Amendments to the Federal Rules of Civil Procedure (the Rules) are expected to go into effect on Dec. 1, 2015. One of the most anticipated changes for civil litigators is the codification of the “proportionality” standard (in which cost and burden are weighed against the importance and value of the case, among other factors) in the amendments to Rule 26(b)(1), which governs the scope of discovery. Proportionality—described only two years ago by one federal judge as “an all-too-often ignored discovery principle”—will soon be one of the primary considerations in defining the scope of discovery.1

But the standard is not entirely novel. Over the last decade, federal trial courts—including those in the Second Circuit—have invoked the principle of proportionality to limit the scope of discovery, often in response to arguments of cost- and time-burden. Those decisions provide guidance for the near-future application of the revised rule and may also suggest greater acceptance of a litigant’s use of technology, such as predictive coding or related analytics, to effect proportionality between a litigation’s value and its costs by streamlining and controlling the costs of electronic discovery. And, although the amendments are not slated to take effect until December, some courts have already moved away from the existing “reasonably calculated” standard to apply the “proportionality” standard—demonstrating how the amendment may impact discovery going forward.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]