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Litigation: Proportionality in discovery proposals for amendments to Federal Rules of Civil Procedure

Article #3 in a six-part series discussing the proposed amendments to the Federal Rules of Civil Procedure

For those who closely follow the law and literature about electronic discovery, “proportionality” is a word and concept that has great significance. Until the current proposed rule changes, however, the “P” word did not appear in the rules but was understood to comprise the factors enumerated in existing Rule 26(b)(2)(C)(iii) — sometimes known as a cost-benefit analysis — that a court must use when it considers whether to limit the frequency or extent of discovery, namely that: “[T]he burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Several proposed amendments seek to promote proportionality in discovery by directly amending the scope of discovery, promoting clearer responses to Rule 34 requests for production, reducing the presumptive limits on the number of depositions and interrogatories, adding a limit to the number of requests for admission, and explicitly recognizing the authority to allocate expenses in discovery.

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Cynthia Courtney

Cynthia Courtney is the current assistant attorney general for the state of Connecticut. She was formerly vice president discovery engineering and general counsel at D4....

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Contributing Author

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Peter Coons

Peter Coons is senior vice president, Strategic Initatives for D4, LLC.

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