Proportionality: Rarely Used, Primed for a Return?

On Oct. 29, 2014, a U.S. Magistrate Judge from the Northern District of California issued a rare written decision limiting discovery under the proportionality rule set forth in Fed. R. Civ. P. 26(b)(2)(C)(iii).¹ The current proportionality rule resides in Fed. R. Civ. P. 26(b)(2), entitled “Discovery Scope and Limits; Limitations on Frequency and Extent,” and provides that, on motion or on its own, a court must limit the frequency or extent of otherwise allowable discovery if it determines that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”² During discovery in Lord Abbett, plaintiff and defendants agreed to share the cost of preserving certain computers during the litigation even though those computers had only been used by persons unlikely to be custodians of relevant data.³ Notwithstanding that preservation agreement, neither party actually sought discovery from these computers.⁴ After summary judgment, in which certain defendants prevailed in whole or in part, a group of board member defendants (the board defendants) who prevailed in whole informed the plaintiff that they would no longer pay their share of the cost of preserving the computers. When plaintiff sought permission to dispose of the computers, however, the board defendants declined to consent on the grounds that the computers could contain relevant information that they might need to access if plaintiff’s appeal was successful and the case was remanded for trial.⁵ The board defendants also declined plaintiff’s offer to make the computers available for inspection prior to disposal, and plaintiff refused the board defendants’ request to image the computers’ hard drives on the grounds that the imaging would be prohibitively expensive.⁶

On motion by plaintiff, Magistrate Judge Donna M. Ryu entered an order permitting disposal of the computers.⁷ The board defendants had argued that, if plaintiff prevailed in its appeal, the defendants had the right to access the “original source of specific pieces of evidence to analyze the metadata.”⁸ Ryu reasoned, however, that discovery had “long been closed” and there was “no indication that the [ ] computers contain[ed] relevant information.”⁹ Thus, Ryu concluded that the “burden of requiring any party to continue to pay $500 per month to store the [ ] computers outweigh[ed] the likely benefit of maintaining the computers where there has been absolutely no showing that they contain relevant evidence” under Fed. R. Civ. P 26(b)(2)(C)(iii).¹⁰

Decisions and New Amendments