University of Denver

Significant Efforts To Implement Proportionality in Discovery Continue

Senior Director

When significant amendments to the Federal Rules of Civil Procedure went into effect last December, we celebrated this important achievement but also stressed that how the rules were implemented would be key to seeing a positive impact. The importance of how the amendments are being implemented has not been lost on the bench and bar. In fact, it has been the focus of 2016.

While the rule amendments highlight the importance of cooperation and early, active case management, the focus has been on the addition of proportionality to the scope of discovery and spoliation under new Rule 37(e). Important case law has been developed in both areas. There are a number of wonderful resources available that summarize this case law, as well as resources that focus on continuous improvement of the discovery process:

Federal courts are not the only ones focused on implementing rule changes to achieve greater proportionality in discovery. Leading states have taken up the charge of civil justice reform, and several have revised their rules to include proportionality in the scope of discovery. Arizona continues to be at the forefront, having adopted this month rule amendments that incorporate proportionality into the scope of discovery under Rule 26(b)(1)(A) and a new Rule 37(g) that addresses failure to preserve electronically stored information. Like the federal Rule 37(e), Arizona’s Rule 37(g) recognizes the importance of reasonable steps to preserve. Arizona’s Rule 37(g) also sets the standard of reasonable anticipation and includes factors a court should consider when determining if a party took reasonable steps.

These significant efforts reflect a true commitment to improving our civil justice system at the state and federal levels.