From Rule Text to Reality: ACHIEVING PROPORTIONALITY IN PRACTICE

Good case management allows the judge to rule on disputed discovery issues fairly, efficiently, and promptly, sparing the judge the need to slog through lengthy motions to compel or for protection (often accompanied by even longer briefs and voluminous attachments) and writing opinions, often on issues that don't involve matters of jurisprudence as much as practical problems ill-suited to the motion-and-brief presentation. 2 See, e.g., John L. Carroll, Proportionality In Discovery: A Cautionary Tale, 32 Campbell L. Rev. 455, 461 (2010) ("Used improperly, the proportionality analysis can be at best a meaningless exercise and at worst a tool to deny civil litigants access to information to which they are entitled."); Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 Duke L.J. 561, 603-04 (2001) (arguing that proportionality limits are impractical because the trial judge is not in a good position to assess whether the desired information is worth the cost); Orbit One Communications, Inc. v. Numerex Corp., 271 F.R.D. 429, 436 (S.D.N.Y. 2010) (stating, in the preservation context, that a proportionality standard "may prove too amorphous" to provide meaningful guidance to parties). P. 26 advisory committee's note (2015) ("The present amendment again reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management."); id. (explaining that the new Rule 34 mechanism allowing for pre-Rule 26(f) exchange of document requests "is designed to facilitate focused discussion during the Rule 26(f) conference"). 6 Arthur Milller, The August 1983 Amendments to the Federal Rules of Civil Procedure: Promoting Effective Case Management and Lawyer Responsibility 35-36 (Federal Judicial Center 1984).