This month marks two years since the major amendment of Federal Rule of Civil Procedure 26(b)(1) went into effect. This Rule, governing the scope of discovery, now states:

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.

The amendment deleted the phrase allowing all discovery that is “reasonably calculated to lead to the discovery of admissible evidence,” and brought a reenergized focus to proportionality, with the six factors above. While scholars can debate whether and to what extent proportionality has always been a part of Rule 26, practitioners have had a more difficult time explaining why requested discovery is or is not proportional. This blog post seeks to offer practical suggestions for proving proportionality in motions to compel.

The most important step attorneys must take in showing proportionality is supporting their positions with evidence. Gone are the days when attorneys could conclusorily state, “This case is worth $10 million and we need every piece of discovery conceivable,” or “All of the requested discovery is overbroad, burdensome, and oppressive,” without a more particularized showing. As recent case law shows, attorneys achieve greater success on motions to compel when they support their motions with declarations or other evidence providing information on the relevant proportionality factors.[1] Considerations for each factor are given below.

The Importance of the Issues at Stake in the Action

  • Does the requested discovery relate to some nonmonetary public policy issue?[2]
  • Does the requested discovery impact the case such that third parties’ rights would be affected?[3]

The Amount in Controversy

  • Will the requested discovery cost comprise a large percentage of or exceed the stated damages in the case?
  • Is the amount in controversy yet known?[4]
  • Is the amount of controversy correctly accounted for, i.e. including punitive and willful damages?

The Parties’ Relative Access to Relevant Information

  • Does one party have very little discoverable information while the other party has vast amounts of such information?[5]
  • In what format is the discovery?[6]
  • Where is the discovery located?
  • Have preliminary searches been run to determine approximately how many hours of attorney time will be expended to produce the requested discovery?

The Parties’ Resources

  • Has the resisting party objected to the discovery because of an inability to pay?
  • Is the requesting party using discovery to abuse the other party into settlement?[7]

The Importance of the Discovery in Resolving the Issues

  • Is discovery requested on an issue that is not yet a claim or defense?
  • Is the requested discovery available from any other source?
  • Is this a case in which claims will likely be shown through substantial indirect circumstantial evidence?
  • How closely related is the discovery to the disputed issues in the case?
  • Will the opposing party stipulate to facts the requested discovery would show?
  • Has the resisting party admitted in Court or in a public forum that the issues on which discovery is sought are important?[8]

Whether the Burden or Expense of the Proposed Discovery Outweighs Its Likely Benefit

  • Has the opposing party complied with its responsibility to preserve evidence? If not, claims of burden may be less credible.[9]
  • Has the resisting party offered alternative evidence in place of the requested discovery, and would any alternative be satisfactory?
  • Has the resisting party produced evidence that makes the requested evidence irrelevant to the case?[10]
  • Has the requesting party spent substantial resources on producing its own discovery?[11]
  • Has the discovery, in this case, reached a point of diminishing returns?[12]

While no single factor is determinative when analyzing proportionality,[13] parties should provide particularized showings for the factors that are most relevant to their case.  If parties do not include an explanation of each factor, they should at least include discussion on the last factor, which “may combine all the previous factors into a final analysis of burdens versus benefits.”  Arrow Enter. Computing Sols., Inc. v. BlueAlly, LLC, No. 5:15-CV-37-FL, 2017 WL 876266, at *5 (E.D.N.C. Mar. 3, 2017).

At the two-year anniversary of the updated standard, courts want to see that parties are aware of the updated standard[14] and that they have carefully crafted targeted discovery or explanatory objections to such discovery.  Parties now have a shared responsibility to consider the proportionality factors in serving and responding to discovery requests.[15] In sum, a party must provide evidence to support its arguments in a motion to compel. By using the proportionality factors above, practitioners can show the court why discovery should or should not be granted under the Rules.