Restoring Proportionality in the Age of E-Discovery: The Past, Present and Future of Proportionality and FRCP 26(b)

Restoring Proportionality in the Age of E-Discovery: The Past, Present and Future of Proportionality and FRCP 26(b)

The e-discovery world has been buzzing over the proposed amendments to the Federal Rules of Civil Procedure. One area in particular that has been alive with speculation is Rule 26(b), which defines the scope and limits of discovery as well as the concept of proportionality in the discovery process. Through the redrafting of 26(b), the committee has certainly placed the concept of proportionality front and center in defining the scope of the discovery process, but is this a drastic departure from the previous rule or, for that matter, the spirit of 26(b) historically?

The origins of proportionality date back to the pre-digital age of 1983 when the problem of “over-discovery” was identified. To combat the barrage of data, Rule 26(b)(1) urged the court to limit discovery when “the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources and the importance of the issues at stake in the litigation.” Ten years later in 1993, additional language was added to potentially limit discovery, stating that courts should consider whether “the burden or expense of the proposed discovery outweighs its likely benefit,” and how great is “the importance of the proposed discovery in resolving the issues.” Sounds a lot like proportionality, right?

In 2000, according to the Notes Committee, Rule 26(b) was further amended “to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery.” The amendment was the addition of a new sentence to 26(b)(1) that read “All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii) and (iii) [now Rule 26(b)(2)(C)].”

Now, if lawyers and judges thought they were dealing with unmanageable amounts of discovery at the end of the 20th century, then they would be up for a real challenge in the 21st century’s new era of e-discovery. The shift from physical to electronic media led to an explosion in the volume of discovery. Wishing to comply with other rules regarding preservation and without information governance plans in place, many corporations, on the advice of counsel, started to save everything.

In the latest round of amendments, the focus on proportionality is immediately obvious in the new language of FRCP 26(b)(1). The scope and limits of discovery require that matters be relevant 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 discovery in resolving issues and whether the burden or expense of the proposed discovery outweighs its likely benefit.

The committee notes to the proposed amendments use the word “restore” throughout their discussion of the proportionality piece of Rule 26(b), indicating that the concept is not completely new to the FRCP. It seems pretty obvious from the history of Rule 26(b) that proportionality, indeed, is not novel. It is clear from the nearly 30-year history of 26(b), however, that though proportionality is being written about and discussed, it is not getting its due in practice.

So will this latest incarnation of Rule 26(b) change anything in the way that proportionality is practiced in the discovery process? Some have predicted that nothing will happen as a result of the proportionality amendments. Others have heralded the proportionality amendments as an apocalyptic disaster for plaintiffs, as they will no longer be able to obtain discovery without first proving the cost-benefit analysis of expense and burden versus benefit comes out in their favor. In reality, however, the amendments to Rule 26(b) will impact practice moderately and gradually for practical reasons.

Discovery in the digital age is gigantic and must be scaled back. It behooves both sides to engage in a more cooperative rather than adversarial discovery process. Technology may have created more data than ever before, but it also provides us with the tools we need to manage it. A well-crafted information governance plan in conjunction with a strategic partnership with a discovery service provider will organically yield more proportional discovery results. As these practices become the norm, relevant information will be retrieved more efficiently, and the need for an analysis of proportionality will be reduced.


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