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In a perfect litigation world, parties would operate in good faith, draft reasonable discovery requests, answer requests completely and thoroughly, cooperate throughout the meet and confer process, and discovery would flow seamlessly. The real litigation world, however, does not usually follow this pattern. In December of 2015, the amended FRCP Rule 26(b)(1) sought to address the burdens associated with preservation and production by emphasizing proportionality and defining the scope of discovery. This article addresses the concept of "proportionality" and analyzes a recent case from the United States Disctrict Court, District of Columbia, which specifically addresses each proportionality factor.

Recently, I began work on a complex litigation case that had millions of documents to review with many moving parts and quick deadlines that made completing assignments daunting, to say the least. We determined that simply running targeted searches to find this evidence was not the best approach, in part because the issues were broadly defined and had multiple subparts, and in part because of the sheer number of documents in the database (over 2.5 million records). As an alternative, we decided to utilize technology assisted review or “TAR” (also known in the industry as predictive coding). What follows is my impression of the tool.

Two of the most compelling discovery sanction cases of the past year are Klipsch Group., Inc. v. ePRO E-Commerce Ltd. and Ronnie Van Zant, Inc. v. Pyle, both decided in the Second Circuit. In the first, the court awarded $2.68 million in discovery sanctions in a case valued at a mere $20,000. In the second, the court issued an adverse inference when a defendant failed to preserve text messages held by a non-party. The implications of both decisions appear far-reaching and critically important for those involved in the discovery process.