The recent amendments to the Federal Rules of Civil Procedure (the “FRCP”) became effective on December 1, 2015, and they govern all cases pending and commenced on and after that date. The changes impact several rules of the FRCP, including those governing early case management, the scope of discovery, and preservation of electronically stored information (“ESI”). These amendments will undoubtedly have an effect on civil litigation practice. Key changes were made to the overall scope of discovery in an effort to address the increasing costs and considerable expense of resources involved in the discovery process. This article focuses on the changes to the rules of discovery and how those changes may affect civil litigation practice.
The first major change is the amendment to Rule 26(b)(1), which inserts “proportionality” considerations to the definition of the scope of discovery. The new rule states in pertinent part:
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 the scope of discovery need not be admissible in evidence to be discoverable.
The proportionality factors, most of which were previously found in Rule 26(b)(2)(C), governing court-ordered limitations on discovery, are now recast into the defined scope of discovery. These factors often served as the basis for motions for a protective order under Rule 26(b)(2)(C). However, the new rule sets forth these proportionality factors in the overall defined scope of discovery, which obliges the parties to consider them in crafting discovery requests, responses and objections. As such, proportionality will likely become a major focal point in the discovery phase of litigation.
Notably, the language often cited in support of very broad discovery has been deleted: “reasonably calculated to lead to the discovery of admissible evidence” is no longer set forth in Rule 26 to define the scope discovery. For nearly every civil litigator, this boilerplate language has undoubtedly made its way in arguments for and against broader discovery for years. The Advisory Committee omitted this language to reinforce that discovery should not be permitted to the extent that it exceeds the scope defined in the new rule. See Advisory Committee on Rules of Civil Procedure, April 10–11, 2014.
Of particular importance, the Advisory Committee expressly noted that the changes do not place a burden on the party seeking discovery to demonstrate proportionality. Furthermore, “the change does not support boilerplate refusals to provide discovery on the ground that it is not proportional, but should instead prompt a dialogue amongst the parties and, if necessary, the court.” Id. at 84. To be sure, the amendments will benefit a responding party in assessing the propriety of a motion for protective order, whereas as specific objection on proportionality grounds may be asserted in lieu of such a motion, while still preserving the right to move for a protective order. With these new changes to the defined scope of discovery, it is likely that proportionality factors will replace the “reasonably calculated” arguments for and against broader discovery, and only time will tell if the amendment will have the intended effect of reducing the high costs of discovery.
Another major change to the discovery rules governs responses to requests for production of documents (“RFP’s”), under Rule 34(b)(2). The party responding to RFP’s must ensure that (1) objections are stated with specificity; (2) the objection states whether any responsive materials are being withheld on the basis of that objection; and (3) production is completed no later than the time for inspection specified in the RFP or another reasonable time that is specified in the response. Rule 34(b)(2), Fed. R. Civ. P.
First, specificity is required when asserting objections. As such, baldly asserted objections (i.e. “unduly burdensome”) are not permitted without a specified basis indicating how such requests are objectionable under the rules. For instance, a party asserting that a request is burdensome is required to support that objection with specific reasoning as to why or how the production is burdensome. Secondly, the responding party must state whether there exists materials that are being withheld on the basis of the specified objection. Such a requirement should provide more clarity for the requesting party to assess whether there are documents withheld and whether the requesting party may seek additional production of those documents over objection.
Lastly, the responding party must either produce the documents requested or state a specific date when the party will produce the documents, so long as the specified date is a “reasonable time.” Of course, a “reasonable time” may depend on the availability or scope of the documents requested, and such a term may the subject of disagreement in the future. However, the amendment addresses the all-too-common response that a party will produce documents “at a mutually agreeable”—and unspecified—time and place. These amendments to Rule 34 will likely bring more efficiency to discovery by bearing directly on the substance and timing of responses to RFP’s.
In sum, the amendments to discovery rules, Rule 26 and Rule 34 of the Federal Rules of Civil Procedure, will have a significant impact on civil litigators and—hopefully—the resources of litigants and the judiciary. All civil litigators should be cognizant of these new changes to comply with the rules and to develop a cost-efficient discovery strategy. While there are a few identifiable areas of anticipated disagreement as to the interpretation of the new rules, there is definitely a measure of clarity in the substance and timing of discovery in the amendments that was not present before.