February 14, 2018 civil procedure

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

By Charles S. Fax

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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