26

By Sam Lumpkin

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect in an effort to rein in the scope of federal discovery. Several changes were made to Federal Rule 26 with the goal of reducing the substantial expense and unfairness of overbroad discovery.

Former Rule 26(b)(1) provided that:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

 The new Rule 26(b)(1) provides as follows:

 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Under the former Rule 26(b)(1), parties were allowed to obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense.” The new rule adds a new statement that discovery must also be “proportional to the needs of the case,” a change that the Advisory Committee on Rules of Civil Procedure described as a “significant improvement” designed to achieve the goal of the Rule 1 – the “just, speedy, and inexpensive determination of every action.” However, the Committee noted that this change is not intended to shift the burden of proving proportionality to the party seeking discovery or to provide a basis for refusing to provide discovery.

In addition to the new requirement of proportionality, the new Rule 26(b)(1) includes several factors that govern a court’s consideration of whether discovery is indeed proportional to the needs of the case. Those factors are: (1) the importance of the issues at stake; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. Most of these factors were previously contained in Rule 26(b)(2)(C), but have been moved into 26(b)(1) because they have always been a constraint on the scope of discovery. The Advisory Committee stated that this change was intended as an additional prominent emphasis on the requirement of proportionality and to encourage parties to take the factors into account in pursuing discovery. The third factor – the parties’ relative access to relevant information – is a new addition, and was added in order to recognize that in some cases the discovery burden will necessarily be greater on one party than on another. The Committee rearranged the order of the factors in the new rule, moving the “importance of the issues at stake” ahead of “the amount in controversy” in order to avoid any possible implication that the amount in controversy is the primary concern in determining proportionality.

In a change related to the new emphasis on proportionality, the new rule eliminates the broad statement that relevant information “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” and substitutes the more straightforward language that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” The Committee noted that the central principle of this portion of the rule is simply that information within the allowed scope of discovery is discoverable, even if it is not in a form admissible in evidence – it is “merely a ban on admissibility-based refusals to provide relevant discovery.” However, although the “reasonably calculated” section in the previous rule “has never been intended to define the scope of discovery,” it was interpreted by many parties to mean that the scope of discovery must merely be “reasonably calculated to lead to the discovery of admissible evidence.” As a result, the “reasonably calculated” term has in many cases “swallowed” any other limitations on the scope of discovery. The new rule therefore eliminates the “reasonably calculated” language, and further removes any doubt that discovery must be limited and proportional to the needs of the case.

Finally, the new rule further removes the reference that discoverable matters include “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” The Committee determined that this was simply “excess language,” but included it in the official Committee Notes and emphasized that these subjects would remain discoverable if they satisfied the considerations in the revised rule.

The new version of Rule 26, while not creating a new basis for refusing to respond to discovery, does allow parties to defend against discovery requests that would have been overbroad under the previous rule but may have been allowed by the courts. If the changes are successful, recipients of discovery will be better able to obtain protection from the substantial expense of responding to overbroad discovery requests.