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Proportionality in Discovery Disputes: A Year of Changes - Litigation News

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Litigation News

Posted on: Apr 13, 2017

The article below was originally published on the American Bar Association Website, and is written by Hon. Karen L. Stevenson, U.S. District Court for the Central District of California. The article is written from her point of view.

Discovery motions and informal pre-motion telephonic discovery conferences make up a significant part of my weekly calendar as a magistrate judge. The disputes I hear run the whole gamut of discovery problems—improper objections, failures to produce, failure to preserve electronic information, over-designation of confidential documents, overbroad scope of requests, and arbitrarily narrow timeframes selected by the producing party. Many of these disputes are resolved without motion practice after a telephonic conference with the parties. When they can't get resolved informally, discovery motions inevitably follow. These motions can morph into mountains of moving papers and tens of thousands of dollars in legal fees for clients. And that's even before any further production is ordered. Discovery motions are typically labor intensive for lawyers, time consuming for the court, expensive and bothersome for clients. There's one on my desk right now ready to be tackled.

Rarely do I see disputes about discovery requests that are just plain irrelevant, where the information sought has no reasonable relationship to the claims or defenses at issue in the case. Instead, the dispute is almost always about the appropriate scope of discovery. What are the appropriate limits of discovery given the issues at hand? How much is enough? What other responsive information must the other side produce? What happened to the rest of that key email string? Is it really privileged? Is the expense of further production justified based on the damages alleged? Are the disputed requests just a tactic to grind down the other side? Or will producing this information serve the ends of Rule 1, i.e., the just, speedy, and cost-effective resolution of the claims?

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