Revisiting Proportionality Under Rule 26(b)(1)
November 1, 2021
The 2015 amendment to Rule 26(b)(1) of the Federal Rules of Civil Procedure is about continuity. That’s because the proportionality analysis under Rule 26(b)(1), since it became effective in 2015, has always been a reflection of legacy, not change. Accordingly, the “new” Rule 26(b)(1) mandates consideration of six proportionality factors and eliminates the “reasonably calculated” language that many civil litigators considered a tacit endorsement of overly broad, unduly burdensome, and oppressive discovery.
To the casual observer viewing this amendment in substantive and temporal isolation, the change might appear pioneering. But five of the six proportionality factors had been in existence, albeit under Fed. R. Civ. P. 26(b)(2)(C), for decades. And while the “relative access” factor was technically new in 2015, it was added “to provide explicit focus on considerations already implicit in … Rule 26(b)(2)(C)(iii).” “New” was the fact that these factors had been elevated to the primetime of Rule 26(b)(1), thereby resolving any doubts about their rightful role in shaping the scope of discovery on a case-by-case basis.
Today, with several years of refocused proportionality analyses under our collective belt, we present several principles and practices that have been, and remain, critical to your client’s chance of achieving proportionality in discovery, whether your client’s name appears above or below the “v.”
Each of these ideas enjoys long-standing support in the law, and their utility warrants our attention today more than ever before —particularly in light of challenges presented by discovery of electronically stored information (ESI). Though the concept of proportionality in civil discovery is decades-old, its application in every case will be unique. For this reason, each proportionality analysis under Rule 26(b)(1) will, by necessity, render everything old new again.
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