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.

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
 
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.