E-Discovery Update: Proportionality for Lawyers

Proportionality for Lawyers

May 11, 2016

Proportionality is not limited to Einstein’s equations and banter on The Big Bang Theory. The December 2015 amendments to the Federal Rules of Civil Procedure moved proportionality from Rule 26(b)(2)(C)(iii), which required a court to limit discovery where the “burden or expense of the proposed discovery outweighs its likely benefit,” to a more prominent position in Rule 26(b)(1), providing that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”

While some courts have stated that the rule remains the same despite the location of the language, the reality is that courts must now evaluate proportionality in every case. This has resulted in a change that is more than mere semantics. “Proportionality” is now figuring prominently in decisions focused on discovery and has increasingly become the basis for limiting discovery since the rule change.

For example, one court declined to compel production of proprietary information, stating that “[w]ithout a factual basis to establish that the production to date is inadequate, Plaintiffs’ attempt to compel production of the [proprietary models] themselves is not proportional.” Pertile v. General Motors, LLC, No. 1:15-cv-00518, 2016 WL 1059450, *4 (D. Colo. Mar. 17, 2016). In Pertile, the court noted that the 2015 amendment to Rule 26 may have changed the language, but the rule of proportionality is not new. Explaining its decision denying the motion, the court stated that even if documents “‘might yield helpful information[,]’ [that] is not the applicable standard.” Rather, courts must evaluate proportionality, particularly where the information sought is sensitive. Similarly, in Continental West Ins. Co. v. Opechee Constr. Corp., the court found that “given the parties’ relative access to the requested information and their respective resources, it would not be ‘proportional to the needs of the case’ to require [a defendant], who is in receivership, to interview its former employees for the purpose of providing answers to [plaintiff’s] interrogatories.” No. 15-cv-006, 2016 WL 865232, *3 (D.N.H. Mar. 2, 2016).

The proportionality standard articulated in Rule 26 applies to Rule 45 subpoenas as well. See Noble Roman’s Inc. v Hattenhauer Distrib. Co., No. 1:14-cv-01734, 2016 WL 1162553, *3 (S.D. Ind. Mar. 24, 2016) (citations omitted). The Noble Roman’s court noted that the purpose of the amendments to Rule 26 was “to rein in popular notions that anything relevant should be produced and to emphasize the judge’s role in controlling discovery.” Ultimately, the court entered a protective order in favor of limiting the third-party subpoena after finding that the propounding party never attempted “to demonstrate that the discovery is in any way proportional to the needs of this case.”

Courts are clearly embracing the “new” proportionality standard in Rule 26. Therefore, counsel should also abide by this new standard in evaluating proper discovery limits at the beginning of every new case. After all, as scientist Stephen Hawking said, “intelligence is the ability to adapt to change.”