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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Unless Congress acts to the contrary, amendments to the Federal Rules of Civil Procedure will take effect on December 1, 2015. A recent case from the U.S. District Court of Kansas takes a look at proportionality and offers insight into how courts and parties might approach the amended Rule 26. 

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In <em>Cargill v. Premium Beef</em>, the Defendant’s counterclaim alleged that the Plaintiff breached the parties’ agreement by not undertaking reasonably prudent risk management or hedging strategies. During discovery, the Defendant requested documents related to this allegation. After deposing a former Cargill employee, the Defendant learned of the existence of potentially relevant documents that Cargill had not produced. The Defendant requested these documents, and the Plaintiff declined to produce, claiming irrelevance. The Defendant filed a motion to compel.

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The Plaintiff objected to the motion and argued that the discovery sought was “not proportional and should not be compelled.” Specifically, under FRCP 26(b)(2)(C), the Plaintiff’s objection was that the burden or expense of the proposed discovery outweighed its likely benefit. A party making an unduly burdensome objection must present facts justifying the objection and also show that the burden or expense is unreasonable in proportion to the benefits from the discovery.

The Court found the Plaintiff did not satisfy its burden. The Plaintiff attempted to make proportionality the issue and only offered unsubstantiated claims of minimal relevancy and unsupported cost estimates of $4,000 to $5,000 per custodian to support its argument. Further, the Plaintiff did not compare the relative cost of production to the amount in controversy – which was in excess of $2,000,000. In granting the Defendant’s motion, the Court stated, "The Plaintiff's unsupported estimate [of discovery costs] does not lead the court to find that ordering the requested discovery violates proportionality, particularly given the history, scope and nature of this case."

The 2015 amendments to Rule 26 move the proportionality factors back up to 26(b)(1) in an effort to remind parties and the court of the importance of proportionality in discovery and their obligations under Rule 26(g). While the analysis of these factors should remain consistent with the previous version of the rule, the frequency of use and application should increase. Parties must remember that a proportionality analysis is a fact-intensive balancing act and courts will require evidentiary support of the factors that a party relies on in their arguments.

If you have questions about this decision and its impact on your business, contact any member of Warner’s Data Solutions Group.

eDiscovery Attorney

Adam M. Cefai

Data Analytics and eDiscovery

Proportionality in Discovery: Getting the Facts Straight

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Proportionality in Discovery: Getting the Facts Straight

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