THE ANTITRUST LITIGATOR
How the Courts Are Enforcing Proportionality in Discovery By JEFFERY M. CROSS
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n December 2015, Congress and the Supreme Court introduced amendments to the Federal Rules of Civil Procedure designed to control the costs of litigation, particularly discovery. Of particular significance was a renewed emphasis on the idea of proportionality in discovery. In my column for the April/May 2016 issue of Today’s General Counsel, I wrote about these amendments, indicating that whether they succeed in reducing discovery costs will depend on whether the courts become actively engaged in accomplishing this goal. Almost five years have passed since the amendments.
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As many magistrate judges handling discovery disputes have noted, the concept of proportionality has been part of the rules since 1983. The significance of the 2015 amendments was to move the requirement of proportionality to the definition of the scope of discovery in Rule 26(b)(1). Currently, the discovery permitted under the rules is “non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The rules explicitly provide factors that the parties and the courts must consider in determining whether the discovery is proportional: “. . . the importance of the issues at
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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.” The Official Committee Notes to the 2015 Amendments also offer some guidance. The Notes emphasize that “monetary stakes are only one factor, to be balanced against other factors . . . . ” They state that “the rule 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.” How have the courts done in interpreting the proportionality amendments to reduce the costs of discovery? Many courts interpreting the amendments have held that the party seeking discovery must not only address the relevance of the discovery but also establish that it is proportional to the needs of the case. Indeed, several courts have denied discovery requests where the requesting party only addressed relevance but not proportionality. However, many courts have emphasized that the party seeking discovery does not have the sole burden of establishing the proportionality factors. BACK TO CONTENTS
