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No Panacea: Proportionality under New Rule 26(b)

On December 1, very significant changes to the Federal Rules of Civil Procedure went into effect. After nearly five years of work and debate, the new rules have debuted with both fanfare and trepidation. One of the most interesting changes is the incorporation of “proportionality” in Rule 26(b).

In drafting the new Rule 26(b), the Committee moved five proportionality factors (that had been all but buried in a subsection) front and center and added a sixth factor. The Committee Note states that courts were not using the proportionality limitations as originally intended and noted their intent to “emphasize the need for active judicial use of [the proportionality factors] to control excessive discovery.”

The six factors include: (1) the importance of the issues at stake; (2) the amount in controversy; (3) the parties’ relative access to relevant information (the new factor); (4) the parties’ resources; (5) the importance of the discovery in resolving these issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. If you represent a company that is regularly involved in litigation in the federal courts and that typically bears the brunt of the discovery burden, you would be excused for believing these factors – and the accompanying Committee Note – will reduce your discovery costs. However, this is not at all clear.

First, there is very little guidance for applying the proportionality factors. To the extent the factors were utilized before the amendments, they were applied in the context of a protective order. This is really a different posture than their current role in actually defining the scope of discovery. One of the biggest questions about the factors is whether a producing party can withhold information merely by saying it is “disproportionate.”

Second, there is very little guidance in weighing the proportionality factors. It is not difficult to imagine scenarios in which whether something is “proportional” will depend exclusively upon how the factors are weighed. For example, if the amount in controversy is $1 million, and the information sought will cost $500,000 to obtain and produce, is that proportional? What if the information is the key piece of evidence needed to prove the plaintiff’s case? What if we don’t know that the critical information is located in that data set? It is also worth considering the impact of the new factor, the parties’ relative access to relevant information, when thinking through these issues.

Third, we do not yet know how – or even if – courts will implement the new cost-sharing provisions in Rule 26(c)(1)(B). That rule explicitly acknowledges the courts’ authority to allow cost sharing and/or allocation as an alternative to either denying the requested discovery or ordering it despite the risk of imposing undue burdens and expense on the responding party. Cost-sharing is a topic beyond the scope of this blog post, but consider how a party’s ability or inability to share in the expense of discovery might factor into the “proportionality” analysis. An individual plaintiff with few resources in a case against a defendant who possesses all the relevant information will undoubtedly be required to shoulder less of the cost sharing burden than a business plaintiff in a suit where both parties have comparable resources and access to relevant information.

Despite these reservations, the emphasis on proportionality in Rule 26(b) will likely be a valuable tool for parties responding to discovery requests. The six proportionality factors provide an outline for defending against objectionable requests in discovery disputes. However, it is unclear whether these will have any measurable impact on cases where there is a vast disparity between the parties’ resources and access to relevant information.

Valerie Diden Moore

Valerie Moore