Case Law

Court Denies Motion to Compel Under Newly Amended FRCP 26(b)(1)


Gilead Sciences v. Merck, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016) In this patent infringement case, the defendant sought additional discovery on the contents of certain “tubes of compounds” that the plaintiff’s expert had referenced in a related litigation. The defendant claimed that it should not have to trust the plaintiff as to what was contained in the pictured tubes, while the plaintiff claimed that the contents of the tubes were not the same compound at issue in this case. The court began its discussion of the defendant’s motion to compel by addressing the new proportionality requirement under newly amended Federal Rule of Civil Procedure 26(b)(1). The court noted that the amendment made implicit factors in the old rules now explicit in the new rules, and that it is “no longer good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone. Instead, a party seeking discovery of relevant, non-privileged information must show, before anything else, that the discovery sought is proportional to the needs of the case.” In the context of the case, the court held that the defendant had long had information about the contents of the tubes and that it offered “no real evidence” to contradict the plaintiff’s representations. The court concluded that the defendant’s request is “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude,” and thus denied the motion to compel.

Keywords: proportionality, FRCP 26, procedure, motion to compel