Morris Manning & Martin, LLP

Client Alert: Good News - Pending Change To Scope Of Discovery In Federal Court

11.11.2015

Client alerts rarely announce good news. As part of MMM’s value-added service, this one does. As of December 1, 2015, the scope of discovery allowed in federal court should be narrowed significantly.

Since 1946, businesses have been pummeled by judicial enforcement of broad discovery demands. Courts cited Rule 26 of the Federal Rules of Civil Procedures as justifying such broad and burdensome discovery. Specifically, courts quoted the Rule’s allowance of discovery of irrelevant information so long as it was “reasonably calculated to lead to the discovery of admissible evidence.”

Finally, after nearly 70 years, that permissive test should end on December 1, 2015. Not only must discovery be limited to relevant evidence, but discovery must be proportional to the reality of the case. Revised Rule 26(b)(1) states (with new language underlined): “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.”

Accordingly, not only must the discovery seek relevant evidence, instead of “sort of” relevant evidence, but the ends no longer justify the means. That is, the revised rule emphasizes the proportionality of the requested discovery. The proportionality factors are moved up from Rule 26(b)(2)(C) into new Rule 26(b)(1), reordered (i.e., “the importance of the issues at stake in the action” is moved to first in the list), and a new factor is added (i.e., “the parties’ relative access to information”). Further, “subject matter” discovery is eliminated entirely (i.e., the court’s ability to order discovery of any matter relevant to the “subject matter” of the action for “good cause”). In addition, new Rule 26(c)(1)(B) permits the court to include provision for allocation of discovery expenses in a protective order.

New 26(b) will apply to all civil cases commenced on or after December 1, 2015, and “insofar as just and practicable” to all proceedings then pending. While Congress could block the revision to Rule 26(b), history shows it is unlikely to do so.

For more information, please contact Lew Hassett or Eric Larson via the contact information listed below.