change as the case progresses, the claims and defenses evolve, and the parties and judge learn more about the damages or the value of the equitable relief. Committee Note, Rule 26 (Dec. 1, 2015) also is important to repeat the caution that the monetary stakes are only one “It factor, to be balanced against factors.” factor Guideline 2(C): Access to Information”---This “Relative addresses the extent to which each party has access to relevant information in the case. The issues to be examined include the extent to which a party needs formal discovery because relevant information is not otherwise available to that party. Commentary In a case involving asymmetry” or inequality, in which one party has “information or controls significantly more of the relevant information than other parties, the parties with less information or access to it depend on discovery to obtain relevant information. Parties who have more information or who control the access to it are often asked to produce significantly more information than they seek or are able to obtain from a party with less. The fact that a party has little discoverable information to provide others does not create a cap on the amount of discovery it can obtain. A party’s ability to take discovery is not limited by the amount of relevant information it possesses or controls, by the amount of information other parties seek from it, or by the amount of information it must provide in return. Discovery costs and burdens may be heavier for the party that has or can easily get the bulk of the essential proof in a case. When a case involves information asymmetry or inequality, proportionality requires permitting all parties access to necessary information, but without the unfairness that can result if the asymmetries are leveraged by any party for tactical advantage. Unfairness can occur when a party with significantly less information imposes unreasonable demands on the party who has voluminous information. Unfairness can also occur when a party with significantly more information takes unreasonably restrictive or dilatory positions in response to the other party’s requests.
change as the case progresses, the claims and defenses evolve, and the parties and judge learn more about the damages or the value of the equitable relief. Committee Note, Rule 26 (Dec. 1, 2015) “It also is important to repeat the caution that the monetary stakes are only one factor, to be balanced against factors.” Guideline 2(C): “Relative Access to Information”---This factor addresses the extent to which each party has access to relevant information in the case. The issues to be examined include the extent to which a party needs formal discovery because relevant information is not otherwise available to that party. Commentary In a case involving “information asymmetry” or inequality, in which one party has or controls significantly more of the relevant information than other parties, the parties with less information or access to it depend on discovery to obtain relevant information. Parties who have more information or who control the access to it are often asked to produce significantly more information than they seek or are able to obtain from a party with less. The fact that a party has little discoverable information to provide others does not create a cap on the amount of discovery it can obtain. A party’s ability to take discovery is not limited by the amount of relevant information it possesses or controls, by the amount of information other parties seek from it, or by the amount of information it must provide in return. Discovery costs and burdens may be heavier for the party that has or can easily get the bulk of the essential proof in a case. When a case involves information asymmetry or inequality, proportionality requires permitting all parties access to necessary information, but without the unfairness that can result if the asymmetries are leveraged by any party for tactical advantage. Unfairness can occur when a party with significantly less information imposes unreasonable demands on the party who has voluminous information. Unfairness can also occur when a party with significantly more information takes unreasonably restrictive or dilatory positions in response to the other party’s requests.
annotated-November-2017.docx