A multi-part series reviewing decisions on proportionality in eDiscovery since the December 2015 amendments to the Federal Rules of Civil Procedure
In the first Part of this series, we reviewed the amendments made to Federal Rule of Civil Procedure 26(b)(1) in December 2015. In the second Part, we reviewed one of the first decisions applying the amended rule. In the third Part, we reviewed four cases from the first half of 2016, and in the fourth Part, we reviewed three cases from the back half of 2016. In the fifth Part, we reviewed a few relevant cases from 2017, and in this Part, we pull together the key points from this case law survey.
Key Points from the Proportionality Case Law
The twelve cases we have reviewed from 2016 and 2017 reveal six key points about how courts are handling proportionality in discovery since the December 2015 amendments to Federal Rule of Civil Procedure 26:
- First, proportionality is now being treated as a fundamental requirement for obtaining discovery, on par with relevance, as intended by the amendments and the associated Committee Notes. This is clearly articulated in Gilead Sciences and Takata Airbags, and it is demonstrated in all twelve cases we’ve reviewed.
- Second, this proportionality limitation is equally applicable to attempts to obtain discovery from third parties (as illustrated in Noble Roman’s), and may be a higher bar to clear when seeking discovery from third parties (as illustrated by Hahn).
- Third, proportionality arguments must be made with specificity, backed up with details, and they should address all factors. Bard IVC Filters and Solo both provide examples of pleading sufficient detail about burden to satisfy the court, while Mitchell and Mann provide examples of general burden claims lacking sufficient detail to succeed. First Niagara illustrates a step-by-step analysis that considers all factors identified in the amended rule.
- Fourth, financial burden is just one factor of several, and others may weigh more heavily in certain circumstances. Mitchell and Mann each include references to important public interest considerations in allowing discovery, Hespe gives great weight to the privacy and confidentiality interests of the individual in denying discovery, and Oxbow discusses the economic and market significance of the matter in allowing it.
- Fifth, proportionality must be considered by all parties (e., both when making requests and responding to them), and it should be a focus of cooperation between the parties. The importance of cooperation from all parties on proportionality is emphasized in both Solo and State Farm Lloyds.
- Finally, at least some state courts (e., Texas) are following the federal lead on recentering proportionality considerations in discovery (as illustrated by State Farm Lloyds).
Upcoming in this Series
In the next Part of this series, we will continue our discussion of proportionality in eDiscovery with a review of the Sedona Conference’s guidance on incorporating proportionality considerations into your discovery decisions.