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Proportionality Weaponized: How It Happens and What Can Parties and Courts Do about It

Proportionality Weaponized

Consider the following scenario. You wake up after a restless night’s sleep and unlock your phone to find out what awaits you today. Your calendar is busy, but there isn’t anything you cannot handle. You then turn to your email and find a message from opposing counsel in a hotly contested commercial contract and fraud dispute you are litigating on behalf of the defendant.

Sent at 11:50 the night before, the message contains plaintiff’s responses to your client’s interrogatories and document requests. Expecting—perhaps naively—to receive something of substance from plaintiff’s responses, you quickly glance them over on your phone and find they are replete with boilerplate objections. You groan, close the message, and decide you’ll need an extra cup of coffee before reviewing the responses any further.

An hour later—your laptop open and plaintiff’s responses displayed on a much larger screen, the full import of plaintiff’s opacity begins to hit home. It’s not just the meaningless and evasive nature of the responses that troubles you. What is more frustrating is the perfunctory disproportionality objections you read in response to each request. The written discovery sought basic details including supporting facts and documents regarding plaintiff’s claims and the extent of its purported damages. How can requests for such foundational information be considered disproportionate to the needs of the case?

Weaponizing Proportionality

Does this seem familiar?

This scenario is playing out all over the country as parties respond to discovery with boilerplate proportionality objections in an effort to stymie legitimate efforts to obtain relevant information. The problem is not limited to discovery responses. Requesting parties routinely serve overly broad requests that are a complete non-starter for determining what information a responding party should realistically expect to produce. Indeed, far too many lawyers on each side of the “v” are abusing the concept, treating proportionality as just another “weapon[] to wage litigation” rather than using proportionality standards to approach discovery in a more meaningful way.[1]

Weaponizing of proportionality is one of the most problematic developments in discovery practice over the past several years. The instant article—first published by The Circuit Rider in September 2021—examines this trend and explores effective practices for addressing the issues. Those practices include having parties and courts meaningfully assess each proportionality factor in connection with a discovery dispute. In addition, responding parties should meticulously substantiate production burdens through the use of metrics reflecting realistic estimates of time, manpower, and costs. Finally, requesting parties should prepare narrowly tailored requests and negotiate reasonable limits on the nature and extent of their discovery requests.

We invite you to read the balance of this article, which you can access here.

[1] Calcor Space Facility, Inc. v. Superior Court, 61 Cal. Rptr. 2d 567, 570-71 (Ct. App. 1997) (urging courts to aggressively curb “cancerous” discovery abuses, curtail “promiscuous” discovery and insist that “discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation”).

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.