Pondering Proportionality and the Scope of Discovery

Posted by Alison ONeill | Thu, Sep 17, 2020

With the ever-expanding amount of Electronically Stored Information (ESI) the concept of proportionality is a critical factor in today’s litigation. While it is difficult to define a “typical” civil case, various sources report the average ESI in a civil case to be 100 GB which equates to 6.5 million printed pages.

Proportionality was revisited in the Federal Rules of Civil Procedure (FRCP) to address the increasing amount of ESI being generated by businesses and individuals that may become subject to discovery in a lawsuit.  An overly broad order for discovery could lead to a metaphorical fishing expedition. It is important the costs involved with producing discoverable evidence be reasonable and proportional.

Since the early 2000s, the use of discoverable information has grown exponentially with the increased use of cell phones, associated cell phone Apps, and social media. In order to address this trend, the language of Federal Rule of Civil Procedure 26 (b) includes language calling for consideration of the proportionality of discovery to the needs of the case. Another way of looking at this is that it would be unreasonable to spend $500,000 on discovery in a matter worth $10,000, for example.

FRCP 26 (b) (1) discusses the scope of discovery. Note that the language in this rule of discovery was amended in 2015. Defining the scope of discovery is key to reducing costs by decreasing the amount of data that needs to be reviewed. Attorney and paralegal time are valuable assets, and review hours should be budgeted and allocated appropriately as part of a proportionality assessment. By focusing on the scope of discovery to limit the e-Discovery corpus costs are reduced by reducing the actual number of documents that need attorney and paralegal review.


FRCP 26 (b) (1): (b) Discovery Scope and Limits. Amended in 2015.

(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. including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).


Utilize the 26(f) Conference or State Equivalent To Negotiate The Scope of Discovery

An important step in the e-Discovery process, the 26 (f) conference helps with the proportionality assessment. Reigning in the scope of discovery though the FRCP 26 (f) conference helps limit the amount of data thereby containing the costs involved in e-Discovery. When the parties can agree on date limits, search terms and other ways to limit the scope of discovery it will significantly decrease the time and expense that would be spent on otherwise irrelevant data.


Case Law Sheds Light On Proportionality

There have been several recent cases that shed light on how courts treat the concept of proportionality: In Abbot v Wyoming County Sheriff’s office (W.D.N.Y, 2017) the court stated that one must consider the point at which discovery is resulting in diminishing returns. The court stressed the need for finality and avoiding the risk of never-ending discovery.

Several cases have reinforced that the amended proportionality language has not shifted the burden in discovery disputes. The requesting party bears the burned of establishing relevance and the objecting party bears the burden of showing the discovery is improper. In Carter v H2R Restaurant Holdings (N.D. Tex., 2017), Magistrate Jude David L Horan said the amendments ”do not alter the basic allocation of the burden on the party resisting discovery”.  An Ohio court used similar language in William Powell Co. v National Indemnity (S.D. OH, 2017) where Magistrate Judge Karen Litkovitz remarked, “the amended rule did not shift the burden of proving proportionality to the party seeking discovery”.


Factors To Consider In Your Proportionality Assessment

While the burdens of proof remain the same the factors to be considered have been spelled out in the rule itself:

  • Importance of the issues at stake
  • Amount in controversy
  • Parties’ relative access
  • Parties’ resources
  • Importance of the discovery
  • Burden v benefit analysis


No doubt these factors will be the focus of many lawsuits to come and each opinion will shed additional light on how the courts will interpret the meaning and impact of the amendments to FRCP 26 (b) (1).

Topics: Best Practices