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

A major theme of the discovery-related 2015 amendments to the Federal Rules of Civil Procedure was the reintroduction of proportionality as a core aspect of the permissible scope of discovery. As amended, Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery, providing, “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Since then, many courts have embraced proportionality, often as part of promoting a reasonable, cost-effective discovery process in line with the Federal Rules.

Over the same period, parties—often encouraged by courts—have made it a standard practice to develop and agree to protocols governing the process for discovery of electronically stored information (ESI), with such ESI protocols ranging from short specifications of the technical production format to complex agreements detailing how each party will search, review, and produce information. When later challenged, courts have often ruled that, especially when formalized as court orders, ESI protocols are controlling as to the conduct of discovery for the matter.

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