“Proportionality” is a popular e-discovery buzzword and a concept referenced in federal and state rules of civil procedure. Discovery in litigation should be proportional to the case in which it is issued. In fact, e-discovery amendments to the Federal Rules of Civil Procedure place proportionality front and center.
But, despite the frequency in which “proportionality” is uttered in connection with e-discovery, its meaning is not always easy to define. The shorthand definition suggests that attorneys and courts consider whether the burden of discovery outweighs its benefits. But again, this can also be a vague standard. Thankfully court rules, commentators and case law provide guidance about factors to consider when examining e-discovery proportionality.
Many state rules governing proportionality follow the lead of Fed. R. Civ. P. 26, which addresses a court’s obligation to “limit the frequency or extent of discovery . . . [if] 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.”
Weighing the monetary cost of e-discovery against the value and importance of the information sought is an obvious first consideration in any e-discovery proportionality analysis. However, the Sedona Conference, a nonprofit institute focused on complex litigation and e-discovery issues, offers a Commentary on Proportionality suggesting that courts also consider non-monetary proportionality factors “such as the societal benefit of resolving the case on its merits or the nonmonetary burden on the producing party.”
The committee notes to Rule 26 also acknowledge the importance of considering non-monetary factors when considering proportionality:
[The concept of proportionality] recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.
As further guidance, the Sedona Conference suggests consideration of the following when addressing e-discovery proportionality:
Finally, many individual court rules, especially those handling large case loads of patent infringement matters, also suggest that to keep e-discovery proportionate, parties limit the number of data custodians and the time frame from from which information collected and reviewed.
For instance, the Delaware District Court’s Default Standard for Discovery, Including Discovery of Electronically Stored Information states
Proportionality. Parties are expected to use reasonable, good faith and proportional efforts to preserve, identify and produce relevant information. This includes identifying appropriate limits to discovery, including limits on custodians, identification of relevant subject matter, time periods for discovery and other parameters to limit and guide preservation and discovery issues.
Proportionality mandates apply not only to courts, but also to litigants and counsel. Rule 26 requires parties serving and responding to discovery to conduct a proportionality analysis. The notes accompanying amendments to Rule 26 (discussed below) instruct that [t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”
Along those lines, Rule 26(g) states that by signing a disclosure, a discovery request, response, or objection, a lawyer certifies that “to the best of [his or her] knowledge, information and belief formed after reasonable inquiry,” the document is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”
Obviously, proportionality is not considered in a vacuum. Below is a sampling of case law addressing proportionality in practice.
I-Med Pharma, Inc. v. Biomatrix, Inc., No. 03-3677 (DRD) (D.N.J. Dec. 9, 2011)(Affirming a magistrate’s refusal to order a review of 95 million pages of document because “fairness [is not] served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.”).
Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., 12 Civ. 1579 (HB) (JCF) (S.D.N.Y March 25, 2013)(Denying production of certain emails, reasoning that “[a]lthough the total number of documents to be reviewed, by itself, does not warrant curtailing discovery, requiring a search of the files . . . cannot be justified given the minimal marginal value of the information sought.”).
Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, Civil Action No. 04-498 (HHK/JMF) (D.D.C. June 1, 2007)(Denying a request to limit discovery of backup tapes, given “the importance of the issue at stake and the parties’ resources.”)
Tener v. Cremer, 931 N.Y.S.2d 552 (App. Div. 2011), (Concluding defamation plaintiff demonstrated “good cause” necessitating a cost/benefit analysis to determine whether the case warranted restoration and retrieval of deleted information because the requested information might be the only way to establish the identity of the alleged defamer)
United States v. University of Nebraska at Kearny, No. 4:11CV3209 (D. Neb. Aug. 25, 2014). (Declining to order a defendant to review more than 51,000 documents requested by the government because “the cost in both dollars and time exceeds the value to be gained by the government’s request.”)
As noted, amendments to the Federal Rules of Civil Procedure, including amendments to Rule 26, emphasize proportionality. Among the changes are a narrowing of the “scope” of permissible discovery and moving the proportionality standard discussed above (in Rule 26b(2)(C)(iii)) to a more prominent place in Rule 26(b)(1).
Rule 26(b)(1) now reads:
(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 to be evidence to be discoverable.
The committee notes accompanying revisions to Rule 26 state that the change “reinforces the Rule 26(g) obligation of parties to consider [proportionality] factors in making discovery requests responses or objections. In fact, not only did the committee amend Rule 26 to emphasize courts’ and parties’ obligations to consider proportionality when handling cases, Rules 1 (regarding the scope and purpose of the rules), Rules 30 and 31 (regarding depositions) and Rule 33 (regarding interrogatories) were all amended to specifically reference proportionality considerations.
As the volume of electronic documents and ESI modern litigants must deal with grows, so too does the importance of discovery proportionality. We welcome the opportunity to hear about your e-discovery projects and the opportunity to discuss e-discovery best practices and how to make your projects as efficient and cost effective as possible.