Proportionality
Proportionality is the limit Federal Rule of Civil Procedure 26(b)(1) places on the scope of discovery: material must be relevant to a claim or defense and proportional to the needs of the case. Six factors decide it, including the amount in controversy, the parties' resources, and whether the burden or expense outweighs the likely benefit.
Also called: proportional discovery · Rule 26(b)(1) · proportionality factors · scope of discovery
Updated October 2, 2026
How does proportionality work?
Before 2015, proportionality lived in a subsection about limits on discovery. The 2015 amendment moved it into the definition of scope in Rule 26(b)(1), so that discoverable material must now be both relevant and proportional. The rule reads that parties may obtain discovery of any nonprivileged matter “that is relevant to any party’s claim or defense and proportional to the needs of the case”, then lists the factors.
In eDiscovery the argument almost always concerns three of the six. Burden and expense is where the volume of data and the cost of processing, hosting and reviewing it are put in front of the court. Relative access to relevant information matters where one party holds nearly all the ESI, which is common in employment and consumer cases. The parties’ resources is a factor and not a license: it does not mean a large party must accept every request, nor that a small party is excused from proportionate discovery.
The practical consequence is that proportionality is argued with figures. How many documents does the proposed term list return, how many custodians does the request add, what does the review cost at a stated rate. Those numbers come from early case assessment, which is why running it before the Rule 26(f) conference changes the negotiation.
Proportionality also runs the other way. A producing party that has culled aggressively without agreement can be asked to justify the reduction on the same basis.
What does proportionality look like in practice?
The six factors, and what actually evidences each in an ESI dispute:
| Factor | What answers it |
|---|---|
| Importance of the issues | The pleadings, and what the case is about |
| Amount in controversy | The claim, set against a review cost estimate |
| Relative access to information | Which party holds the systems and the custodians |
| The parties’ resources | Both sides, not just the larger one |
| Importance of the discovery | What the source is expected to contain |
| Burden or expense vs likely benefit | Volume, hit counts, processing and review cost |
Five of the six are argued from the record. Only the last is arithmetic, and it is usually the one that decides the motion.
How does proportionality show up on an eDiscovery invoice?
Proportionality has no line of its own and governs several. Every gigabyte a proportionality argument keeps out of scope is a gigabyte that never accrues one-time processing and never accrues recurring per-GB monthly hosting, and every document it excludes is review time never billed, which RAND’s cost study puts at about 73 percent of production cost.
The work of making the argument does appear. Volume reports, term-hit counts and cost estimates prepared for a motion are billed as project management hours, at an hourly rate the Fee Field Guide records as discretionary and rarely capped, or as an ECA fee where the platform charges for the analysis separately.
Worth asking: can the platform produce custodian and term-hit reports without vendor involvement, and is that analysis included or billed per gigabyte.
Sources
- Fed. R. Civ. P. 26(b)(1), quoted, and the 2015 Advisory Committee Notes on the allocation of the proportionality burden.
- Fed. R. Civ. P. 26(b)(2)(C) on limits the court must impose.
- The Sedona Conference, Commentary on Proportionality in Electronic Discovery.
- RAND Institute for Civil Justice, Where the Money Goes (Pace & Zakaras, 2012), on review as the dominant cost.
- Fee ranges: the Fee Field Guide dataset.
Related terms
Early case assessment · Culling · Not reasonably accessible · Meet and confer · Custodian · ESI protocol
eDiscovery at one flat monthly rate
$3,250 a month on a 12-month agreement. No per-user fees and no per-GB hosting charges.
Common questions
What are the proportionality factors?
Rule 26(b)(1) lists six: 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. They are weighed together; no single factor decides.
Who has the burden of showing that discovery is proportional?
Neither side alone. The 2015 Advisory Committee Notes are explicit that the amendment does not place the burden of addressing proportionality on the party seeking discovery, and does not permit the responding party to refuse discovery by making a boilerplate objection. The court expects both parties, and itself, to consider proportionality, informed by whatever specifics each side can supply.
Can proportionality justify not searching a source at all?
It can, but the argument has to be evidenced rather than asserted. A party saying a source is disproportionate is expected to say how much data is in it, what it would cost to process and review, and what the search is likely to return. That is why early case assessment matters: proportionality is largely an argument about numbers, and a party without them is arguing from adjectives.