What’s Proportionality Got to Do with It? An Update on the Revised Federal Discovery Rules

The Federal Rules of Civil Procedure underwent significant changes in December 2015. (See Jeff Bennion, "Everything You Need to Know about the New FRCP Amendments," Above the Law, Dec. 1, 2015.) These changes affected Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84. In particular, revisions to Rule 26 affected the scope of permissible discovery in litigation, which is now limited to information relevant to a claim or defense that is proportional to the needs of the case. Interestingly, some have noted that the "proportionality" requirement has narrowed the scope of discovery (XTO Energy, Inc. v. ATD, LLC, No. CIV 14 -1021 (D.N.M. 2016)), while others have noted that the proportionality approach to discovery is not a significant change, given that most of the rules changes to Rule 26(b) were adopted in 1983. Regardless of your viewpoint—whether the rule change is a renewed focus on the "proportionality" requirement or a brand-new element for evaluating discovery—the effect remains the same: Litigators need to be able to defend and attack discovery on proportionality grounds.