Are the FRCP 26 Proportionality Amendments Effective?

Discovery protocol, most especially in relation to Federal Rule of Civil Procedure 26 (FRCP 26) has generated intense discussion and debate with regard to potential consequences from amendments as well as the rule itself. According to Patricia W. Moore, in her piece, Discovery Protocol Results in More Settlements, Fewer Motions to Compel the Federal Judicial Center published the results of a pilot study on initial discovery protocols in employment cases. The specific details of how the study was designed and implemented can be found here.  Approximately 75 judges implemented the protocols and the study was based on their experiences.

According the FJC: “The Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the F.R.C.P. is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Protocols are accompanied by a standing order for their implementation by individual judges in the pilot project, as well as a model protective order that the attorneys and the judge can use [as] a basis for discussion.”

Moore writes “In my opinion, the pattern discovery approach should be pursued in more types of cases.  Having experienced attorneys on both sides negotiate protocols to produce the types of documents and information repeatedly sought in discovery in a particular kind of case represents a far more sensible, concrete, and helpful approach to improving discovery than the adoption of a vague ‘proportionality’ standard.”

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