The 2015 amendments to Rule 26 rewrote the scope of discovery in a way that still trips up practitioners a decade later. The change wasn’t subtle: proportionality moved from a limitation buried in Rule 26(b)(2)(C) into the core definition of discoverable information in Rule 26(b)(1). If you haven’t internalized what that shift actually means in practice, you’re either leaving discovery tools on the table or sending requests that hand opposing counsel a winning protective order motion.
What the Rule Actually Says Now
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Six factors. Not one, not two. Courts weigh all of them, and they don’t always weight them equally. The amount in controversy gets a lot of attention from litigants, but “the parties’ relative access to relevant information” is the one that’s quietly doing heavy lifting in asymmetric cases where all the documents sit on one side of the table.
How Courts Are Actually Applying This Post-2015
The honest answer is: inconsistently, but with a few reliable patterns.
In large commercial cases where the amount in controversy is significant, most district judges still allow broad discovery. The Seventh Circuit has been particularly receptive to robust discovery in commercial disputes, and you won’t see many judges in the Northern District of Illinois slamming the door on discovery just because a request is burdensome if the case is a $50 million breach of contract. The proportionality factors cut both ways.
Where you do see courts enforcing proportionality limits is in three situations: (1) smaller cases where discovery costs would approach or exceed the amount in controversy; (2) requests targeting categories of ESI that require expensive collection from legacy systems; and (3) cases where the party seeking broad discovery is fishing for claims they haven’t yet pleaded. On that last point, the rule is clear that discovery must be relevant to a claim or defense actually in the case. Heightened pleading standards mean that if you can’t plead it, you generally can’t discover it.
The Southern District of New York and the District of Delaware (where you’re spending a lot of time if you do complex commercial work) have both issued standing orders and judicial preferences that explicitly reference proportionality. Check individual judge pages before you finalize your discovery strategy. Some judges in those districts require a conference before any discovery motion; others expect detailed letters with proportionality arguments before they’ll even schedule a hearing.
The Part Courts Actually Care About: Burden vs. Benefit
When you’re opposing discovery you think is overbroad, the proportionality argument that lands best is a concrete showing that the burden outweighs the likely benefit. Vague objections saying requests are “overly broad and unduly burdensome” without supporting detail get overruled reflexively, and for good reason. You need to show the court something specific: how many custodians are involved, what the estimated review cost is, why the likely yield of relevant documents is low given what’s already been produced.
Conversely, when you’re seeking discovery that opposing counsel is resisting on proportionality grounds, remember that the rule also considers “the parties’ relative access to relevant information.” If the documents are entirely in the other side’s possession and you need them to prove your case, say so explicitly in your motion to compel. Frame it around that factor. Courts respond to that argument when you make it clearly.
ESI Preservation: Where People Keep Making Expensive Mistakes
The Rule 26(f) conference is where ESI preservation should be on the table, and most litigants treat it as a formality. That’s a mistake that sometimes turns into a sanctions motion later.
The rule requires the parties to discuss “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced” at the conference. Most attorneys show up, agree on a generic discovery plan, and move on. What they’re not doing is nailing down:
- Which custodians are subject to a litigation hold
- What date the hold was implemented and triggered
- Whether auto-delete functions have been suspended
- What format productions will take (native, TIFF with metadata, searchable PDF)
- Whether the parties will use TAR or keyword searching and how disputes about those methodologies will be handled
The common mistake here is conflating “issuing a litigation hold” with “adequate preservation.” A hold notice going out to ten custodians doesn’t preserve anything if the company’s email system auto-purges after 90 days and no one told IT to suspend that function. Courts have been sanctioning parties for exactly this failure for years, and Rule 37 gives courts significant tools to respond when ESI is lost.
The other ESI mistake worth flagging: the Rule 26(b)(2)(B) framework for sources that are “not reasonably accessible because of undue burden or cost” is not a get-out-of-jail-free card. If you’re going to claim that a source is inaccessible, you need to identify it specifically during the discovery process and be prepared to show why. Courts treat surprise claims of inaccessibility raised late in discovery with considerable skepticism, and some will order you to produce from those sources anyway at your own cost.
Using the 26(f) Conference Strategically
Most attorneys phone in the Rule 26(f) conference. That’s leaving real value on the table. This is the moment to lock in agreements about ESI formats, custodian lists, and search methodology before disputes arise. Any agreement you reach here can be incorporated into a court order under Rule 16, which gives you enforcement mechanisms that a letter agreement doesn’t.
If you’re on the receiving end of what looks like a scorched-earth discovery strategy, the 26(f) conference is also your first opportunity to signal proportionality concerns and start building the record for a protective order under Rule 26(c). Courts are more sympathetic to protective order motions when you can point to a good-faith effort to resolve the scope issues during the conference. The certification requirement for protective order motions isn’t optional, and judges notice when movants skip the meet-and-confer step.
The practical takeaway on proportionality: use the six-factor framework affirmatively, not just defensively. When you’re seeking discovery, build the proportionality argument into your requests and your motion practice from day one. When you’re opposing it, give the court concrete numbers and specific facts rather than boilerplate objections. That’s what separates discovery motions that get traction from ones that get denied with a one-sentence order.