If Utah has a claim to fame, it is probably not for being the hotbed of legal innovation. That may be changing.
With its recent revisions to Utah Rule of Civil Procedure 26, Utah joined a growing number of entities focused on driving reasonableness and proportionality to the discovery process. Unlike its recent predecessors, the Federal Circuit Advisory Committee’s Model Order and the District of Delaware’s Default Standards, Utah’s proposed revisions to URCP 26(b) are not limited to the e-discovery context. Instead, as explained in language of the rule itself and the accompanying committee notes, Utah proposes a more fundamental shift for the entire discovery process, whereby discovery is conducted under a “proportionality standard.”
In Utah’s view, this simply means that the “cost of discovery should be proportional to what is at stake in the litigation.” This certainly is not an earth-shattering proposition — as the committee notes acknowledge, the concept of proportionality is hardly new. However, while the prior version of URCP 26 (as well as its federal counterpart) provides mechanisms to address disproportionate discovery, they were rarely invoked under either the Utah rules or federal rules. Against this backdrop, URCP 26 dictates that proportionality will become the guiding standard for discovery in all cases through several key provisions:
- First, the amendments seek to reduce discovery costs in all matters by imposing additional early disclosure requirements. These requirements dictate that parties provide critical information before general discovery begins, including
- the production of all documents the party may offer in its case in chief and all documents referred to in the pleadings,
- the identification of each fact witness the party may call and
- a summary of each witness’ anticipated testimony.
- Following the exchange of this information, which is intended to “automatically permit each party to learn the witnesses and evidence the opposing party will offer in its case in chief,” Utah envisions that all subsequent discovery will serve the more limited function of identifying the weakness in the producing party’s case. Consequently, Utah courts will limit the volume and length of discovery based on the amount in dispute, as shown below:
|Amount of Damages||Depo Hours||Rogs||Requests for Production||Requests for Admission||Days to Complete Discovery|
|Between $50,000 and $300,000 or non-monetary relief||15||10||10||10||180|
- To obtain discovery beyond those provided in the rules, a party must
- reach the limits of standard discovery imposed by the rule prior to the close of discovery (preventing preemptive claims that the requirements of a particular case necessitate more discovery) and either
- file a stipulated statement that extraordinary discovery is necessary and proportional and that each party has reviewed and approved a discovery budget or
- file a motion setting forth the reasons why extraordinary discovery is necessary, certifying that the party has reviewed and approved a discovery budget, and certifying that the party has satisfied its obligation to meeting in an attempt to achieve a stipulation.
- Should discovery disputes arise, the party seeking discovery — rather than the responding party — always has the burden of showing proportionality and relevance.
- That being said, if the responding party contends that certain electronically stored information is not reasonably accessible, the responding party must describe the source of the electronically stored information, the nature and extent of the burden, the nature of information not provided, and any other information that will allow the requesting party to evaluate the claim of undue burden or expense.
This shift to a “proportionality”-based discovery focus could have long-lasting implications in Utah while serving as a model to other jurisdictions. At a minimum, parties will be forced to establish the bounds of proportional discovery prior to engaging in broad fishing expeditions under the guise of identifying all relevant of potentially admissible information.
It will be interesting (or as interesting as e-discovery can be) to see how this plays out in practice. Don’t be surprised to see Utah’s influence loom large as federal and state courts continue to focus on driving reasonableness and proportionality in the discovery process.