Last December, changes to the Federal Rule of Civil Procedure sets forth the scope of permissible discovery under Rule 26. Of note the phrase “reasonably calculated to lead to the discovery of admissible evidence” has been replaced with the concept of proportionality.

This is not the first time the Federal Rules have undergone changes. This substantive change is the fifth significant revision of the rules in the past 25 years, according to an article on the topic published by the American Bar Association.

Now, the rule requires that parties seeking discovery on any nonprivileged matter is relevant and proportional to the needs of the case. The five factors that are taken into account by judges include the:

  • Importance of the issues at stake;
  • Amount in controversy;
  • Parties’ relative access to relevant information;
  • Parties’ resources; and
  • Importance of the discovery in resolving the matter.

 

The factors bearing on proportionality, according to the rules advisory committee, are not new. Instead, the changes in the rule returns the proportionality factors back to the original place of defining scope.

Some have applauded the changes as an attempt to reduce “fishing expeditions.” Cases that have come out since the changes show that although courts will limit scope when discovery is truly disproportionate to the needs of the case or duplicative of already existing discovery, when the discovery request is relevant and easy to obtain, courts will order production.

Generally, the trends that have emerged since last December on discovery issues include:

  • Courts unlikely to order production of additional discovery without the movant showing the information produced is insufficient;
  • Courts will disallow discovery that is outside the scope of the issues in the matter, or is otherwise overbroad;
  • Courts will allow discovery of relevant information that is easily obtained; and
  • Courts may permit parties to withhold information that is irrelevant behind the shield of proportionality.

 

Tips for Lawyers

The hinging factor seems to be proportionality, as it is at the center of determining the appropriate scope of discovery in a dispute. Not only should the costs and burdens be considered by practitioners when evaluating scope, but also the parties’ access to the information, the importance of the information in dispute, the ease or difficulty of obtaining the information, and whether the information can be provided in a less costly format.

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