When it comes to e-discovery, proportionality is not always easy to define. Proportionality is frequently used as a buzzword in e-discovery to describe a concept that is referenced in state and federal rules of civil procedure. According to the rules, discovery that occurs in litigation should be proportional to what is necessary in a case, and the discovery sought by both sides should also be proportional. Both attorneys and courts must consider whether the burden of discovery in a particular case outweighs its benefits. If it is going to cost $3 million to produce more than 400 million pages of irrelevant documents just to comply with an e-discovery request, a court might find that the burden of producing those documents is out of proportion to the value and the needs of the case. While this concept can be somewhat confusing, the proportionality doctrine goes a long way towards preventing abuse and reducing costs in the e-discovery process.
Federal Rule 26 and Proportionality
In December 2015, Rules 26(b)(1) and 37(e) of the Federal Rules of Civil Procedure were amended hoping to curb abuses in e-discovery by elevating the importance of proportionality as a guiding principle throughout the discovery process and by setting forth a framework to address the loss of electronically stored information that should be preserved. The amended Rule 26 governs a court’s responsibility to limit the extent of or frequency of discovery if the burdens or expenses associated with the discovery outweighs the benefits of the discovery. The court must consider the amount in controversy, the needs of the case, the parties’ resources, the importance of the issues at stake, and whether discovery can help resolve the issues. Many state civil procedure rules that govern proportionality follow Federal Rule 26.
Proportionality mandates not only apply to courts but to attorneys as well. Rule 26 also requires that the parties who are serving and responding to discovery must conduct a proportionality analysis that goes beyond looking at factors involving only monetary expenditures. Again, when conducting an analysis, attorneys can also consider the resources and the size of the parties, the amount in controversy, and whether the requested discovery is relevant and helpful to the claim or defense.
The costs associated with e-discovery continue to rise, and attorneys are doing a disservice to their clients if they fail to take the concept of proportionality to heart. What proportionality boils down to is that it is all about balance and ensuring that the parties obtain the information they need to assert their claims and argue their defenses, all while curtailing time-consuming and expensive waste and abuse. Unfortunately, no bright-line rule establishes when an e-discovery request is in or out of proportion to the case. While relevance still matters in discovery, it is no longer the sole factor in determining whether to allow a discovery request. Courts are now more likely to deny discovery requests that have relatively little relevant value and that are designed to burden parties.