The Law and Economics of Proportionality in Discovery

29 Pages Posted: 20 Jan 2015 Last revised: 25 Feb 2017

See all articles by Jonah B. Gelbach

Jonah B. Gelbach

University of Pennsylvania Law School

Bruce H. Kobayashi

George Mason University - School of Law

Date Written: 2016

Abstract

This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard 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.

Keywords: Proportionality, discovery, litigation, law and economics, civil procedure

JEL Classification: K00, K41

Suggested Citation

Gelbach, Jonah B. and Kobayashi, Bruce H., The Law and Economics of Proportionality in Discovery (2016). Georgia Law Review, Vol. 50, P. 1093, 2016; U of Penn, Inst for Law & Econ Research Paper No. 15-1; George Mason Law & Economics Research Paper No. 15-02. Available at SSRN: https://ssrn.com/abstract=2551520 or http://dx.doi.org/10.2139/ssrn.2551520

Jonah B. Gelbach (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Bruce H. Kobayashi

George Mason University - School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

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