Proportionality Cuts eDiscovery Costs
January 28, 2012
There is no question that eDiscovery has gotten expensive and collateral discovery disputes are on the rise. In response to this trend, the concept of proportionality is being emphasized. Existing provisions are often bypassed and numerous are in support of an amended federal rule regarding proportionality. In fact, an amended rule is already in place in Utah. An interesting article titled “New Utah Rule 26: A Blueprint for Proportionality in eDiscovery” tells us more. The article informs us:
Utah Rule 26 has changed the permissible scope of discovery to expressly condition that all discovery meet the standards of proportionality. That means parties may seek discovery of relevant, non-privileged materials “if the discovery satisfies the standards of proportionality.” This effectively shifts the burden of proof on proportionality from the responding party to the requesting party. Indeed, Utah Rule 26(b)(3) specifically codifies this stunning change: ‘The party seeking discovery always has the burden of showing proportionality and relevance.’
Utah Rule 26 could be a potential model for implementing a federal rule and make proportionality the standard governing eDiscovery. The new federal rule based on this blueprint could be amended to expressly condition discovery on meeting the principles of proportionality. This could drastically lower the costs surrounding eDiscovery. On the other hand, when clients pay, advisors bill. Ultimately clients have to manage legal fees, proportionality or not.
Andrea Hayden, January 28, 2012
Sponsored by Pandia.com
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