November 30, 2017 Articles

How to Achieve the Mandate of Proportionality Through Phased Discovery

Read about cases that demonstrate the benefits and flaws of this tool

By Robert E. Sumner IV and Charles R. Scarminach

In the modern age of electronic discovery, it is easy to miss the forest for the trees. Whether it be through interrogatories, production of documents, or depositions, even the simplest of matters can quickly become discovery nightmares if the parties lose sight of the end goal: the discovery of relevant facts. In 2015, in an effort to refocus the litigation process, the U.S. Supreme Court amended the scope of discovery to clarify that information is discoverable if it “is relevant to any party’s claim or defense and proportional to the needs of the case. . . .” Fed. R. Civ. P. 26(b)(1). The 2015 advisory committee note further declared that “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” An effective tool that litigators can use to comply with the committee’s mandate is phased discovery.

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