New Practice Considerations Under Amendments to Federal Rule 26
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Litigants across the country have begun grappling with new amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, that implement the most significant changes to discovery and case-management practices in more than a decade. Chief among the new changes is an amendment to Rule 26(b)(1) that now limits the scope of discovery to matters that are “proportional to the needs of the case.”
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.”
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