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.

The scope of discovery is changing from “reasonably calculated to lead to the discovery of admissible evidence” to “proportional to the needs of the case.”