University of Denver

Tide May Be Changing with Regard to Proportionality in E-Discovery

Senior Director

A Metropolitan Corporate Counsel article this week asks "Are Courts Beginning to Take Proportionality Seriously in E-Discovery?" As the article recognizes, the concept of proportionality has been a part of the Federal Rules of Civil Procedure since the 1983 amendments. But while federal courts have the ability to limit or disallow discovery when "the burden or expense of the proposed discovery outweighs its likely benefit" under Fed. R. Civ. P. 26(b)(2)(C)(iii), the system as a whole is still struggling under the weight of disproportionate discovery, particularly with the advent of electronic discovery and its associated complexities. In response to these issues, in 2009 IAALS and the ACTL Task Force on Discovery and Civil Justice set forth in its Final Report a set of Proposed Principles to shape solutions to these problems, including that "[p]roportionality should be the most important principle applied to all discovery." As this article points out, “the tide may be changing” with a "variety of recent developments [that] demonstrate that courts are relying on the principle of proportionality with increasing frequency and vigor when assessing the scope and limits of e-discovery."