The amendments to Rules 26(b)(1) and 26(b)(2)(C) of the Federal Rules of Civil Procedure have been in effect for almost two months now. They are expected to change the way lawyers manage discovery and the way courts resolve discovery disputes. And, as they are assimilated into the discovery process, the exorbitant costs of e-discovery should be reduced.

Well, that’s the goal. But, will the amendments really change anything? Or will they just shift the focus of discovery disputes from whether the information sought is unreasonable, of little value, or cost-prohibitive under former Rule 26(b)(2)(C), to whether the requests are outside the scope of discovery under amended Rule 26(b)(1)?

Ultimately, parties will continue to argue over what they have always argued over: proportionality. The benefit of amended Rules 26(b)(1) and 26(b)(2)(C) is that they should put those issues up front, to be dealt with at the beginning of litigation, rather than after discovery is well under way.

Before December 1, 2015, Rule 26(b)(1) generally allowed for broad discovery on any matter that was relevant to a claim or defense in the litigation and, even broader, to the subject matter of the action. The already expansive scope was enlarged to allow discovery of non-admissible information so long as it was “reasonably calculated to lead to the discovery of admissible evidence.” Former Rule 26(b)(1) provided:

Scope in General. 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 . . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

As a result of former Rule 26(b)(1)’s broad scope, discovery often sought everything imaginable that could be related to the case. Phrases such as “any and all documents” and “related in any manner” were commonly incorporated into discovery requests. Former Rule 26(b)(2)(C) provided a limiting mechanism for dealing with the inevitable disputes arising out of such a permissive scope of discovery. Under former Rule 26(b)(2)(C), courts could limit discovery if:

  1. the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
  2. the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
  3. the burden or expense of the proposed discovery outweighs its likely benefit, consider the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, the importance of the discovery in resolving issues.

If the parties could not resolve the inevitable discovery disputes arising from the scope of discovery under former Rule 26(b)(1), the propounding party would seek an order compelling responses, and the responding party would seek a limiting order under Rule 26(b)(2)(C), especially the proportionality factors under Rule 26(b)(2)(C)(iii). The discovery disputes created by former Rules 26(b)(1) and 26(b)(2)(C) often delayed the litigation and could be expensive, especially when the disputes were over e-discovery.

So, will the amendments to Rules 26(b)(1) and 26(b)(2)(C) resolve these disputes? They will if the parties conduct discovery within spirit of the amendments, by focusing on proportionality and cooperating in framing discovery at the beginning of the litigation, not after disputes have escalated.

The current version of Rule 26(b)(1) allows discovery of relevant information if it is proportionate to the needs of the case. Rule 26(b)(1) took former Rule 26(b)(2)(C)(iii)’s proportionality factors, which were used to limit otherwise permissible discovery, and included them within the scope of discovery, with one additional factor. Amended Rule 26(b)(1) provides (format not in the original):

Scope in General. 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’ 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.

Information within this scope of discovery need not be admissible in evidence to be discoverable.

Courts still have the ability to limit discovery, but amended Rule 26(b)(2)(C)(iii) makes it clear that the proportionality factors are not grounds to limit permissible discovery. Rather, they define the scope of discovery. Amended Rule 26(b)(2)(C) provides:

When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines

  1. the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
  2. the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
  3. the proposed discovery is outside the scope permitted by Rule 26(b)(1).

So, what do these changes really accomplish? Some argue the amendments only shift the focus of the proportionality argument from limiting permissible discovery to defining the scope of permissible discovery. But, parties will continue to argue that discovery should or should not be limited by proportionality considerations.

The significance of the amendments to Rules 26(b)(1) and 26(b)(2)(C) is that they (should) put the proportionality discussion at the beginning of the discovery process, rather than in the middle of a discovery dispute. The amendments emphasize the parties’ responsibility to cooperate in framing discovery, and the duty to ensure that discovery requests are “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action,” as required by Rule26(g)(B)(iii).

Cooperation should begin at the Rule 26(f) and scheduling conferences where the parties, with the assistance of the court, can discuss and resolve issues related to the scope of discovery, guided by proportionality factors incorporated into Rule 26(b)(1). As the Advisory Committee Notes to the Rule 26 2015 Amendments observe:

The parties may begin discovery without a full appreciation of the factors that bear on proportionality … Many of these uncertainties should be addressed and reduced in the parties’ Rule 26(f) conference and in scheduling and pretrial conferences with the court. . . . The 1993 Committee Note [] observed that ‘[t]he information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression.’ What seemed an explosion in 1993 has been exacerbated by the advent of e-discovery. The present amendment again reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management. It is expected that discovery will be effectively managed by the parties in many cases. But there will be important occasions for judicial management, both when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own.

If parties are successful in incorporating the amendments to Rules 26(b)(1) and 26(b)(2)(C), and the spirit of those amendments – proportionality and cooperation, the cost of litigation, especially e-discovery should decline.

Here’s hoping.