February 23, 2016 Articles

Proportionality: A Case Law Analysis

By Patricia Daza-Luu

Where . . . the proposed discovery ‘outweighs its likely benefit’—where the book is not worth the candle—it ought not be allowed[.]

—Magistrate Judge Jeffrey Cole in Uppal v. Rosalind Franklin University of Medicine & Science, No. 15 C 3806, 2015 WL 5026228 (N.D. Ill. Aug. 26, 2015)


On December 1, 2015, Federal Rule of Civil Procedure (FRCP) 26(b)(1) was amended to more sharply focus the scope of discovery with the requirement that discovery be “proportional to the needs of the case.” This should come as a welcomed change to seasoned litigators, especially those well versed in e-discovery, who have been forced to spend time litigating costly discovery disputes that, in many instances, are starkly disproportionate to the value of the case. While the concept of proportionality already was mentioned in the former FRCP 26(b)(2)(C), the amended FRCP 26(b)(1) redefines the scope of discovery at the outset:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

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