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#CaseoftheWeek Episode 8: Proportionality of Discovery Requests


This #CaseoftheWeek is based on a viewer request received by CEO Kelly Twigger. Kelly discusses the proportionality of discovery requests including requests for admission and appropriate protections in Oswald v. Costco Wholesale Corp., 473 P. 3d 809 (Idaho 2020). The case was presided over by Justice Roger S. Burdick.


Good morning and welcome to our #Caseoftheweek for January 12, 2021. I hope the beginning of your year is off to a good note. It’s been a rather auspicious year in the world as a whole, and I hope that you and your family are staying safe and healthy. I’m Kelly Twigger, CEO and founder of eDiscovery Assistant and principal at ESI Attorneys. ACEDS and eDiscovery Assistant have teamed up to create this live stream event each Tuesday morning to help educate lawyers and legal professionals on ediscovery case law and also to discuss the practical implications of decisions so that we can make better decisions.

As many of you know, eDiscovery Assistant maintains a curated database of ediscovery decisions tagged by issues including the issues that we’re going to discuss today, which are proportionality, protective order, failure to produce, and costs and fees. Our database includes roughly 3300 decisions tagged with issues on proportionality, 2150 of which also include a failure to produce and 808 of those cases are from 2020 alone.

Lots happening on the ediscovery issue space, and we’re going to dive into a new case this week. This one comes to us courtesy of one of our listeners who asked for a particular topic. We’re going to dive into proportionality on discovery requests and requests for admission specifically.

Before we get started as always, the link to the case on eDiscovery Assistant is included in the comments on the event page on LinkedIn. If you’re watching this on another platform, you’ll want to jump over to LinkedIn. The repeat of this video will also be available on our blog each Thursday of the week. If you’re a subscriber to the blog, which you can sign up at ediscoveryassistant.com, those will be delivered to your inbox for you to be able to view as well.

The public link that is in there for eDiscovery Assistant is available to anyone, even non-users. If you’re interested in signing up for a trial for eDiscovery Assistant, you can do that again at ediscoveryassistant.com.

Also in the links to the case on the event page is a link to the University of Florida E-Discovery Conference, which will be live streamed and free this year. It is all day March 18, 2021. I am a part of the planning committee for that event, together with many of my esteemed colleagues in the industry, and we’d love to have your participation and feedback on what we’re planning.

With those things being said, let’s get into our case for this week.

Our case this week is Oswald vs. Costco Wholesale Corp. There’s a formal site for the case, which is 473 P. 3d 809. It’s from the Idaho Supreme Court from 2020, and our decision date is October 5th of 2020. Again, this one came as a request from a listener. If you have a topic that you have questions about or that you’d like to see covered on the #CaseoftheWeek, please hit me up on LinkedIn or on Twitter at @Kelly Twigger, and we’d love to have your input.

What are the facts of the Oswald case? In February 2017, two individuals — Oswald and another person, another woman–were walking on a walkway at the Costco store in Boise, Idaho, when an elderly driver came and hit Oswald, pinning him against another vehicle that was parked on the opposite side of the parking lot and causing significant injuries. The decision actually goes into a lot of detail about what happened in the incident. The driver was 92  years old, and was driving with a suspended license. When he hit Oswald and pinned him against the car, he continued to hit the gas pedal, causing further injuries.

Fortunately, the other car that he was pinned against, the driver was in it and was able to move his car to move out of the way. There were emergency personnel that happened to be on the scene at Costco to be able to assist. Nevertheless, Oswald suffered severe injuries and brought claims against both the driver and Costco.

In this particular instance, there’s a discussion in the decision about the walkways at Costco and also the ability to access certain parking spaces because they’re ADA compliant and that there’s area outside of those parking spaces for folks to get out of their car and be able to take out a wheelchair and be able to get into a wheelchair or other devices they might need for walking.

It’s not directly clear how the accident cause related to those ADA spaces, at least in the facts that are articulated in this decision, but there is some discussion that the driver drove through that ADA compliant space in a parking lot before striking another car and then before striking Oswald. That’s important because of the scope of the discovery requests that we’re going to cover later.

The plaintiffs sued both the driver and Costco. Then the 92 year old driver passed away during the context of the litigation, and his estate became a party; the claims against the estate were ultimately resolved. The case proceeded against Costco.

The theories against Costco were premises liability, negligence and willful and negligent conduct, negligent infliction of emotional distress, and intentional infliction of emotional distress. In essence, the plaintiffs allege that the walkway that the plaintiff and his companion were walking on was unsafe because it invited pedestrians to use a pathway that was unprotected from vehicle incursions and that Costco failed to provide necessary protection against such incursions. They allege that Costco knew or should have known that its parking lot design and pedestrian pathway configuration created an unreasonable risk of harm to those walking on the subject pathway between the rows of ADA parking stalls.

These aspects of the decision are important, of course, because we have to look at whether the discovery, which we’re going to address, was proportional to the claims of the case. It always goes back to the claims of the case and what the elements are that you’re trying to prove in terms of determining the reasonable scope of discovery.

Plaintiffs also allege that the walkway was dangerous and that Costco had a duty to warn people because there was a high degree of probability that harm would result. In terms of its negligence claim, the plaintiffs also asserted that Costco had violated its duty of care by failing to protect against the reasonably foreseeable and harmful conduct of third parties.

How did the case progress? Well, the parties exchanged the first set of discovery, and that’s not at issue in this case. What’s at issue here is the second set of discovery that was served to Costco. Costco’s counsel moved for a protective order, calling the second set of requests overly broad. Among other requests, the discovery in that second set called for Costco to disclose on a nationwide basis any incident where it was aware of a vehicle impacting anything in its parking lots.

As we can tell from the facts of this case, that’s a pretty broad ask. Generally in premises liability cases, not always, but sometimes you’ll have a database of incident reports. We see that more with trucking companies or with other providers who are literally using transportation on a regular basis in the context of providing services.

Those incident databases usually can be sorted in certain ways. In this particular case, there’s no discussion as to whether or not Costco maintains such a database. But even if they had, asking for every incident in the database related to this particular incident is pretty broad, given the facts of the case that you had a 92 year old driver driving with a suspended license, who was clearly out of control and driving erratically.

How did things play out here? Costco objected to the request as over-broad and sought a protective order, which procedurally is the way that you want to go, and we’re going to talk about why it’s important to start making sure that you’re defining the scope of your discovery, even if you need court intervention to be able to do that. You’re going to see why it’s really important in this particular hearing, in this particular case. Also strategically, as we reviewed in our last case of the week when we talked about making sure you get an order on a motion to compel so that you have a basis for sanctions under Rule 37(e), you’re also going to want to be able to move for a protective order on the scope of discovery so that you understand what you’re required to do.

During the hearing on the motion for a protective order, the court looked at the second set of discovery requests and made some pretty big generalizations about how over-broad the requests were. Following the hearing, the court ordered that Costco did not need to respond to the second set of discovery requests at all and instead offered some comments to the plaintiffs as to how they could sufficiently narrow the set of discovery requests to be able to get information that would be proportional to the needs of the case.

The plaintiffs then went back and revised their discovery, resubmitted it to Costco, and Costco again, objected and moved for a protective order. The court found that Costco had not met its obligation to meet and confer prior to moving for the protective order and required the parties to meet and confer. Following a meet and confer, the parties were able to narrow the scope of the discovery requests, and it’s difficult to tell from the decision whether they were ever actually responded to. There was no court order issued on the second motion for a protective order or as to whether or not Costco needed to be compelled to respond to those revised discovery requests. That becomes important later because on appeal, Costco ordered or Costco argued that the issue was not preserved for appeal because there was never a ruling from the court as to whether or not the second revised set of discovery requests were overbroad.

Once the court resolved the discovery dispute related to the first set of discovery requests in Costco’s favor, Costco then moved for summary judgment.

One of the things that we always have to take into account when we’re reading these cases is the timing of what’s happening. Many times it can be months and months to get a ruling on a decision, and the case continues to move forward. Costco moved for summary judgment in the interim, and ultimately,  the district court granted summary judgment to Costco on all of its claims and ruled that Costco had no notice that its walkway was a dangerous condition and therefore it owed no duty to redesign it or warn pedestrians about it. Following summary judgment, the court issued dismissal of the plaintiff’s claims with prejudice.

In doing so, the trial court cited 26 cases from other jurisdictions for the proposition that injuries caused by out-of-control vehicles and parking lots were unforeseeable as a matter of law. It reasoned that the out-of-control nature of such incidents rendered them so improbable that a reasonably prudent person would not take them into account. Following that ruling, the plaintiffs appealed the grant of summary judgment and the ruling on discovery, together with a couple of other issues.

There are segments of this particular decision that we’re discussing that are unrelated to the discovery issue. Just focusing directly on the discovery issue on appeal, the Supreme Court held that the grant of the protective order on the original set of discovery requests was not an abuse of discretion.

The court looked at the plaintiff’s argument that the comments that the district court made with where it was trying to help the plaintiffs narrow the discovery request to a set that would be acceptable under the laws of proportionality. The plaintiffs argued that those comments actually tainted discovery and inappropriately narrowed the scope to only accidents that occurred in the ADA area of parking lots where a car intruded into a walkway because the driver experienced pedal error. That’s a very narrow focus. The Supreme Court looked at the consideration of the district court’s comments and actually reiterated a number of them in the decision. It’s difficult to be able to do the analysis as to whether, in fact, that is what the district court’s comments were. It’s not what’s reflected in this decision.

Again, we always have an obligation to be able to represent our clients here, but we’ve got to make sure that when we’re spinning, when we’re reiterating what’s happened and how things can be perceived (in this case the district court’s comment), we need to be accurate, and whether they are here or not is unclear from what’s included in this decision.

On reviewing the appeal for abuse of discretion standard, the Supreme Court looked at the scope of discovery that’s defined by Idaho Rule 26. It’s consistent with Federal Rule of Civil Procedure (FCRP) 26. The court identified that a commentary to Rule 26 is specifically designed to address the issue of disproportionate discovery if it’s burdensome.

The court also found that the second set of requests require Costco to provide discovery on a nationwide basis of any incident of a vehicle impacting anything which was overly broad.

The court found that the trial court used its discretion to limit discovery, where the burden or expense of 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 in the action, and the importance of the discovery and resolving the issues. Those are your factors for proportionality that are set out in Rule 26(b)(1), and they’re mirrored in the Idaho equivalent.

One of the keynotes from the Supreme Court is that they cite to the trial court’s comment. The court said, “As I look through these discovery requests, there isn’t a single one that I think isn’t overly broad.” That’s pretty telling. We’ve got to start drafting narrow requests. Sometimes it’s difficult when you don’t know how organizations work and what kind of information is available. There are there are ways to solve that. There are meet and confers. There are 30(b)(6)s. There is going to the court on a motion to compel and claiming that you’re not able to get information to sufficiently narrow and have the court mediate that.

The district court found that even the case with the request for admission that were submitted on the second set was that they were over-broad. Now, note here that the trial court said that the answers would not be admissible at trial because the questions are so broad as to be meaningless in the context of the dispute to be litigated. The Supreme Court looked at that analysis and said that that’s not right. Under Rule 26, the standard is not whether they are admissible, but whether they are over-broad and not proportional to the needs of the case.

Now, we talked about this a little bit earlier, but one of the key pieces here is that because the parties resolved the issue on the revised set of discovery requests, the plaintiff never followed up and secured a ruling based on the district court’s earlier comments. The Supreme Court found that because the new requests were proportional and appropriate, that failure to get an order from the court meant that they had failed to preserve the issue for appellate review. Even though the court did the analysis on it, it essentially held that this issue had not been preserved for review.

What are our takeaways from this Costco case? Well, I think first and perhaps most importantly, is know and understand the process to challenge overbroad discovery requests. We’ve been kind of talking for the last few weeks as we’ve been doing our #CaseoftheWeek that discovery is happening rapidly, but you’ve got to be forward thinking in how you’re dealing with discovery. What are the ramifications of what you’re asking for, and what’s going to happen in the future? When you have overbroad discovery requests that you’re responding to, you need to object timely and appropriately under the rules. Remember that we can’t use boilerplate objections and each response or each objection has to be specific to the request.

In this particular instance, you would need to object on the grounds of proportionality that the request here for incidents that are nationwide with any vehicular incident would be overbroad and not proportional to the needs of the case. Once those objections are made, if the other side continues to persist, then you need to meet and confer.

Note that those objections that you put forth will be at issue on any motion to compel later on. You need to be able to to defend those. A lot of times with objections or discovery responses, we may not put the time and thought into every single one. Maybe we don’t have all the information from our client yet. So you need to amend those discovery responses if you learn new information or you know that your objections need to be more specific.

Whereas previously in discovery, before we got into so much ESI 15 years ago, it didn’t seem as important or I didn’t see it challenged as much. Now I’m seeing those objections being challenged on a regular basis. Be thoughtful about those; amend them as necessary. Meet and confer effectively, and if you can’t resolve to meet and confer, if you’re still challenging the breadth of the discovery requests, you need to move for a protective order. Simply leaving the meet and confer as a non-resolution is not going to be effective later on in the case.

If you’re the one putting forth the discovery requests, you need to move to compel. You need to get a ruling from the court on the scope of what is permissible discovery when there’s not an agreement.

In addition, if you’re the responding party, you need to get the information together to respond to the discovery requests in the event that is ordered. Oftentimes we see that these discovery requests when they are ordered on a motion to compel or a motion for a protective order is denied there’s a short window that the court orders for the discovery to be responded to. Depending on the location and information of that data or in this case, information from a database, it may take a while to get that information and to make appropriate decisions about how you want to respond to it, additional meet and confers. You still have to meet that court deadline. Failure to meet a court deadline following an order is going to be a basis for sanctions under Rule 37 because you’ve got a court order that you will have missed responding to.

It’s really important that you be prepared to respond even when you feel you’re on 100% footing with the the notion that the discovery requests are unduly burdensome. Get together the information or at least make it accessible so that you can get it quickly and be able to respond quickly.

Where the resolution of discovery issues are done through the parties vs. a court order, you need to consider if that’s going to have a huge impact on your case going forward, that you’ll need to seek a ruling in order to preserve that issue for appeal. That was kind of a non-issue in this case because the Supreme Court affirmed the ruling on summary judgment. There wasn’t a lot on the merits here for liability against Costco. The failure to preserve that issue for appeal was not outcome determinative here, but it could be outcome determinative in another situation.

Keep that in mind. Make sure you get a ruling where necessary in order to preserve things for appeal.

Now, the last piece is we need to make sure we’re drafting appropriately crafted discovery and that we’re reviewing that discovery when it comes in and understanding how we need to object to it. Rule 26(b)(1) under the Federal Rules of Civil Procedure and the state equivalents include the six factors for proportionality. That rule states that parties may obtain discovery regarding any non privileged matter that is relevant–remember that we talk about the language of reasonably calculated to lead to the discovery of admissible evidence, it’s now relevant–to any parties claim or defense and proportional to the needs of the case. Then there are six factors that define whether it’s 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 perhaps the most important factor,
  • Is whether the burden or expense of the proposed discovery outweighs its likely benefit.

The information within this scope of discovery need not be admissible in evidence to be discoverable. That’s key here, too, because as I noted earlier, the trial court looked at whether or not evidence was admissible on the request for admission and why they found them inappropriate. The Supreme Court looked at that analysis and said that’s not the correct standard. Rule 26 specifically says that information does not have to be admissible to be discoverable. Your standard is, again, those factors of proportionality.

Last thing I’ll tell you on takeaways is overbroad discovery is bad for both parties. It encourages fights. It encourages over collection and over providing information. It means that both parties incur tremendous amounts of expense and dealing with electronically stored information that’s over-broad. Work towards getting well crafted discovery responses, discovery requests, and make sure that your responses to those requests meet your obligations to object appropriately and then remember your process. Preserve what you need to for appeal, and let’s do better discovery.

That’s our case for this week. Thanks for joining me. I’ll be back next week with another decision from 2020, which saw more than 2600 decisions in electronic discovery.

Remember to sign up to receive information and to register for the University of Florida E-Discovery Conference. If you have any input on a particular topic covered here on the case of the week or have any feedback for me, again, reach out to me on Twitter at @Kelly Twigger or on LinkedIn and have a great week.

Thanks so much.

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