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H. Christopher Boehning & Daniel J. Toal H. Christopher Boehning & Daniel J. Toal

The 2015 amendments to the Federal Rules of Civil Procedure represented an evolution in the law and practice of electronic discovery. Commentators and courts alike paid particular attention to the new sanctions law of Rule 37(e) and the restoration of proportionality to the scope of discovery in Rule 26(b)(1). The amendments, though, also included a key change to Rule 26(c)(1)(B) relating to allocation of expenses for discovery, more commonly known as cost-shifting. That change expressly confirmed the authority of federal courts to shift costs to protect parties from undue burden or expense.

The amendment to Rule 26(c), however, is not without limitation. The corresponding Advisory Committee Note cautions that “[r]ecognizing the authority does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.”

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