Why Don't Federal Judges Follow the (Discovery) Rules?

Federal Rule of Civil Procedure 26(c)(1)(B) was amended in 2015 to state explicitly what was previously implicit: A court, for good cause, may shift discovery costs from the responding party to the requesting party. In a recent column, I noted the paucity of post-amendment cases in which courts employed this provision, and I questioned why it was not being more frequently used. I speculated about the various reasons—like the increased application of other 2015 amendments to control the expansion of expensive discovery, including the duty to cooperate under Rule 1; proportionality, narrowing the scope of discovery to information “relevant to a claim or defense,” and elimination of the language “reasonably calculated to lead to the discovery of admissible evidence” in Rule 26(b)(1); and the in terrorem effect of Rule 37(e) sanctions for willful e-discovery violations. But I had no evidence that this was happening, and in all events, utilization of these mechanisms required substantial judicial involvement in the discovery process, which was a development that I previously noted “remain[ed] to be seen.”

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