United States: Catch Up With Discovery Practice Under Amended FRCP

In December, proposed amendments to the Federal Rules of Civil Procedure took effect. These amendments introduce measures aimed at making discovery practice more efficient and effective. As Chief Justice John Roberts noted, these procedural reforms grew out of a concern that "civil litigation has become too expensive, time- consuming, and contentious, inhibiting effective access to the courts." The amended rules constitute an effort to give meaning to the "affirmative duty [lawyers representing adverse parties have] to work together, and with the court, to achieve prompt and efficient resolutions of disputes."

The rules crystallize the scope of discovery and introduce a standardized vocabulary for discussing and resolving disputes. These amendments impact (and can improve) discovery practice under Rule 34.

The Ground Rules: Scope of Discovery under Rule 26

The amendments clarify the general scope of discovery under Rule 26(b)(1) by stressing proportionality in civil discovery. As amended, Rule 26(b)(1) provides that " [p]arties 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." The rule sets forth the following factors to consider in evaluating whether discovery is proportional: "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."

Earlier language that justified expansive discovery is now gone. For instance, Rule 26(b)(1) no longer contains language allowing discovery of information "reasonably calculated to lead to the discovery of admissible evidence." This phrase, the Advisory Committee on Rules of Civil Procedure found, "has been used by some, incorrectly, to define the scope of discovery." Similarly, the committee deleted a little-used provision authorizing the court to order discovery into any matter relevant to the "subject matter" involved in an action. This amendment thus eliminates any potential distinction between discovery of information relevant to the parties' claims or defenses and discovery of information relevant to the subject matter of an action.

Proportionality in civil discovery has been an implicit consideration in litigation for some time. The notion of placing reasonable limits on discovery is inherent in Rule 1, which strives to "secure the just, speedy, and inexpensive determination of every action and proceeding." And many of the proportionality considerations now enumerated in Rule 26(b)(1) appeared in prior versions of the rules, including most recently in former Rule 26(b)(2)(C). The committee introduced most of these factors in 1983, when it amended the scope of discovery "to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry." Those 1983 amendments also included additional certification requirements under Rule 26(g), which imposes "an affirmative duty" on the parties "to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37." But, while the 1983 and subsequent amendments attempted to foster greater cooperation between the parties in discovery and in the efficient resolution of disputes, the adversarial nature of litigation won out and the same abuses remained.

Considering this history, the 2015 amendments to Rule 26(b)(1) may merely make explicit what previous iterations of the rules left aspirational. The additional clarity has two primary benefits. First, it focuses attention back on the actual purpose of discovery- to collect information that is necessary to resolving the dispute. As such, the amended rule requires litigants to engage in "careful and realistic assessment of actual need" in developing discovery requests. And it also "encourage[s] judges to be more aggressive in identifying and discouraging discovery overuse." Second, the factor-based rubric provides a standard vocabulary for articulating discovery arguments, though it remains to be seen how courts will resolve discovery disputes under the amended language.

The Main Event: Discovery Practice under Rule 34

With tighter case management deadlines and the allowance of early document requests, discovery practice under the amended rules now begins shortly after service of the complaint. Amended Rule 26(d)(2) allows any party to issue document requests starting 21 days after service of the complaint. These requests are deemed served on the date of the first Rule 26(f) conference, and the party receiving the requests has 30 days from this date to respond. As a practical matter, the amended rules push up the early case management deadlines by 30 days as well, absent good cause. By default, under Rule 16(b)(2), the judge must issue the scheduling order within the earlier of 90 days (previously 120 days) after any defendant has been served with the complaint or 60 days (previously 90 days) after any defendant has appeared. And the parties must hold the Rule 26(f) conference at least 21 days before the date the court issues its Rule 16 order.

To ensure higher quality discovery responses, amended Rule 34 also places heightened burdens of particularity on the party responding to document requests. If a responding party objects to any document request to any extent, Rule (34)(b)(2)(B) says the party must "state with specificity the grounds for objecting to the request, including the reasons." The response "must state whether any responsive materials are being withheld on the basis of that objection"; if a party objects to only part of a request, Rule (34)(b)(2)(C) says the party must specify the part and produce or permit inspection of the rest. The production must occur either by the date specified in the request or another reasonable time specified in the response per Rule 34(b)(2)(B). Given the emphasis on greater specificity, counsel for any party should develop a categorical understanding of their client's documents and electronically stored information early in the case. That means interviewing relevant custodians and commencing document collection and review efforts as soon as possible - prior to being served with discovery requests.

On balance, a party's obligations under the amended rules are not different in kind from what they have always been. Rather, the new requirements impose only greater burdens of articulation on both parties. For the party propounding a document request, it's a question of articulating need, which boils down to a combination of relevance and proportionality; for the responding party, it's about articulating burden in its various forms, and rebutting the proponent's need-based arguments. The apparent objective here is to develop better requests, i.e. ones tailored to the needs of the case, and better responses. The committee notes that "[t]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection."

By design, the procedures reward diligence and specificity. For instance, if a request is vague and ambiguous or overbroad, the responding party should - at a minimum - specify the problematic language within the request. It may even be helpful for the responding party to supply its own interpretation of this language, in order to better define the scope of production, if any.

Similarly, when challenging a request on relevance or burden grounds, the responding party should identify the specific nature of the burdens involved in producing the requested information, including cost information, and the importance of that subcategory of documents in resolving the issues in the litigation (which might include documents relevant to settlement). If the responding party can identify a subset of a document request that would yield the most relevant documents, while withholding subcategories of documents that pose an undue burden, all the better.

In other words, the party prepared with a more granular justification for its request (or objection) appears more likely to succeed in case of a dispute. For the party propounding discovery, that means developing a series of narrow requests targeted to the specific issues necessary to efficiently resolve the case. For the party responding to discovery, that means breaking down a discovery request into its constituent subparts and addressing how a particular objection, if any, provides grounds for withholding each subcategory of documents. At bottom, the amended rules embody a vision of discovery practice where both parties and the court are actively engaged in discovery practice, where disputes are tracked and refined early, and where every discovery request has the potential to advance some material aspect of a lawsuit.

Originally published in the Daily Journal on February 22, 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
17 Oct 2017, Conference, California, United States

Women are a more powerful presence in business than ever, as entrepreneurs and corporate leaders. Join us for a half-day packed with real-worl​d know-how, firsthand experiences and an in-depth look at the entrepreneurial climate today – all designed to help entrepreneurial women take their businesses (and their careers) to the next level.​​

17 Oct 2017, Seminar, California, United States

Ivy Associates presents the annual All Hands Meeting in coordination with the Silicon Valley Association of General Counsel, an association of chief legal officers from more than one hundred leading technology and life science companies.​

17 Oct 2017, Seminar, California, United States

TEDx Wilmington is holding the first TEDx Salon dedicated to ideas worth spreading in transportation on Tuesday, October 17, 2017 in Wilmington, Delaware.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.