Out with the old, in with the new. It’s time to scrap “reasonably calculated” in favor of “proportionality.” This is because the amended Rule 26 has deleted the directive that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Instead, the scope of discovery—and thus, your responses and objections—are now defined by what is “proportional to the needs of the case”. This change, as well as other amendments to Rules 26 and 34, are outlined and discussed in more detail below.
Changing the Scope of Discovery and How You Object and Respond to Discovery—Rules 26(b), 26(c), and 34:
| Previous Rule | Amended Rule | |
| Rule 26(b) | (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—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. 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). | (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 benefits. Information within this scope of discovery need not be admissible in evidence to be discoverable |
| 26(c) | (1) In general…The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
… B. specifying terms, including time and place, for the disclosure of discovery; … |
(1) In general…The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
… B. specifying terms, including time and place or the allocation of expenses, for the disclosure of discovery; … |
| 34 | (b) Procedure
(2) Responses and Objections … C. Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. D. Objections. An objection to part of a request must specify the part and permit inspection of the rest. |
(b) Procedure
(2) Responses and Objections … B. Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. C. Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest. |
Although it appears that the scope of discovery has been turned on its head, the new Rule 26(b)(1) embodies more of a re-shuffling of the rules to change the emphasis. In fact, the language added to Rule 26(b)(1) comes simply from what was previously buried in Rule 26(b)(2)(C)(iii).
Since 1983, Rule 26(b)(2)(C)(iii) has required courts to limit discovery where “the burden or expense of the proposed discovery outweighs its likely benefit”, considering “the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues.”[1]
Generally, this is known as the “proportionality” approach, which under the new Rule 26(b)(1) is the clear standard for the scope of all discovery. In short, the definition of discoverable information is premised upon proportionality. As the committee notes indicate, both the parties and the court (see new Rule 1) have a “collective responsibility” to consider the proportionality of discovery in resolving discovery disputes.
The Lawyers for Civil Justice have published a number of informative materials regarding the amendments to the Federal Rules of Civil Procedure, including an educational PowerPoint containing the following summary of the purpose of proportionality in the scope of discovery:
PowerPoint Presentation on the Amendments for Education Purposes, Lawyers for Civil Justice, http://www.lfcj.com/uploads/3/8/0/5/38050985/lcj_intro_to_2015_frcp_amendments.pptx (last visited Jan. 12, 2016).
This is great news for many defendants, especially corporate defendants involved in complex litigation, because the emphasis on proportionality in defining discoverable information is designed to force parties and the courts to confront questions of the cost and expense of discovery in direct relation to its relevance and importance to the issues at hand. This is buttressed by the emphasis in Rule 1 to secure the just, speedy, and inexpensive determination of every action and proceeding.
Another important change is reflected in the amendment to Rule 26(c), regarding protective orders. Under the amended Rule 26(c), a court may now issue a protective order specifying that the expense of discovery be allocated in a particular manner amongst the parties, so long as good cause is shown. This cost-shifting power is not new authority in federal courts, but it is an explicit recognition that the federal courts have the power to issue such cost-shifting orders in discovery.
Change Your Objections!: A common objection, under the old Rule 26(b)(1), was that the request was not “reasonably calculated to lead to the discovery of admissible evidence.” That language, however, is no longer the standard. A clear litmus test to distinguish those who are aware of the amended rules from those that are not will likely be whether the phrase “reasonably calculated to lead to the discovery of admissible evidence” is used in discovery objections.
Not only must the phrasing change, but also under the new Rule 34(b)(2)(B), the level of detail provided in support of an objection has also increased. Boilerplate objections are no longer theoretically acceptable. Rule 34(b)(2)(B) now requires that an objection to a discovery request state “with specificity the grounds for objecting to the request, including the reasons.”
Crafting such an objection in light of these new requirements is aided by the emphasis on proportionality in Rule 26(b)(1). Tweaking previously used objections could be as simple as addressing the proportionality factors identified in Rule 26(b)(1). For example:
“Objection. The request is not proportional to the needs of the case because:
- the issue at stake is not important to the present action;
- the amount in controversy does not justify the expense required to comply with the discovery request;
- the requesting party has equal/similar access to relevant information;
- the requesting party is not burdened/disadvantaged by limited resources;
- the resources of the parties are similar and to force the expense associated with the proposed discovery on the producing party would impose an undue burden on that party;
- the proposed discovery is not important in resolving the issues in the action; or
- the burden or expense of the proposed discovery outweighs its likely benefit.
Although these objections have not been battle tested under the new Federal Rules of Civil Procedure, it stands to reason that an objection utilizing this language—coupled with a sprinkling of case-specific references—would satisfy the requirements of Rule 34(b)(2)(B).
Change Your Responses, too: Under the new Rule 34(b)(2)(C), the responding party must also state whether any responsive materials are actually being withheld on the basis of the objection. The committee notes clarify, however, that this does not require the responding party to provide a detailed description or log of what is being withheld; rather, it must only “alert other parties to the fact that documents have been withheld…[to]…facilitate an informed discussion.”
Note also that under the amended Rule 34(b)(2)(B), production can be elected rather than inspection with respect to both copies of documents and electronically stored information. Also, when production is elected, the responding party now has the option of specifying in its response a “reasonable time” for the production to occur.
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On February 11, 2016, the Federation of Defense & Corporate Counsel hosted a free webinar to discuss recent federal-court decisions on the amended rules, the retroactive application of the new rules, and feedback from practicing attorneys on their experiences with the amended rules.