New Proportionality Requirement in Rule 26 Not that Big of a Deal

Much has been made of the latest amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, some going so far as to call them “the most significant change to federal civil practice in the last decade.” In particular, Rule 26 has been amended to include a new “proportionality” provision. Rule 26(b)(1) now limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case,” apparently imposing an enormous limitation on the scope of permissible discovery.

The concept of proportionality, however, is nothing new. Even before the 2015 Amendments, Rule 26 provided that discovery should be limited if it “is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” The Eastern District of Virginia recently had a chance to grapple with the new rule in a defamation case, and the implication of the court’s holding is essentially that not much has changed, but that litigants and the court should pay a little extra attention to proportionality as they deal with discovery issues.

Most of those reading this will already be familiar with the basic facts of Eramo v. Rolling Stone. Nicole Eramo is an Associate Dean of Students at the University of Virginia. On November 19, 2014, Rolling Stone published an article entitled, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA,” written by Sabrina Rubin Erdely. The article contained a graphic description of an alleged gang rape of a student, “Jackie,” at a fraternity house. It described various interactions between Jackie and Eramo, who was also the head of UVA’s Sexual Misconduct Board, including one in which Eramo allegedly told Jackie that UVA did not publicize sexual assault statistics “because nobody wants to send their daughter to the rape school.”

Various independent entities investigated Jackie’s claims after the article was published, and several of them reported that Jackie’s story could not be substantiated. On December 5, 2014, Rolling Stone itself issued a statement acknowledging the discrepancies in Jackie’s account and claiming that she had misled Erdely, the reporter. Eramo sued for defamation, claiming that she never referred to UVA as a “rape school” and never discouraged Jackie from reporting her attack to the police, and that the Rolling Stone article destroyed her reputation as an advocate and supporter of sexual assault victims.

In any defamation action, the plaintiff has the burden of proving that the statement at issue is false. Thus, Eramo will need to prove at trial that she never said the things Jackie accused her of saying. Plaintiffs also have the burden of proving that the statements were made either negligently or maliciously, which basically means that Eramo will have to prove that Erdely and Rolling Stone either knew that Jackie was lying about her interactions with Eramo, or that they should have known she was likely lying. Naturally, to go about assembling the necessary proof, Eramo served Jackie with a subpoena.

The subpoena asked Jackie to produce (among other things) the following documents:

  1. Jackie’s relevant communications with Erdely
  2. Jackie’s relevant communications with Rolling Stone
  3. Jackie’s relevant communications with Eramo
  4. Jackie’s relevant communications with UVA
  5. Any communications Jackie authored or received while using the pseudonym “Haven Monahan,” or those in which Jackie references “Haven Monahan”
  6. Jackie’s relevant communications with others regarding the Rolling Stone article.

Jackie resisted, arguing (among other things) that the requests were irrelevant and that compliance would be overly burdensome.

In dealing with Eramo’s motion to compel, the court noted right off the bat that Rule 26 had been amended to include a proportionality consideration. However, it also observed that the Advisory Committee had written that tomatoesthe amendment “does not change the existing responsibilities of the court and the parties to consider proportionality.” (See footnote 2 of the opinion.) It decided the best way to deal with the new rule was to continue to consider pre-amendment cases as persuasive authority, but to “put a greater emphasis on the need to achieve proportionality.”

Not surprisingly, the court held that most of the information sought by Eramo was relevant, proportional to the needs of the case, and discoverable. (After all, how would Eramo prove Rolling Stone should have known Jackie was lying without the benefit of having copies of the emails she sent its reporter?) Thus, the court ordered Jackie to produce all her relevant communications with Erdely, Rolling Stone, Eramo, and UVA, subject to the confidentiality provisions of the existing protective order.

We’ll never know how the court would have ruled on the motion to compel prior to December 1, 2015, but I suspect the ruling would have been the same. The new amendment to Rule 26 places the concept of proportionality front and center, but the concept has lingered in the back of judges’ minds since at least 1983, when Rule 26(b)(1) was first amended to guard against “disproportionate discovery.” I don’t expect much to change in the trenches of actual, modern-day discovery practice.

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