*This article first appeared on Judicature in Summer 2021

With the proliferation of social media platforms and other new technologies has come a renewed legal focus on privacy. Most of that focus has centered on data collection, storage, sharing, and, in particular, third-party transactions in which customer information is harnessed for advertising purposes. But what about other contexts? Could a party, for instance, decline to produce, review, or even collect certain types of data due to privacy concerns? Should privacy be considered a “burden” under the proportionality analysis required by Federal Rule of Civil Procedure Rule 26(b)?

In this essay, Robert D. Keeling and Ray Mangum, a partner and associate, respectively, at Sidley Austin LLP, argue that privacy should be considered a burden under Rule 26(b).

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