Cases Applying the Amended Federal Rules
Aimed at reducing the exorbitant costs of discovery, and accelerating the pace of litigation in general, the latest amendments to the Federal Rules of Civil Procedure became effective on December 1, 2015. Five years in the making, they are widely viewed as comprising "the biggest change in discovery and case management in at least 15 years," as the chair-elect of the ABA Section of Litigation recently wrote. Laurence F. Pulgram, The Discovery Rules Have Changed, But Will We?, LITIGATION at 20 (Spring 2016). But the amendments are not self-executing — they "require thoughtful implementation by the bench and bar if they are to change anything at all." Id. at 18. How are we doing so far? Below, to explore that question, we identify and survey a sample set of cases that have tackled three of the most significant issues addressed by the amendments—proportionality, spoliation, and objections.
Rule 26(b)(1) now reads, "unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, 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. Information within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1) (amendment in italics). The new rule also removes the words "reasonably calculated to lead to the discovery of admissible evidence" from the description of "relevance." Id.
The courts that applied this amended rule have been analyzing the proportionality factors one by one, while emphasizing that the burdens have not shifted. See Carr v. State Farm Mutual Automobile Ins. Co., 312 F.R.D. 459, 466 (N.D. Tex. 2015) ("[T]he existing allocations of burdens to show undue burden or lack of proportionality have not fundamentally changed. . . . Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.") There is, however, an unmistakably greater emphasis on proportionality in analyzing the fundamental scope of discovery in a given case. Eramo v. Rolling Stone LLC, No. 3:15-MC-00011, 2016 WL 304319 at *6 n.2 (W.D. Va. Jan. 25, 2016) ("[G]iven the 2015 amendment, the court will put a greater emphasis on the need to achieve proportionality, in determining whether to grant the motion to compel.").
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