That depends on whose argument you agree with in an interesting point/counterpoint published over two essay articles in Judicature by the Bolch Judicial Institute of Duke Law School.
The Editors of Judicature set the stage for the debate by asking these questions: “Could a party, for instance, decline to produce, review, or even collect certain types of data due to privacy concerns? Should privacy be considered a “burden” under the proportionality analysis required by Federal Rule of Civil Procedure Rule 26(b)?”
In the “Point” first essay, The Burden of Privacy In Discovery, Robert D. Keeling and Ray Mangum, a partner and associate, respectively, at Sidley Austin LLP, argue that privacy should be considered a burden under Rule 26(b). In the “Counterpoint” second essay, The Privacy-Protection Hook in the Federal Rules, Chief Judge Lee H. Rosenthal of the Southern District of Texas and Professor Steven S. Gensler of the University of Oklahoma College of Law addressing arguments made by Keeling and Mangum in their argument that privacy should not be considered a burden under Rule 26(b). Each of these are briefly highlighted below.
The Burden of Privacy In Discovery
In their Judicature essay, Keeling and Mangum note in their introduction: “The renewed prominence of the Rule 26(b) proportionality factors as part of the definition of the scope of discovery has provided a solid textual basis for giving weight to such privacy “burdens” in defining the proper scope of discovery. As a result, an emerging consensus of courts and commentators has concluded that privacy interests may — and indeed, should — be considered as part of the proportionality analysis required under Rule 26(b)(1).” As a part of that consideration, Keeling and Mangum observe several instances in the pre-2015 history of the amendments where it’s noted that monetary stakes are not the only factor to determine burden and that “the Advisory Committee Note to the 2006 Amendments expressly states that ‘issues of burden’ raised by Rule 34(a)(1) include ‘confidentiality [and] privacy’ concerns.”
Keeling and Mangum also cite several cases where privacy interests could be factored into benefit/burden considerations, including one where the Court noted an “’Orwellian irony’ that would have resulted from a contrary ruling requiring ‘that in order to get relief for a theft of one’s personal information, a person has to disclose even more personal information.”
But, Keeling and Mangum don’t stop there, they argue that as proportionality is considered at each phase of the discovery process, such as preservation, collection, review and production, privacy is part of that proportionality analysis and “are relevant from the outset — even when initially identifying the custodians, data sources, and time period likely to contain relevant information.” They also argue that “the burden of protecting appropriate privacy interests during litigation counsels in favor of cost shifting in many cases.”
The Privacy-Protection Hook in the Federal Rules
While agreeing with Keeling and Mangum that privacy is a significant challenge in discovery, Judge Rosenthal and Professor Gensler stated in their Judicature essay “we think there are important reasons to let Rule 26(c) do the heavy lifting of protecting privacy in discovery. And we don’t think the 2015 amendments provide a sufficient, much less explicit, basis for making privacy part of the Rule 26(b) scope determination. In short, we think the 2015 amendments left the privacy-protection hook right where it was and — at least for now — right where it should be.”
“What’s missing from this model?”, they ask. “First, an exchange between parties on whether they can agree on a way to deal with the risks without foregoing discovery. The rules encourage cooperation in devising discovery in each case. Keeling and Mangum’s approach, however, seems to encourage, or at least allow, unilateral choices…The second missing link is the judge. When opposing parties disagree on when stuff is too private to see the light of discovery, judges have resolved the issues by protective orders under Rule 26(c). Judges who engage in active and earlier case management often work with parties to protect privacy while allowing discovery. And in doing that work, judges have been guided by important norms like not barring inquiry or production altogether when some lesser form of protection would be adequate.”
Judge Rosenthal and Professor Gensler also indicated that they think the cases cited by Keeling and Mangum (which generally involved requests for forensic imaging of devices) “are best read as upholding the traditional privacy-based norm that a requesting party must have a very good reason to justify the intrusion associated with direct access.” They also note with regard to the 2015 amendments to elevate proportionality “from the ‘basement’ of Rule 26(b)(2) to the street-window level of Rule 26(b)(1)”: “It would have been very easy for the Advisory Committee to add the word ‘privacy’ when it tinkered with and reordered the list of proportionality factors, but it didn’t. Nor did the Advisory Committee mention privacy concerns in the accompanying committee note.” As they note, “The rule makers do not hide elephants in mouseholes.”
These are only a few of the points discussed in these two interesting essays in Judicature on a topic of emerging significant importance in discovery and how privacy concerns will be handled as part of that process. I encourage you to read both essay articles (links above) and draw your own conclusions. And be part of the conversation on this important topic!
So, what do you think? Should privacy be considered a “burden” in proportionality analysis under Rule 26(b)(1)? Please share any comments you might have or if you’d like to know more about a particular topic.
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