Without adequate evidence, you won’t get very far using the proportionality principle to resist requests for further production. Case in point: Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC (http://tinyurl.com/Cargill-Meat). In that case, the US District Court found that a party who resists a discovery request as “unduly burdensome” must show “‘not only undue burden or expense, but that the burden or expense is unreasonable in light of the benefits to be secured from the discovery.’” In other words, evidence of proportionality was needed.

The same principles apply in Canada. Without concrete evidence of how a production request is disproportionate, Canadian courts will also reject proportionality arguments. In the footnotes to Comment 2C of the Second Edition, the Sedona Canada Principles provide examples of cases where our courts have made similar findings. Comment 2C itself states that “[w]hen a producing party wishes to reduce the scope of its production obligations by relying on the proportionality principle, or when a requesting party seeks to compel the responding party to expand its document disclosure, that party must lead evidence.”

The bottom line is that whether you are in Canada or the US, without solid evidence, a proportionality argument will not win the day.