November 30, 2015 Practice Points

Upcoming Amendments to FRCP 26: What Every Litigator Needs to Know

Failure to heed the new rule may lead to costly discovery disputes.

By Michael Mather

On December 1, 2015, several important changes to Federal Rule of Civil Procedure 26 go into effect. These changes may have long-lasting effects on discovery in federal cases. Proper implementation can help parties streamline the discovery process. Failure to heed the new rule may lead to costly discovery disputes. Below are four things every litigator should know.

Discovery Redefined (Slightly) Perhaps the most noticeable revision to Rule 26 is the addition of proportionality factors to the scope of discovery. The revision qualifies the broad scope of discoverable evidence in discovery, limiting it to the proportional needs of the case. Considerations will include the factual and legal questions at issue; the amount in controversy; the party’s respective resources and access to the requested information; the importance of the discovery resolving the issues at hand; and whether the burden of production outweighs the cost of production.

These changes may not be as extensive as commentators originally perceived. As the committee recognized, proportionality has been included in Rule 26(b)(2)(C)(iii) since 1983. Prior rule changes, however, inadvertently minimized its role as a limitation on the scope of discovery. According to the committee, this amendment reemphasizes the importance of proportionality to discovery requests. The committee stressed that this amendment is not intended to allow parties opposing discovery to refuse production of discoverable information through a boilerplate objection, nor restrict access to discoverable information. Instead, the amendments are intended to provide explicit focus on considerations already implicit in former Rule 26(b)(2)(C)(iii) and revised Rule 26(b)(1).

“Not Reasonably Calculated?”—Not Anymore In conjunction with the addition of proportionality factors, the committee also removed the “reasonably calculated” language from former Rule 26(b)(1) relating to what constitutes discoverable information. According to the committee, this language has often been misapplied by practitioners to limit the scope of discoverable information. Its removal aims to encourage litigants to focus on the proportionality factors of Rule 26(b)(1). In its place, the committee added the more direct statement that “information within the scope of discovery need not be admissible in evidence to be discoverable.”

“Early” Discovery Now Available The amendments also add a mechanism for parties to engage in early document discovery. Under revised Rule 26(d)(2), parties may deliver document discovery under Rule 34 prior to the Rule 26(f) conference, provided that at least 21 days have passed since the receiving party has been served with the summons and complaint. While the relaxation of the discovery moratorium is designed to facilitate focused discovery discussions during the Rule 26(f) conference—particularly as they related to electronic discovery—the response deadline remains unchanged. Under the revised rule, the receiving party’s response deadline is triggered by the Rule 26(f) conference, not the date the discovery is delivered. The committee emphasized that this softened deadline should not affect the decision of a party or the court to allow additional time for a party to respond to the discovery requests if necessary.

Making Explicit What Was Once Implied Several other changes to Rule 26 make explicit what was once implied. Rule 26(c)(1)(B) is amended to include an express recognition of the ability of protective orders to allocate expenses for discovery between the parties. Rule 26(f)(3) is amended in parallel with Rule 16(b)(3) to add two items to the discovery plan, addressing issues relating to preservation of electronic discovery and court orders under Federal Rule of Evidence 502. Rule 26(d)(3) is renumbered and amended to recognize that parties may stipulate to a case-specific sequence of discovery.

Keywords: litigation, corporate counsel, Rule 26, discovery, proportionality

— Michael Mather, Godfrey & Kahn, S.C., Milwaukee, WI


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