FRCP 26(b) Amendment Will Change the Culture of Discovery

On December 1, 2015, a package of amendments to the Federal Rules of Civil Procedure took effect.

Two changes to Rule 26 contained within these amendments will go far to rein in overly broad discovery requests that are expensive to address and distracting from the merits of the litigation. First, Rule 26(b)(1) will delete the longstanding provision that information “reasonably calculated to lead to the discovery of admissible evidence” may be discovered. Instead, the revised rule will define the scope of discovery based on matters specifically relevant to the claims and defenses asserted in the case. Amended Rule 26(b)(1) will link this more sharply focus scope of discovery with a requirement that discovery be “proportional to the needs of the case.”

While current Rule 26(b)(2)(C)(iii) contains several discovery-limiting considerations, federal courts have often overlooked these considerations and rarely invoked them to tighten the scope of discovery. By explicitly linking a proportionality mandate to a narrowed scope of discovery, the 2015 Rule 26(b)(1) amendments recognize that discovery necessarily involves a balancing of interests and need not stretch beyond the particular needs of the claims and defenses actually asserted.

The proportionality and scope considerations of Rule 26(b)(1) will be buttressed by an addition to Rule 26(c)(1)(B) that will authorize protective orders that include “allocation of expenses” arising from discovery. This new provision will provide a basis for recourse to those parties who face abusive discovery purposely served to drive up the cost of litigation to painful levels. Further, connecting the cost of discovery to the party who seeks to benefit from the discovery will cause parties to consider more closely whether those requests or interrogatories are truly necessary to support the propounding party’s case.

Together, these revisions to Rule 26(b) will require parties to contemplate their true needs for materials to support their claims or defenses before propounding discovery requests, and should result in a new conception of the way discovery is conceived.

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