by Mitch Klein
The Federal Rules of Civil Procedure were recently amended. Amongst the changes, perhaps the most significant are the changes to discovery under Rule 26.
Previously, parties were entitled to conduct discovery regarding anything that might be “reasonably calculated” to lead to relevant and admissible evidence. In practice, this led to some parties deposing witnesses and subpoenaing documents with only a tenuous relationship to the real issues of the case. This kind of behavior caused significant costs and delays in litigation.
In environmental and national resource litigation, abusive discovery conduct typically results from parties without any real evidence looking for some (fishing expeditions), deep-pocketed parties trying to overwhelm their adversaries under a pile of documents and/or multiple and lengthy depositions, or parties who have no real idea what they were doing and are trying to figure it out along the way.
The new rule now requires an analysis of “proportionality.” Rather than seeking everything but the kitchen sink, a party conducting discovery has an obligation to show why the discovery is reasonable under the facts and circumstances of the case.
Thus, if a case does not have a lot at stake – in terms of money, precedence or impact – and the sought after discovery is only tangential to the real issues, the discovery can be challenged.
For environmental and natural resource cases, these changes are likely to have important impacts in several scenarios. Most of the scenarios will arise in those cases where the parties have disparate financial or legal resources available to them.
First – in general, it should require plaintiffs to think more about the case before it is filed. Pre-litigation investigation and more carefully (and narrowly) focused claims are now more required than ever. Plaintiffs should not be able to file lawsuits and then rely on discovery to help them figure out their claims later.
Second – it hurts the government. Because governmental agencies are subject to the production of any public record under the Freedom of Information Act and public records law, which is separate from the scope of litigation discovery, parties can still try to obtain evidence from the government through those processes, while the government’s discovery ability is more limited.
Third – in cases brought by NGOs or neighbor groups against large corporations, it is likely that the plaintiffs will claim poverty and seek to limit the scope of discovery – except when it suits them, and then they will claim that the corporations should have to provide them with whatever they want. The inevitable dispute over whether one party must shoulder a greater burden than the other will likely become a battleground in many cases involving environmental and natural resource issues.
Fourth – appropriate disclosure becomes even more important. If discovery is to be limited, then the parties must fully disclose all relevant evidence to one another (including evidence that hurts their claim or defense) or face significant sanctions. Parties can no longer rely on the claim that the other side could (and should) have learned more about something by conducting discovery. The whole point of the changes to the rule is to eliminate as much burdensome discovery as possible.
Finally, the Rule changes make it imperative that parties deal with the scope of discovery at the very beginning of the case. Establish what factors are at play and what the boundaries should be. If not, the new rules will likely lead to even more discovery disputes than the old rules, and discovery disputes can waste as much time and resources as the underlying discovery.