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Case Law Alert: Not Addressing All 6 Proportionality Factors Leads to Failing E-Discovery Defense

Created on February 16, 2018

E-Discovery Market Analyst at Exterro

When making a proportionality argument it is imperative to address each proportionality factor. If you fail to address each factor, the court may rule against you, since all factors are weighed equally against each other. In Oxbow Carbon and Minerals LLC v. Union Pacific R.R. (D.D.C. September 11, 2017), the plaintiffs failed to address proportionality factors beyond cost, and the court ruled against them.


In this antitrust case, the defendants requested the plaintiffs produce “all documents belonging to their CEO,” which the plaintiffs refused based on the production being “unduly burdensome and disproportionate to any value the documents might possess to Defendants in this litigation.”

Even with much disagreement over the relevancy and proportionality of the plaintiffs’ CEO’s records, the two sides came to an initial agreement to take a random sample of the records based on an agreed set of search terms. Out of 82,600 documents, 10% of the documents were used in the sample with 11.67% deemed responsive.

The two sides interpreted the results very differently. The plaintiffs believed the sampling re-confirmed their theory that the production of all the CEO’s records would be unduly burdensome and of little value, while the defendants argued that the plaintiffs’ new unwillingness to renegotiate search terms and the large amount in controversy had led them to file a motion to compel production.


  • Motion to Compel Granted. The court weighed all six proportionality factors and ruled that adding the plaintiff’s CEO’s records would not be unreasonable in light of the facts of the case.
  • Plaintiffs Only Addressed One Proportionality Factor. Within the court’s opinion, the court sided with the defendant on the first five proportionality factors. A reason for this could have been that the plaintiff never addressed any other proportionality factor outside the cost/benefit factor of complying with the defendants’ request.
  • Cost/Benefit Factor Weighs in Favor of Defendants. 65,000 documents were left to review after the prior sampling of the CEO’s records occurred. Based on the amount already spent on discovery and the amount in controversy in this case, the court ruled that the cost to review these documents should not preclude the defendants’ production request.

For more insight into how to improve your e-discovery practices by leveraging proportionality, download Part 2 of the 2018 Federal Judges Survey today!