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Factors Beyond Cost – Proportionality Update, Part 3

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A short series reviewing new decisions from 2018 and 2019 addressing proportionality under the December 2015 amendments to the Federal Rules of Civil Procedure

In “A 2019 Update on Proportionality Cases,” we reviewed the proportionality amendment to the Federal Rules of Civil Procedure and the key takeaways from our prior case law review.  In “Proportionality Arguments Must Be Fact-Based and Specific,” we begin our update with a discussion of the Hurd, Firefighters’ Retirement, and Physicians Alliance cases.  In this Part, we continue our update with a discussion of the Ramos, EEOC, and Corel cases.


In our prior review of cases, we reviewed early cases that made it clear cost was just one factor among many, and that non-financial factors can outweigh financial ones, under the right circumstances:

  • Mitchell and Mann each included references to important public interest considerations in allowing discovery
  • Hespe gave great weight to the privacy and confidentiality interests of the individual in denying discovery
  • Oxbow discussed the economic and market significance of the matter in allowing it

We continue our review of new cases with three cases from 2018 exploring the importance of non-cost factors in proportionality analyses.

Privacy in Ramos

The case of Ramos v. Hopele of Fort Lauderdale, LLC, Case No. 17-62100-CIV-MORENO/SELTZER (S.D. Fla. 2018) concerned marketing text messages that allegedly violated the Telephone Consumer Protection Act of 1991.  During discovery, the Defendant moved to compel a forensic examination of the Plaintiff’s mobile phone.  The Plaintiff objected on several grounds, among them that it was an invasion of privacy and was disproportionate to the needs of the case.

The Court ultimately concluded that the requested forensic examination was (a) “not tailored to obtain information that is relevant to any claim or defense in this case” and (b) “not proportional to the needs of the case or to Plaintiff’s privacy concerns” [emphasis added].  In reaching the conclusion, the Court emphasized that “Courts in this District are mindful of the potential intrusiveness of forensic imaging of electronic devices” and that the Court “should assess the Plaintiff’s legitimate privacy concerns against [the Defendant’s] purported need for the requested discovery” [emphasis added].

Additionally, the Court noted that the examination sought was “not limited in any way, whether by search term, date, or identity of the sender or receiver” and that the Defendant’s arguments were “somewhat vague as to what information it would expect to obtain through a forensic examination,” demonstrating again the importance of specificity in proportionality arguments [emphasis added].

Relevance in EEOC

In the case of Equal Emp’t Opportunity Comm’n v. FedEx Ground Package Sys., Inc., No. 2:15-cv-256 (W.D. Pa. Mar. 21, 2018), the EEOC alleged “that [the Defendant] engaged in nationwide and ongoing disability discrimination with respect to deaf and hard-of-hearing Package Handlers and applicants to that position.” During discovery, the EEOC sought “to discover roughly 193 gigabytes of e-mail data (consisting of 363,765 e-mails and attachments) in the possession of twenty-six corporate custodians” [emphasis added].  The Defendant opposed this discovery as imposing disproportionate cost and burden relative to the amount of relevant material likely to be discovered.

In support of its position, the Defendant reviewed a sample of the emails and reported (after being challenged and making revisions): that it had found a responsive rate of 8.3% (the EEOC alleged it should have been 15%); that some of the responsive material would already be captured by other discovery requests, but some would not; and, that it saw no “smoking guns” among the materials that would not.  The Court was not persuaded by these arguments, however, finding the discovery proportional to the case due to its relevancy.

In reaching its conclusion, the Court pointed out that, even assuming the Defendant’s 8.3% responsive rate was correct, “the EEOC’s request is likely to generate somewhere around 30,192 responsive documents” – potentially more, if the true responsive rate was higher, as the EEOC argued [emphasis added].  The Court framed the issue this way:

[The Defendant] relies on the argument that because the time and expense of conducting searches through nearly two hundred thousand electronic documents is so burdensome, the EEOC should be precluded from obtaining what will likely be over 30,000 (or possibly 54,000+) properly discoverable documents (minus any legitimately withheld by privilege).  [emphasis added]

Rejecting the Defendant’s “attempts to frame relevancy as a binary test where information is either irrelevant or a ‘smoking gun,” the Court concluded that discovery of 30,000 or more responsive documents that could reasonably lead to the discovery of relevant information is sufficient relevance to make the expense proportional.  The Court also emphasized that organizations are responsible for their own retention decisions and cannot plead inaccessibility when the pool of materials grows large:

Many organizations, and indeed even some individuals, choose to store really large amounts of data electronically, presumably because they have concluded that doing so furthers their important day-to-day interests and, on balance, is the best/most efficient method for compiling and storing that information. The reality of “e-discovery” is that parties are left with the tasks of examining and then as applicable producing their electronic information so compiled and stored when called upon in litigation. But the fact that these repositories create complex mechanisms to store huge amounts of information cannot be used in and of itself as a shield to avoid discovery requests otherwise permitted under the Federal Rules of Civil Procedure.  [emphasis added]

Party Resources in Corel

In the case of Corel Software v. Microsoft, Case No. 2:15-cv-00528-JNP-PMW (D. Utah 2018), Microsoft sought “a protective order barring further retention and production of its telemetry data,” and Corel sought to compel production of additional telemetry data and a variety of related information.  Among Microsoft’s arguments in support of its motion and opposition to Corel’s was the argument that “continued retention and production of Telemetry Data is ‘technically challenging and cost prohibitive’ . . . and disproportional to the needs of this case” [emphasis added].  Specifically, Microsoft argued that:

  • producing all Telemetry Data is infeasible because of its size” [emphasis added]
  • locating the portion of Telemetry Data that relates to the Live Preview feature, which is the feature accused of infringement in this case, is highly burdensome” [emphasis added]
  • retaining Telemetry Data ‘raises tension with Microsoft’s obligations under the European General Data Protection Regulation . . . and would require additional burdensome steps to anonymize the data’” [emphasis added]

The Court was not persuaded by this argument however.  The Court weighed each of the proportionality factors listed in the amended rule, and the Court emphasized the “parties’ resources” factor in rejecting this argument:

The court has also considered Microsoft’s resources and has determined that those resources weigh against a finding that production of the information sought by Corel is unduly expensive. Additionally, the court is not persuaded by Microsoft’s arguments concerning undue burden.  Contrary to those arguments, the court concludes that, for many of the reasons already stated, the benefit of producing the information sought by Corel outweighs the burden and expense imposed upon Microsoft. [emphasis added]


Upcoming in this Series

In the next Part, we will continue our review of cases considering non-cost factors in a proportionality analysis.


About the Author

Matthew Verga

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. An twelve-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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