As noted in our December e-discovery update, the much-discussed amendments to the Federal Rules of Civil Procedure became effective December 1, 2015. One of the most notable amendments was the limitation on the scope of discovery to only information “relevant to any party’s claim or defense and proportional to the needs of the case,” and the deletion of the “reasonably calculated to lead to the discovery of admissible evidence” language. Fed. R. Civ. P. 26(b)(1). The question remains as to whether this new language will lead to a more restrictive scope of discovery.
On the positive side, one court recently observed that “[a] change in the legal culture that embraces the leave no stone unturned and scorched earth approach to discovery is long overdue.” Roberts v. Clark County School District, No. 2:15-cv-00388, 2016 WL 123320, *7 (D. Nev. Jan. 11, 2016). The court cited Chief Justice Roberts’ Year-End Report, which discussed the changes to the federal rules and “beseeched judges and lawyers to ‘engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair and efficient justice.’” The court denied portions of a motion to compel in a gender discrimination case, thereby “[h]eeding the call to actively manage and engineer a change in this legal culture.” For example, the court denied the defendant’s request for the plaintiff’s administrative, educational and tax records as being “grossly out of proportion to what [the defendant] legitimately needs to know to defend itself” against the discrimination claims. The court also nevertheless found some of the requests “relevant to any party’s claim or defense and proportional to the needs of the case.”
Similarly, a Northern District of California court recently denied a motion to compel filed by Merck, stating that “[t]he present dispute offers a good example of the wisdom of the Advisory Committee on Civil Rules in elevating proportionality in defining the scope of permissible discovery.” Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057, 2016 WL 146574, *1 (N.D. Cal. Jan. 13, 2016). In this patent infringement suit, Merck sought further discovery related to compounds in tubes that Merck believed may have been similar to compounds described in Merck’s patent. Gilead maintained that the compounds contained in the tubes were not the same compounds as those described in the patent and thus further discovery on the compounds was inappropriate. The court agreed with Gilead, stating that “[w]ithout more specific information triggering some reason for doubt, the Court must take the producing party ... at its word,” and requiring Gilead to produce discovery on other compounds would “be like requiring GM to produce discovery on Buicks and Chevys in a patent case about Cadillacs simply because all three happen to be cars.”
Conversely, some courts seem to be clinging to the old “reasonably calculated to lead to the discovery of admissible evidence standard” when applying the 2015 rule amendments. See, e.g., Lightsquared Inc. v. Deere & Co., No. 13 Civ. 8157, 2015 WL 8675377, *2 (S.D.N.Y. Dec. 10, 2015). In Lightsquared, the court cited the new language in Rule 26, but then stated that “relevance is still to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party’s claim or defense.” See also Bagley v. Yale University, No. 3:13-cv-01890, 2015 WL 8750901, *7 (D. Conn. Dec. 14, 2015) Here, the court noted the new Rule 26 language, but then cited case law for the proposition that relevance should still be construed broadly and should “encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any party’s claim or defense”. Similarly, another court cited to the new language of Rule 26, and then cited case law to define relevancy as encompassing “any possibility that the information sought may be relevant to the claim or defense of any party.” PCS Phosphate Co., Inc. v. Am. Home Assurance Co., No. 5:14-CV-99, 2015 WL 8490976, *2 (E.D.N.C. Dec. 10, 2015).
One hopes that, as time passes, the amendments will be “a major stride towards a better federal court system,” as Justice Roberts predicted. John Roberts, 2015 Year-End Report on the Federal Judiciary. But, with courts still referencing language that discovery shall be “construed broadly” and shall encompass any matter that “reasonably could lead to another matter” that “could bear on” any party’s claim or defense, change may be slow in coming.