Extract from Doug Austin’s article “Here’s a New Industry Initiative to Develop a Proportionality Benefit-Burden Model”
Since the 2015 changes to the Federal Rules of Civil Procedure (FRCP), proportionality in eDiscovery has become more emphasized – and rightly so. But the process of balancing benefit and burden to determine what’s proportional has been highly subjective before and since the Rules changes. Here’s a new industry initiative that is looking to develop a model to make the process less subjective and more defensible.
FRCP Proportionality Amendments of 2015
In case you didn’t know (or forgot), the 2015 Amendments to FRCP 26(b)(1) specifies six factors in determining whether the propounded discovery is “proportional to the needs of the case:” 1) the importance of the issues at stake in the action; 2) the amount in controversy; 3) the parties’ relative access to relevant information; 4) the parties’ resources; 5) the importance of the discovery in resolving the issues; and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit.