Earlier this year, Judge Grimm of the U.S. District Court for the District of Maryland entered a standing order regarding discovery with several novel features aimed at ensuring that discovery is proportional to the matters at issue and balances the likely costs and benefits, as required under Fed. R. Civ. P. 26(b)(2)(C) and 26(g)(1)(B)(iii). Discovery Order (D. Md. Jan. 29, 2013) (Grimm, J.). The order divides discovery into two phases, with the first phase focused on “the facts that are most important to resolving the case.” Discovery in the first phase is limited to facts that “are likely to be admissible” and that are “material to proof of claims and defenses raised in the pleadings.” A broader second phase of discovery is permitted only upon “a showing of good cause.” In that phase, parties may seek discovery of facts that are “relevant to the claims and defenses pleaded or more generally to the subject matter of the litigation.” The order contains several limits on electronic discovery, including that, without a showing of good cause, a party may not be required to search for electronic materials from more than 10 custodians or from more than 5 years before the filing of the lawsuit. In addition, the order imposes a cap of 160 attorney hours for the amount of time any party may be required to work on collecting and producing e-discovery materials, absent good cause. The 160 hours includes time spent “identifying potentially responsive ESI, collecting that ESI, searching that ESI . . . and reviewing that ESI for responsiveness, confidentiality, and for privilege or work product protection.” All of the forgoing rules may be modified by stipulation.
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Federal judge enters standing order aimed at ensuring proportional discovery.
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