What Every Attorney Needs to Know about the Recent Changes to Rule 26 of the Federal Rules of Civil Procedure

Rule 26(b) now reads as follows:

(b) Discovery Scope and Limits.

(1) 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.

In the past, if you were to ask an attorney what a litigant can demand in discovery, nine times out of ten you would get a pat response along the lines of: “well…you can demand anything that is relevant or that is likely to lead to the discovery of relevant information” or “you can demand anything that could lead to admissible evidence.”   That maxim of law will be under heavy attack due to the December 2015 amendments to the FRCP, which delete the former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence.”  Instead the new language (quoted above) directs judges to focus on the concept of proportionality—meaning judges are to balance burden, cost, and the importance of the issues at stake in the case. 

While it is simple to look up the new rules (https://www.law.cornell.edu/rules/frcp) – the devil is in the details—including the Committee Notes, which provide rich detail to put the amendments into a historic context.  As explained by the Notes, the concept of proportionality has been around for a very long time.  For those of us who work on the plaintiff side it is important to master the Committee Notes in order to head off claims that plaintiffs are not entitled to the same level of discovery as they were pre-December 1, 2015.  Buried in the Notes to Rule 26 is an admonition against boilerplate objections regarding proportionality.  In addition to warning against boilerplate proportionality objections, the Committee Notes to Rule 26 state that circumstances often dictate “that the burden of responding to discovery lies heavier on the party who has more information, and properly so.”    This notation should head off arguments that a defendant should not have to produce more because it has produced ten times—or even a thousand times—more documents than the plaintiff. 

For those of us who litigate socially just causes the Committee Notes to Rule 26 emphasize that the importance of a given case does not hinge on the amount of money at stake:

It also is important to repeat the caution that the monetary stakes are only one factor, to be balanced against other factors. The 1983 Committee Note recognized “the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.

As to the bottom line language of what is subject to discovery under Rule 26(b), the Committee Notes provide the following commentary:

The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that “‘relevant’ means within the scope of discovery as defined in this subdivision . . . .” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.

The take away from this note is that a nuanced understanding of the rules and their history is required.  As discussed above, there is valuable information to be gleaned from the Committee Notes—regardless of which side of the aisle you are on. 

Anne Marie Murphy is a principal at Cotchett, Pitre & McCarthy where she specializes in consumer class actions and elder abuse litigation.

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