Everything in Moderation: Proportionality in Discovery

whitepaper

Summary

For discovery, the two most significant amendments to the Federal Rules of Civil Procedure (“FRCP”) of the last two decades occurred in 2006 and 2015. The 2006 amendments marked the official dawn of the age of eDiscovery, incorporating references to electronically-stored information into the rules and their comments. The 2015 amendments revised, among other things, FRCP 26(b)(1), which defines the scope of discovery. The change brought the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era. In general, courts responded to this change by increasing their focus on proportionality and beginning to treat it as a fundamental requirement for obtaining discovery, on par with relevance.

In this Whitepaper

The origin of the proportionality requirement
The six key factors courts consider
Guidance from The Sedona Conference

Key Insights

The importance of non-monetary factors in assessing proportionality
The role of ESI protocols in resolving proportionality disputes
The need to argue proportionality with specificity and supporting evidence

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About the Author

Matthew Verga is an attorney, consultant, and eDiscovery expert proficient at leveraging his legal experience, his technical knowledge, and his communication skills to make complex eDiscovery topics accessible to diverse audiences. A fifteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level, from the project trenches to enterprise program design. As Director of Education for Consilio, he leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

Matthew Verga, Esq.

Director of Education

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