Significant changes to the Federal Rules of Civil Procedure took effect to civil cases filed on or after Dec. 1, or to cases already pending to the extent just and practicable. In the first two months of these new rules, it is apparent they are having an immediate impact on federal litigation.
The most significant rule change is to the scope of discovery, with Rule 26(b)(1) amended re-emphasizing proportionality in the scope of discovery, as follows:
Scope in General. Unless otherwise limited by court order, the scope of discovery is 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. 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 committee notes elaborate on this change, providing “The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections. … The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”
Amended Rule 26(b)(1) has already been cited in more than 100 court opinions since Dec. 1. Many decisions note the parties’ duty to focus on proportionality. For instance, in Herrera-Velazquez v. Plantation Sweets, Inc., 2016 U.S. Dist. LEXIS 4956 (D. Ga. 2016), the court wrote in granting one discovery motion and denying another, “The 2015 revision to Fed. R. Civ. P. 26(b)(1) reinforces parties’ obligations to consider proportionality in making discovery requests, responses, and objections.”
A review of decisions since Dec. 1 otherwise reveals some discovery motions being granted or denied with references to proportionality common. For instance, in denying a plaintiff’s request to a decision-maker’s disciplinary file, one judge recently wrote, “Having reviewed Defendant’s description of the additional documents in its possession, which describe documents that support the conclusions of the disciplinary proceedings, the Court cannot see how discovery of the additional documents could yield any new information that would be ‘relevant to any party’s claim or defense.’ Fed. R. Civ. P. 26(b)(1). In light of the documents’ duplicative nature and the fact that the disciplinary proceedings are in no way related to Plaintiff’s retaliation claim or any of the facts underlying Plaintiff’s case, the Court finds that discovery of the additional documents in Defendant’s possession would not be ‘proportional to the needs of the case’ under Fed. R. Civ. P. 26(b)(1).” Youssef v. Lynch, 2016 U.S. Dist. LEXIS 4665 (D. D.C. 2016).
On the other hand, in an FLSA collective action, a federal court granted a motion to compel. The court wrote, “It is this Court’s understanding that proportionality determinations are to be made on a case-by-case basis using the factors listed in Rule 26(b)(1), and that no single factor is designed to outweigh the other factors in determining whether the discovery sought is proportional.” Bell v. Reading Hosp., 2016 U.S. Dist. LEXIS 4643 (E.D. Pa. 2016). The court added, “[W]e conclude that the discovery plaintiffs currently seek is relevant, appropriate, and proportional. In making this determination, we note that while discovery in general is usually considered to be a burden, we conclude that the current discovery requests of the plaintiffs will tend to advance the issues raised by them in this matter.”
This much is clear from the amended rule, the committee notes, and early case law: Proportionality is a key guidepost now in framing discovery requests, in responding to discovery requests, and in adjudicating discovery motions.
What about ‘reasonably calculated’?
For decades, federal litigators and federal courts have lived with the “reasonably calculated to lead to the discovery of admissible evidence” phrase. That language, however, is no longer part of the Federal Rules as the amended Rule 26(b)(1) at the start of this article reveals.
Judges are taking note of this. For instance, earlier this month one federal judge wrote, “Like before, relevance is still to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party’s claim or defense. Moreover, information still ‘need not be admissible in evidence to be discoverable.’ Fed. R. Civ. P. 26(b)(1). The amendment deleted the ‘reasonably calculated to lead to the discovery of admissible evidence’ phrase, however, because it was often misconstrued to define the scope of discovery and had the potential to ‘swallow any other limitation.’ See Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 2015 amendment.” United States ex rel. Shamesh v. CA, Inc., 2016 U.S. Dist. LEXIS 945 (D. D.C. Jan. 6, 2016).
At the annual federal civil practice seminar last month, Magistrate Judge Tim Baker noted this deletion, commenting that with the phrase no longer in the rules, one would not expect to see it in briefing any longer.
Indeed, in federal practice going forward, counsel should avoid using this term in discovery responses, discovery objections, and briefing. The discoverability standard, instead, is front and center in Rule 26(b)(1), with three prongs: (a) not privileged; (b) relevant to claims or defenses; and (c) proportional to the needs of the case. These are the governing standards. (By contrast, Indiana’s Trial Rule 26(B)(1) still has the “reasonably calculated” language).•
John Maley – firstname.lastname@example.org – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.