The amendment to Federal Rule of Civil Procedure 26(b)(1) (which defines the scope of permissible discovery) did away with the timeworn “reasonably calculated to lead to the discovery of admissible evidence” standard. In its place is now the “proportionality standard,” which explicitly imposes a responsibility on litigants to tailor their discovery requests to account for the significance of the information requested, and the cost of gathering responsive information:
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.
Fed. R. Civ. P. 26(b)(1). (emphasis added)
Although many courts have applied the revised Rule 26 during 2016, the District Court in the Eastern District of Pennsylvania recently reminded practitioners that proportionality is a critical factor. In First Niagara Risk Mgmt. v. Folino, 2016 U.S. Dist. LEXIS 106094 (E.D. Pa. Aug. 11, 2016), which involved the purported violation of a non-compete agreement, the plaintiff moved the Court to compel a discovery request. Specifically, the plaintiff requested that the Court allow its e-discovery vendor to search the defendant’s personal electronic devices and email accounts for a particular set of agreed upon search terms. The defendant objected stating that “the request is overly-broad, costly, and burdensome.” Although the Court agreed with defendant that the “request was rather broad,” the Court found the request “proportional to the needs of this case.” After verifying that the information requested by the plaintiff was relevant to the case, the Court considered the individual factors in FRCP 26(b)(1).
Specifically, using the factors set forth above, the Court found the issues were “of grave importance” to the plaintiff, the defendant is the sole source of access to the important information, and the plaintiff “needs to conduct broad discovery to uncover the scope of [defendant’s] misdeeds.” The Court granted the motion to compel, and explained that, “[w]eighing these factors makes it clear that the potential harm [plaintiff’s] discovery requests may impose on [defendant] does not outweigh the presumption for disclosure of these requests.”