February 05, 2016 Articles

How Plaintiffs May Take Advantage of the Federal Rules Changes on Discovery

By Paul D. Rheingold

In December 2015, the numerous changes to the Federal Rules of Civil Procedure relating to discovery went into effect. While their origin has been traced to efforts by major corporations to reduce discovery, and even in their present form, they have been heralded as a “sea change” on some defense law firm websites, in fact some new provisions will aid tort plaintiffs. Further, other changes that may appear to be impediments to full discovery are likely not to be applied in the manner hoped for by early drafters.

Highlighting the term and concept of “proportionality” in Rule 26(b)(1) creates the fear that plaintiffs’ discovery will somehow be curtailed. For example, if the plaintiff has only a few medical records to turn over, totaling 500 pages let’s say, the defendant product manufacturer argues that it should only have to do the same. Any such argument is undercut by application of some of the six factors in the same rule, which the court is mandated to consider. Prime among these is “relative access to information.” It is a given in most tort litigation that the defendant has all the information. In a pharmaceutical case, the documents produced are often 10 million or more.

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