On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;The decision by Judge Lee Rosenthal in Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010) demonstrates that the Federal Judiciary is now waking up and using proportionality to determine what is reasonable and acceptable in preservation and discovery conduct.
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (FRCP Rule 26(b)(2)(C))
Additionally, Judge Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662 (D. Md. Sept. 9, 2010) stated "courts have tended to overlook the importance of proportionality in determining whether a party has complied with its duty to preserve evidence in a particular case, this should not be the case because Fed. R. Civ. P. 26(b)(2)(C) cautions that all permissible discovery must be measured against the yardstick of proportionality."
As Judge Waxse recently stated “we don’t need to change the rule; we need to start using the rule."
No comments :
Post a Comment