Rule 26 Proportionality – Think Beyond The Price Tag

More than three years after their implementation, attorneys, courts, and litigants are still learning to navigate the new waters in Federal Rule of Civil Procedure 26. As a result of the 2015 amendments, federal courts have placed a new emphasis on proportionality of discovery, in accord with Rule 26(b). Yet many attorneys have focused primarily – or entirely – on one factor, cost. While the increasing cost burden of discovery is certainly an important factor in determining whether a particular set of data is "proportional" to the needs of the case, companies and their counsel should also think strategically about the other factors found in Rule 26(b).

Rule 26(b) outlines six factors in determining whether the propounded discovery is "proportional to the needs of the case:" (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties' relative access to relevant information; (4) the parties' resources; (5) the importance of