Rule Amendment Encodes Proportionality

Possibly the most important of the recent amendments to the Federal Rules of Civil Procedure relate to Rule 26(b)(1), which sets forth discovery scope and limits. The rule as amended states that the scope of discovery must be “proportional to the needs of the case.” Courts will consider the importance of the issues at stake, the dollar amount in controversy and relative access to information by all parties.

Parties to litigation should not assume that to take advantage of this change they merely need to object to a discovery request as overly broad and disproportional. According to the recent amendment to Rule 34(b)(2)(B), grounds for an objection must now be stated “with specificity.” As a consequence, to justify a proportionality objection, a party must be able to demonstrate that the time or expense involved in responding is unreasonable in light of the benefits of the proposed discovery.

Only in-house counsel can provide the necessary information to establish that their organization’s efforts to comply with discovery requests have been reasonable and proportional to the needs of the case, and that the cost of proposed discovery outweighs the potential benefit. In order to accomplish this, in-house counsel must have a good understanding of their data systems, discovery policies and practices, and electronic discovery capabilities, and they must be prepared to provide a detailed declaration of what is required to comply with discovery requests.