• Rachel Mentz

15 Arguments to Make Against Proportionality

A Checklist for Arguing Proposed Discovery is Not Proportional

It is up to the party resisting discovery to show how the requested discovery is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. See Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005).

The following checklist provides 15 considerations to take into account in arguing that proposed discovery is not proportional.

  1. The discovery will cost too much to conduct in light of its importance. (Be specific, quantify an estimate of how much it will actually cost)

  2. The subject of the discovery is not important to resolving the claims and defenses.

  3. The proposed discovery is duplicative or cumulative of discovery that has already been done.

  4. It will take too long to conduct the discovery. (Highlight the number of attorney hours or other time frame needed to complete the discovery.)

  5. The ESI or other discovery is not reasonably accessible. (Explain where the data exists and why it is hard to collect, stressing the expense, time, and effort involved).

  6. This type of case doesn’t warrant this level of discovery.

  7. The amount in controversy does not justify the expense involved in conducting the discovery.

  8. The client’s resources are limited and the client cannot afford to conduct the discovery.

  9. The proposed discovery is excessive. Discovery is not intended to be an “unlimited, never-ending exploration of every conceivable matter that captures an attorney’s interest”. Motorola Solutions, Inc. v. Hytera Communications Corp., 365 F. Supp. 3d 916, 925 (N.D. Ill. 2019).

  10. The importance of the discovery does not outweigh the client’s privacy interest in guarding it from disclosure.

  11. There has already been extensive discovery that adequately covers the issues involved. (Highlight the number of documents produced, the number of pages, the attorney hours involved to review it, the client’s time to collect it, the number of custodians, etc.).

  12. Not all of the proposed discovery is necessary. A sampling or subset of it will suffice to give the other party what it needs.

  13. The information sought is available elsewhere.

  14. The proposed discovery likely seeks ESI that no longer exists and will only send the responding party on an expensive wild goose chase.

  15. A regulatory or legal obstacle likely prevents the party from producing the discovery at all. Trying to obtain clearance to produce it will impose additional unwarranted costs.

If you are on the other side, arguing that the proposed discovery is proportional, see my checklist of 11 Arguments to Make for 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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