Discovery Requests in Construction Litigation: Proportionality Arguments and Reasonable Response Time Under Federal and State Rules

This CLE webinar will guide construction litigators in drafting discovery requests likely to withstand heightened judicial scrutiny under Federal Rule of Civil Procedure 26(b) (and state rule equivalents) that require discovery be proportional to the needs of the case. The panel will also discuss strategies for making sustainable objections to discovery requests that are overly broad and burdensome in light of the needs of the case. Additionally, the panel will review strategies for producing documents and electronically stored information promptly as required by Rule 34(b) (and state rule equivalents).

Construction litigation is complex, often involving multiple parties with intricate contractual relationships and significant financial stakes in a project. Given the potentially expansive scope of litigation, it may be challenging for construction litigators to draft discovery requests—requests for production of documents and admissions, interrogatories, and third-party subpoenas (discovery requests)—that are proportional to the needs of the case and likely to withstand the heightened judicial scrutiny under Rule 26(b) or possible state rule equivalents.  

Federal Rule 26(b) requires that litigators raise proportionality arguments to support their discovery requests and to object to opposing counsel's discovery requests. Courts have emphasized that parties must rein in overly broad discovery requests. Many states also require that discovery be proportional to the needs of the case to more closely align with the federal rule. 

Litigators must justify any request for discovery beyond the direct circumstances that led to the claim and damages sought. Discovery requests may be narrowed or quashed if the burden or expense of producing the information outweighs its likely benefit.

Knowing how to draft discovery requests that are likely to withstand burden and proportionality challenges and how to craft objections to broad discovery requests are critical for construction litigators. This includes understanding how to object to Rule 34 requests with specificity and how to respond to early requests for production within a "reasonable time."

Listen as our expert panel discusses how to draft discovery requests and make objections in line with the requirements of Rules 26(b) and 34 (b) (and state rule equivalents). The panel will examine supporting case law and offer best practices for drafting and responding to discovery requests.