Amended Federal Rules Emphasize Proportionality and Cooperation

This is the second post concerning amendments to the Federal Rules of Civil Procedure (“FRCP”), which became effective on December 1, 2015. This post focuses primarily on amendments to FRCP 1 and 26 governing the need for proportionality.

The prior post concerned revisions to FRCP 37(e) governing the preservation of electronically stored information (“ESI”), the remedies for spoliation of ESI where a party has failed to take “reasonable steps” to preserve, and remedies arising from “prejudice” as compared to spoliation of ESI arising from “intent to deprive”.

FRCP 1 has been amended as follows:

[These rules] should be construed and, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

[New rule text is underlined; removed rule text is struck through.] According to the Advisory Committee’s Note to FRCP 1, the new language is intended “to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way.” While the revised FRCP 1 does not expressly reference the expectation that parties will cooperate, the Advisory Committee’s Note states that “[e]ffective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure”.

The revisions to FRCP 1 are notable in that the Court and the parties themselves are now expressly obligated to construe, administer and employ the FRCP in a judicious fashion. While one might be tempted to interpret FRCP 1, as revised, as the grounds for relief against a party that fails to comport with its expectations, Courts are unlikely to consider such relief in the absence of good faith efforts to resolve discovery disputes as required under FRCP 37.

The recent amendments to the FRCP more explicitly emphasis the need for proportionality in discovery. FRCP 26(b)(1) has been amended as follows:

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. – 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 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).

[New rule text is underlined; removed rule text is struck through.]

While many practitioners fear a sea of change in the manner in which discovery is conducted, that perception is a product of the failure of counsel to read separate provisions of the FRCP together prior to the recent amendments.

Former FRCP 26(b)(1) allowed for discovery of “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense” and the Court to order discovery of “any matter relevant to the subject matter involved in the action”. Counsel commonly embraced the broad language of former FRCP 26(b)(1) in seeking discovery but overlooked the limiting provisions of FRCP 26(b)(2)(C)(iii) and FRCP 26(g).

As observed in the Advisory Committee Notes to revised FRCP 26,

Most of what now appears in Rule 26(b)(2)(C)(iii) was first adopted in 1983. The 1983 provision was explicitly adopted as part of the scope of discovery defined by Rule 26(b)(1). Rule 26(b)(1) directed the court to limit the frequency or extent of use of discovery if it determined that “the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” At the same time, Rule 26(g) was added. Rule 26(g) provided that signing a discovery request, response, or objection certified that the request, response, or objection was “not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.” The parties thus shared the responsibility to honor these limits on the scope of discovery.

Not surprisingly, parties responding to discovery requests referenced these limitations in objecting to the scope of broad discovery demands.

The amendments to FRCP 26 emphasis the need for proportionality by elevating the limitations imposed under former FRCP 26(b)(2)(C) into the body of the provision governing the scope of discovery.

According to the Advisory Committee Notes to FRCP 26:

The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections.

Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.

Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.

How proportionality plays out will be unique to each case. One commentator, John M. Barker, Esq., a member of the Advisory Committee, suggested the following common sense factors in assessing proportionality:

  1. The importance of the issues at stake
  2. The amount in controversy
  3. Access to relevant information
  4. The resources of the parties
  5. The importance of discovery in resolving the conflict
  6. The burden imposed on litigants versus the likely benefit to the resolution of the dispute.

See The Proposed FRCP Changes: What is “Proportionality” Anyway?

In view of the renewed emphasis on proportionality, parties should consider the manner in which they conduct discovery and engage in discovery with a more surgical level of precision.

While other notable changes were made to FRCP 26(c)(1)(B), (d)(2) and (f)(3), those changes are not taken up in this post, but the reader is encouraged to revisit each of these provisions.

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