November 11, 2013 Articles

The Proportionality Problem: Emerging Trends in Case Law

Although the concept is not new, widespread abuse of discovery as a blunt instrument has prompted courts to revisit the issue.

By Andrea Donovan Napp and Amanda B. Barry

The Federal Rules of Civil Procedure state, very clearly, that they should be construed to ensure the “just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1. Those same rules also provide the authorization to engage in electronic discovery, which, as anyone who has been involved in a business torts action in the past several years knows, is seldom a “just, speedy, and inexpensive” process. Rather, the stated goal of the Federal Rules is frequently subverted by scorched-earth e-discovery practices in which no byte is left unturned. In far too many cases, disproportionate discovery requests are used as a weapon to bleed parties dry before the merits of the claims are reached. Even where the parties conduct discovery in good faith, the cost of compliance frequently threatens to exceed the amount in dispute, forcing parties to settle out of financial necessity. This phenomenon, borne about in large part by well-intentioned admonitions to cooperate and be transparent, brings with it a host of problems, including costly and protracted litigation for even the most mundane matter. Although the concept of proportionality is not new, the widespread use, or abuse, of discovery as a blunt-force tool has prompted courts to revisit the issue. The law is far from settled, but certain trends are emerging.

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