Saturday, June 30, 2018

Proportionality and FRCP 26(b) in patent cases

From the New York Law Journal:

But the burden of ensuring proportionality does not lie solely with the party requesting discovery. Rather, as stated in the advisory committee notes to the 2015 amendments, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (emphasis added).

Citing the advisory committee note, the court in Polaris Innovations Ltd. v. Kingston Technologies Co., No. 16-cv-00300, 2017 WL 3275615 (C.D. Cal. Feb. 14, 2017), rejected the premise that (i) the requesting party “alone had to establish proportionality,” and (ii) that its motion to compel failed “simply because [the requesting party] did not fully and explicitly address proportionality.” Id. at *6



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