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 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.
Download the PDF version of Oxbow Carbon & Minerals LLC v. Union Pacific R.R. case analysis here.