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Case shelved under Proportionality

Public Interest Key Factor in Recent Proportionality Ruling

VoteAmerica v. Schwab
D. Kan. June 2, 2022
Why This Case Is Important

When making production requests, your request should be narrowly tailored to the circumstances surrounding the case. Usually, the amount in controversy is the deciding factor on whether the request is proportional or unduly burdensome, but this case shows that the public interest also can play a big role in the court’s proportionality analysis.


This case involved mailings by the defendants to citizens outside the state of Kansas, which the plaintiffs alleged were in violation of the First and Fourteenth Amendments to the Constitution. The e-discovery dispute arose when the plaintiffs refused to produce information in response to two requests that they believed were “irrelevant and overbroad, and they are not proportional to the needs of the case.”

The defendant’s requests in dispute were:
1. "All documents that track the number of advance/absentee mail ballot applications that VPC [plaintiffs] has sent to ineligible or deceased registrants in any state."
2. “All documents referencing, regarding, or involving the receipt of VPC [plaintiffs] mailers by ineligible or deceased registrants in any state."

The plaintiff argued that the requests were not proportional, due to their not being relevant to the “actual issues in this case.” Additionally, the plaintiffs stated they had already “committed to produce numerous categories of similarly irrelevant documents.”

  • Granted and Denied in Part. The court helped the parties resolve their disagreement around the terms of the production requests by making the requests more specific to a smaller set of data. Thus, the court granted the defendants’ request to produce, but added the words “partially prefilled or personalized” to narrow the scope of the production.
  • Proportionality Extends Beyond Amount in Controversy. Since the Plaintiffs weren’t asking for solely monetary damages, and the issues at stake relate “to State's ability to regulate and ensure fair and orderly elections,” the court carefully conducted its proportionality analysis. This led the court to conclude, “the importance of determining the First and Fourteenth Amendment Rights of Plaintiff as weighed against the right of the State to ensure its elections are honest and orderly, from a proportionality standpoint, far outweighs the limited fiscal amount in controversy.”
  • Plaintiffs Arguments Not Adequate. The court ruled that the plaintiffs’ arguments about the requests having “no bearing on the actual issues in this case” are not proportionality arguments, but relevance arguments.
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Legal Analysis
On VoteAmerica v. Schwab
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

The court cited precedent that discovery is relevant unless “it is clear the information can have no possible bearing” on the parties claims or defenses. Given the public interests in voting rights and election issues, the court concluded that discovery here should not be restricted based on proportionality considerations.

David Cohen's Bio
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