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Everything in Moderation, Including Discovery – Proportionality Series, Part 1

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A multi-part series reviewing decisions on proportionality in eDiscovery since 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 offical.  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.

Pre-December 2015, Old Version of FRCP 26(b)(1)

The pre-December 2015 version of FRCP 26(b)(1) read:

(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, 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).  [emphasis added]

This version of the rule focused on relevance first and foremost, as well as providing examples of the types of information to which requesting parties are entitled.  Later in FRCP 26(b), in a section on limitations applicable to this general discovery scope rule, there was a provision that raised the issue of proportionality.  The pre-December 2015 version of FRCP 26(b)(2)(C)(iii) read:

(2) Limitations on Frequency and Extent.

. . .

(C) When Required.  On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

. . .

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Unfortunately, this limitation was generally overlooked by parties and under-utilized by judges, leading to a lot of disproportional over-discovery (“‘. . . the Committee had been told repeatedly that courts were not using these limitations as originally intended’”).  The December 2015 amendments attempted to address this issue head on by elevating and emphasizing this proportionality limitation.

Post-December 2015, Amended Version of FRCP 26(b)(1)

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]

So, in the two years since this amendment became effective, has the role of proportionality in discovery actually changed?  How are courts applying the multi-factor proportionality test now enshrined in FRCP 26(b)(1)?  Have objections based on proportionality been successful?


Upcoming in this Series

Over the coming weeks in this series, we will survey a sampling of proportionality decisions from the past two years to learn how this amendment is affecting the scope and process of discovery.


About the Author

Matthew Verga, JD
Director, Education and Content Marketing

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 ten-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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