The increased focus on protecting personal privacy may pose a new challenge to the bounds of e-discovery in U.S. litigation as courts reconcile whether and how new data protection laws apply to a litigant’s obligation to produce relevant information.
Discovery in the U.S.
Traditionally, U.S. litigation has favored broad civil discovery, permitting litigants a wide berth to explore the factual underpinnings of their cases. Until its amendment in 2015, Federal Rule of Civil Procedure 26(b)(1) was read to empower litigants to obtain discovery with respect to any non-privileged matter provided it generally was “relevant” to a party’s claim or defense. However, partially in response to the burden associated with the exponential growth of electronic discovery, this rule as amended now underscores that discovery not only be relevant, but also “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Some state rules, including in New York’s Commercial Division, have followed suit by emphasizing proportionality in discovery.
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