Amicus Curiae Brief — Actavis Holdco U.S., Inc., et al., Petitioners v. Connecticut, et al.

No. 19-1010

In the

Supreme Court of the United States

ACTAVIS HOLDCO, INC., et al.,

Petitioners,

v.

STATE OF CONNECTICUT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF FOR

AMICI CURIAE AND BRIEF OF THE CHAMBER

OF COMMERCE OF THE UNITED STATES

OF AMERICA, THE PHARMACEUTICAL

RESEARCH AND MANUFACTURERS OF

AMERICA, THE NATIONAL ASSOCIATION OF

MANUFACTURERS, AND THE AMERICAN

TORT REFORM ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Bert W. Rein

Counsel of Record

Wesley E. Weeks

Wiley Rein Llp

1776 K Street, Nw

Washington, DC 20006

(202) 719-7000

brein@wileyrein.com

February 28, 2020

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover)

294905

Steven P. Lehotsky

Jonathan D. Urick

U.S. Chamber Litigation

Center

1615 H Street, N.W.

Washington, DC 20062

(202) 463-5337

Counsel for the Chamber

of Commerce of the United

States of America

H. Sherman Joyce

Lauren S. Jarrell

A merican Tort Reform

A ssociation

1101 Connecticut Avenue,

N.W., Suite 400

Washington, DC 20036

(202) 682-1168

Counsel for the American

Tort Reform Association

James C. Stansel

Melissa B. Kimmel

Pharmaceutical Research

& Manufacturers of

A merica

950 F Street, N.W.,

Suite 300

Washington, DC 20004

(202) 835-3559

Counsel for PhRMA

Patrick Hedren

Erica Klenicki

Manufacturers’ Center

for Legal Action

733 10th Street, Nw

Washington, DC 20001

(202) 637-3000

Counsel for National

Association of

Manufacturers

Pursuant to Rule 37.2(b) of the Rules of this Court,

the Chamber of Commerce of the United States of

America (“Chamber”), the Pharmaceutical Research

and Manufacturers of America (“PhRMA”), the

National Association of Manufacturers (“NAM”), and

American Tort Reform Association (“ATRA”)

respectfully move for leave to file a brief as amici

curiae in support of Petitioner in the above-captioned

case. Amici tender their proposed brief with this

motion.

Counsel for amici provided notice and sought

consent from the parties. Petitioners have provided

consent. Initially, Respondents consented as well, but

then withdrew their consent because counsel for amici

may represent a defendant in connection with a new

complaint filed by a subset of Respondents in the

Eastern District of Pennsylvania, C.A. No. 2:19-cv06011, which was served on February 4, 2020. C.A.

No. 2:19-cv-06011 has been assigned to an existing

multidistrict litigation (MDL 2724), which is the

district court litigation that was subject of a

mandamus petition in the Third Circuit. In turn, the

Third Circuit’s denial of the mandamus petition is the

subject of the petition for certiorari in this case.

Respondents refuse to consent to the filing of the

proposed amicus brief until it is determined whether

counsel for amici will represent the defendant in the

newly filed action. In addition, Respondents take the

position that Rule 37.6 of the Rules of this Court

requires the disclosure of that representation. The

defendant in question is not a party before this Court,

however, so no such disclosure is required under the

rules. See Supreme Court Rule 37.6 (requiring an

amicus curiae to “indicate whether counsel for a party

authored the brief in whole or in part . . . .”). Nor was

the defendant a party before the Third Circuit in the

mandamus action.

The defendant has not

participated in the drafting of the proposed amicus

brief nor furnished any consideration for the brief.

Amici bring relevant perspective that they

respectfully submit will aid the Court in its resolution

of the petition for certiorari.

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents 300,000 direct members and indirectly

represents the interests of more than three million

companies and organizations of every size, in every

industry sector, from every region of the country. An

important function of the Chamber is to represent the

interests of its members in matters before Congress,

the Executive Branch, and the courts. To that end,

the Chamber regularly files amicus curiae briefs in

cases that raise issues of concern to the nation’s

business community.

The Chamber and its members have actively

pursued enforcement of Rule 26’s relevance and

proportionality requirements and the judicial

management of abusive discovery requests. See U.S.

Chamber Inst. for Legal Reform, Public Comment to

the Advisory Committee on Civil Rules Concerning

Proposed Amendments to the Federal Rules of Civil

Procedure, at 1–7 (Nov. 7, 2013) (addressing the

proposed amendment to Rule 26). The Petition before

this Court raises issues relating to Rule 26 that are of

great concern to the Chamber.

PhRMA is a nonprofit association representing the

country’s leading research-based pharmaceutical and

biotechnology companies.1 PhRMA’s mission is to

advocate public policies encouraging the discovery of

life-saving and life-enhancing new medicines.

PhRMA’s members are devoted to discovering and

developing medicines that enable patients to live

longer, healthier, and more productive lives. Since

2000, PhRMA member companies have invested more

than $900 billion in the search for new treatments and

cures, including an estimated $79.6 billion in 2018

alone.

The NAM is the largest manufacturing association

in the United States, representing small and large

manufacturers in every industrial sector and in all 50

states. Manufacturing employs more than 12 million

men and women, contributes $2.25 trillion to the U.S.

economy annually, has the largest economic impact of

any major sector and accounts for more than threequarters of all private-sector research and

development in the nation. The NAM is the voice of

the manufacturing community and the leading

advocate for a policy agenda that helps manufacturers

compete in the global economy and create jobs across

the United States.

ATRA is a broad-based coalition of businesses,

corporations, municipalities, associations, and

professional firms that have pooled their resources to

promote reform of the civil justice system with the

goal of ensuring fairness, balance, and predictability

in civil litigation.

1 A complete list of PhRMA members is available at

http://www.phrma.org/about/members (last visited February 27,

2020).

The massive—and growing—burden of civil

discovery deeply concerns amici and their members.

In this case, the Special Master and District Court

ignored the discovery limitations of the Federal Rules

of Civil Procedure and ordered the defendants to turn

over all documents, relevant or not, matching a list of

broad search terms. Amici have a substantial interest

in safeguarding their members’ ability to maintain

the confidentiality of their files except as required for

the just and speedy resolution of litigation on its

merits. Amici believe that the interests of justice are

undermined by unnecessarily burdensome discovery

that creates undue pressure to settle without regard

to a case’s merit.

Amici respectfully submit that this the attached

brief setting forth its views will be helpful to the Court

in its consideration of these important issues and

requests that the Court grant leave to file the brief

tendered with this motion.

Respectfully submitted,

February 28, 2020

/S/ BERT W. REIN

BERT W. REIN

Counsel of Record

WESLEY E. WEEKS

WILEY REIN LLP

1776 K Street, NW

Washington, DC 20006

(202) 719-7000

Counsel for the Chamber brein@wileyrein.com

of Commerce of the

United States of

Counsel for Amici

Curiae

America

STEVEN P. LEHOTSKY

JONATHAN D. URICK

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, DC 20062

(202) 463-5337

H. SHERMAN JOYCE

LAUREN S. JARRELL

AMERICAN TORT REFORM

ASSOCIATION

1101 Connecticut Avenue,

N.W., Suite 400

Washington, DC 20036

(202) 682-1168

Counsel for the American

Tort Reform Association

JAMES C. STANSEL

MELISSA B. KIMMEL

PHARMACEUTICAL RESEARCH

& MANUFACTURERS OF

AMERICA

950 F Street, N.W.,

Suite 300

Washington, DC 20004

(202) 835-3559

Counsel for PhRMA

PATRICK HEDREN

ERICA KLENICKI

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10th Street, NW

Washington, DC 20001

(202) 637-3000

Counsel for National

Association of

Manufacturers

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF THE ARGUMENT ............................ 3

ARGUMENT ............................................................... 7

I.

The Decision Below Contravenes The

Sound Judicial Policy Embodied In Rule

26 That Cases Should Be Resolved On

Their Merits. .......................................... 7

II.

The Third Circuit’s Flawed Decision

Warrants The Exercise Of This Court’s

Supervisory Power. .............................. 11

CONCLUSION .......................................................... 17

-i-

TABLE OF AUTHORITIES

Cases

Page(s)

In re Burlington N., Inc.,

822 F.2d 518 (5th Cir. 1987) ............................... 16

Cheney v. U.S. Dist. Court for D.C.,

542 U.S. 367 (2004) ............................................. 12

Dairy Queen, Inc. v. Wood,

369 U.S. 469 (1962) ............................................. 12

Frazier v. Heebe,

482 U.S. 641 (1987) ............................................. 15

Herbert v. Lando,

441 U.S. 153 (1979) ............................................. 16

Hollingsworth v. Perry,

558 U.S. 183 (2010) (per curiam)........................ 15

In re Ruffalo,

390 U.S. 544 (1968) ............................................. 15

Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004) ............................................... 8

L.A. Brush Mfg. Corp. v. James,

272 U.S. 701 (1927) ............................................. 14

Platt v. Minn. Mining & Mfg. Co.,

376 U.S. 240 (1964) ............................................... 6

Roche v. Evaporated Milk Ass’n,

319 U.S. 21 (1943) ................................................. 6

- ii -

TABLE OF AUTHORITIES

(continued)

Page(s)

Schlagenhauf v. Holder,

379 U.S. 104 (1964) ............................. 5, 12, 14, 15

Société Nationale Industrielle Aérospatiale v.

U.S. District Court for Southern District of

Iowa,

482 U.S. 522 (1987) ................................. 13, 14, 16

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) ......................................... 14

Wilson v. Schnettler,

365 U.S. 381 (1961) ............................................. 14

Other Authorities

Nicholas M. Pace & Laura Zakaras, RAND

Institute for Civil Justice, Where the Money

Goes: Understanding Litigant Expenditures

for Producing Electronic Discovery (2012),

https://www.rand.org/content/dam/rand/pubs/

monographs/2012/RAND_MG1208.pdf ................ 9

Linzey Erickson, Give us a Break: The (IN)

Equity of Courts Imposing Severe Sanctions

for Spoliation without a Finding of Bad

Faith, 60 Drake L. Rev. 887 (2012) ...................... 9

16 Wright & Miller, Federal Practice &

Procedure § 3935.3 (3d ed.)................................. 16

Fed. R. Civ. P. 26(b)...................................... 11, 15, 16

Fed. R. Civ. P. 26(b)(1) ............................... 7, 9, 11, 16

- iii -

TABLE OF AUTHORITIES

(continued)

Page(s)

Fed. R. Civ. P. 26(b)(2) ............................................. 11

Fed. R. Civ. P. 26(b)(2)(C)(iii) .............................. 3, 14

Fed. R. Civ. P. 26 cmt. ....................................... passim

Fed. R. Civ. P. 34 ........................................................ 7

Fed. R. Civ. P. 34(b)(2) ..................................... 4, 7, 11

Fed. R. Civ. P. 35 ................................................ 13, 15

Fed. R. Civ. P. 37 ...................................................... 10

Lawyers for Civil Justice, Civil Justice Reform

Grp. & U.S. Chamber Inst. for Legal Reform,

Litigation Cost Survey of Major Companies

(2010), https://www.uscourts.gov/sites/

default/files/litigation_cost_survey_of_major_

companies_0.pdf .................................................... 9

2015 Year End Report on the Federal Judiciary,

at 7 (Dec. 31, 2015), https://www.supreme

court.gov/publicinfo/year-end/2015yearendreport.pdf ......................................................... 8

U.S. Chamber Inst. for Legal Reform, Public

Comment to the Advisory Committee on Civil

Rules Concerning Proposed Amendments to

the Federal Rules of Civil Procedure, at 1-7,

https://www.instituteforlegalreform.com/uplo

ads/sites/1/FRCP_Submission_Nov.7.2013.pdf

(Nov. 7, 2013) ........................................................ 1

- iv -

INTEREST OF AMICI CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members

and indirectly represents the interests of more than

three million companies and organizations of every

size, in every industry sector, from every region of the

country. An important function of the Chamber is to

represent the interests of its members in matters

before Congress, the Executive Branch, and the

courts. To that end, the Chamber regularly files

amicus curiae briefs in cases that raise issues of

concern to the nation’s business community.

The Chamber and its members have actively

pursued enforcement of Rule 26’s relevance and

proportionality requirements and the judicial

management of abusive discovery requests. See U.S.

Chamber Inst. for Legal Reform, Public Comment to

the Advisory Committee on Civil Rules Concerning

Proposed Amendments to the Federal Rules of Civil

Procedure, at 1–7 (Nov. 7, 2013) (addressing the

proposed amendment to Rule 26). The Petition before

this Court raises issues relating to Rule 26 that are of

great concern to the Chamber.

1 No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the amici curiae, their members, or their

counsel, made a monetary contribution to its preparation or

submission. Counsel for the Petitioners consent to the filing of

this brief. Counsel for the Respondents do not.

1

The Pharmaceutical Research and Manufacturers

of America (“PhRMA”) is a nonprofit association

representing the country’s leading research-based

pharmaceutical and biotechnology companies.2

PhRMA’s mission is to advocate public policies

encouraging the discovery of life-saving and lifeenhancing new medicines. PhRMA’s members are

devoted to discovering and developing medicines that

enable patients to live longer, healthier, and more

productive lives.

Since 2000, PhRMA member

companies have invested more than $900 billion in the

search for new treatments and cures, including an

estimated $79.6 billion in 2018 alone.

The National Association of Manufacturers

(“NAM”) is the largest manufacturing association in

the United States, representing small and large

manufacturers in every industrial sector and in all 50

states. Manufacturing employs more than 12 million

men and women, contributes $2.25 trillion to the U.S.

economy annually, has the largest economic impact of

any major sector and accounts for more than threequarters of all private-sector research and

development in the nation. The NAM is the voice of

the manufacturing community and the leading

advocate for a policy agenda that helps manufacturers

compete in the global economy and create jobs across

the United States.

The American Tort Reform Association (“ATRA”)

is a broad-based coalition of businesses, corporations,

A complete list of PhRMA members is available at

http://www.phrma.org/about/members (last visited February 27,

2020).

2

2

municipalities, associations, and professional firms

that have pooled their resources to promote reform of

the civil justice system with the goal of ensuring

fairness, balance, and predictability in civil litigation.

The massive—and growing—burden of civil

discovery deeply concerns the amici and their

members. In this case, the Special Master and

District Court ignored the discovery limitations of the

Federal Rules of Civil Procedure and ordered the

defendants to turn over all documents, relevant or

not, matching a list of broad search terms. Amici have

a substantial interest in safeguarding their members’

ability to maintain the confidentiality of their files

except as required for the just and speedy resolution

of litigation on its merits. Amici believe that the

interests of justice are undermined by unnecessarily

burdensome discovery that creates undue pressure to

settle without regard to a case’s merit.

SUMMARY OF THE ARGUMENT

This Court does not get many opportunities to

address discovery issues. But discovery—particularly

discovery of electronic material—is critical to both

plaintiffs and defendants. This petition, although

arising in a mandamus posture, offers the Court the

chance to address an exceptionally important issue for

civil litigants and to provide critical guidance for

District Courts.

Rule 26 of the Federal Rules of Civil Procedure

provides that district courts “must limit” discovery to

relevant material. Fed. R. Civ. P. 26(b)(2)(C)(iii)

(emphasis added). Despite that mandatory duty, the

District Court in this case explicitly prohibited the

3

defendants from conducting any relevance review at

all before production. “There is no dispute,” that the

court’s extremely broad discovery order “compels the

production of a volume of non-responsive and

irrelevant documents” in derogation of its duty. Dec.

6, 2019 Order (“Order”) at 3 n.1 (Phipps, J.,

dissenting).

Nevertheless, a divided panel of the Third Circuit

refused to correct this flagrant error via mandamus,

holding that the District Court committed no “clear

abuse of discretion” or “clear error of law” by

compelling Petitioners to produce millions of

documents that the civil rules entitle them to

withhold by proper objection under Rule 34(b)(2). Id.

at 2. According to the panel majority, the discovery

order’s clawback procedure allowing Petitioners to

seek return of confidential, irrelevant documents after

their production sufficiently “protect[s] the produced

information.” Id. On a petition for rehearing en banc,

eight of the remaining active judges of the Third

Circuit recused.

This Court’s review is now warranted. The

District Court’s discovery order should not stand. As

Judge Phipps’s dissent explains, “[e]ven with th[e]

clawback provision,” that order “constitutes a serious

and exceptional error that should be corrected

through a writ of mandamus.” Id. at 3 n.1. The

District Court’s order “contravenes th[e] fundamental

principle” of civil discovery that “[a] party has the

option of objecting to the production of documents on

responsiveness and relevance grounds before

producing them.” Id. For all litigants but especially

businesses with millions of potentially discoverable,

4

confidential, electronic documents, “[t]he sequence of

events in discovery is important.” Id.

It is well established that to force a litigant to turn

over otherwise private documents, a party must

invoke the judicial powers of the Court under Rule 26

to compel production. But just as a court cannot

compel an invasive physical or mental examination

without satisfying the good-cause requirement of Rule

35, see Schlagenhauf v. Holder, 379 U.S. 104 (1964),

“nothing in the civil rules permits a court to compel

production of non-responsive and irrelevant

documents at any time, much less before the

producing party has had an opportunity to screen

those documents.” Id. (emphasis added). Since “that

is exactly what the discovery order in this case does,”

this Court should grant certiorari and exercise its

supervisory power over the lower courts to restore the

fundamental structure of federal civil discovery.

This case presents a pure question of law

important to all civil litigation in federal court:

Whether, absent discovery misconduct, the Federal

Rules always entitle litigants a meaningful

opportunity for relevance review before production.

As a result, this Court can grant certiorari and cleanly

reverse the Third Circuit’s denial of mandamus

without addressing the propriety of the proposed

search terms or the appropriate amount of time for

pre-production document review. The Court need not

wade into any fact-bound discovery issues, which

remain committed to the District Court’s sound

discretion. In granting mandamus, an appellate

court’s function is “to determine the appropriate

criteria and then leave their application to the trial

judge on remand,” and not “to actually control the

5

decision of the trial court.” Platt v. Minn. Mining &

Mfg. Co., 376 U.S. 240, 245 (1964) (internal quotation

marks and citations omitted).

Petitioners and amici accordingly ask only that

this Court correct the Third Circuit’s clear legal error

and order the District Court to exercise its discretion,

as required, to select an appropriate period for preproduction relevance review. Indeed, one of the

“traditional use[s]” of the writ of mandamus has been

“to compel [an inferior court] to exercise its authority

when it is its duty to do so.” Roche v. Evaporated Milk

Ass’n, 319 U.S. 21, 26 (1943). Here, the District Court

completely denied Petitioners their clear and

indisputable right to lodge pre-production relevancy

objections. That categorical denial was not a factdependent exercise of judicial discretion to manage

discovery under Rule 26. On the contrary, the District

Court grossly exceeded its authority to order

discovery, which is limited to relevant material.

The Third Circuit likewise explicitly refused to

decide whether the District Court’s discovery order

violated the requirements of Rule 26, instead

emphasizing the District Court’s “wide latitude in

controlling discovery.” Order at 2 (“[E]ven if the

District Court’s order constituted an abuse of

discretion (which we do not decide) . . . ”). In doing so,

the Third Circuit shirked its duty to ensure that the

district courts under its supervision are properly

enforcing the mandate of the Federal Rules. This

Court should correct that fundamental error now

before the District Court’s novel inverted approach to

discovery metastasizes.

6

ARGUMENT

I.

The Decision Below Contravenes The

Sound Judicial Policy Embodied In Rule

26 That Cases Should Be Resolved On

Their Merits.

When a district court orders massive document

production without any opportunity to screen for

relevance, the producing party faces strong and

improper pressure to settle. This pressure arises from

both the costs of production itself and the potential

harm from disclosing irrelevant but sensitive

information. A protective order restricting access to

unscreened documents does not ameliorate these

harms that arise from ignoring the mandatory

requirements of Rule 26(b)(1) and 34(b)(2).

Moreover, the District Court’s novel clawback

procedure simply compounds this problem by

introducing a new and potentially collateral clawback

proceeding, which will impose additional unnecessary

costs on the litigants and the courts. Thus, while the

District Court may have believed that ignoring the

process ordained by Rules 26 and 34 would expedite

the litigation process, the opposite is more likely to

occur both in this case and in any other case adopting

this unwarranted process.

Technology has only exacerbated the problems

inherent in complex civil discovery. The amount of

information created and retained on electronic storage

media has grown exponentially due to technological

changes, cloud computing, and the declining cost of

storage.

All of this information is potentially

recoverable, with its volume alone creating a massive

7

increase in the burden of searching for and producing

relevant documents in litigation.

And yet,

experienced trial lawyers recognize the gulf between

the documents produced in litigation and the far

smaller universe of documents that ever become part

of the trial record.

Even with pre-production relevance review,

discovery is “expensive,” and that expense can “force

parties to settle underlying disputes.” Intel Corp. v.

Advanced Micro Devices, Inc., 542 U.S. 241, 268–69

(2004) (Breyer, J., dissenting) (advocating the use of

the Court’s supervisory powers to impose limits on

discovery). Such disputes “use up domestic judicial

resources and crowd our dockets.” Id. at 269.

Against this backdrop, this Court recently

promulgated amendments to Rule 26 to cabin the

growing costs and other burdens associated with the

discovery process. As The Chief Justice explained,

“[t]he amended rule states, as a fundamental

principle, that lawyers must size and shape their

discovery requests to the requisites of a case.

Specifically, the pretrial process must provide parties

with efficient access to what is needed to prove a claim

or defense, but eliminate unnecessary or wasteful

discovery.” 2015 Year End Report on the Federal

Judiciary,

at

7

(Dec.

31.

2015),

https://www.supremecourt.gov/publicinfo/yearend/2015year-endreport.pdf; see also Fed. R. Civ. P. 26

cmt. (2015 Amendment).

The amendments follow years of scholarship

tracking rising discovery costs and the observation

that the outcome of these cases is often based on these

costs—as opposed to the cases’ merits. See, e.g.,

8

Nicholas M. Pace & Laura Zakaras, RAND Institute

for Civil Justice, Where the Money Goes:

Understanding Litigant Expenditures for Producing

Electronic Discovery, at 17 (2012) (finding that

median e-discovery cost is $1.8 million); Lawyers

for Civil Justice, Civil Justice Reform Grp. & U.S.

Chamber Inst. for Legal Reform, Litigation Cost

Survey of Major Companies at 3-4 (2010), https://

www.uscourts.gov/sites/default/files/litigation_cost_s

urvey_of_major_companies_0.pdf (between 20062008, high end discovery costs were reported to be

between $2.3 million and $9.7 million); Linzey

Erickson, Give us a Break: The (IN)Equity of Courts

Imposing Severe Sanctions for Spoliation without a

Finding of Bad Faith, 60 Drake L. Rev. 887, 925

(2012) (“In many instances, the cost of litigation may

be so high that companies are unwilling to try the case

on the merits.”).

Running search terms on electronic files held by

particular custodians is entirely appropriate as an

initial screen for potentially relevant documents.

Indeed, search terms are a critical tool for managing

modern electronic discovery.

Narrowly targeted

search terms can help reduce discovery costs. But

even precise search terms hardly guarantee that all

the returns—the search “hits”—will be relevant. No

matter how narrow the search terms, there will

always remain a chance that the results will include

irrelevant documents not subject to production under

Rule 26(b)(1). As a result, the rule always requires an

opportunity for pre-production review of all

documents that include the search terms because such

review is the only means by which irrelevant

documents can be sorted out and removed from the

9

production.

The District Court expressly and

completely denied Petitioners that opportunity here.

In selecting search terms, district courts must

balance

the

inevitable

tension

between

underinclusive narrow terms that may miss relevant

documents and overinclusive broad terms that catch

everything discoverable but also turn up volumes of

completely irrelevant documents not discoverable

under Rule 26. Some of those irrelevant documents

may also be confidential or otherwise sensitive,

exacerbating the harm from unnecessary production.

And as the size of an electronic production increases,

so does the risk and associated harm from a leak, data

breach, or other inadvertent disclosure.

When

assessing the tradeoffs in a particular case between

the need for relevant evidence and speedy

adjudication on the one hand, and the burdens and

risks of overbroad discovery on the other, district

courts undoubtedly have significant discretion to

decide the appropriate amount of time for preproduction document review. All else being equal,

narrowly targeted search terms may require less time

for review than broad terms. But Rule 26 leaves no

discretion for district courts to eliminate preproduction review entirely.3

Some district courts have relied on Rule 37 to order production

of documents beyond the scope of Rule 26 as a discovery sanction.

Whether such sanctions are a permissible exercise of the District

Court’s authority under Rule 37 is not at issue in this case. The

order at issue here is the District Court’s Case Management

Order governing production from all parties, not a sanctions

order.

3

10

By declining to even consider the lawfulness of the

District Court’s discovery order, the Third Circuit

gave a green light for other district courts to adopt a

similar discovery procedure. That procedure would

incentivize requesting parties to propose search terms

designed to dig up potentially embarrassing or

sensitive, as well as relevant, information. The effort

required to resolve these terms and manage a novel

clawback procedure would be a waste of judicial

resources that this Court should foreclose by granting

certiorari and reversing the decision below.

II.

The Third Circuit’s Flawed Decision

Warrants The Exercise Of This Court’s

Supervisory Power.

The District Court’s discovery order clearly

vitiates the right to object on relevance grounds under

Rule 34(b)(2) and violates Rule 26, which limits the

“scope of discovery” to matters that are both “relevant

to any party’s claim or defense” and “proportional to

the needs of the case.” Fed. R. Civ. P. 26(b), 34(b)(2).4

These requirements are not optional—Rule 26 is clear

that “the court must limit the frequency or extent of

discovery otherwise allowed by these rules or by local

rule if it determines that . . . the proposed discovery is

outside the scope permitted by Rule 26(b)(1),” i.e., any

Notably, Rule 26 grants discretion to the District Court to

further limit the scope of discovery, but a court is without power

to expand the scope beyond what is authorized in the rules. See

Fed. R. Civ. P. 26(b) (defining scope of discovery “[u]nless

otherwise limited by court order”).

4

11

discovery that is not relevant and proportional. Fed.

R. Civ. P. 26(b)(2)(C)(iii) (emphasis added).

Indeed, as Judge Phipps pointed out in his dissent,

“nothing in the civil rules permits a court to compel

production of non-responsive and irrelevant

documents at any time, much less before the

producing party has had an opportunity to screen

those documents” and “a court does not spontaneously

gain authority to compel production of nonresponsive, irrelevant documents simply by

establishing a period of time afterwards for the review

and potential return of the documents produced.”

Order at 3 (Phipps, J., dissenting). Given the District

Court’s clear violation of Rules 26 and 34 in ordering

discovery beyond the authority granted by those rules,

the “Court of Appeals should have corrected the error

of the district judge by granting the petition for

mandamus.” Cf. Dairy Queen, Inc. v. Wood, 369 U.S.

469, 479–80 (1962) (recognizing that mandamus is not

optional for certain egregious errors); see also Cheney

v. U.S. Dist. Court for D.C., 542 U.S. 367, 391 (2004)

(acknowledging cases where “the Court of Appeals

abused its discretion by failing to issue the writ”).

It is no answer to say, as the Third Circuit did in

its order denying mandamus, that “district courts

have, in some circumstances, ordered the production

of documents without a manual relevance review.”

Order at 2. The fact that other district courts have

violated the clear requirements of the Rules make it

all the more imperative for the court to exercise its

supervisory power, not less.

Certiorari is appropriate to correct the Third

Circuit’s error. In multiple cases, this Court has

12

granted certiorari to consider decisions denying

mandamus petitions seeking to enforce limits on

discovery. And in those cases, the Court went on to

vacate the decisions denying mandamus.

In Schlagenhauf v. Holder, 379 U.S. 104 (1964),

this Court granted a writ of certiorari to review the

Seventh Circuit’s denial of the petitioner’s mandamus

petition, which had sought to enforce the “good cause”

limitation that Federal Rule of Civil Procedure 35

places on the use of physical and mental examinations

in civil discovery. Addressing the mandamus posture

of the case, this Court reasoned that while mandamus

would not be an appropriate remedy for a “court’s

determination that ‘good cause’ has been shown for an

examination . . . absent, of course, a clear abuse of

discretion,” mandamus was appropriate to correct “a

substantial allegation of usurpation of power in

ordering any examination of a defendant, an issue of

first impression that called for the construction and

application of Rule 35 in a new context.” Id. at 239.

The Court therefore vacated the decision of the

Seventh Circuit denying mandamus and remanded

for further proceedings.

Similarly, in Société Nationale Industrielle

Aérospatiale v. U.S. District Court for Southern

District of Iowa, 482 U.S. 522 (1987), this Court

granted certiorari to review the Eighth Circuit’s

denial of a mandamus petition that sought to enforce

the process prescribed by the Hague Evidence

Convention as the exclusive procedure for seeking

discovery subject to that treaty. Id. at 527–28.

Recognizing that “[j]udicial supervision of discovery

should always seek to minimize its costs and

inconvenience and to prevent improper uses of

13

discovery requests,” this Court vacated the decision

denying mandamus and remanded to the Eighth

Circuit. Id. at 546.

Together,

these

cases

demonstrate

that

mandamus is a proper exercise of the Courts of

Appeals’ supervisory power to confine district courts

from acting beyond the authority conferred by

relevant discovery rules.5 And when the Courts of

Appeals neglect their responsibility to properly

supervise the district courts in cases in which they act

outside of their lawful authority, it is this Court’s

prerogative to enforce its own rules.

See

Schlagenhauf v. Holder, 379 U.S. 104, 112 (1964) (“We

think it clear that where the subject concerns the

enforcement of the rules which by law it is the duty of

this court to formulate and put in force it may deal

directly with the District Court.”) (quoting L.A. Brush

Mfg. Corp. v. James, 272 U.S. 701, 706 (1927)

(brackets and ellipses omitted)); Wilson v. Schnettler,

365 U.S. 381, 387 (1961) (recognizing that this Court’s

“supervisory power over the federal rules . . . extends

to policing their requirements and making certain

that they are observed.”) (internal quotation marks

and brackets omitted).

Indeed, the Rules Enabling Act “confirms the

supervisory authority that [this] Court has over lower

See United States v. Sanchez-Gomez, 138 S. Ct. 1532. 1540

(2018) (“Supervisory mandamus refers to the authority of the

Courts of Appeals to exercise supervisory control of the district

courts through their discretionary power to issue writs of

mandamus.”) (internal quotation marks and citation omitted).

5

14

federal courts.”6 Frazier v. Heebe, 482 U.S. 641, 644–

46 & n.4 (1987) (exercising the Court’s supervisory

power to ensure that local rules are consistent with

“the principles of right and justice” and the “rules of

practice and procedure prescribed by the Supreme

Court”) (quoting In re Ruffalo, 390 U.S. 544, 554

(1968) (White, J., concurring)).

It is critical that this Court use its supervisory

authority when confronted with flagrant disregard for

the rules because a rule left unenforced is no rule at

all. Rule 26’s relevance requirement “is not a mere

formality, but is a plainly expressed limitation on the

use of that Rule.” Schlagenhauf, 379 U.S. at 118.

Indeed, Schlagenhauf reasoned that the good-cause

requirement of Rule 35 must have independent force

because the baseline relevance requirement is already

imposed by Rule 26. Id. (“The specific requirement of

good cause would be meaningless if good cause could

be sufficiently established by merely showing that the

desired materials are relevant, for the relevancy

standard has already been imposed by Rule 26(b).”)

(emphasis added). Thus, there can be no question that

6 This “Court also has a significant interest in supervising the

administration of the judicial system.” Hollingsworth v. Perry,

558 U.S. 183, 184, 196 (2010) (per curiam) (ordering that the

broadcast of a federal trial be stayed pending a mandamus or

certiorari petition because “the courts below did not follow the

appropriate procedures set forth in federal law before changing

their rules to allow such broadcasting,” and as “[c]ourts enforce

the requirement of procedural regularity on others, [they] must

follow those requirements themselves.”). That interest is

implicated by the decisions below, which ignore the orderly rules

of procedure that are supposed to uniformly govern in every civil

case.

15

mandamus is an appropriate remedy to correct a

district court that has flagrantly refused to obey that

limitation.

For all these reasons, “the requirement of Rule

26(b)(1) that the material sought in discovery [must]

be ‘relevant’ should be firmly applied and the district

courts should not neglect their power to

restrict discovery where ‘justice requires [protection

for] a party or person from annoyance,

embarrassment, oppression, or undue burden or

expense[.]’” Herbert v. Lando, 441 U.S. 153, 177

(1979) (quoting Fed. R. Civ. P. 26(b)). As Justice

Stewart succinctly explained, “time-consuming and

expensive pretrial discovery is burdensome enough,

even when within the arguable bounds of Rule

26(b). But totally irrelevant pretrial discovery is

intolerable.” Id. at 202 (Stewart, J., dissenting).

Finally, the fact that the decision below is

unpublished should not deter the Court from granting

the petition. See Pet. at 37–38. Discovery orders

cannot meaningfully be reviewed after a final District

Court decision. And coerced settlements foreclose any

review. Mandamus and the other extraordinary writs

“are ideally suited to meet the need for occasional

interlocutory review,” including “to protect against

the overwhelming burdens that can be imposed by

unfettered discovery.” 16 Wright & Miller, Federal

Practice & Procedure § 3935.3 (3d ed.). As the Courts

of Appeals have recognized, “the difficulty of obtaining

effective review of discovery orders, the serious injury

that sometimes results from such orders, and the

often recurring nature of discovery issues support use

of mandamus in exceptional cases.” In re Burlington

Northern, Inc., 822 F. 2d 518, 522 (5th Cir. 1987); see

16

also Société Nationale Industrielle Aérospatiale, 482

U.S. at 527–28 (“[T]he Court of Appeals considered

that the novelty and the importance of the question

presented, and the likelihood of its recurrence, made

consideration of the merits of the petition

appropriate.”).

In short, the District Court grossly exceeded its

authority by ordering discovery beyond what is

allowed under the Federal Rules. The Court of

Appeals compounded the error by refusing to exercise

its supervisory powers to confine the District Court to

its lawful jurisdiction.

This Court’s review is

therefore needed to ensure that its rules are not

rendered a nullity through lack of enforcement.

CONCLUSION

For the foregoing reasons, amici urge the Court to

grant the petition for a writ of certiorari.

Respectfully submitted,

February 28, 2020

STEVEN P. LEHOTSKY

JONATHAN D. URICK

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, N.W.

Washington, DC 20062

(202) 463-5337

Counsel for the Chamber

of Commerce of the United

States of America

17

/S/ BERT W. REIN

BERT W. REIN

Counsel of Record

WESLEY E. WEEKS

WILEY REIN LLP

1776 K Street, NW

Washington, DC 20006

(202) 719-7000

brein@wileyrein.com

Counsel for Amici

Curiae

H. SHERMAN JOYCE

LAUREN S. JARRELL

AMERICAN TORT REFORM

ASSOCIATION

1101 Connecticut Avenue,

N.W., Suite 400

Washington, DC 20036

(202) 682-1168

Counsel for the American

Tort Reform Association

JAMES C. STANSEL

MELISSA B. KIMMEL

PHARMACEUTICAL RESEARCH

& MANUFACTURERS OF

AMERICA

950 F Street, N.W.,

Suite 300

Washington, DC 20004

(202) 835-3559

Counsel for PhRMA

18

PATRICK HEDREN

ERICA KLENICKI

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10th Street, NW

Washington, DC 20001

(202) 637-3000

Counsel for National

Association of

Manufacturers