requests, but likely will be more common as Federal Courts conduct proportionality analysis.

problem-663332_1280

The Court first summarized that Plaintiff’s Request for Production number 18, which sought all documents “regarding the acquisition of AT&T Language Line Services.” Van v. Language Line Servs. (N.D.Cal. Mar. 2, 2016, No. 14-cv-03791-LHK (HRL)) 2016 U.S. Dist. LEXIS 26440, at *12.

Judge Lloyd held the Defendants put this information at issue with their argument that the terms of the Plaintiff’s employment were altered by a past acquisition. Id. However, the Court limited the request to information that showed the specific acquisition altered the terms of the Plaintiff’s employment contract. Van, at *13.

Plaintiff’s Requests for Production 19, 23, and 24 all sought specific email regarding the Plaintiff’s employment history. The Court explained that those emails would likely have some probative value to the Plaintiff’s claims. Van, at *12. Judge Lloyd held under Rule 26(b)(1) that “the virtually non-existent burden of producing three specific emails is proportional to the evidentiary needs of this wage-and-hour case.” Id.

Bow Tie Thoughts

I believe that Federal Judges will be very hands-on applying proportionality analysis. That requires requesting parties to be able to effectively demonstrate the “value” of the requested information to a case. It also requires producing parties to demonstrate burden. This means requests for production should not be a matter of dart throwing. Moreover, producing parties cannot simply say, “producing is expensive” in an attempt to avoid discovery obligations.

How can parties accomplish these realities? Both need to conduct effective reasonable inquiry into their case theories. That will most likely take shape with expert forensic reports, early case assessment, and effective document review. Lawyers will need to make clear arguments on why the requested information is needed; Lawyers objecting will need to do so with specificity. Both require analyzing the facts.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s