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This Article focuses on pending amendments to Rule 26(b)(1), the scope-of-discovery provision in the Federal Rules of Civil Procedure. Proposed Rule 26(b)(1) would authorize parties to obtain discovery of “any non-privileged matter that is relevant to any party’s claim or defense” if that information is also “proportional to the needs of the case,” based on enumerated proportionality factors – “the importance of the issues at state in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” The Article contends that the proposed proportional discovery amendment, combined with other proposed amendments to Rule 26(b)(1), completes the move, in the federal courts, from a default philosophy of liberal discovery to a landscape in which there is no default or guiding principle, save for an open-ended appeal to proportionality. Proposed Rule 26(b)(1) promotes proportionality but lacks the normative guideposts that could instruct proportionality decisions, defaulting instead to a balancing process that provides minimal guidance on priority among factors or the weight to be accorded factors. The Article observes that the policymaking required of judges to determine the permissible scope of discovery under the proposed proportionality standard is at the boundaries of the institutional competence of the federal courts, at variance with the separation of powers instinct and requirement of the Rules Enabling Act, and may decrease the deference due to substantive law under the Erie doctrine. The Article reaches three conclusions regarding implementation of the pending proportionality standard. First, in making decisions regarding proportional discovery, judges should further the normative preferences of Congress and other lawmakers in cases involving favored statutory claims and should also further rights otherwise recognized in the substantive law. Second, judges should articulate the rationale underlying their proportionality decisions in order to, inter alia, promote development of the law regarding proportionality in discovery; enhance appellate review of proportionality decisions; and provide the necessary flexibility for proportionality decisions, while revealing the extent of court adherence to normative preferences of Congress and other lawmakers. Third, the federal rulemakers should revisit the issue of proportionality in discovery and (1) provide greater guidance regarding application of the proportionality factors or (2) create a general set of discovery procedures applicable in most cases and supplement those general procedures with substance-specific protocols for selected substantive claims.

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The Review of Litigation



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