May 18, 2016 Articles

Proportionality under Amended Rule 26(b)(1): A New Mindset

How courts have reacted to the amended rule and how defense practitioners can use it to streamline discovery.

By Michael J. Miles

Among the most closely studied and widely discussed of the recent amendments to the Federal Rules of Civil Procedure, which took effect on December 1, 2015, is the increased prominence given to the concept of proportionality by amended Rule 26(b)(1):

(b)        Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: 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. - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Many speculated that these changes to the scope of discovery would bring about a sea change, reining in the perceived excesses of the discovery process. Others felt that, for all the hype surrounding amended Rule 26(b)(1), not much in the world of discovery would actually change. Looking back, now four months removed from the amendments, it seems possible that both perspectives were right.

Premium Content For:
  • Litigation Section
Join - Now