Rule 16 now also encourages earlier, more direct communication between parties, providing that the court may “direct that before moving for an order relating to discovery, the movant must request a conference with the court.”
Kenneth M. Klemm, New Orleans, LA, cochair of the Section of Litigation’s Pretrial Practice & Discovery Committee, says that these changes further the overarching purpose of the recent revisions. “The courts and the Advisory Committee believe that discovery in the early stages of litigation has become incredibly expensive for parties,” Klemm states. “Many of the rule changes focus on getting through this early part of the case faster. I think it may allow litigants to get to the root of the dispute more quickly,” he adds.
Rule 26: Avoiding “Overdiscovery”
The revised Rule 26 limits the scope of discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The Advisory Committee explained in its 2015 notes that it had been concerned about “the problem of overdiscovery” since 1983, when it attempted to make changes to encourage both courts and litigants “to guard against redundant or disproportionate discovery.”
Accordingly, Rule 26(d) now includes a provision for early document requests, allowing service as early as 21 days after the plaintiff served the complaint and summons. Although the 30-day response period begins only after the parties’ Rule 26(f) conference, Klemm sees the benefit in allowing for earlier requests: getting issues on the table for upfront discussion.
“I think you’re still going to have discovery disputes, but this gives you something substantive to talk about during the 26(f) conference,” Klemm says. “We can at least talk through some of the categories and subjects and maybe even streamline them. Normally, you would issue requests, the other party would wait 30 days to object, and then you start having that discussion.”
Rule 34: Getting to Know the Documents Earlier (and Better)
The Advisory Committee also geared changes to Rule 34 toward earlier examination of document-related issues, explains Angela A. Turiano, New York, NY, a member of the Section’s Women Advocate Committee. The amended rule requires parties to make objections specific to each individual request, to make clear whether the party withholds any documents subject to a particular objection, and to indicate when the party will produce documents.
“Often, when we are responding to discovery requests, we kind of throw our objections out there without knowing much about the case yet,” Turiano observes. “Sometimes parties object because they think a request is improper, without even knowing whether any responsive documents exist.” The new requirement to provide specific objections “places a very large burden on the responding party to have its arms around the case to articulate whether documents or categories of documents are being withheld,” she says.
For parties with large volumes of documents in-house, collection and review can create huge logistical and financial hurdles that might prematurely force settlement, Turiano explains. “Often times, [an opposing party] will push for expansive discovery knowing that it will just be too cost prohibitive to continue with the case,” she adds.
There is another potential downside to the new Rule 34. “Sometimes you get requests that are crafted so poorly it’s difficult to determine what other party even wants to collect,” he says. “Now the burden is on me to try and figure out what the other party wants, when sometimes the requests really are just overly broad and vague,” he adds.
Too Much Settlement Pressure?
“Overall, having the parties work toward a resolution is not necessarily a bad goal. Moving cases and having people face the spectre of a trial generally forces the parties to settle matters,” Klemm concludes.
Although there may be some drawbacks for corporate litigants related to upfront discovery costs, “at the end of the day, it’s probably a good thing to find out what’s going on earlier in the game,” Turiano explains.
There are lingering concerns about forcing settlement prematurely. “Hopefully the courts let parties slow things down when that’s in their best interest,” Klemm says. “Sometimes the parties need time to evaluate all of the documents and comprehend what the other side has in terms of evidence,” Klemm adds.
Lauren M. Gregory is a contributing editor for Litigation News.