Insights & Events

Hollingsworth LLP partner Brett Clements authored an expert opinion article for AmLaw’s Litigation Daily regarding some courts’ failure to apply the 2015 proportionality amendment to Federal Rule of Civil Procedure 26(b)(1).

Corporate parties, especially defendants in mass and serial litigation, continue to be inundated by oppressive discovery despite the 2015 amendment to Federal Rule of Civil Procedure 26(b)(1), which clarified that courts must consider proportionality. Yet, many courts still do not conduct a thorough analysis of the six proportionality factors required under amended Rule 26. Defendants must bring these issues to the attention of the court, addressing each factor and, when applicable and appropriate, providing hard evidence of cost and burden. This issue has become even more salient given not only the massive increase in data generated by AI, but also the continued growth of electronically stored information over the past decade.

Under Rule 26(b)(1), courts must consider (1) the importance of the issue at stake in litigation; (2) the amount in controversy; (3) the parties’ relative access to the information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden of discovery outweighs the benefit. The 2015 Advisory Committee Notes make clear that the amendment “reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management.”

Parties should provide detail about the volume, cost, or specific burdens that defendants would encounter if the court permits the discovery. Defendants must keep this goal in mind and make every effort to advise and remind courts of the 2015 amendment.

Litigation Daily subscribers may access the full story online.