Mandatory Limits on Discovery

Mandatory Limits on Discovery

Rule 26(b)(1) fixes what a party may discover; Rule 26(b)(2)(C) tells the court when it must cut back discovery that the first rule would otherwise allow. On motion or on its own initiative, the court must limit discovery when it determines that any one of three grounds applies:¹

1. The discovery is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.²
2. The party seeking discovery has had ample opportunity to obtain the information by discovery in the action.³
3. The proposed discovery is outside the scope permitted by Rule 26(b)(1).⁴

These grounds reach matter that is arguably relevant. A federal district court in Pennsylvania, in Tech v. United States, treated them as express restrictions that apply even then.⁵ Each ground has its own subsection below.

The court's power to act without a motion dates from 1983. The First Circuit described the amendments of that year, in Mack v. Great Atlantic & Pacific Tea Co., as an increase in the district courts' power to supervise discovery and curb excesses.⁶ That year Rule 26(b) gained broad power to limit the frequency or extent of discovery that is cumulative, duplicative, or unduly burdensome or expensive, and new Rule 26(g) imposed an affirmative duty to engage in discovery responsibly and encouraged sanctions against those who abuse it.⁷

An own-initiative duty matters because a request can be proper in form and still excessive. A rule that waited for a motion would leave that excess untouched whenever the responding party objected poorly. In Mancia v. Mayflower Textile Servs. Co., the defendants' objections were not properly particularized, and the court still observed that Rule 26(b)(2)(C) imposed an obligation on it to act sua sponte.⁸

One caution applies to every older opinion. Until 2015, clause (iii) itself stated the burden-versus-benefit test, and both Mancia and Tech quote that wording.⁹ The 2015 amendment moved the test into Rule 26(b)(1), so clause (iii) now directs the court to limit discovery that falls outside that rule's scope.¹⁰ Many decisions below predate the change. They remain useful for how courts weigh burden against benefit, but the current text and numbering control. The subsections that follow take the three grounds in order.

Cumulative or Duplicative Discovery

Clause (i) requires the court to limit discovery that is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.”¹¹ Two branches share one idea. The first asks whether the request repeats what the requester already has, or is already getting, in the same case. The second asks whether the same information sits somewhere easier or cheaper to reach. Both branches measure what the request adds, and courts speak of a request that adds little as having low marginal utility.

Cost explains the limit. The responding party ordinarily pays to find, review, and produce what is requested, and that expense is the same whether or not the requester already has the facts. The request's value to the requester is only the increment it supplies beyond what the requester holds or can readily get. When that increment nears zero, any real expense outweighs it, and the request buys cost without buying knowledge. Pointing the requester to an easier source keeps the information flowing and removes the expense. The word “unreasonably” keeps the clause away from ordinary overlap: two witnesses may describe the same event, and a document may confirm a deposition answer. The clause reaches only overlap whose cost exceeds what the second source adds.

Gonzales v. Google, Inc. supplies the clearest application. The Government sought material from Google, a nonparty, for a study of how well filtering software works: a sample of URLs from Google's search index and a sample of users' search-query text. The court read both requests as serving the same end, a list of URLs to categorize and run through the filtering software, and it measured Google's burden under both Rule 26 and Rule 45, because a court may modify or quash a subpoena for relevant information when it finds undue burden on a nonparty.¹² The two categories were so alike in their presumed usefulness to the study that compelling both would have been unreasonably cumulative and duplicative, and the Government had shown no substantial need for both.¹³ The sets also differed in cost, because disclosing users' search queries risked a loss of trust among Google's users that outweighed the likely benefit of the duplicate disclosure. The court therefore compelled only the sample of 50,000 URLs, which fully supplied the study and removed only the costlier duplicate.¹⁴

Quinby v. WestLB AG shows where the other-source branch stops. The question there was who should pay to restore and search e-mails, so the court applied a cost-shifting test and not clause (i) itself. One factor of that test, however, asks the same question about other sources: if the information is available elsewhere, the marginal utility of the e-discovery is low.¹⁵ The e-mails existed only on backup tapes, so the court found no other source, and the availability inquiry gave the responding party nothing to argue.¹⁶ The record also showed few relevant e-mails, and the court treated that low yield as an independent reason to find marginal utility low and to lean toward shifting the cost.¹⁷ A unique location therefore settles the other-source branch for the requester, while the usefulness of what the source holds remains a separate input to the weighing.

The other-source branch does its most practical work when an easier form of the same information exists. In Best Buy Stores, L.P. v. Developers Diversified Realty Corp., the magistrate judge had found a database reasonably accessible, reasoning that its $124,000 cost was reasonable against potential contract damages above $800,000 and the added exposure from fraud and fiduciary-duty claims.¹⁸ The district court then asked whether the defendants had shown good cause under Rule 26(b)(2)(B), a test that calls for the cost-benefit balancing of Rule 26(b)(2)(C).¹⁹ The documents the magistrate judge had ordered produced likely existed in hard copy, and any relevant electronic information could be gathered manually without restoring the database. The defendants never argued that the material was uniquely available from the database or that Best Buy could not obtain it more easily elsewhere, so restoration was unnecessary.²⁰ A showing that the database held information found nowhere else would have given the balancing a real benefit to set against the expense.

Sometimes the court concludes that electronic discovery is the wrong tool altogether. In United States v. University of Nebraska at Kearney, the court held that the cost and time of a statutorily required review would exceed the value of the proposed discovery to the United States. Rather than shift costs, it denied the electronic discovery outright, because standard document requests, interrogatories, and depositions “should suffice—and with far less cost and delay.”²¹ Aguilar shows a smaller version of the same reasoning. Metadata would have made the plaintiffs' Word and PowerPoint files easier to search, but they already held text-searchable PDFs of about 5,200 pages, little more than one banker's box, and few additional documents remained to be produced, so the gain in searchability was slight.²²

The remedy follows the overlap. A court may compel one of two duplicate sets, as in Gonzales; send the requester to paper or manual gathering, as in Best Buy; or deny electronic discovery in favor of cheaper devices, as in Kearney. A protective order can narrow a request, change the form of production, or deny discovery outright, and courts may shift production costs to the requester or divide them.²³ The court may also stop short of denial and set conditions. Even for trade secrets, which carry no true privilege, the court must use its discretion to avoid unnecessary disclosure and may attach conditions to protect the party compelled to disclose.²⁴

Every decision in this subsection predates the 2015 amendment, which also dropped the “reasonably calculated” language from the scope rule, so some of them might come out differently today.²⁵ They show how courts reason about overlap, but the current rule text controls. Availability from other sources returns in the cost-shifting factors taken up later, where it is one input in deciding who pays.

Ample Prior Opportunity

Clause (ii) directs the court to limit discovery when “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.”²⁷ Like clause (i), it works on requests that already clear the definition of scope, because the fact that information is discoverable does not mean that discovery must be had.²⁸ Clause (i) asks what a request adds to what the requester already holds or can easily reach. Clause (ii) asks about the requester's own history in the case: did the discovery already available give this party a fair chance to get what it now demands? No decision discussed in this chapter turns squarely on this clause, so you learn it from its text, its purpose, and the contrast with a responding party that obstructs.

Cost explains this limit too. The responding party pays to find, review, and produce what is requested, and that cost is the same whether the request is the requester's first attempt or its third. A party that had a fair chance to get the information and let it pass has no claim on the responder's resources a second time, because a repeat request moves the cost of the requester's earlier choices onto the other side. The clause also rewards planning. Counsel who know that earlier discovery counts against them have a reason to decide what to ask, of whom, and in what order before serving requests. In Mancia v. Mayflower Textile Servs. Co., the court said that lawyers who approach discovery responsibly meet and confer first and discuss the amount in controversy and how much discovery, of what type, in what sequence, would keep its cost proportional to what is at stake. The court summarized this ground as reaching discovery that “could have been previously obtained by the party seeking the discovery,” and it noted that a lawyer's signature on a discovery request certifies that the request is reasonable in light of, among other things, “prior discovery in the case.”²⁹ The current rule asks whether the requester had ample opportunity to obtain the information by discovery in the action, so treat the older summary as a gloss and the rule text as the test.

Opportunity is the operative word. The inquiry asks what the discovery process actually made available in this case, whatever effort the requester spent. A requester who served every proper request and met a wall has spent effort but received no opportunity. A requester who was handed a wide-open file and ignored it has received opportunity without using it. Because the clause measures opportunity by discovery “in the action,” information that surfaced only after an earlier round, or that the earlier round never delivered, was not within the requester's reach at the time. The clause therefore does not penalize a party whose earlier attempts were blocked: the fault lies with the party that did the blocking, and the requester keeps what it never had.

A deadline objection differs from a clause (ii) objection. The deadline concerns when a request may be served, while the clause concerns whether the requester could already have reached the information. In Front Line Promotions and Marketing, Inc. v. Mayweather Promotions, LLC, the defendants asked the court to quash the plaintiffs' written requests and a later notice and subpoena duces tecum, arguing that they were untimely because the discovery deadline had passed and that they were unduly burdensome and harassing.

No reported decision in these materials applies clause (ii) cleanly, so the example below is constructed.

A requester who has asked for months and received only refusals stands at the opposite pole. In Labrier v. State Farm Fire and Casualty Co., the court said that State Farm had offered no effective way for the plaintiff to reach data that should have been shared in discovery long before, and it called State Farm's obstructionist approach one that “cannot be rewarded.”³⁰ Any burden State Farm bore from answering interrogatories instead of allowing direct access to the information, the court said, State Farm's own intransigence had created.³¹ State Farm also could not withhold for months the very information the plaintiff sought for class certification and the merits and then claim that she could not meet her burden of proof.³² Those passages turned on burden and obstruction, so Labrier is not a holding on clause (ii). Its facts show what the clause cannot reach: a plaintiff in that position never had the opportunity to obtain the information, and a stonewalling defendant cannot say that she did.

A party invoking the clause must tie it to the record: what was requested, what was produced, who was deposed, and when. Boilerplate objections fail, because a failure to particularize them leads to one of two conclusions: the responding party lacked a factual basis, which would violate Rule 26(g), or it waived the objection by not specifying it.³³ The responding party should therefore point to the earlier discovery and not simply assert that the requester has had enough. A weak objection also does not guarantee that a duplicative request will be granted, because the rule directs the court to limit discovery on its own initiative.³⁴

Discovery Outside the Scope

Clause (iii) of Rule 26(b)(2)(C) says the court must limit proposed discovery that is “outside the scope permitted by Rule 26(b)(1).”³⁶ The clause carries no test of its own. It borrows the bars that Rule 26(b)(1) sets for scope, which are privilege, relevance to a claim or defense, and proportionality to the needs of the case, and it makes the failure of any one of them a ground on which the court must act.³⁷ The court may act on a party's motion or on its own initiative.³⁸ A definition of scope enforces nothing by itself, because a request can fall outside it and still draw an answer if the responding party objects badly or not at all. The clause adds a standing duty for the judge to cut off what the definition excludes.

The clause did not always read this way, and the difference is where answers most often go wrong, because students who learned the rule from older materials recite the former text from memory. Know both versions:

1. Before the 2015 amendment, clause (iii) itself stated the cost-benefit test. It directed the court to limit discovery when “the burden or expense of the proposed discovery outweighs its likely benefit,” considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues.³⁹
2. Since the 2015 amendment, clause (iii) says only that the court must limit proposed discovery outside the scope permitted by Rule 26(b)(1). The cost-benefit test, with its list of considerations, now sits inside Rule 26(b)(1).⁴⁰

The amendment relocated the comparison without removing it. Before 2015, Rule 26(b)(1) made no explicit reference to proportionality, and a lack of proportionality served as a basis for limiting discovery that was otherwise relevant and nonprivileged.⁴¹ The amendment moved the proportionality limit out of clause (iii) and into the definition of scope, carrying the considerations over with some revisions, the most visible being the addition of the parties' relative access to relevant information.⁴² A relevant but disproportionate request therefore no longer sits inside the scope waiting for a limit to be laid on it. It lies outside the scope from the start, and clause (iii) obliges the court to act on that fact. The scope definition decides what is discoverable, and clause (iii) supplies the duty to enforce it, whether the request fails for lack of relevance or lack of proportionality. A protective order under Rule 26(c) can reach the same result: courts treat one as appropriate when a request seeks information beyond the scope of Rule 26(b)(1), and its remedies range from narrowing the request or changing the form of production to denying the discovery altogether.⁴³

Run an older opinion through those steps. Decisions written before 2015, such as Convolve, Inc. v. Compaq Computer Corp., reasoned under the former clause (iii). Step 2 recasts their weighing of burden against benefit as proportionality analysis, and Step 4 restates a refusal to compel as a ruling that the request lay outside the scope of Rule 26(b)(1).

The decisions that follow show the three bars at work. In Da Silva Moore v. Publicis Groupe, the plaintiffs wanted discovery from managing directors at offices where no named plaintiff had worked. Because they had not yet moved for collective action status or class certification, the court limited discovery to the offices and managing directors where the named plaintiffs had worked, until those motions were made and granted.⁴⁴ The same opinion ties proportionality to the rules' text, since a lawyer's signature on a discovery request certifies that it is neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery, the amount in controversy, and the importance of the issues.⁴⁵

A request can fail on relevance instead, and then no cost-benefit weighing is needed. In Oppenheimer Fund, Inc. v. Sanders, the class plaintiffs said they wanted certain information only to send class notice and for no other purpose. Taking them at their word, the Supreme Court concluded that the request was not within the scope of Rule 26(b)(1).⁴⁶ A request with no bearing on any issue fails the relevance bar, so no benefit exists to set against any burden.

At the other end, a burden objection fails when the request is within scope and the claimed burden is thin. In Labrier, State Farm said it could not search payment data without downloading estimates one at a time and recalculating each manually. The court found it incredible that no cost-effective way existed to match information across two databases, observed that sorting data is what computers do in very short amounts of time, and held that even a claim-by-claim match did not justify keeping the plaintiff from critical information.⁴⁷ Proportionality can also defeat a relevant request. In the Kearney decision discussed above, the cost and time of the required review exceeded the value of the proposed discovery, so the court denied the electronic discovery.⁴⁸

A request that clears every bar leaves clause (iii) nothing to limit, but the cost may still be allocated. A responding party that asks for protection from undue burden or expense may persuade the court to shift costs instead of simply disallowing the discovery.⁴⁹ Cost shifting receives full treatment in a later section.

Two errors follow from the 2015 relocation. Reciting that the court must limit discovery under clause (iii) because its burden outweighs its likely benefit gives the pre-2015 text. Describing clause (iii) as repealed, or proportionality as no longer a limit, errs in the other direction, because both the duty and the comparison survive. The current answer assigns the work to two provisions: Rule 26(b)(1) supplies the proportionality test, and clause (iii) supplies the duty to limit whatever fails it. Older opinions still show how courts weigh burden against benefit, but restate their reasoning in the current structure before relying on it.