Michael C. Zogby, partner and co-chair of the Products Liability and Mass Tort Group, Florham Park associate Jessica L. Brennan, and San Francisco associate Jacqueline M. Simonovich published an article in the DRI’s For the Defense entitled “Navigating Proportionality in Discovery.” The 2015 amendments to Federal Rule of Civil Procedure 26(b)(1) emphasized that discoverable material must not only be relevant, but also be “proportional to the needs of the case.” This article examines how litigants can utilize this renewed focus on proportionality to reduce costs and improve efficiencies in discovery. The authors provide practical tips for litigants at each stage of the discovery process, from building a preservation plan to identifying relevant custodians and data repositories, to opposing motions to compel while focusing on the costs and burdens of discovery demands.
Mike, Jessica, and Jacqueline also discuss recent decisions interpreting each party’s burden when a party brings a motion to compel discovery. While the party resisting discovery must show that the requested discovery is not proportional, some courts have also suggested that the party seeking discovery must show that its request is proportional. They also discuss the concept of proportionality as it relates to the discovery of confidential information and documents or data located outside of the United States.
Read Navigating Proportionality in Discovery. (Subscription required)