For attorneys and clients alike, the discovery process can be a daunting aspect of litigation. Rule 26 of the Federal Rules of Civil Procedure generally governs the discovery process. Effective December 1, 2015, and absent congressional intervention, the proposed amendments to Rule 26 take effect. The proposed amendments seek to make the discovery process more efficient by better defining the scope of discovery and encouraging cooperation as well as better planning between the parties.
Scope of Discovery
Currently, Rule 26 allows discovery of information relevant to a party’s claim or defense so long as the information is nonprivileged. Importantly, “relevant information” need not be admissible at the time of trial if the information sought is “reasonably calculated” to lead to discovery of admissible evidence. The court, under the current rule, can compel discovery of any relevant “subject matter” in the lawsuit. This standard can lead to excessive and burdensome discovery requests and subsequent motion practice if one side refuses to cooperate.
The proposed amendment attempts to address these problems. Under the proposed amendment, the scope of discovery would still concern nonprivileged, information relevant to a party’s claim or defense. The proposed rule, however, deletes the clause surrounding discovery of any relevant “subject matter” and deletes the “reasonably calculated” language. Additionally, the scope of discovery could be limited by the concept of proportionality. “Proportionality” of the discovery would be determined by considering: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the resources of the parties; (5) the importance of the sought after discovery in resolving the issues; and (6) whether burden/expense of the sought after discovery outweighs the benefit of the discovery.
Protective Orders and Cost Shifting
The proposed amendment to Rule 26 amends the provision concerning protective orders, to include an allocation of expenses for disclosure or discovery. Fed. R. Civ. P. 26(c)(1)(B).
Early Requests for Production of Documents
The proposed amendment to Rule 26 adds a provision which permits a party to deliver requests for production of documents to another party more than 21 days after that party is served with a summons and complaint. Fed. R. Civ. P. 26(d)(2). However, the request for production of documents is considered “served” at the first conference between the parties at the outset of litigation as required under Rule 26(f). The Advisory Committee notes indicate that the purpose of permitting early delivery of document requests is to help facilitate more meaningful and focused discussions about the discovery process during the parties planning conference in which the parties confer with one another about discovery issues.
Sequence of Discovery and the Discovery Plan
Fed. R. Civ. P. 26(d)(3) is amended to permit parties to stipulate to the sequence in which they conduct discovery. Fed. R. Civ. P. 26(f)(3) requires that a discovery plan include the parties’ proposal on how to deal with electronically stored information; claims of privilege pertaining to discoverable information; and the potential application of Federal Rules of Evidence 502 (discussing limitations on waiver of privileged information).
Whether the proposed amendments will achieve their intended goal will be seen in future litigation. However, the proposed amendments are a step in the right direction to encourage efficient discovery between parties in litigation.