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Case Law Alert: Microsoft’s Proportionality Argument Rejected--Find Out Why

Created on January 18, 2019

E-Discovery Market Analyst at Exterro

Corel Software v. Microsoft (D. Utah Oct. 5, 2018) demonstrates that when information is relevant to the claims and defenses in a case, strong evidence must be used to support an argument against the production of this relevant information.


In this infringement dispute between two software companies, the defendant, Microsoft, sought a protective order “barring further retention and production” of Telemetry Data based on it being “infeasible because of its size.”

Microsoft claims that producing this data would be “highly burdensome” and thus disproportionate under Rule 26(b)(1) due in part to GDPR obligations that regulate the Telemetry Data, requiring additional measures to anonymize it that would make its retention and production “technically challenging and cost prohibitive.”

Conversely, Corel argues that the production of such Telemetry Data is necessary due to its relevance to the “infringement, damages and validity” of its claim. Corel further supports its position by asserting that (1) Microsoft never proved their alleged “undue burden” and (2) the data requested is confined to that relevant to the dispute.


  • Microsoft’s argument rejected. Since the information in question is “directly relevant to the claims and defenses in this case,” and after weighing the proportionality factors in Rule 26(b)(1), the court rejects Microsoft’s request for a protective order.
  • Conceded relevance of Telemetry Data. The court notes that “Microsoft has not disputed the relevance of… Telemetry Data or information concerning its deletion and, based upon Microsoft’s prior production to some Telemetry Data, Microsoft essentially concedes its relevance.”
  • Proportional to produce Telemetry Data. When analyzing the circumstances surrounding the case and the proportionality factors, the court specifically mentioned that the data’s relevance and “Microsoft’s resources…weigh against a finding that production of the information sought…is unduly burdensome.”

Expert Analysis from David R. Cohen, Esq., Chair of the E-Discovery Group, ReedSmith

Parties objecting to producing otherwise relevant information may face an uphill battle to establish disproportionality, particularly when the objecting party is deemed to have substantial resources, the information may be highly probative, and/or the objecting party fails to support its proportionality and burden arguments with affidavits or other specific evidence.

Case Law Tip:

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