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FRCP 26(b)(1) Amendments Are Meant to Matter

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The amendments that changed Federal Rule of Civil Procedure 26 on December 1, 2015 re-define the scope of discovery and seek to rein in abusive over-discovery. Two revisions in particular demonstrate that these amendments narrow the framework of allowable discovery.

First, the amendments delete from Rule 26(b)(1) the provision that discovery may seek relevant but inadmissible information “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” As the Committee Notes reflect, that provision “ha[d] continued to create problems” because this loose phrase had “been used by some, incorrectly, to define the scope of discovery.” Crosby v. Louisiana Health Serv. & Indem. Co., 647 F.3d 258, 263-64 (5th Cir. 2011) is one example of such a case in which the “reasonably calculated” terminology of the former rule was used to expand allowable discovery, an approach that should fall by the wayside after the removal of that provision from Rule 26(b)(1).

Second, the amendments constrain discovery to information and materials that is both relevant and “proportional to the needs of the case[.]” Although previous versions of Rule 26 included the concept of proportionality, courts had failed to utilize proportionality considerations to place meaningful limits on discovery. As Judge David Campbell, Chair of the Advisory Committee on the Federal Rules of Civil Procedure, explained in his June 14, 2014 memorandum on the proposed amendments, “[t]he previous amendments [addressing proportionality] have not had their desired effect. The Committee’s purpose in returning the proportionality factors to Rule 26(b)(1) is to make them an explicit component of the scope of discovery, requiring parties and courts alike to consider them when pursuing discovery and resolving discovery disputes.” The Committee Notes also indicate that the 2015 amendments mandate that courts must consider the proportionality factors set forth “in defining the scope of discovery.”

The Rule 26(b)(1) amendments’ reformulation of the scope of discovery demonstrates that these changes are not mere technical corrections or tweaks to phraseology – these amendments are meant to yield substantial changes to current discovery practices. If interpreted consistent with the intent of the drafters, these amendments will rein in discovery abuses that seize on asymmetries in the parties’ store of information to drive up litigation costs.