Overview
In a comment letter last month to proposed changes to the Federal Rules, Judge Scheindlin (among other points) disagreed with a proposed rule change that would require any discovery sought to be “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’s resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”:
[T]he rule invites producing parties to withhold information based on a unilateral determination that the production of certain requested information is not proportional to the needs of the case. This could become a common practice, requiring requesting parties to routinely move to compel the production of the withheld materials. This, in turn, will increase costs and engender delay . . . . Addressing [the] five factors [relating to proportionality] in every motion will be burdensome and may not be particularly informative to the court in making an assessment of proportionality. The requesting party will say the case is worth one million dollars, and the producing party will say it is worth ten thousand dollars. How will a court fairly decide the true amount in controversy at the very outset of the case? The producing party will say the burden or expense of the proposed discovery is great -- it will cost us millions of dollars to retrieve the requested information -- and the requesting party will say the producing party is exaggerating and the search and review can be done for far less if the requesting party uses less expensive and more efficient means to conduct the search. What a nightmare for the court!(H/T, and more background from, Alison Frankel)
