What is proportionality in ediscovery? In essence, proportionality represents a global cost-benefit analysis, whereby the court considers the needs of the case and weighs the importance of information against the burden of producing it.
The intent of proportionality is to guard against costly over-discovery. Prior to the 2015 rule amendments, Rule 26(b)(1) did not specifically impose a proportionality limit on the scope of discovery. However, with the explosion in the amount of electronically stored information (ESI) available to parties, out-of-control ediscovery costs threatened to overwhelm many cases. One of the primary purposes of the 2015 rule amendments was to acknowledge that dilemma and curtail it. Proportionality is therefore a very intentional means of restricting overreaching ediscovery.
But what determines proportionality? Rule 26(b)(1) spells out six specific factors that courts should weigh in making a proportionality ruling. They are:
- Importance of the issues at stake in the action
- Amount in controversy
- Parties’ relative access to relevant information
- Parties’ resources
- Importance of the discovery in resolving the issues
- Whether the burden or expense of the proposed discovery outweighs its likely benefit
These factors clearly include both monetary and non-monetary considerations. For example, requested information may be expensive to produce but important to determining the core issue in a case. If the requesting party otherwise has no ability to access that information and the objecting party has adequate resources, the court is quite likely to order its production.
On the other hand, a party may request a burdensome production when the same information can be gleaned from another, less costly source. There, the court is likely not to require the objecting party to produce it. In that event, the specific information sought is not important to resolving the issues because it is cumulative or redundant.
The party requesting discovery must establish that the information sought is relevant and important to the litigation. Once that hurdle has been overcome, the party objecting on proportionality grounds must establish that the burden or expense of producing information outweighs its benefit. For this, more than mere speculation is needed. Parties must present hard information, perhaps from analysis of a sample set, to demonstrate the cost of production or the unimportance of data.
Parties are encouraged to leverage technology to limit the cost of discovery and ease proportionality concerns. Additionally, where possible, parties should obtain discovery from the most convenient and least burdensome sources.
For a case with a careful analysis of Rule 26(b)(1)’s proportionality factors, see Oxbow Carbon & Minerals LLC v. Union Pacific Railroad Co., 11-cv-1049 (PLF/GMH) (D.D.C. Sept. 11, 2017).
Proportionality is a limit on the scope of discovery. Even relevant and nonprivileged information may not be discoverable if the effort to produce it is not proportional to the needs of the case. Federal Rule of Civil Procedure 26(b)(1) lists six factors that courts can weigh in balancing the costs of producing information against its benefits.