New Utah Rule 26: A Blueprint for Proportionality in eDiscovery

http://ow.ly/86MhY

An article by Philip Favro posted on the clearwellsystems.com blog e-Discovery 2.0.

This article discusses Utah's Rule 26 civil procedure rule, and outlines the differences between this rule and Federal Rule of Civil Procedure 26.

The article states, "Under the Federal Rules of Civil Procedure, the directive that discovery be proportional is found in Rules 26(c), 26(b)(2)(C) and Rule 26(b)(2)(B). Under Rule 26(c), courts may generally issue protective orders that limit or even proscribe discovery that causes “annoyance, embarrassment, oppression, or undue burden or expense.” More specifics are set forth in Rule 26(b)(2)(C), which enables courts to restrict discovery if the requests are unreasonably cumulative or duplicative, the discovery can be obtained from an alternative source that is less expensive or burdensome, or the burden or expense of the discovery outweighs its benefit. In the specific context of electronic discovery, Rule 26(b)(2)(B) restricts the discovery of backup tapes and other electronically stored information that are “not reasonably accessible” due to “undue burden or cost.”.  Links to the referenced subsections of the rule are provided in the article. The article goes on to point out that definition of "proportionality" is not clear to the Federal courts.

The article goes on to describe the difference in Utah's State Rule, "Utah Rule 26 has changed the permissible scope of discovery to expressly condition that all discovery meet the standards of proportionality. That means parties may seek discovery of relevant, non-privileged materials “if the discovery satisfies the standards of proportionality.” This effectively shifts the burden of proof on proportionality from the responding party to the requesting party. Indeed, Utah Rule 26(b)(3) specifically codifies this stunning change: “The party seeking discovery always has the burden of showing proportionality and relevance.” This stands in sharp contrast to Federal Rules 26(b)(2) and 26(c), which require the responding party to show the discovery is not proportional."  A link to Utah's rule is provided.