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ARTICLE · 22 DECEMBER 2015

No Panacea: Proportionality Under New Rule 26(b)

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On December 1, very significant changes to the Federal Rules of Civil Procedure went into effect. After nearly five years of work and debate, the new rules have debuted with both fanfare and trepidation.

United StatesLitigation, Mediation & Arbitration
Valerie Diden Moore
Valerie Diden Moore
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On December 1, very significant changes to the Federal Rules of Civil Procedure went into effect. After nearly five years of work and debate, the new rules have debuted with both fanfare and trepidation. One of the most interesting changes is the incorporation of "proportionality" in Rule 26(b).

In drafting the new Rule 26(b), the Committee moved five proportionality factors (that had been all but buried in a subsection) front and center and added a sixth factor. The Committee Note states that courts were not using the proportionality limitations as originally intended and noted their intent to "emphasize the need for active judicial use of [the proportionality factors] to control excessive discovery."

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