The Law and Economics of Proportionality in Discovery

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