Bolch Judicial Institute at Duke University School of Law
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Wednesday, April 21, 2021

Time (EDT) Description

12:30 – 12:45 pm


Historical Overview

Presenter: Hon. Lee H. Rosenthal 

Early attempts to address proportionality issues following the 2015 Amendments, including the Sedona principles, on-the-road in-person education of judges and attorneys, the use of protocols, and the enduring responsiveness of proportionality guidelines to bench/bar realities and evolving practices and cultures; overview of key changes to the new Proportionality Guidelines (Third Edition).

12:45 – 1:00 pm


2015 Amendments to the Civil Rules of Procedure

Presenter: Hon. Paul W. Grimm

The impetus for and importance of the 2015 Amendments to the Civil Rules of
Procedure and the advent of the Rule 26(b)(1) “proportionality test.”

1:00 – 1:15 pm


The Judge’s Perspective

Presenter: Hon. Andrew J. Peck

Role of the Magistrate Judge; federal and state court considerations; decisions from the
bench versus written opinion; the next generation of judges.

1:15 – 2:00 pm


Proportionality in Practice

Presenters: Jennie Anderson and David Kessler

Examining the key changes to the Proportionality Guidelines (Third Edition); Ongoing
issues presented and strategies for addressing the “proportionality test” as it arises in
small, medium, and large cases, including:

  • Role of proportionality in seeking, drafting, responding to, and objecting to discovery requests
  • Bringing proportionality controversies to the judicial officer
  • Due diligence and making the meet and confer meaningful
  • Noncustodial sources and maintenance of business records
  • Search terms and custodians
  • Relevance and proportionality

2:00 – 2:30 pm


The Future of Proportionality

Presenters: All Speakers

Assessing proportionality- and discovery-related issues likely to arise in the years to come, including those topics that may be the subject of future editions of the Guidelines.

  • Weighing of nonmonetary factors in proportionality evaluations (e.g., personal data)
  • Proportionality in social media and newer technologies
  • Rule 34 and boilerplate language
  • Post-pandemic considerations
  • Consistency of approach to proportionality across districts

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