The “New” Proportionality Rule: FRCP 26(b)(1)

June 3, 2016

On December 1, 2015, the Federal Rules of Civil Procedure were amended, affecting numerous aspects of civil litigation, particularly in the area of electronic discovery. As it relates to discovery and electronic discovery, the “new” rules of proportionality are encompassed, in part, by Rule 26(b)(1).

The New Rule: 26(b)(1) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

The Changes: The underlined language was added and the language removed included the oft- quoted and improperly utilized “relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Also removed is the language authorizing the court, “for good cause, to order discovery of any matter relevant to the subject matter involved in the action.” Information is discoverable under the revised Rule 26(b)(1) if it is relevant to any party’s claim or defense and is proportional to the needs of the case. Proportionality has moved “up” from its previous location at Rule 26(b)(2)(C)(iii). Perhaps this was as always intended but not necessarily as used by attorneys or applied by the courts. The rule provides a set of factors that will guide discovery arguments and guide the court in assessing those arguments. The change also reinforces the Rule 26(g) obligation to consider these same factors in making discovery requests, responses, and objections.

The new handbook for attorneys consists of reading the rules and the Advisory Committee Notes and following the new case law that develops in this area. For discussion on this subject and proposed proportionality matrix to guide the attorney’s objections and arguments, see Hon. Elizabeth D. Laporte and Jonathan M. Redgrave, A Practical Guide to Achieving Proportionality Under New Federal Rule of Civil Procedure 26, 9 Fed. Cts. L. Rev. 20, 67 (Fall 2015).

When facing federal litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefksy has teamed with Kroll Ontrack as their preferred eDiscovery vendor. SMGG leverages Kroll Ontrack’s portfolio of eDiscovery solutions and consultative expertise to provide clients with innovative technologies and best-in-class data security practices. Call the litigation attorneys of Strassburger McKenna Gutnick & Gefsky to assist you with your federal litigation needs. Gretchen Moore and Harry Kunselman co-chair Strassburger McKenna Gutnick & Gefsky’s Litigation Practice Group. Gretchen Moore chairs the firm’s eDiscovery Committee. She can be reached at or 412-281-5423.