A 2019 Update on Proportionality Cases – Proportionality Update, Part 1

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A short series reviewing new decisions from 2018 and 2019 addressing proportionality under the December 2015 amendments to the Federal Rules of Civil Procedure

On December 1, 2015, the most significant amendments to the Federal Rules of Civil Procedure became effective since the 2006 amendments that made the era of electronically-stored information official.  Among the rules revised was Federal Rule of Civil Procedure (“FRCP”) 26(b)(1), which defines the scope of discovery.  The change brought the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era.

The December 2015 Amendment

The current version of FRCP 26(b)(1), as amended in December 2015, reads:

(b) Discovery Scope and Limits. 

(1) Scope in General.  Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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.  Information within this scope of discovery need not be admissible in evidence to be discoverable. [emphasis added]

This amended version now incorporates a slightly revised version of the proportionality test from old FRCP 26(b)(2)(C)(iii) directly into the general discovery scope definition and places “proportional” on equal footing with “relevant” as a discoverability criteria.  As the Committee Notes to the December 2015 Amendments explain, this is not a new standard but a reemphasized one:

The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections. 

Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations. 

Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.  [emphasis added]

Our Prior Review and this Update

We previously conducted a review of cases from the effective date of that amendment, through the end of 2017, to see how judges were applying the rule.  In that review, we identified six key takeaways from the first two years of cases:

  1. Proportionality is being treated as a fundamental discovery scope requirement.
  2. Proportionality arguments must be fact-based and adequately specific to succeed.
  3. Financial burden is just one factor of several, and may be outweighed by others.
  4. Proportionality must be considered by all parties, and cooperation matters.
  5. Proportionality is also a limit on discovery from third parties, maybe more so.
  6. At least some state courts are following federal courts in enforcing proportionality.

In this update, we will review a variety of new cases discussing proportionality issues from 2018 and 2019 to see how they fit into our prior review and if they are consistent with these same key takeaways.

Upcoming in this Series

In the next Part, we will begin our review of new cases with a look at three cases that speak to the need for proportionality arguments to be fact-based and specific.

About the Author

Matthew Verga

Director of Education

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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