Proportionality: Keeping eDiscovery Costs in Check

Discovery costs can quickly overwhelm the value of a dispute. The Federal Rules of Civil Procedure recognize this. Since the 2015 amendments, Rule 26(b)(1) limits discovery to nonprivileged matter that is relevant to a party's claim or defense and proportional to the needs of the case.

The proportionality factors

Courts consider the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Use the Rule 26(f) conference

The early meeting between the parties is the best opportunity to narrow custodians, date ranges, data sources and formats, and to agree on search methodology. Agreements reached here prevent expensive disputes later.

Be specific about burden

Generic objections that a request is burdensome rarely succeed. Concrete information about data volumes, collection effort and review costs is far more persuasive.

Consider technology

Technology-assisted review and well-tested search terms can reduce review volumes significantly. Transparency with the other side about methodology helps avoid challenges.