New Practice Considerations under Amendments to Federal Rule 26

A New Rule for a New Era

There was a time when attorneys viewed discovery simply as the path to the truth. “That was a different world,” says William T. Hangley, Philadelphia, PA, cochair of the ABA Section of Litigation’s Federal Practice Task Force. The advent of email communication and the ubiquitous use of computers have vastly increased the amount of data that individuals and companies retain. Today, parties frequently face enormous costs associated with the collection, review, and production of such electronically stored information.

The Advisory Committee on Federal Rules of Civil Procedure has stated that the amendments to Rule 26 are intended, at least in part, to address the common perception that discovery costs are disproportionately high in many cases. In theory, the new emphasis on proportionality in discovery should lower costs. “In practice, time will tell,” says Robert J. Will, St. Louis, MO, cochair of the Section of Litigation’s Pretrial Practice & Discovery Committee.

The changes to Rule 26 are important not just for what the Rule says, but “the attitude they bring to bear,” adds Hangley. The amendments provide an opportunity for the judicial system to pause and reflect on what discovery in the information age should look like.

Rule 26 Now Mandates Proportionality

Before the amendments came into effect, Rule 26 stated that parties could “obtain discovery regarding any non-privileged matter that [was] relevant to any party’s claim or defense.” Amended Rule 26 now states that parties “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”

The amended Rule 26 provides six factors for parties to consider when addressing proportionality: “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.”

Parties should begin their proportionality analysis by reviewing the Duke Law Judicial Studies Center Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality, recommends Will. The guidelines add “flesh to the bones” by recommending “useful, practical, and concrete implementing procedures and practices that build on the amendments’ framework,” Will notes.

While the guidelines are “an excellent starting point,” litigants should also “be familiar with both the emerging case law, and pre-amendment cases in which the ‘proportionality’ concept has been addressed, such as e-discovery jurisprudence,” suggests Will. Since the weight or importance of any factor will vary depending on the facts and circumstances of each case, the body of case law that emerges in the wake of the amendments will help shape how the judicial system interprets and implements the new rules.

Litigants Should Anticipate Great Judicial Involvement

Whether amended Rule 26 actually reduces discovery costs will depend, in part, on “the degree to which individual judges or magistrates who oversee discovery in civil cases embrace the amendments and take an early and active role in bringing the parties to the table,” Will predicts. “Hands-on participation by judges” will be critical to the amended Rule’s success, agrees Hangley.

The Duke Guidelines note that judges have many tools available to work toward proportionality. Some of those tools include early case orders communicating the judge’s expectations, procedures for the parties to promptly identify disputes and attempt to resolve them, procedures to enable the parties to engage the judge promptly and efficiently when necessary, and communications regarding the judge’s willingness to be available when necessary. “Active judicial participation early in the case evaluation and management process is crucial in making sure that counsel for parties also take their obligations seriously to cooperate and work with their opponents in good faith, as called for by the amendments themselves,” says Will.

While Will has not witnessed any noticeable changes in practice since the amendments went into effect in December, he is “confident that most judges and magistrates will do their best to implement the rules amendments in a way that recognizes the spirit of the amendments.” The judges who participated in a recent Section Rules Amendments Roadshow in Philadelphia appeared eager to understand and begin implementing the amended Rule, notes Hangley.

“Don’t play games,” recommends Will. Instead, practitioners should take the amendments seriously by developing “an effective discovery plan that is fair and reasonable,” engaging “in candid conversation with opposing counsel early to evaluate what issues are truly important in the case,” and then tailoring a reasonable discovery plan. “Without genuine ‘buy in’ by both lawyers and judges, there will be no hope in achieving the ambitious goals the amendments are designed to achieve,” Will concludes.

Matthew S. Mulqueen is a contributing editor for Litigation News..

Keywords: proportionality, discovery, electronically stored information, requests for production

Related Resources

• Andrew J. Kennedy, “Significant Changes to Discovery and Case Management Practices,” Litigation News (October 14, 2015).
• Andrew J. Kennedy, “Amended Federal Rules: Streamlining Litigation,” Litigation News (Winter 2016).
• Discovery Proportionality Guidelines and Practices, 99 Judicature, no. 3, Winter 2015, at 47–60.
• Proposed Amendments to the Federal Rules Packet

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