The New Proportionality Standard Under Rule 26(b)(1) or Is It New?

In 2015, the Colorado Supreme Court considered significant changes to the Colorado Rules of Civil Procedure. The Court considered and adopted one change to the scope of discovery under C.R.C.P. 26(b)(1) that defines the scope of discovery as:

…any matter, not privileged, that is relevant to the claim or defense of any party and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

C.R.C.P. 26(b)(1) (effective July 1, 2015, for cases filed on or after this date). The Federal Courts adopted a similar proportionality standard in defining the scope of discovery under F.R.C.P. 26(b)(1) that became effective as to all pending cases on December 1, 2015.

The proportionality standard first appeared in F.R.C.P. 26(b)(1) in the 1983 Amendment and sought to address abuses of the discovery process. The 1983 Amendment also added a certification requirement that included a certification that the discovery sought complied with the proportionality requirements. See F.R.C.P. 26(g). However, the proportionality standard in F.R.C.P. 26(b)(1), through the course of several amendments found its way to F.R.C.P. 26(b)(2)(C), with an indication in F.R.C.P. 26(b)(1) that “discovery is subject to the limitations imposed by Rule 26(b)(2)(C).”

Similarly, prior to the 2015 amendments, the proportionality standard under the Colorado Rules could be located in C.R.C.P. 26(b)(2)(F)(iii) which indicated that courts apply the proportionality standards when determining good cause to modify the limitations imposed under subsection (b)(2). The limitations referenced in 26(b)(2) provided the presumptive number of depositions and written discovery requests that a party could serve. As such, C.R.C.P. 26(b)(2)(F)(iii) addressed applying the proportionality standard to the modifications of the number of depositions and written discovery requests provided for in (b)(2) and did not address the scope of discovery defined in C.R.C.P. (b)(1). However, C.R.C.P. 26(g) required, like the Federal Rules, a certification that the discovery sought complied with the proportionality requirements.

Because both C.R.C.P. 26(g) and F.R.C.P. 26(g) require, and have required, that the attorney serving the discovery certify that the request is proportional for decades, the proportionality standard is not new and has governed the scope of discovery.

So, why the move? As was noted by the Advisory Committee on the Federal Rules of Civil Procedure when considering the inclusion of the proportionality standard within the scope of discovery, “[t]his change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections.” Additionally, the Advisory Committee recognized the original inclusion of the proportionality standards sought to encourage greater judicial involvement in the management of cases. The significant changes made to the Colorado Rules of Civil Procedure in 2015 reflect the Colorado Supreme Court’s desire to encourage greater judicial involvement in the management of civil cases in order to promote the “just, speedy, and inexpensive determination of every action.” See Cmt. 2 to C.R.C.P. 1 (2015).

 ¹ Both the Federal Rule and the Colorado Rule have included an additional factor to be considered in determining the permissible scope of discovery.  Specifically, both rules now require the parties to consider “the parties’ relative access to relevant information.”