In recognition of the fact that oppressive and overly burdensome discovery requests run contrary to securing “the just, speedy, and inexpensive determination of every action and proceeding,” Rule 26 of the Federal Rules of Civil Procedure was amended in 2015 to emphasize a pre-existing but often overlooked requirement, namely that parties may only obtain discovery that is “proportional to the needs of a case.” Perhaps nowhere was this emphasis more appropriate than in patent infringement cases, which have potentially high discovery costs, often driven by extensive e‑discovery only marginally relevant to core infringement and validity concerns. Indeed, it is well documented that non-practicing entities (who typically possess far less discoverable information than the accused infringer) often seek to “weaponize” asymmetric discovery as a settlement driver.

Given this perceived overuse of discovery, one may have anticipated significant motion practice directed to this issue, however a review of case law post-dating the 2015 Federal Rule amendments reveals a surprisingly low number of such decisions. This lack of case law could result from addressing the proportionality requirement during the meet-and-confer process and discovery conferences in a way that never matures into motion practice, but it is also possible that the proportionality requirement remains under-utilized by patent litigants.