Newly amended Rule 26 of the Federal Rules of Civil Procedure (FRCP), in effect as of Dec. 1, 2015, explicitly calls for parties to engage in “proportional” discovery commensurate with the needs of the particular case. Just as we did last month with respect to amended Rule 37(e) (see LTN Signal and Noise column, December 2015), let’s here consider the interplay between the newly revised Rule 26 and what constitutes smart corporate information governance, both in anticipation of litigation as well as during a lawsuit’s discovery phase.
In a nutshell, the principal drivers of the 2015 amendments were continuing concerns about litigation taking too long and costing too much, and that specifically with respect to discovery, costs are in many instances substantially disproportionate to the stakes at issue and the needs of the particular case. Out of more than 2,100 comments received on the proposed amended rules, a substantial number emphasized the fact that responding parties in litigation are forced to “overpreserve” information to meet e-discovery demands. It wasn’t therefore much of a surprise that a report out of the American College of Trial Lawyers (ACTL) stated its conclusion this way: “Proportionality should be the most important principle applied to all discovery.”
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