As discussed in Arnold & Porter's earlier Advisory, significant amendments to the Federal Rules of Civil Procedure went into effect on December 1, 2015. In the two months since, courts have already begun weighing in on whether the new Rules' express focus on "proportionality" is a major shift or if the change merely highlights principles already evident in the Rules.
Some federal judges have suggested that the addition of "proportionality" to Rule 26 is superfluous, noting that before and after the 2015 amendments courts had to consider the needs of the case and the burdens and benefits of discovery. In Carr v. State Farm Mutual Automobile Insurance Co., for example, a court in the Northern District of Texas determined that "[r]estoring the proportionality calculation . . . does not change the existing responsibilities of the court and the parties . . . ." Other courts have assigned slightly more import to the changes. One court in the Southern District of Georgia, after instructing the parties to "familiarize themselves" with the amendments, noted that Rule 26 now "reinforces parties' obligations to consider proportionality in making discovery requests" and "elevates the proportionality factors previously found under
Rule 26(b)(2)(C), but in a different order." Herrera-Velazquez v. Plantation Sweets, Inc.
The highest-profile commentator on the amendments may be Chief Justice John Roberts. In his annual report on the Federal Judiciary, issued on New Year's Eve, Justice Roberts highlighted the changes, noting that "[t]he amendments may not look like a big deal at first glance, but they are." In particular, Justice Roberts notes that Rule 26 now "crystalizes the concept of reasonable limits on discovery" and "states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case."
This is an area of the law that is clearly in flux, and we will continue to monitor whether federal courts interpret the "proportionality" amendment as a significant change or as unnecessary given prior understandings of discovery.