• Rachel Mentz

11 Arguments For Proportionality

A Checklist for Arguing Discovery is Proportional

While the party resisting discovery generally has the burden to show that the discovery sought is not proportional, the party seeking the discovery is well-served by having several arguments for why it is. Here is a list of 11 arguments to consider making in favor of proportionality:

  1. The discovery will not cost very much to conduct.

  2. The discovery is essential to resolving the claims and defenses.

  3. The ESI or other discovery is easy to collect.

  4. The proposed discovery seeks unique information that has not already been produced.

  5. The responding party has already done much of the work necessary to produce the discovery. (Highlight the custodian collection, keyword searching, TAR and other techniques that have already been done.)

  6. The amount in controversy justifies conducting the discovery.

  7. The type of case involves important issues that warrant the discovery. (Emphasize the public policy, civil rights, or other legal issues involved).

  8. The proposed discovery is narrowly tailored to only seek the specific documents needed.

  9. The responding party’s resources are vast and it can afford to conduct the discovery.

  10. The responding party has no legitimate or reasonable privacy interest in guarding the information from disclosure.

  11. The information does not exist anywhere else.

If you are on the other side arguing that proposed discovery is not proportional, see my post on 15 Arguments to Make Against Proportionality.


Disclaimer: The statements expressed in this posting are my own and are for general informational purposes only and do not constitute legal advice or a legal opinion.

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Rachel Mentz

Attorney author Rachel Mentz is an eDiscovery Consultant, blogger, and commercial litigator. Find her at www.mentz-law.com/about
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