Proportionality Carries the Day: Amended FRCP 26 Cited to Quash Overbroad Subpoenas

As practitioners are well aware, the recent amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. (For background information on the amendments, see our previous blog posts from May 5, 2015September 25, 2014June 19, 2014May 27, 2014February 10, 2014; and May 6, 2013). In one of the first applications of amended Rule 26(b)(1), Magistrate Judge James Cott in the Southern District of New York utilized it to quash several overbroad subpoenas.

In Henry v. Morgan’s Hotel Group, Inc., plaintiff Phillip Henry, a gay black man, sued his former employer, defendant Morgan’s Hotel Group, for race and sexual orientation discrimination and retaliation. Henry alleged that his former supervisor routinely disparaged him with racial and homophobic remarks. After Henry complained to upper-level supervisors, he alleged that his former supervisor retaliated against him, and upper-level supervisors largely dismissed his complaints.

At issue were subpoenas that Morgan’s had served on Henry’s non-party former employers, without notice to Henry, seeking “[a]ll documents and communications . . . referring to or relating to Phillip Henry.” Henry filed a motion to quash these subpoenas, in part arguing that they violated the proportionality constraints of amended Rule 26(b)(1) and sought irrelevant information. Judge Cott granted the motion, noting that defendant’s counsel mistakenly invoked former Rule 26(b)(1), including its often (incorrectly) cited “reasonably calculated to lead to admissible evidence” standard, to argue for a broader scope of discovery.

While noting that “[r]elevance is still to be construed broadly,” Judge Cott explained that the amended rule “is intended to ‘encourage judges to be more aggressive in identifying and discouraging discovery overuse’ by emphasizing the need to analyze proportionality before ordering production of relevant information.” Therefore, the amended rule requires courts to consider both the nature of the information sought and whether its production is “proportional to the needs of the case.”

Applying this standard, Judge Cott found the subpoenas to be overbroad, as the discrimination action posed the issue of whether the defendant’s actions toward Henry were conducted for valid reasons, or violated applicable discrimination laws. The Court found Henry’s prior employment to have little bearing on this issue.

Judge Cott’s opinion represents one of the first to interpret and apply the rule 26 amendments. One of the primary motivations behind the amendments to Rule 26 was to prevent “fishing expeditions,” so it would appear from this decision that they are having their intended effect.