When litigants think of proportional eDiscovery, often one’s focus is upon the financial burden of the requested discovery (broad search terms, restoring backup tapes, etc.) relative to the amount in controversy and/or the likelihood of unearthing unique, relevant content. In a recent decision, we were reminded that determining what is proportional is not merely a discussion of dollars and cents. Rather, there are six factors critical to a court’s analysis when determining whether a discovery request is proportional or unduly burdensome. 

VoteAmerica v. Schwab (21-2253-KHV-GEB) (June 2, 2022) is a case from the District of Kansas that involved a law, that many believed made it more difficult for not-for-profit entities to participate in voter assistance efforts (i.e., register voters and mail absentee voter applications). Plaintiffs filed suit seeking declaratory and injunctive relief against Defendants for violation of their First and Fourteenth Amendment rights and breach of the dormant Commerce Clause based upon passage of HB 2332. In relevant part, HB 2332 prohibits out-of-state entities or individuals from mailing or causing to be mailed an advance mail ballot application to a Kansas voter. It further bans the mailing of any advance mail ballot application to potential voters that has been personalized with the voter’s personal information.

The eDiscovery dispute arose when the plaintiffs refused to produce information in response to two discovery requests propounded by defendant Schwab that plaintiffs claimed were “irrelevant and overbroad, and … not proportional to the needs of the case.” Defendant moved to compel production.

The particular requests at issue were:

  1. Request No. 12: “All documents that track the number of advance/absentee mail ballot applications that [plaintiff Voter Participation Center] has sent to ineligible or deceased registrants in any state.”
  2. Request No. 13: “All documents referencing, regarding, or involving the receipt of [plaintiff Voter Participation Center] mailers by ineligible or deceased registrants in any state.”

In its efforts to avoid responding to these demands, Plaintiffs argued that the requests were not proportional, because the requests sought information that was not relevant to the “actual issues in this case.” Plaintiffs further claimed to have already “committed to produce numerous categories of similarly irrelevant documents.”

In reaching the merits of the application, the court set forth the operative federal discovery standard – that the discovery must be both relevant and proportional to the needs of the case. Having determined the requested materials to be relevant,[1] the court went on to note that proportionality is determined based upon consideration of the following factors: 1) the importance of the issues at stake in the action; 2) the amount in controversy; 3) the parties’ relative access to relevant information; 4) the parties’ resources; 5) the importance of the discovery in resolving the issues; and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit. 

In reaching its decision to grant in part and deny in part Defendants’ motion, the court performed a thoughtful analysis of the above factors to determine whether the requested materials were proportional to the needs of the case. Ultimately, the Court concluded the requested materials were proportional to the needs of the case and reached this decision after paying particular attention to the public’s interest in the controversy before the court. Specifically, the court stated:

The issues at stake in this case relate to the State’s ability to regulate and ensure fair and orderly elections and to protect from infringement on Plaintiffs’ First and Fourteenth Amendment rights. Proportionality, as it relates to this case is delicate. All are issues this Court finds extremely important, not only to the parties, but to the public at large. And, this Court is aware, this is not a case where Plaintiff has asked for solely monetary damages. The prayer in the Complaint seeks, among other things, declarations and injunctive relief. Nevertheless, 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. …. The information requested by Defendant Schwab in his RFPs, and narrowed by the court, is not information to which he has access; the information can be obtained only from Plaintiff. Finally, the discovery is necessary to resolving the claims and defenses raised, and the benefit of the discovery, as narrowed, outweighs the burden or expense incurred in its production.

And so, while it is tempting to rely upon financial arguments when advocating in favor of or against the proportionality of a discovery demand, we should be mindful there are other considerations that are often compelling to the court.

[1] As a preliminary matter the court determined the requested documents were relevant. And, while the court found the requests, as written, overly broad, the court sua sponte narrowed the scope to eliminate any overbreadth argument.