05.20.16

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Information Gathering in Environmental Litigation: Recent Amendments to Federal Discovery Rules Highlight Importance of Public Records Requests

PRACTICE GROUPS

Introduction
December 2015 amendments to the Federal Rules of Civil Procedure (FRCP) made some of the most significant changes in decades to the rules governing civil discovery.  Experts disagree about just how much this amended language will affect day-to-day practice.  But, if judges use the rules to impose sharp limits on the parameters of permissible discovery requests, environmental practitioners and others involved in litigation with governmental entities should consider expanding their use of the Freedom of Information Act (FOIA) and other public records laws to supplement the civil discovery process.

Overview of FRCP Amendments
The most significant 2015 FRCP amendment is to Rule 26, which now says that parties may obtain discovery “that is relevant to any party’s claim or defense and proportional to the needs of the case.”  FRCP 26(b) (emphasis added).  Rule 26 lists factors to be considered in determining proportionality, including “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 whether the burden or expense of the proposed discovery outweighs its likely benefit.”  Id.

The purpose of the Rule 26 amendment is to emphasize the importance of proportionality as an integral component of discovery, particularly as electronic discovery becomes more voluminous in complex litigation.  A “proportionality requirement” is not new, but the 2015 amendment elevates the requirement, previously buried in Rules 26(b)(2)(C) and 26(g), to the very front of Rule 26(b).  Early court decisions interpreting the 2015 FRCP amendments have taken care to deny that Rule 26, as amended, substantively changes discovery.  See, e.g., Steel Erectors, Inc. v. AIM Steel Int’l, Inc., 312 F.R.D. 673, 676 n.4 (S.D. Ga. 2016) (amendments “reemphasize and highlight requirements already present in the Rules, like proportionality”).  The amendments, instead, restore proportionality to its “place of . . . intended importance” by incorporating it into “the very definition of permissible discovery.”  Sibley v. Choice Hotels Int’l, No. CV 14-634, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015).

Assessing the Rule Changes in Practice – Early Hints of Narrowing
The FRCP Advisory Committee’s position is that the Rule 26 amendment will have little practical impact because lawyers – at least in theory – already consider proportionality in their regular practice.  That said, it remains to be seen whether courts will be eager to use this language to slash discovery requests.  Practitioners must now think carefully about proportionality when drafting discovery requests, and should be prepared to explain how their requests are proportional to the needs of their case in light of the factors listed in Rule 26(b).  On the other hand, practitioners on the receiving end of broad discovery requests should consider more readily objecting on proportionality grounds.

The Advisory Committee hopes that its renewed emphasis on proportionality will encourage out-of-court resolution of discovery disputes.  Judges are more likely to make up-or-down determinations on the question of proportionality than they are to make detailed findings that parse and trim broad discovery requests.  Faced with this risk, parties are more likely to craft their own solutions to discovery disputes than to cede this task to a judge.  In fact, amended Rule 34(b)(2)(A) specifically encourages delivery of discovery requests before the parties’ Rule 26(f) conference.  This is intended to provide all parties with better information about discovery requests, to help them identify areas of disagreement early on, and to facilitate informal discussions among counsel and judges about how to resolve such disputes.

Despite the Advisory Committee’s protestations, the 2015 amendments may significantly alter the way practitioners approach discovery.  Since plaintiffs rarely know what to ask for early in a lawsuit, the enhanced “proportionality” requirement could stifle case development if eager judges recast searching inquiries as fishing expeditions.  Though it reiterated that the amendments did not change the applicable standard, the court in Eramo v. Rolling Stone LLC cautioned litigants that it would “put a greater emphasis on the need to achieve proportionality” when evaluating motions to compel.  No. 3:15-MC-0001, 2016 WL 304319 at *3 n.2 (W.D. Va. Jan. 25, 2016).  And in Sibley, the court cited the proportionality requirement in denying a motion to compel, finding that the relatively simple claim in that action “calls for the use oflimited targeted discovery that is proportional to the needs of the case.”  2015 WL 9413101 at *7 (emphasis added).

Supplementing Discovery with Public Records
Public records requests, like the FOIA and similar state laws, have long been important tools for supplementing and guiding civil discovery in cases involving the government.  That is obviously true where the government is a party.  It is also true where the government is merely involved in underlying issues, such as environmental review or permitting, by way of its regulatory and enforcement authority.  If federal courts use the 2015 FRCP amendments to place additional limitations on discovery, environmental practitioners and litigators in other cases involving governmental entities might be wise to lean more heavily on public records requests as a means of supplementing civil discovery.

The FOIA process has several advantages when compared to civil discovery.[1] First, FOIA requests can be made before litigation begins.  As a form of pre-litigation discovery, FOIA requests facilitate evaluation of potential claims before they are brought.  Information obtained in a FOIA request can also allow for more targeted civil discovery once a case has begun, and may actually streamline the civil discovery process as a result.

Once litigation has begun, expedited timing may be another advantage to public records requests.  The federal discovery rules require a response to discovery requests within 30 calendar days.  See FRCP 6, 33, 34.  There is no significant timing advantage under the FOIA, which usually requires a response within 20 business days.  But some state laws mandate much quicker turnaround times, meaning that a public records request under state law may allow litigators to obtain documents more quickly than by way of the federal discovery rules.

Perhaps the most important advantage of supplementing discovery efforts with FOIA requests is that the FOIA generally requires broader disclosure than the FRCP.  Unlike the FRCP, the FOIA is “a broad statutory grant of disclosure” that does not “focus upon the need for the information” sought.  See Baldrige v. Shapiro, 455 U.S. 345, 360 (1982).  The limited statutory exceptions to disclosure under the FOIA are construed narrowly, and “do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.”  Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7-8 (2001) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)).  As such, the fact “that a document is exempt from discovery does not necessarily mean it will be exempt from disclosure under FOIA.”  Stonehill v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009).

The FOIA does allow the government to withhold certain records whose release would interfere with active government investigations and enforcement actions.  5 U.S.C. § 552(b)(7)(A); North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989).  The FOIA also allows the government to withhold certain records that would otherwise be privileged in civil discovery, such as attorney-client communications or materials protected by the attorney work-product doctrine.  See 5 U.S.C. § 552(b)(5); Klamath, 532 U.S. at 8.  In fact, privileges that would be qualified in the civil discovery context, like the work-product privilege, are absolute for purposes of FOIA.  See FTC. v. Grolier Inc., 462 U.S. 19, 27-28 (1983).  While a private litigant can overcome these qualified privileges by showing a substantial need during the discovery process, a FOIA requestor’s need for government records cannot overcome the statutory exception.  This is another reason why it may be wise to employ both FOIA requests and civil discovery in a single case.

Unlike the civil discovery rules, however, the FOIA does not contain any relevancy or proportionality requirement.  See Wash. Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 258-59 (D.C. Cir. 1982).  Indeed, the particular need or purpose for which a FOIA requester seeks government records is irrelevant to the government’s obligation to disclose those records.  U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 772 (1989); id.

The Supreme Court has cautioned that “the primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for civil discovery.” Baldrige, 455 U.S. at 360 n.14 (1982).  But even if the FOIA is not intended to supplant the civil discovery process, no authority precludes the use of FOIA before or during civil litigation to supplement discovery.  See Walsh, 881 F.2d at 1099; RSR Corp. v. Brock, 764 F.2d 355, 367-68 (5th Cir. 1985).  The D.C. Circuit has stated that “[i]f abuse of FOIA is or becomes a problem, the appropriate recourse is an amendment to FOIA” rather than judicial intervention.  Wash. Post Co., 690 F.2d at 259 n.21.  Given a potentially narrowed scope of civil discovery, the FOIA may become a more important tool in litigation against or involving the government.

Concluding Thoughts
It is unknown whether federal courts will seize on the new FRCP amendments to limit the scope of civil discovery going forward, but reaction to the amendments has certainly focused on this possibility.  If discovery is curtailed, savvy practitioners may increase their use of the public records requests to supplement discovery.  Courts could respond with additional restrictions on the use of public records requests and the interaction between those requests and the FRCP.  Either way, environmental practitioners should keep an eye on courts’ interpretation of the new discovery rules, and consider revisiting or expanding the use of FOIA requests as a means of gathering information for litigation purposes.

[1] Our discussion of the FOIA here is mostly limited to the federal public records statute, 5 U.S.C. § 552, and related federal case law.  State public records laws are no less useful, however, and practitioners should familiarize themselves with the sometimes unique provisions of those laws.


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The opinions expressed in this article are those of the authors and do not necessarily reflect the views of Riddell Williams or its clients.  This article is for general informational purposes and is not intended to be, and should not be taken as, legal advice.

The Riddell Williams Environmental Group has played a key part in addressing some of the most challenging environmental issues in the Pacific Northwest and throughout the nation.  Our group’s clients include utilities, pulp and paper manufacturers, petroleum companies, regional energy companies, airlines and airfreight carriers, steel manufacturers, waste management companies, technology businesses, real estate development partnerships, private landowners, and some of the state’s leading environmental groups.