The next line of the song goes . . . But if you try sometimes you might find, You get what you need.  We like the line.  We like the song.  We like The Stones.  Maybe the Federal Rules Advisory Committee was listening to the tune in 2015 when it decided proportionality needed to be a predominant factor in the scope of permissible discovery.  And, if that’s the case we wonder what kind of rules could be inspired by Time is On My Side, You Gotta Move, Rough Justice, Oh No, Not You Again, or Rock and a Hard Place.  But, as usual, we digress.

Federal Rule of Civil Procedure 26(b)(1) provides in relevant part:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

In other words, you’re allowed to get what you need, not what you want.  As defense lawyers, this is extremely important.  Nobody reading this blog is unfamiliar with the excessive costs incurred by companies in discovery.  Largely driven by the need to produce millions of pages of documents.  And in the DDL world, the imbalance between the burden on defendants and the burden on plaintiffs in discovery is so heavily weighted to the defense, the whole scale has tipped over.  Rule 26(b)(1) will not, and cannot, fix the problem.  Nor do we ever expect the scales to be equal.  But proportionality is a concept we can get behind.  Proportionality is an attempt to refocus the discovery process on what’s important – obtaining facts that are necessary to the claims and defenses being asserted.

Sure, sure.  Plaintiffs are going to argue they need 20 years of emails so they don’t miss the one that is sure to bring justice for their client.  Defendants are going to argue volume and cost.  The truth should lie somewhere in the middle – and the way we view 26(b)(1), the judge has been given the tools to draw that line.  And while we’re talking strategy for a minute, defendants take note.  There are six proportionality factors in 26(b)(1) and cost is only one.  Make use of them all.  Put cost in context next to the issues, the resources, and the amount in controversy.  You want to focus the judge on need, not want.

That brings us to today’s case – Burningham v. Wright Med. Group, 2019 U.S. Dist. LEXIS 86823 (D. Utah May 22, 2019) – it’s all about proportionality.  It’s a medical device case.  At some point after the device plaintiff received was manufactured and sold, defendant sold the product line to another company.  Plaintiff wanted to take discovery of that non-party company on the grounds that the discovery was relevant and that defendant had produced similar discovery in other cases.  Id. at *3.  First, the “they did it in another case” argument sounds more like a kindergarten playground argument than a courtroom legal argument.  “But, Johnny’s mom let him.”  The court responded with the equivalent of “I’m not Johnny’s mom.”

Whether Defendants have or have not produced similar information in other matters has no bearing on the court’s determination about whether Defendants should produce the discovery sought by Plaintiffs in this action. Instead, the court must focus on the claims and defenses in this action when determining relevance for purposes of discovery.

Id. at *4.  So much for being like Johnny.  Second, the discovery plaintiff wanted was “about conduct not implicated in this action and that post-dates any of Plaintiffs’ allegations.”  Id.  Leading the court to conclude the discovery was neither relevant nor proportional.

Next, plaintiff wanted adverse event information concerning a product developed, manufactured, and sold in Europe in the 1980s and 1990s by another non-party which defendant subsequently purchased in 1999.  Plaintiff tried his kindergarten argument again arguing that defendant had been ordered to produce this information in other litigations.  Id. at *5.  Once again, the court only cared about the claims and defenses pending before it.  Maybe Johnny had a good reason for jumping off the roof, but you don’t and that’s all that matters.  If that wasn’t enough, the discovery was also not proportional because it was too broad as to time period and not relevant because it concerned a product not at issue and events that took place in Europe dating back 30 years.  Id. at *6.

Finally, plaintiff sought an order that three of his requests for admission directed to defendant were deemed admitted.  Each request asked defendant to admit that a certain device was implanted and that the same device was the subject of a recall.  Defendant admitted the first part, but objected to the second because the recalls were issued by third parties over whom defendant had no control.  Id. at *7.  The court sustained defendants’ objections because the requests were “phrased in the passive voice . . . and do not identify the party responsible.”  Id.  Defendants were not required to provide an admission for such a “vaguely phrased” request.  Id.  Plaintiff also wanted his costs associated with the bringing the motion, but since it was denied . . . no costs awarded.

Rule 26 focuses on need over want and defendants have to drive that point home every chance we get.  We may not be able to make it sound as catchy as The Stones, but we got to try.