Proportionality Ruling Raises Concerns About Rule 26 Change
Law360, New York (February 5, 2016, 11:27 AM EST) -- Among the most controversial of the Federal Rules amendments that took effect on Dec. 1, 2015, were changes to Rule 26 elevating the requirement that discovery be "proportional" to the needs of the case from a safety valve preventing abusive discovery to a limitation on the scope of discovery itself. During the drafting process leading to the recent amendments, some participants expressed concern that the relocation of the proportionality provisions might be interpreted as placing a burden on the requesting party to demonstrate the proportionality of the discovery it seeks.[1] A recent decision issued by Magistrate Judge Paul S. Grewal in Gilead Sciences Inc. v. Merck & Co. Inc., et al., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016), denying Merck's motion to compel discovery on the ground of proportionality, indicates that these concerns may indeed come to fruition....
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