Clients believe e-discovery costs have run amok and litigators fear that, unless something changes, clients will no longer view litigation as an effective way to resolve disputes. Are the recent amendments to Federal Rule of Civil Procedure 26 the answer to practitioners’ and clients’ pleas for a practical approach to e-discovery? Is the requirement that discovery be proportionate to the dispute a new weapon in the war to control discovery costs? Or has proportionate discovery been a component of Rule 26 for decades?
For years, litigators have possessed the ability to require that discovery be proportionate to the importance of the issues at stake in the action, the amount in controversy, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit; but the proportionality requirement has been largely under-utilized. Perhaps now, with a newly revised Rule 26, the bench and bar will enforce proportionality and return to the practice of permitting the merits of a case to control a client’s decision to litigate.
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