Good, Better, Best: a Tale of Three Proportionality Cases – Part Two

http://ow.ly/ajeFN

An article by Ralph Losey, Esq. on his blog e-Discovery Team®.

This article is part 2 in a series, and provides a link to part 1.  The article looks at specific cases in which proportionality of the discovery requests was an issue being raised during the litigation.  The article states, "Compared to I-Med Pharma andU.S. ex rel McBride, DCG Systemsis the best of the lot. DCG Sys., Inc. v. Checkpoint Techs, LLC, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011) It is better than the rest because of timing. The issue of proportionality of discovery was raised in DCG Systems at the beginning of the case. It was raised at the 26(f) conference and 16(b) hearing as part of discovery plan discussions. That is what the rules intended. Proportionality protection requires prompt, diligent action."

The author further states, "A key lesson of these three cases is that timing is everything. Consider proportionality from the get go, and remember that it is not only based on the protective order rule, 26(b)(2)(C), it is based on the rule governing a requesting party’s signing a discovery request. I am talking about the Rule 11 of discovery, Rule 26(g)(1)(B)(iii)..."

The article goes on to provide a discussion of the model patent order.  In addition, the article looks at other resources regarding the topic of proportionality, and looks at other precedent case law as well.