Proportionality in Discovery: Six Factors, Burden, and Disputes

Proportionality in discovery is the Federal Rule of Civil Procedure 26(b)(1) requirement that any information sought in a federal civil case be both relevant to a claim or defense and proportional to the needs of the case, judged against six specific factors. Since December 2015, those factors sit inside the definition of what counts as discoverable in the first place, which means a request is not valid simply because the documents might contain something useful. The requesting party has to show the request fits the proportionality framework, and the responding party has to do more than complain.¹

Why the Standard Changed in 2015

Before the 2015 amendments, Rule 26(b)(1) defined discoverable information as anything “relevant to any party’s claim or defense.” Proportionality lived in a separate subsection, Rule 26(b)(2)(C)(iii), that judges tended to treat as a backstop invoked only when a party complained about burden. The amendment pulled the proportionality factors directly into the scope definition. Information is now discoverable only if it is both relevant and proportional.¹

The change was aimed at a familiar litigation tactic: burying the other side in discovery costs to force a settlement unrelated to the merits. Courts had always had the power to rein in abusive requests, but moving proportionality into the scope definition made the issue impossible to ignore. Judges now raise it on their own, even when neither party objects.

The Six Proportionality Factors

Rule 26(b)(1) lists six considerations. No single one is decisive, and courts weigh them against the circumstances of each case.¹

Importance of the issues at stake. Cases involving constitutional rights, civil rights claims, or questions that will set widely applicable precedent get more leeway. A wage discrimination class action justifies broader production than a straightforward breach-of-contract dispute over a single invoice.

Amount in controversy. A lawsuit over $50,000 should not generate $100,000 in data retrieval costs. Courts use this factor to keep litigation costs in proportion to what is actually at stake and to prevent expensive requests from being used as a weapon to make the case unprofitable for the other side.

Parties’ relative access to relevant information. When one side holds all the key records and the other has none, courts are more willing to require broad production. This factor stops a party from hiding behind proportionality objections when it controls the very evidence needed to resolve the dispute.

Parties’ resources. A multinational corporation with dedicated litigation-support teams can handle complex data requests more easily than an individual or a small business. Courts look at whether the cost of compliance would be genuinely crushing or merely inconvenient.

Importance of the discovery in resolving the issues. If the requested documents are unlikely to affect the outcome, the request is typically denied. Judges look for a clear connection between what is being asked for and the legal arguments in the pleadings. Repetitive or marginal requests that add expense without clarifying the central facts rarely survive.

Whether the burden or expense outweighs the likely benefit. This is the catch-all. Even when the other five factors lean toward production, a court can deny or narrow a request if the practical cost of compliance dwarfs whatever the requesting party stands to gain.

Who Has to Prove What

The 2015 Advisory Committee Notes make clear that proportionality is a shared responsibility. Neither the requesting party nor the responding party carries the entire burden of proving proportionality or disproportionality.¹

In practice, each side is expected to carry the weight on the factors it knows best. A party claiming a request would be unduly expensive or burdensome usually has the best information about its own systems, storage architecture, and estimated compliance costs. The party seeking the information should be ready to explain why the documents matter to the legal issues and how they connect to specific claims or defenses. Courts have little patience for boilerplate. The Advisory Committee Notes specifically warned that a party cannot refuse discovery “simply by making a boilerplate objection that it is not proportional.” You need real numbers and real arguments.

Building a Proportionality Argument That Works

General claims of being “overwhelmed” almost never land. Courts want concrete evidence. A strong proportionality argument includes specific cost estimates for searching electronically stored information, the price of any specialized software or vendor services needed for data processing, and a projection of how many attorney hours document review will consume. A quote showing $40,000 in hosting fees or a projection of 300 review hours tells a judge something useful. “This would be very expensive” does not.

Describing the architecture of your storage systems helps the court understand why certain files are harder to retrieve than others. Legacy backup tapes cost far more to restore and search than a current email server. If your data lives across multiple platforms with inconsistent naming conventions, explain that. Judges are not IT professionals, and the gap between “we have the files somewhere” and “we can produce them at reasonable cost” is often the entire dispute.

ESI Protocols and Early Agreement

In cases involving large volumes of electronic data, parties can avoid much of the proportionality fight by agreeing early on how to search, filter, and produce documents. These agreements, often called ESI protocols, cover keyword search terms, technology-assisted review methods, which custodians’ files to search, and the format for production (native files versus images). Phasing discovery, starting with the most accessible and likely relevant sources before moving to costlier ones, is one of the most effective ways to keep costs proportional without sacrificing thoroughness.

Rule 26(f) requires parties to confer early and develop a proposed discovery plan. That conference must address preservation of electronically stored information, the form of production, and any privilege-related procedures.¹ Parties who skip this step or treat it as a formality tend to end up in expensive motion practice later. Exchanging information about your data systems early, including data maps and retention policies, gives both sides a realistic picture of what production will involve.

Privilege Logs

One of the most overlooked proportionality issues is the cost of creating privilege logs. In document-heavy litigation, logging every withheld document individually can consume hundreds of thousands of dollars. When both sides know privilege disputes are unlikely, categorical logging or other streamlined alternatives can dramatically reduce costs. Rule 26(b)(5)(A) requires that a party withholding information on privilege grounds describe the nature of the withheld materials in enough detail for the other side to assess the claim, but it does not mandate any particular format. Raising this at the Rule 26(f) conference, before the expense is incurred, works far better than fighting about it afterward.

When the Parties Disagree

Meet and Confer First

Before filing any motion about a discovery disagreement, the moving party must certify in writing that it attempted in good faith to resolve the issue without involving the court.² Judges do not treat this as a technicality. Filing a motion to compel without a genuine meet-and-confer effort is one of the fastest ways to lose credibility and get the motion denied, with your client on the hook for the other side’s fees.

The rule does not specify how the conference must happen. A phone call, a video meeting, or an exchange of letters all qualify, as long as the effort is genuine. Sending a single demand letter and immediately filing a motion is not good-faith conferral, and courts regularly say so.

Motions to Compel and Protective Orders

When informal resolution fails, the party seeking production files a motion to compel under Rule 37(a). The party resisting production can file a motion for a protective order under Rule 26(c), which requires a showing of “good cause” that the discovery would cause undue burden or expense.¹ Either motion is filed through the court’s electronic filing system and typically assigned to a magistrate judge.

Response deadlines vary by court. Many districts follow a 14-day response window, but local rules control the exact timeline, so check the specific court’s rules before assuming a deadline. The scheduling order issued under Rule 16(b) may also set discovery-related deadlines, and some judges require parties to request an informal conference before filing any discovery motion at all.³ Those informal conferences resolve most disputes more quickly than formal briefing.

Protective Orders for Confidential Material

When discovery threatens to expose trade secrets, proprietary business data, or other confidential commercial information, either side can seek a protective order under Rule 26(c). The burden falls entirely on the party requesting protection, and the standard is good cause, meaning the party must show that disclosing the specific information will cause clearly defined and serious harm.¹ Vague assertions that documents are “sensitive” or “competitive” are not enough.

Courts have options. They can limit who sees the documents, restrict how they can be used, or issue “attorneys’ eyes only” designations that prevent even the opposing party’s own employees from viewing certain materials. In complex cases with large document sets, courts sometimes approve blanket protective orders that let the producing party designate documents as confidential in good faith, subject to challenge later. These speed up production but do not eliminate the producing party’s obligation to justify confidentiality if the designation is contested.

Shifting Costs to the Requesting Party

The default rule is that the responding party pays to produce its own documents. The Supreme Court established that presumption in Oppenheimer Fund, Inc. v. Sanders.⁴ When the burden becomes disproportionate, however, courts have authority under Rule 26(c)(1)(B) to shift some or all production costs to the requesting party.¹

Cost-shifting comes up most often with electronic data that is not reasonably accessible, such as information on backup tapes, legacy systems, or offline archives. The Zubulake v. UBS Warburg decision laid out a seven-factor test courts use when deciding whether to shift costs for inaccessible electronic data, and courts applying those factors have generally been reluctant to shift costs entirely, more often splitting them or requiring the requesting party to pay for retrieval while the responding party handles review. The Advisory Committee Notes to the 2015 amendments cautioned that cost-shifting should not become routine; the expectation remains that a responding party ordinarily pays for its own production.

What It Costs to Get Proportionality Wrong

Discovery motions carry real financial risk for the losing side. Under Rule 37(a)(5), when a court grants a motion to compel, it must order the party or attorney whose resistance forced the motion to pay the moving party’s reasonable expenses, including attorney fees. The only exceptions are if the opposition was substantially justified or an award would be unjust. The rule works in reverse too: if the motion is denied, the court must order the party who filed it to pay the other side’s costs of opposing it, unless the motion was substantially justified.² When a motion is granted in part and denied in part, the court has discretion to split the expenses.

This mandatory fee-shifting is one of the most underappreciated features of discovery practice. Taking an unjustifiable position on a discovery request is not just a strategic risk but a direct financial one. Lawyers who advise clients to stonewall without a legitimate proportionality argument can be personally ordered to pay.

Ignoring a court order that requires production is far more serious. Under Rule 37(b)(2), the court can treat disputed facts as established against the disobedient party, prohibit that party from presenting certain evidence or defenses, strike pleadings, stay the case until the order is obeyed, enter a default judgment, or hold the party in contempt. On top of any of those, the court must order the disobedient party or its attorney to pay the other side’s reasonable expenses caused by the failure.²

A separate framework applies when a party loses electronically stored information it should have preserved. Under Rule 37(e), if ESI is lost because a party failed to take reasonable steps to preserve it and it cannot be restored through other discovery, the court can order measures to cure any resulting prejudice. The harshest sanctions, including an adverse inference instruction to the jury or outright dismissal, are available only when the court finds the party intentionally destroyed the information to deprive the other side of its use.² That intent requirement matters. Negligent or even reckless loss of data can still trigger corrective measures, but it will not support the most severe penalties.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 26
2
Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
3
Legal Information Institute. Federal Rules of Civil Procedure Rule 16 – Pretrial Conferences; Scheduling; Management
4
Justia Law. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)