Significant changes to Federal Rule 26 became effective on December 1st. These expressly incorporate the principle of proportionality in defining the scope of discovery, and track the 2011 amendments to the Utah Rules of Civil Procedure. (Those have met with mixed reviews).
A significant difference is that the Federal Rule 26 does not expressly shift the burden of proving proportionality to the party seeking discovery, as is the case in Utah. Also, there are no “tiers” with presumptive levels of discovery.
As I mentioned back in 2011 when speaking about our new rules, the concept of “proportionality” has been in the rules for many years. All the 2011 amendments did was bring it to the forefront, and change the burden of proving it.
Here’s the link to the new federal rule (be sure to read the Advisory Committee Note). And here’s an excellent article explaining the amendments.
With “proportionality” now in the federal rules’ definition of discoverable matters, we will see law developing on the meaning of that concept that will assist us in Utah discovery disputes. I also expect to see proportionality spread to other states’ rules of procedure. (Minnesota already has it.)
