Two More New Decisions on Proportionality in Discovery
In Firefighters’ Retirement System v. Citco Group Limited and Nece v. Quicken Loans, Inc., courts consider when requested discovery is disproportionate
by Matthew Verga, JD, Xact Data Discovery
As we discussed in one of our recent series, significant amendments to the Federal Rules of Civil Procedure became effective in December 2015, including a revision to Federal Rule of Civil Procedure (“FRCP”) 26(b)(1), which brought the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era. The amended version incorporates a multi-factor proportionality test directly into the general discovery scope definition and places “proportional” on equal footing with “relevant” as a discoverability criteria.
Two more new decisions addressing the question of proportionality in discovery can now be added to our collection: Firefighters’ Retirement System v. Citco Group Limited, Civ. Action 13-373-SDD-EWD (M.D.La. Jan. 3, 2018) and Nece v. Quicken Loans, Inc., No. 16-cv-2605-T-23CPT (M.D. Fla. Feb. 27, 2018).
Firefighters’ Retirement System v. Citco Group Limited
In this case, the parties agreed upon a list of custodians from whom to collect materials and a list of search terms to apply to those materials. After extensive discovery had already taken place, Plaintiffs alleged that the Defendants’ responses to some interrogatories “‘were incomplete and inaccurate’ and thus resulted in “a flawed list of custodians” and a “flawed electronic search for documents’,” and filed a motion to compel the Defendants to greatly expand their search for materials by contacting every employee to look for new custodians from whom to collect.