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Case shelved under Proportionality

Court Rules 3 Million Email Production Request Unreasonable

Nece v. Quicken Loans, Inc.
M.D. Fla. February 27, 2018
Why This Case Is Important

While not the only or even most important factor in determining if a discovery request is unduly burdensome, the amount in controversy plays a key role. Ensure that the cost of e-discovery requests is proportional to the amount in controversy, or risk your motion failing.


In this class action case about unwanted phone solicitations, the plaintiff moved to compel production that would require the defendant to review at least 3 million emails.

The plaintiff requested the defendant produce any kind of communication from a proposed class member along with any communication “revoking consent for Defendant… to contact that consumer.” This request was not limited to a specific time period.


Motion to Compel Denied.
Citing the proportionality principle, the court ruled that plaintiff’s requests “impose on [the Defendant] a burden disproportional to the needs of this action.”

Limited Amount of Damages. The TCPA, the regulation that was allegedly violated, provides $500 in damages per violation, limiting the amount of damages well below the billions of dollars the plaintiff contended.

No Reasonable Alternative Presented. The defendant failed to offer any alternatives to the plaintiff when negotiating discovery terms. The court noted that “a reasonable sample” may have solved this dispute. 

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Download the PDF version of Nece. v. Quicken Loans, Inc. case analysis here.

Legal Analysis
On Nece v. Quicken Loans, Inc.
Anne Bentley McCray, Partner - McGuireWoods LLP
Anne Bentley McCray, Partner - McGuireWoods LLP

It is truly refreshing to see disproportionality properly applied to limit discovery, even if it did take several appeals to get there. However, disproportionality in this case turned in large part on the court’s apparent skepticism regarding plaintiff’s ability to certify a class. Without a class, the damages in the case would be limited to $500 per call to this plaintiff, or about $6000. As such, requiring the defendant to expend over 15,000 hours to review millions of emails was clearly disproportionate to the needs of the case. Had the plaintiff successfully certified a class, the result here may have been quite different.

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relevant resource
Case Law Tip: Clearly understand how to leverage the new FRCP e-discovery rules, including proportionality, by reading FRCP & E-Discovery: The Layman’s Guide.
FRCP & E-DISCOVERY: The Layman's Guide PDF
FRCP & E-DISCOVERY: The Layman's Guide PDF
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