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Proportionality Has Some Bite

Joseph V. Schaeffer

Proportionality Has Some Bite
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The concept of proportionality has been part of the Federal Rules of Civil Procedure since at least the 1983 amendments. It went largely unnoticed, however, because the Rules Advisory Committee framed it as the requirement that discovery be “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Fed. R. Civ. P. 26(g)(1)(B)(iii) (1983) advisory committee’s note (emphasis added). Even worse, the Rules Advisory Committee tucked the proportionality requirement into subsection (g) as part of the propounding party’s certification. The result was that few attorneys were reading Rule 26’s proportionality requirement, much less heeding it. And so in 2015, the Rules Advisory Committee moved the proportionality requirement up to subsection (b), this time referring to it by name. Fed R. Civ. P. 26(b)(1) (2015) advisory committee’s note.

Since then, the bench and bar have been reckoning with just what is meant by proportionality in civil discovery. And though the answer is undoubtedly context-dependent, a recent decision from the U.S. District Court for the Southern District of California shows what it is not. In Toranto v. Jaffurs, the plaintiff alleged that the defendants denied him employment through a conspiracy that would shame Frank Underwood. No. 16-cv-1709, 2018 WL 6110383, at *1 (Nov. 20, 2018). The plaintiff then served one of the defendants with a request for “all communications between you and any person, including but not limited to text messages, and any e-mails sent from or received at any email account you have, regarding or relating to the [prospective employer] from January 2015 to the present.” Id. at *2 (capitalization omitted). The plaintiff later narrowed the request to documents relating to the prospective employer’s “organization, structure, governances, finances, and business model.” Id. Even in its narrowed form, however, the defendant argued that the request was still overbroad and disproportionate; she offered instead to produce “all non-privileged documents relating to plaintiff, allegation of the second amended complaint, and/or any documents that refer or relate to defendant’s knowledge of any [employment-related cases] which were/are to be funneled to the [prospective employer].” Id. (capitalization omitted).

The dispute then came before the court on the plaintiff’s motion to compel. In short order, the court concluded that, because the plaintiff alleged only a conspiracy of exclusion from the prospective employer, documents directed to its finances, governance, or business model simply were not “proportional.” Id. at *2. The court thus adopted the defendant’s proposed tailoring of the discovery request in full.

The lesson from Toranto for practitioners is that, 25 years after its introduction, Rule 26’s proportionality requirement finally has some bite. Practitioners therefore would be well served to scrutinize those requests asking for “any and all” documents that “refer or relate” to a given subject as relics of a pre-proportionality regime.