Behrens and Appel Explain States’ Proportional Discovery Adoption

Shook Partner Mark Behrens and Of Counsel Chris Appel have authored “States Are Embracing Proportional Discovery, Moving into Alignment with Federal Rules” for the Washington Legal Foundation’s Legal Opinion Letter. “At least 15 states and the District of Columbia have updated their state court civil discovery rules to more closely align with December 2015 amendments to the Federal Rules of Civil Procedure,” Behrens and Appel explain. “Perhaps the most significant change redefines the scope of discovery from any information ‘reasonably calculated to lead to the discovery of admissible evidence’ to discovery that is ‘proportional to the needs of the case.’”

“The federal proportionality concept is well on its way to becoming the majority rule in the states along with the authority of courts to enter protective orders to shift the cost of overly burdensome discovery to requesters,” Behrens and Appel conclude. “Other states should consider following the lead of the pioneering states that have adopted the proportionality concept and other key provisions of the current federal civil rules. Widespread adoption of reforms will curb discovery abuse and harmonize federal and state civil court rules.”