The explosive growth of electronically stored information (ESI) and the ever-escalating costs of e-discovery have permanently changed the landscape of litigation. As the volume of potentially relevant discovery continues to rise exponentially, litigants face greater burdens and expense. There is no end in sight as technology continues to evolve and new data sources emerge. Practitioners and courts are still grappling with the preservation and production of texts and data on social media. Furthermore, the evolution of the Internet of Things (IoT), such as fitness trackers, will lead to even greater burdens and expense for litigants. Now more than ever, it is critical for counsel and the courts to work toward a solution to reign in these costs. One way to manage discovery costs is through proportionality.

Proportionality balances the producing party's burden to preserve and produce certain information with the likely benefit to the requesting party in obtaining the information. The greater the value or uniqueness of the information requested, the more difficult it is for the producing party to limit the scope of discovery. Nonetheless, not every case requires the production of a party's blog, social media page or Fitbit data. The proportionality principle seeks to limit preservation and production based on the needs of each case (see Lord Abbett Mun. Income Fund, Inc. v. Asami, No. C-12-03694 DMR, , at *2 (N.D. Cal. Oct. 29, 2014) (granting plaintiff's request to dispose of 159 computers because there was no basis from which to reasonably conclude that they contained relevant evidence)).

For decades the federal rules have recognized the need to protect producing parties from unnecessary and overly burdensome discovery (see, for example, 1983 Advisory Committee Notes to FRCP 26(b); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D. Md. 2008)). Indeed, FRCP 26(g) was designed to deter excessive discovery by explicitly encouraging the imposition of sanctions (1983 Advisory Committee Notes to FRCP 26(g)). Despite these rules, however, excessive discovery costs often lead to settlements or cases not being filed regardless of their merits (Judicial Conference: Summary of the Report of the Judicial Conference Committee on Rules of Practice & Procedure, Rules Appendix B-5 (Sept. 2014)).

The proposed amendments to the federal rules, which may come into effect as early as December 2015 if approved by the US Supreme Court and Congress, include changes that restore the emphasis on proportional discovery. However, practitioners are wary that the proposed amendments, when effective, will lead to more motion practice on proportionality (see Article, E-Discovery Trends: 2014 Year in Review: Proposed Amendments to the FRCP).

To achieve proportionality in discovery, counsel for each party must determine the information necessary to prove or defend the claims in each case. Despite the vast amount of information available, only a small fraction of it will be useful in a case. The best way to control costs is to assess the sources of key information as early as possible. Practical Law has resources to help practitioners identify critical information and data sources early in a case, including:

For more information on document discovery, see Document Discovery Toolkit and E-Discovery Toolkit.