Proportionality Analysis in Vanessa Bryant’s Emotional Distress Case

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In a lawsuit seeking emotional distress damages arising out of events following the January 26, 2020, death of Kobe Bryant and his daughter, the court held that some of his widow’s more recent therapy records were relevant and discoverable.  However, the cost of discovery of older records was held to be disproportionate, even though the claim was for millions of dollars.  Bryant v. City of Los Angeles, et al., 2021 WL 5353886 (C.D.Ca. Nov. 15, 2021).

Ms. Bryant alleges that sheriff’s deputies improperly took and displayed photographs of the scene of the crash in derogation of her rights.  The issue was presented on the Defendant’s motion to compel.

In Bryant, the court wrote that “Plaintiff is seeking millions of dollars from Defendants in this action….” Id. at *1.  However, based on its proportionality analysis, the court rejected Defendant’s request for records for a twelve-year period and limited the Defendant’s request.  P. Hayes, “Kobe Bryant Widow Therapy Records Fair Game in Crash Photo Suit” (Bloomberg Nov. 16, 2021).

Addressing proportionality, the court wrote that “the Magistrate Judge has concluded that the temporal scope of Defendants’ requests should be narrowed from almost twelve years to less than five years, in the interests of proportionality,” citing Fed. R. Civ. P. 26(b)(1).  The Magistrate Judge concluded that “as narrowed by this order, the requests are proportional to the needs of the case.”  The court wrote that “the temporal scope of the requests is narrowed to January 1, 2017, to the present,” a time frame that begins roughly three years before the January 26, 2020, crash and ends in November 2021.  2021 WL 5353886 at *3.

The proportionality factors are set out in Fed.R.Civ.P. 26(b)(1).  A court should consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

The Bryant court cited, but did not expressly discuss, each of these factors.  I suggest that this raises two questions that were not answered.  First, what was the basis for the court’s proportionality determination?  Second, instead of a substantial limitation on the scope of discovery, should other options, such as voluntary cost-shifting or phased discovery, have been considered?

The court held that therapy records are relevant to the issue of emotional distress.  “[W]hen relevance has been demonstrated courts will scrutinize claims that the burden of producing requested information is disproportionate; and an unsupported burden objection is not a guaranteed protection against responding to discovery.”  Wright & Miller, 8 Fed. Prac. & Proc. Civ. § 2008.1 (3d ed.).

One may speculate that, while no discovery is inexpensive, the burden or cost of obtaining old therapy records would not approach a fraction of this claim, described as one for millions of dollars.

However, for proportionality purposes, the “amount in controversy” need not be entirely based on the claim as asserted.  See generally Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D. Md. 2008) (explaining how to determine a “rough estimate” of the amount in controversy); The Hon. Paul W. Grimm, “Practical Ways to Achieve Proportionality During Discovery and Reduce Costs in the Pretrial Phase of Federal Civil Cases,” 51 Akron L. Rev. 721, 733 (2017).

In Bryant, Ms. Bryant had settled a separate wrongful death claim against those alleged to be responsible for the helicopter crash.  Defendant disputed causation and it is possible that the court felt that a combination of causation issues and the settlement of the wrongful death case would substantially reduce the value of this emotional distress claim for “millions of dollars.”  While not mentioned in the decision, the county argued in its brief that: “The County is entitled to discovery about the cause of Plaintiffs’ harm and the extent to which Plaintiffs have already been compensated for such harm.”  Deft’s Supplemental Brief, 2021 WL 4523187.

Courts have many options in applying proportionality principles.  The Hon. Paul W. Grimm, “Practical Ways to Achieve Proportionality During Discovery and Reduce Costs in the Pretrial Phase of Federal Civil Cases,” 51 Akron L. Rev. 721, 721 (2017).  .

One option is cost-shifting.  Rule 26(c)(1)(B) authorizes protective orders “ specifying terms, including …  the allocation of expenses, for the disclosure or discovery….” [Emphasis added].

If Plaintiff had provided an estimate of the cost to retrieve older records,  and given Defendant’s assertion that Plaintiff was seeking millions of dollars, the Defendant might have been willing to pay the bill for records covering a larger time span.

Phased discovery may have been an option by “kicking the can down the road.”  For example, Phase I could require production of records for three years.  Phase II could preserve Defendant’s right to ask for more, if the partial disclosure provided justification.  Phase II would also preserve the Plaintiff’s right to oppose any renewed request.  Additionally, Rule 26(c) cost shifting could be considered in Phase II on a more informed record.

I cannot say that the limitation in Bryant was too stringent.  The Magistrate Judge is certainly in a better position to make that call.  It would have been helpful, however, to see what factors were considered and whether there were other options.