Proportionality in the Federal Rules of Civil Procedure ^[1] is quite clear and lucid:

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.   (FRCP Rule 26(b)(2)(C))

See our advertorial article in the ACC Docket ^[2] this month, highlighting some nuts and bolts of a successful proportionality argument.

One of the drawbacks of proportionality arguments is the requirement to estimate and disclose the value of the case to an opponent and judge.  This calculation is held most dear to litigators.  Some of the calculation is disclosed as a contingent liability (public companies).

The ACC is currently fighting a FASB (accounting board) rule requiring even more granular disclosure.  Comments to the board are welcome through mid September.  See the National Law Journal Article here ^[3].  In 2008, the ACC was successful in fending off this requirement.

Assuming the FASB is successful in this go round, expect to see a rush of proportionality arguments, as the best reason to hold back will be removed.

Register here for the Fios webcast on Proportionality. ^[4]