United States: Never Be A Beast Of Burden: Amended Rule 26(b) And Best Practices For Employment Litigators

Last Updated: November 4 2015
Article by David Leishman

The Dec. 1, 2015 amendment to Federal Rule of Civil Procedure 26(b) offers employers and their counsel a powerful new weapon to attack overreaching written discovery by demonstrating that the burden of the discovery request is disproportionate to the needs of the case.

The general objection itself isn't new – in fact, it has been around for decades – but it has been underutilized by counsel and federal judges. The disproportionality objection is particularly important to employment defense counsel, who often face onerous fishing expeditions by plaintiffs who possess few documents and are insensitive to discovery costs. However, mere boilerplate objections will be disregarded. Instead, under revised Rule 26(b), counsel must precisely describe the burden of the request and explain with particularity why it outweighs the likely benefit (if any) to the case.

Revised Rule 26(b)

The new Rule 26(b) expressly makes "proportionality" a limit on the scope of discovery. The rule does away with the notion that information is discoverable merely because it is arguably "relevant to the subject matter involved in the action." The amended rule instead provides:

Unless otherwise limited by court order, the scope of discovery is as follows: 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 amount in controversy, the importance of the issues at stake in the action, 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Proportionality and Prior Rule 26 Practice

Proportionality ought to be old news. Since 1983, Rule 26(b)(1)(C)(3) has required courts to limit discovery in light of the very criteria now found in the new Rule 26(b). Although Rule 26(b) did not use the term "proportional," the committee notes explain that the 1983 amendments were designed to address the problem of disproportionate discovery. Courts have since recognized Rule 26(b)'s "implicit requirement of proportionality." See, e.g., Uppal v. Rosalind Franklin Univ. of Med. & Sci., 2015 U.S. Dist. LEXIS 112705, at *9 (N.D. Ill. Aug. 26, 2015). Further, by signing a discovery request, counsel already certify under Rule 26(g)(1)(B)(iii) that the request is proportionate to the needs of the case.

Why put proportionality into the scope of discovery now? The amendment is intended to address dissatisfaction with the perceived failure of courts to insist on proportionality in discovery. See S. Gensler & L. Rosenthal, Four Years After Duke: Where do We Stand on Calibrating the Pretrial Process?, 18 Lewis & Clark L. Rev. 643, 645-646 (2014). Incorporating the proportionality factors into Rule 26(a) "make[s] them more prominent, encouraging parties and courts alike to remember them and take them into account in pursuing discovery and deciding discovery disputes." Report of the Duke Conference Subcommittee at 6, Advisory Committee on Civil Rules, April 10-11, 2014.

The Advisory Committee Notes and Case Law Guidance

The advisory committee notes to the 2015 amendments advise that the amendment "does not place on the party seeking discovery the burden of addressing all proportionality considerations." It follows that the party seeking discovery bears the burden of addressing some proportionality considerations, but which ones?

The advisory committee notes offer guidance, based on the parties' relative access to information:

  • Historically, the party alleging undue burden must demonstrate that the burden of producing the requested information would outweigh its beneficial value, and that remains the case. The committee notes explain that "[a] party claiming undue burden or expense ordinarily has far better information − perhaps the only information − with respect to that part of the determination."
  • On the other hand, whether the burden of a request is "undue" depends largely on its expected benefit, which falls to the discovering party to explain: "[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them."

The advisory committee notes do not, however, explain who must prove that (a) the amount in controversy, or (b) the importance of the issues at stake in the litigation favor (or don't favor) the requested discovery. Further, twenty years of litigation have not greatly illuminated these factors:

  • Courts have observed that potential damages in wage and hour collective/class actions, or EEOC lawsuits challenging an employer's hiring practices, may be "significant" and therefore warrant more extensive discovery.
  • See, e.g., Dunkel v. Warrior Energy Servs., Inc., No. 2:13-cv-00695, 2015 U.S. Dist. LEXIS 73070, at *3 n.1 (W.D. Pa. June 5, 2015) (a FLSA/Rule 23 hybrid action, noting that 400 plaintiffs with potential damages of over $100,000 each would make a "really big case" and granting defendant's request for additional discovery regarding actual and potential claimants); EEOC v. Dolgencorp, No. 13-cv-4307, 2014 U.S. Dist. LEXIS 102933, at *7 (N.D. Ill. July 29, 2014) (ordering production of information estimated to cost 160 man-hours and $16,000, where potential back pay at stake in a challenge to criminal background check practices that affected approximately 25,000 employees was deemed "significant").
  • On the other hand, the amount in controversy in a single-plaintiff case may be "relatively small" and counsel against expansive discovery.
  • See, e.g., Patterson v. Avery Dennison Corp., 281 F.3d 676, 682 (7th Cir. 2002) (holding that the district judge did not err in refusing plaintiff's request to depose a high-ranking corporate executive in defendant multinational corporation where the single plaintiff's damages presented a "relatively small amount in controversy"); Thompson v. Workmen's Circle Multicare Ctr., No. 11-civ-6885, 2015 U.S. Dist. LEXIS 74528, at *33 (S.D. N.Y. June 9, 2015) (denying plaintiff's request for a forensic review of defendant's email production where, among other things, plaintiff's $17.34 per hour rate of pay for a 35-hour workweek resulted in a "relatively low" amount in controversy).
  • Very little guidance exists regarding what constitutes the middle ground between "significant" and "relatively small." Counsel, therefore, must be prepared with facts to educate opposing counsel and the court as to why the likely damages in a given case do not justify the expected cost of invasive discovery requests.
  • "Employment practices" are generally thought of as an important area of public policy, and the committee notes observe that employment practices may have importance beyond the monetary amount involved. Of course, the fact that employment policy is important does not afford plaintiffs' counsel carte blanche to conduct invasive discovery in all cases. Thus, defense counsel should be prepared to educate opposing counsel and the court that the employment decision complained of represents an isolated decision by a low-level supervisor or otherwise does not implicate any of the defendant's generally applicable employment practices, such that public policy or broader interests are not at stake.
  • In multi-plaintiff or class /collective litigation with a significant amount in controversy and potentially broad employment practice or policy implications, defense counsel should focus on the anticipated costs of overreaching discovery and be prepared to offer more efficient, equally-probative alternatives.

Best Discovery Practices

So what should counsel do in light of new Rule 26(b)? The best practices under the old rule remain the best practices now:

  • Counsel should be prepared for more focused discussion of the anticipated scope of discovery (and discovery costs) at the Rule 26(f) conference and Rule 16 hearing. Courts have already recognized that "counsel should address the proportionality factors during the Rule 26(f) conference." Witt v. GC Servs. Ltd. P'ship, 307 F.R.D. 554, 560-561 (D. Colo. 2014). This will require discussion with the client about the accessibility of potential sources of discovery and associated costs.
  • In an ordinary employment case, information asymmetry means that defense counsel has a much greater opportunity and obligation to develop facts regarding the burden and benefit of invasive discovery. The expense to a plaintiff or plaintiffs of producing all potentially discoverable information they possess may be negligible, while the corresponding burden and expense to an employer may be crippling.
  • Critically, boilerplate objections that requested discovery is "disproportionate" will (still) not suffice. The advisory committee notes specifically call out the practice of interposing boilerplate objections as improper: "[n]or is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional." Objections should state specifically why the burden of locating and producing the requested information is high, including where possible a description of the efforts that would be required and an estimate of their costs. Counsel should also concisely explain why the requested information is of little or no value to the litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.