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Cooperation and proportionality have been explicitly or implicitly required by the Federal Rules of Civil Procedure (FRCP) for decades yet have been conspicuously missing from practice. Despite the fact that discovery was intended to be managed by the parties, judicial, instead of party, management of discovery, has become the norm and voluntary party cooperation often the exception. A variety of factors, including decreased corporate legal budgets, an overburdened Judiciary and federal budget sequestration, are turning the tide toward an increased focus on ways to encourage proportionality and force litigants to cooperate in the implementation and execution of discovery in federal civil litigation. For example, courts have increased their enforcement of existing rules and enacted local rules designed to encourage cooperation and proportionality. Academic publications and seminars, likewise, offer guidance on discovery practices designed to decrease the cost of litigation. More recently, Congress has promulgated proposed amendments to the FRCP that would put further limits on discovery. The nirvana state where a fair result can be litigated at a fair price may remain elusive, but in some courts, such as the Northern District of California, dreams are turning into action.

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