May 01, 2017 Articles

On Balance: The “Amount in Controversy” Factor in a Proportionality Analysis

How quantifying damages may offset burden or expense of discovery sought

by Julia M. Nahigian

On December 1, 2015, significant amendments to the Federal Rules of Civil Procedure went into effect. Rule 26 was amended to result in a repositioning of certain factors that previously existed in a less prominent part of the rules. The proportionality factors are now meant to define the scope of discovery, requiring consideration of "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." Fed. R. Civ. P. 26(b)(1).

In many cases, plaintiffs may avoid identifying the precise amount of damages they seek until the final stages of discovery, or not at all if they have effectively evaded specificity throughout the discovery period. With the amendment to Rule 26, parties now may be required to specifically identify their claimed injuries and damages at the motion to compel stage if they argue that the significant amount in controversy weighs in favor of the proportionality of the discovery sought.

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