District of New Mexico on the Scope of Discovery and Cost Shifting

On January 23, 2018, in Begay v. United States, No. CIV 15-0358 JB, 2018 U.S. Dist. LEXIS 10520, the United States District Court for the District of New Mexico, ruled on the proportionality of a subpoena seeking records that the subject of DEA investigation claimed were protected by attorney client privilege. The plaintiff sought records from an attorney who represented a doctor alleged to have provided medical treatment to the plaintiff without a license.

The opinion includes a long review of the scope of discovery under FRCP 26, and specifically the proportionality concept under 26(b), which leads it to conclude that the amended language of the rule itself, Advisory Committee notes, judicial precedent, and Chief Justice Roberts's 2015 Year-End Report on the Federal Judiciary, have dropped "all discovery disputes into judges' laps. The drafters have decided that this determination requires the individualized judgment of someone on the scene." [* at 33]

Documents in the possession of an attorney that pertain to his or her representation of a particular client are judged to be in the control of the client. The court cites the Zubulake decision's seven factor test in determining when cost shifting should occur. It would not shift costs in this case because:

1. The requested documents consisted of two banker's boxes, and therefore could not be regarded as voluminous.

2. The plaintiffs were indigent. [With respect to this factor, it noted that FRCP 26(b) specifies that proportionality depends on the parties' resources.]