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"Practical considerations for litigating proportionality" by Elizabeth E. McGinn, Scott T. Sakiyama, and Brian W. Bartholomay (Law360)

Law360

Elizabeth E. McGinn, Scott T. Sakiyama, Brian W. Bartholomay

After years of discussion regarding how the rules of discovery might be improved, amendments to the Federal Rules of Civil Procedure became effective on Dec. 1, 2015. One of the more prominent amendments involved FRCP 26(b)(1), which was updated to allow discovery of relevant, nonprivileged information so long as such discovery is “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.”

In some ways, the amended rules simply recognize that in ruling on discovery issues courts have always had to understand and address the burdens associated with discovery of relevant information. However, by incorporating an explicit requirement that discovery must be “proportional to the needs of the case” and describing pertinent factors to be considered in assessing proportionality, the amended rules, leading up to the effective date of the amendment, garnered much speculation as to their impact on courts’ decision-making processes when addressing discovery. Now that the amended rules have been implemented for over two years, several themes have emerged regarding how practitioners might prepare for discovery disputes regarding proportionality and advocate more effectively for their clients.

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Originally published in Law360; reprinted with permission.

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