You Need to Do More Than Say Proportionality to Object

Parties objecting to requests for production cannot simply state the words not “relevant or proportional to the needs of the case,” in the hopes a Judge will sing along like its Purple Rain. Proportionality has to be proven with facts, and lawyers who fail to do so will know what it feels like when doves cry.

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In a case involving multiple claims of tortious interference with its business, the Plaintiff requested emails regarding the Defendants’ efforts to drive the Plaintiff out of business. Digital Ally v. Util. Assocs. (D.Kan. Apr. 15, 2016, No. 14-2262-CM-GEB) 2016 U.S. Dist. LEXIS 51208, at *9-10.

The Defendants reviewed the requests and possibly thought the Plaintiff decided to “let’s go crazy” with their requests, because they did not identify custodians or provide search terms. The Defendants effectively replied, “You got the look” that your requests are neither relevant nor proportional to the case. Digital Ally, at *10. While it is normal for a responding party to feel there are “thieves in the temple,” it is a little bold for a responding party to state that it is “unaware of any non-privileged e-mails that would be responsive to this request,” without conducting any searches for responsive email. Digital Ally, at *10.

The Court stated the following in resolving the controversy:

Aside from simply stating the terms, Defendant has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1), and those objections are overruled. Because Plaintiff brings multiple claims of tortious interference with its business, the information sought by the request appears relevant on its face, and Defendant has not met its burden to demonstrate otherwise. Additionally, any concerns regarding overbreadth or proportionality may be addressed by following the guidelines of the Scheduling Order.

Digital Ally, at *10.

Judge Gwynne Birzer granted the Plaintiff’s motion to compel, with instructions to resubmit the request following the terms of the Scheduling Order in the case. Id.

It’s a sign of the times that parties cannot make proportionality objections without explaining the proportionality factors. How much data has to be searched? What is the cost of data storage? Processing? What is the estimated time for review and by how many attorneys? How is the data relevant, or irrelevant, to the case? All of those questions require answers for a Court to rule on a proportionality objection. It is work, but a ruling in your favor is definitely worth a lot of diamonds and pearls to your client.

In closing, Prince, you will be missed.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.