Since 2015, the touchstone for the scope of discovery in federal civil litigation has not been relevance alone but relevance measured against proportionality. In the context of electronically stored information (ESI), where data volumes can be immense, that standard governs how much discovery a case can bear. This article explains what the proportionality standard requires, how it applies across the ESI lifecycle, and what parties and neutrals do with it in practice—drawing only on the rule text, court guidance, and commentary cited below.
The 2015 Amendment and the Six Factors
In 2015, Federal Rule of Civil Procedure 26(b)(1) was amended to state expressly that, to be discoverable, information must be not only relevant but also proportional to the needs of the case. This change reframed the scope of discovery so that relevance is a necessary but no longer sufficient condition for production.
The rule directs courts and parties to weigh a defined set of factors: the importance of the issues at stake in the action, 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. As commentators describe it, proportionality 'tries to strike a balance between the needs of both parties,' asking how much discovery makes sense in the context of a specific case.
Why Proportionality Matters for ESI
Discoverable information today is mainly electronic. The discovery of ESI offers real benefits—the ability to search, organize, and target information—but it is also a recognized source of cost, burden, and delay. Proportionality is the mechanism that keeps those burdens in check.
Court guidance instructs that the proportionality standard set forth in Rule 26(b)(1) should be applied to the discovery plan and all of its elements, including the preservation, collection, search, review, and production of ESI. Because proportional in one case may not be proportional in another, the analysis is case-specific rather than mechanical.
Applying Proportionality Across the ESI Lifecycle
The Northern District of California's ESI Guidelines advise that in determining what ESI to preserve, parties should apply the proportionality standard and strive to define a scope of preservation that is proportionate and reasonable and not disproportionately broad, expensive, or burdensome. Proportionality thus begins at preservation, long before any production dispute arises.
To make the standard workable, discovery requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable. Where sources are not reasonably accessible, the guidance encourages the parties to discuss what ESI will be preserved but not searched, reviewed, or produced, and to identify data that, under the proportionality factors, should not be preserved at all.
Cooperation and the Rule 26(f) Conference
Proportionality is not self-executing; it depends on early engagement between the parties. The court guidance emphasizes the particular importance of cooperative exchanges of information at the earliest possible stage of discovery, including during the parties' Rule 26(f) conference, and notes that an attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner.
Where a dispute concerns the scope of preservation, counsel should meet and confer and fully discuss the reasonableness and proportionality of the effort, raising the issue promptly with the court only if it cannot be resolved. This cooperative posture aligns with the command of Rule 1 to secure the just, speedy, and inexpensive determination of every action and proceeding, and it is the space in which a neutral is most useful in narrowing issues before they reach the bench.
Meeting the Burden in Practice
Proportionality disputes tend to turn on concrete showings. Parties resisting discovery often try to demonstrate a lack of proportionality through hard numbers—quantifying the cost of review, emphasizing the volume of documents that must be searched to find the few that matter, and highlighting costs already incurred and the cumulative nature of further discovery. Parties seeking discovery, by contrast, argue the importance of the information to the case, why it is necessary for fair adjudication, and why it is unique and distinct from materials already produced.
As one practitioner frames it, the challenge for litigants is to show proportionality in a way that brings the concept to life for the judge. For a neutral, that means testing each side's assertions against the six factors and the record—asking whether burden estimates are substantiated and whether the requested ESI is genuinely important to resolving the issues rather than merely relevant.
This article is provided for general informational purposes only and does not constitute legal advice. Engagement of Daniel Garrie as a neutral is administered exclusively through JAMS.