The Law and Economics of Proportionality in Discovery

Authors

Jonah B. Gelbach, University of Pennsylvania Law School
Bruce H. Kobayashi, Antonin Scalia Law School, George Mason University

Publication Date

2016

Abstract

This Article analyzes the proportionality standard in discovery. Many believe the renewed emphasis on this standard contained in the 2015 Amendments to the Federal Rules of Civil Procedure has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard requires both difficult-to-answer positive questions and unavoidably normative judgments.

Recommended Citation

Gelbach, Jonah B. and Kobayashi, Bruce H. (2016) "The Law and Economics of Proportionality in Discovery," Georgia Law Review: Vol. 50: No. 4, Article 4.
Available at: https://digitalcommons.law.uga.edu/glr/vol50/iss4/4