The scope of discovery under the Federal Rules of Civil Procedure soon will be expressly bounded by a requirement of proportionality. Amended FRCP 26, as currently contemplated, will explain that proportionality is determined by balancing “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.”

This article focuses on the evidence a party resisting discovery might provide to support a proportionality objection or motion. As is typically the case in discovery, unsupported claims of burden generally are looked upon with skepticism. Here, the party resisting discovery has access to the requested data and, accordingly, has the ability to generate and provide metrics that can quantify their arguments. As will be developed below, the methodologies used to generate this evidence may vary, depending in part on whether the allegedly disproportionate discovery obligation at issue involves production or preservation.

Sampling

One mechanism that can be used to provide objective proof in document production is sampling. First, a party can project the likely total volume of responsive documents by applying a proposed keyword strategy to a reasonable sampling of documents. It is then a relatively straightforward proposition to project the cost based upon the expected volume by considering components such as average vendor costs per unit of data and the added expense of a reasonable privilege review.