Patricia E. Antezana: Remember Courts’ Power to Limit Discovery With Rule 26(b)(2)(C)

Extract from Patricia E. Antezana’s article “Remember Courts’ Power to Limit Discovery With Rule 26(b)(2)(C)”

Not only do the Federal Rules of Civil Procedure instruct parties to construe, administer, and employ the Federal Rules to secure the just, speedy, and inexpensive determination of every action, but they also instruct the courts to do the same. It is not uncommon for courts to instruct parties to work together to limit discovery, but parties must remember that courts may also limit discovery on their own. Indeed, the 2015 Amendments to Rule 26(b) “encourage judges to be more aggressive in identifying and discouraging discovery overuse.” See Fed. R. Civ. P. 26, advisory committee notes to the 2015 Amendments.

One mechanism that courts can use to limit discovery is Federal Rule 26(b)(2)(C). Rule 26(b)(2)(C) instructs that a court must limit the frequency or extent of discovery if it determines that: “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or the proposed discovery is outside the scope permitted by Rule 26(b)(1).” With this instruction, the federal rules provide a mandate that courts “must limit” discovery if they determine that the circumstances warrant it. Two recent cases illustrate the courts’ willingness to limit discovery within Rule 26(b)(2)(C)’s framework.

In Simkins v. New York Life Insurance, 2023 U.S. Dist. LEXIS 180919 (W.D. Wash. Oct. 6, 2023), the U.S. District Court for the Western District of Washington turned to Rule 26(b)(2)(C) to resolve the parties’ discovery dispute. The plaintiffs in Simkins included the insured who was an incapacitated person, Diane Simkins, and her guardians. After filing a lawsuit arising out of a long-term care policy issued by New York Life Insurance Co. (NY Life), the plaintiffs served a Rule 30(b)(6) deposition notice directed to NY Life. NY Life moved for a protective order regarding dozens of the plaintiffs’ proposed deposition topics.

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