United States: Electronic Discovery & Information Governance - Tip of the Month: Amended Rule 26(b)(1): Early Lessons on Proportionality

Amended Rule 26(b)(1): Early Lessons on Proportionality


A company has been sued in federal court in a matter in which the damages being sought are less than the likely cost of complying with the plaintiff's discovery requests. Neither party is willing to settle. The defendant's general counsel has asked whether, in light of the recent changes to the Federal Rules of Civil Procedure, the court will limit the scope of the plaintiff's discovery as not proportional to the stakes in the litigation.

The December 2015 Amendments

As of December 1, 2015, Federal Rule of Civil Procedure 26(b)(1), which defines the scope of permissible discovery, has been amended to limit discovery to relevant, non-privileged information that is "proportional to the needs of the case." The rule lists relevant proportionality considerations as "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."

Interestingly, Rule 26(b)(1) no longer includes language to the effect that discovery may include any information "reasonably calculated to lead to the discovery of admissible evidence."

Emerging Themes

Despite the fact that the changes to Rule 26(b)(1) have only been in effect for four months, there are already hundreds of opinions citing the amended rule. Not surprisingly, parties have been quick to make proportionality arguments on the propriety of their discovery requests and objections, and a body of case law on the issue is quickly building. In some instances, courts are engaging in proportionality analyses without either party having raised the issue. Four months in, some themes are beginning to emerge from the case law.

First, and also not surprisingly, the rule change has caused many courts to more closely examine the fit between the discovery being sought and the stakes at issue in the litigation. Indeed, that was the stated purpose of the rule change. As some courts are rightly pointing out, proportionality has long been a legitimate consideration in managing discovery. And, as those courts note, the amended Rule 26(b)(1) places a renewed emphasis on proportionality. Indeed, proportionality first appeared in the Federal Rules of Civil Procedure in 1983. However, as recent opinions have observed, many courts simply were not consistently applying proportionality analyses prior to the recent rule change. The amendment relocates and emphasizes the proportionality factors and "encourage[s] judges to be more aggressive in identifying and discouraging discovery overuse." This, some courts have concluded, makes proportionality considerations much harder to ignore than before. And a common theme in the cases is that the courts appear to be taking the amended rule as a directive to be tougher on overreaching discovery requests.

Another emerging theme relates to how courts are analyzing proportionality in light of the relevance of the information being sought. For instance, some courts have suggested that proportionality is a threshold issue to be resolved before even relevance or privilege is considered while others focus on relevance and proportionality in relation to each other. What is clear, however, is that courts are analyzing proportionality in conjunction with and, sometimes, before relevance arguments.

What has largely been absent from the cases so far is any quantitative weighing of the cost of discovery against the amount in controversy.

And, finally, courts continue to analyze burden objections on a request-by-request basis, and they continue to urge parties to attempt compromise prior to litigating discovery disputes.

Considerations and Early Lessons

It is apparent that courts are taking the renewed focus on proportionality in Rule 26(b)(1) to heart and parties will increasingly be availing themselves of or defending themselves against proportionality arguments. As such, there are some early lessons from the vanguard of proportionality cases.

First, most courts seem disinclined to engage in macro-level proportionality analyses or even weigh the amount in controversy against the cost of the discovery sought. Rather, courts seem more inclined to conduct a request-by-request proportionality and burden analysis. And so counsel should be prepared to make request-specific burden and proportionality arguments. Likewise, counsel should consider less-burdensome alternatives to responding to discovery requests and be ready to present those to opposing counsel and the court.

Second, and related, courts continue to urge compromise on discovery disputes, and they seem to be less receptive to burden arguments when consideration has not been given to less-burdensome alternatives. Indeed, all parties have a duty to cooperate. Though some of the recent proportionality case law speaks to whether one party has the burden of proving proportionality or the other, courts expect both sides to have thought about the burden of the discovery being sought and whether there are less burdensome means of getting the same information.

Third, courts continue to analyze discovery burden in light of relevancy and necessity, although now with a clear focus on proportionality. However, some courts do not seem inclined to engage in a proportionality analysis in a vacuum. Rather, the requested discovery is often weighed against the relevance it has to the litigation and how necessary it is to the parties' abilities to assert their claims and defenses. What is new is the emphasis courts are giving to the fit between the discovery being sought and the stakes at issue in the litigation. As a result, counsel should be ready to argue proportionality both as a stand-alone matter and in the broader context of relevance and necessity.

Finally, it is a good practice to raise discovery disputes early in litigation, and proportionality issues are no different.


The December 2015 changes to Rule 26(b)(1) were met with great fanfare and handwringing. Now, four months on, we are starting to see the effect that the new rule has on actual discovery disputes as the courts weigh in. Surely there are many more proportionality opinions to come, but those that we have already offer several insights for consideration.

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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