United States: Increased Focus On Proportionality In Discovery Is Anticipated To Aid Employers

On December 1, 2015, a package of amendments to the Federal Rules of Civil Procedure ("FRCP") went into effect, including significant amendments to Rule 26(b)(1), which governs the scope and limits of discovery. In response to concerns about growing costs and the magnitude of discovery, particularly electronic discovery – which in employment disputes typically is borne primarily by employers – Rule 26(b)(1) now requires that discovery be proportional to the needs of the case. Although the practical effects of revised Rule 26(b)(1) are yet to be seen, employers and other defendants combating overbroad discovery requests should be hopeful that this revised rule will limit the scope of discovery and lead to a reduction in the outsized costs of discovery in litigation experienced in recent years.

Prior to the recent amendments, Rule 26(b)(1) defined the standard for the scope and limits of discovery as that which was "reasonably calculated to lead to the discovery of admissible evidence." This language was long relied on by counsel to seek wide-ranging discovery, typically to the detriment of employers and other defendants. Rule 26(b)(1) was silent regarding the concept of proportionality, except for stating that it was subject to the limitations imposed by Rule 26(b)(2)(C). Rule 26(b)(2)(C) governs court-ordered limitations on discovery, such as motions for protective orders, and generally addresses issues of proportionality without specifically referencing the concept. However, as stated above, Rule 26(b)(1), which set the standard for the scope of discovery in general, did not mention proportionality as a factor to be considered, and courts rarely explicitly focused on proportionality in addressing discovery disputes.

The amended Rule 26(b)(1) omits the language "reasonably calculated to lead to the discovery of admissible evidence" and now states the standard for the scope of discovery 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.


FRCP 26(b)(1) (emphasis added).

Revised Rule 26(b)(1) thus elevates the concept of proportionality to a primary position in the text of the rule and affirmatively integrates proportionality into the definition of the scope of discovery. Proportionality now must be considered by the parties and the court in considering the overall scope of discovery and what should and should not be discoverable in any given case – discovery is proper only if the matters at issue are both relevant and proportional. Moreover, the "amount in controversy" and "whether the burden or expense of the proposed discovery outweighs its likely benefit" are also factors that now must be considered in analyzing the appropriate scope of discovery in a given case, which may also have limiting effects on the permissible scope of discovery.

Although the practical effects of the revisions to the rule remain to be seen, employers and other defendants should be optimistic that revised Rule 26(b)(1) will serve as a useful tool to help reduce the scope and cost of discovery. For example, a plaintiff's blanket request seeking all documents and communications, whether paper, electronic, or other media, referring to the plaintiff would appear to be facially improper under revised Rule 26(b)(1). Parties responding to and disputing such requests will be better equipped to argue against such wide-ranging and onerous requests and, more generally, to challenge overbroad requests for electronic discovery. The increased focus on proportionality also may have the benefit of encouraging parties to devote more attention to discovery planning and give greater consideration to conducting phased discovery than in the past. Likewise, courts must also now consider proportionality when overseeing the implementation of discovery plans and ruling on discovery matters, such as motions to compel discovery, which should further help limit the allowable scope of, and costs associated with, discovery.

Other Important Amendments to the Federal Rules

In addition to the aforementioned changes, several other impactful amendments were made to the FRCP effective December 1, 2015. Although detailing all of the amendments is beyond the scope of this article, certain key additional amendments are highlighted below.

Rule 4(m)

  • Reduces the time to serve a summons and complaint from 120 to 90 days.

Rule 16(b)(3)(B)

  • Specifically provides that a scheduling order may mandate the preservation of electronically stored information.

Rule 34(b)(2)(A)

  • Revises the time for serving discovery requests, permitting them to be served before the parties' Rule 26(f) conference. In the event the requests are served before the Rule 26(f) conference, the responding party has 30 days from the conference to respond.

Rule 34(b)(2)(B)

  • Requires the grounds for objecting to discovery requests to be stated with specificity.
  • Provides that document production must "be completed no later than the time for inspection specified in the request or another reasonable time specified in the response."

Rule 34(b)(2)(C)

  • Requires that objections state whether any responsive materials are being withheld on the basis of that objection.

Rule 37(e)

  • Creates a uniform standard for the imposition of spoliation sanctions and states that a court may impose sanctions based on the failure of a party to take reasonable steps to preserve electronically stored information that should have been preserved in anticipation of, or the conduct of, litigationwhere such information cannot be restored or replaced through additional discovery as follows:

    1. upon finding prejudice to another party from the loss of the information, the court "may order measures no greater than necessary to cure the prejudice" to the other party; or
    2. only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation, the court may (a) presume the lost information was unfavorable to the party, (b) instruct the jury that it may or must presume the information was unfavorable to the party, or (c) dismiss the action or enter a default judgment.

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.

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