ESI Discovery

Proportionality under the FRCP

One of the oldest limitations on discovery under the Federal Rules is rule 26(c) which provides that for good cause, the court may restrict discovery so as to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.

Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure was added in 1983 to allow judges to limit discovery in several circumstances including when the burden of the proposed discovery outweighs the benefit, considering various factors. In 2006, provisions of Rule 26 concerning Electronically Stored Data (“ESI”) were enabled concerning the ability of the party requesting the ESI to show “good cause.” The Advisory Committee Noted factors including:

  • the specificity of the discovery request
  • the quantity of information available from other & more easily accessed sources
  • the failure to produce relevant information that seems likely to have existed but is not longer available on more easily accessed sources
  • the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources
  • predictions as to the importance & usefulness of the information
  • the importance of the issues at stake in the litigation &
  • the parties’ resources.

The “good cause” inquiry is coupled with the judge’s authority to set conditions for discovery & to shift reasonable costs of obtaining ESI.


specificity of discovery requests

likelihood of discovering critical info

availability of info from other sources

purposes why responding party maintains requested data

total costs associated with production

relative abilities & incentives of parties to control costs.

Stated another way:

  • extent request specifically tailored for relevant information
  • availability of the information from other sources
  • cost of production versus amount in controversy
  • cost of production versus resources available to each party
  • relative abilities & incentives of parties to control costs
  • importance of issues at stake in litigation &
  • benefits to parties of obtaining the information.