The Recent Amendments to Rule 26 of the Federal Rules of Civil Procedure

WDC Journal Edition: Spring 2016
By: Ashley Rouse, Boardman & Clark LLP

On December 1, 2015, a package of amendments to the Federal Rules of Civil Procedure was implemented. Included among the amendments are changes to case scheduling, judicial involvement in case management, and discovery. This Article provides an overview of the changes to discovery practice under Rule 26 and summarizes commentary regarding the practical implications (if any) of the discovery amendments.

Proportionality Standard

There are several prominent changes to Rule 26 on discovery matters ranging from the scope of discovery to updates in timing and sequence. The first key amendment is found in Rule 26(b)(1), which governs the scope of discovery. Under the amended rule, discovery is now centered on the concept of proportionality. Amended Rule 26 provides that unless otherwise limited by court order, the scope of discovery is any non-privileged matter that is both relevant to any party's claim or defense and "proportional to the needs of the case." The "proportional to the needs of the case" language is new. In determining whether the information sought is proportional, the rule provides parties with six factors to consider. They are: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties' relative access to relevant information; (4) the resources of the parties; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.

Most of the factors probably look familiar, as they were present previously in the rule (except for "the parties' relative access to relevant information" factor, which was not present in the previous rule at all). However, the factors were not listed as a part of the scope of discovery. Instead, they were found in a less prominent subpart. Courts were allowed to limit discovery based on those factors. The placement of the proportionality factors within the scope of discovery arguably gives them greater significance in practice. The 2015 Advisory Committee Notes make it clear that parties must now consider the proportionality factors in making discovery requests, responses, and objections.

Further, the proportionality factor requiring consideration of "parties' relative access to relevant information" is an entirely new addition to Rule 26. The inclusion of this factor is intended to bring overt consideration to information asymmetry, where it was once implicit in the former rules.1 Information asymmetry describes a case where one party may have very little discoverable information, while the other party may have vast amounts of information. Information asymmetry is often seen in disputes between large corporations and individual plaintiffs. The Advisory Committee notes that in practice, information asymmetry often means that the party who has more information is left with a greater burden in responding to discovery. The Committee states that placing this burden on the party with more information is proper. Incorporation of this factor into the language of the rules mandates consideration of information asymmetry in determining whether the information is discoverable under the new proportionality standard.

Removal of "Subject Matter" and "Reasonably Calculated"

Another significant change to Rule 26(b)(1) is that the language allowing for discovery of information that appears "reasonably calculated to lead to the discovery of admissible evidence" has been removed from the rule. While surprising to many, the Advisory Committee concluded that the phrase has been used incorrectly to define the scope of discovery and has in fact created problems over the years. The "reasonably calculated" language is now replaced with the direct phrase "information within the scope of discovery need not be admissible in evidence to be discoverable."

In addition, the provision authorizing the court, for good cause, to order the discovery of any matter relevant to the "subject matter involved in the action" has been removed. According to the Committee, this language is rarely used. After the amendments, as long as there is a proper understanding of what is relevant to a party's claim or defense, proportional discovery relevant to any party's claim or defense is sufficient. Some argue that removing this language greatly constricts the scope of available discovery and now discovery will essentially be only selfinitiated as parties may not turn to the court for previously-allowed broader discovery.

Elimination of Listed Examples of Discovery Items in Rule 26(b)(1)

Under former Rule 26, parties could seek discovery of any matter relevant to any party's claim or defense, "including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of such persons who know of any discoverable matter." The amendment deletes that language. Though the language has been removed, the Committee Notes explain that discovery of such matters is still permitted under the amended rule when relevant and proportional to the needs of the case. The Committee explains that discovery of these items is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with the examples.2 Thus, this amendment is not designed to have any practical impact despite the significant amount of language removed from the Rule.

Timing and Sequence of Discovery

The timing and sequence of discovery has alsobeen amended in two major ways. The first changerelates to the timing of discovery and updates theprocedure for service of requests for production.The second change relates to discovery’s sequenceand allows parties to stipulate to case-specificsequences of discovery.

Parties were forbidden under the previous rule from serving document requests before the Rule 26(f) conference. The Rule 26(f) conference can provide for a swifter disposition of the case by planning for discovery and exploring whether the parties are open to the possibility of settlement. Amended Rule 26(d)(2) now permits a party to "deliver" requests for production prior to that conference. Parties may now deliver requests as soon as 21 days after the receiving party has been served in the litigation. Delivery may be made even though the parties have not yet had a Rule 26(f) conference. Following the conference, producing parties have 30 days to serve objections and responses. Practitioners should note that the rule makes a distinction between "delivery" of requests and "service" of requests. Delivery of requests for production does not count as service. Instead, requests delivered prior to the Rule 26(f) conference will not be deemed served until the Rule 26(f) conference occurs. This of course means that the time for responding is not triggered until the conference is held.

The purpose of the revision allowing early requests for production is to foster more productive and focused discussions during Rule 26(f) conferences. If parties are aware of what opposing counsel is seeking at the time of the conference, this knowledge will arguably assist with more streamlined discussions. The Committee further acknowledges that discussion at the conference may result in a party changing the requests. If a party is provided an opportunity to review the requests before the conference, this should not impact a decision of whether or not to allow additional time to respond.3 The second change to the Rule allows parties to stipulate to case-specific sequences of discovery under amended Rule 26(d)(3).

Expenses for Disclosure

Rule 26(c)(1)(b) is amended to include an express recognition of protective orders that allocate expenses for disclosure. As the Committee Note states: "Authority to enter such orders was in the previous rule and courts already exercise this authority. However, explicit recognition is designed to forestall the temptation some parties may feel to contest this authority." The Committee has noted that explicitly recognizing the authority does not imply that cost-shifting should become a common practice. Instead, courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.4

Discovery Plans

Yet another amendment to Rule 26 revises the required contents of discovery plans to include two additional topics. Under the former rule, parties were required to develop a proposed discovery plan on the issues of initial disclosures and the scope of discovery. After the amendments, discovery plans must now also state the parties' views and proposals on both electronically stored information ("ESI") preservation and orders protecting against waiver of the attorney-client privilege. Beginning with the topic of ESI, both parties must now address preservation issues in the discovery plan itself. Previously, discussions regarding ESI preservation could be completed at the meet and confer. Additionally, the parties must consider seeking a 502(d) order to protect against waiver of the attorney-client privilege or work product protection under amended Rule 26(f)(3)(d). The amendments to the provisions on discovery plans are designed to encourage the early identification and resolution of potential disputes.

Commentary Regarding the Significance of the Amendments

In the 2015 Year-End Report on the Federal Judiciary, Chief Justice John Roberts stated that the 2015 amendments "provide a concrete opportunity for actually getting something done." The Chief Justice further stated that amended Rule 26(b)(1) develops the concept of reasonable limits on discovery through additional reliance on the common-sense concept of proportionality. He added that the amendments eliminate unnecessary and wasteful discovery. He concluded that the true test for plaintiffs' and defendants' counsel alike is whether they will "affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results." Members of the bar, he stated, did not go to law school because of a "burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics."

Though the Chief Justice hails the amendments as a much-needed change, the views and commentary from practicing litigators regarding the amended discovery rules are mixed. Supporters of the amendments assert that the changes will encourage parties to devote more attention to discovery planning and to also give greater consideration to conducting phased discovery. On the other hand, attorneys in opposition to the amended rules assert that the changes will result in significant constrictions to the scope of discovery. Finally, there are some attorneys who assert that the changes are unnecessary and will have very little practical effect on the way attorneys conduct discovery.

A member of the Advisory Committee stated that the amendments were not enacted to reduce the scope of relevant discovery. Instead, "the whole point of these changes is to make the rules work better, and lawyers should respond in that spirit."5 Commentators are split on whether that will actually prove true in practice. One Wisconsin attorney asserts that the Committee downplays the significance of the 2015 Rule changes and states that courts and practitioners should prepare for the paradigm shift affected by the amendments.6 Additionally, some commentators assert that litigants are undoubtedly going to continue to receive incredibly broad discovery requests that demand "all" documents, data, correspondence, etc. As this practice will not change, proportionality will become the new blanket objection, leaving the party who is requesting the information with the burden to justify how each request made is proportional to the needs of the case. The Advisory Committee attempts to alleviate those concerns by making clear within the Committee Notes that the changes are not intended to permit opposing parties to make blanket objections stating that the information sought is not proportional.7 Instead, both the parties and the court have a shared responsibility to evaluate the proportionality of discovery and consider it when resolving discovery disputes.8

A fair amount of criticism regarding the amendments provides that the amendments are in sharp contrast with the robust model of discovery that is intended for litigation practice. Commentary of this nature cites to the deletion of the "reasonably calculated" provision as an example of one of the amendments that will significantly constrict the scope of discovery, citing cases when broad discovery was ordered based on that provision.9 If parties are no longer able to seek discovery of information reasonably calculated to lead to admissible evidence, this will essentially limit the breadth of discovery that can be sought and obtained. Parties now must be prepared to argue the proportionality of the discovery they seek without having a full understanding of what the request may lead to. As a further limit, practitioners may no longer ask a court for broader discovery of "any matter relevant to the subject matter involved in the action." These restrictions, some argue, will drastically impact the access that an opposing party has to information that was once discoverable under the previous rule.

Supporters of the changes to Rule 26 argue that the amended rule will encourage parties to devote more attention to discovery planning. Also, in an effort to ensure that discovery is proportional, practitioners may give greater consideration to conducting discovery in phases. Along those same lines, the emphasis on proportionality may lead to reductions in the costs of discovery as parties must be more thoughtful about the discovery they seek. Finally, as parties are able to deliver discovery requests prior to the 26(f) conference, both sides are now able to come to the conference with an understanding of the information sought and talk through the reasonableness or necessity of the requests.

As practitioners are split on what the effects of these amendments will be, the Duke Law Center for Judicial Studies drafted a set of guidelines for practitioners and judges, entitled "Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality." The guidelines offer practices and useful ways to achieve proportional discovery, noting that there is no one-size-fits-all approach.10 For example, one recommendation is that the parties and the judge consider using technology to help achieve proportional discovery. This practice is recommended because technology can help achieve proportionality by decreasing the burden or expense, or by increasing the likely benefit, of the proposed discovery. The guidelines also offer a recommendation for cases in which discovery is likely to be voluminous or intricate, or cases in which the parties are likely to have significant disagreements about the relevance or proportionality of discovery. In those cases, the Center recommends that the parties and the judge consider initially focusing discovery on the subjects and sources that are most clearly proportional to the needs of the case. The results of that discovery should be used to guide decisions concerning further discovery.11

Conclusion

The implementation of amendments to the practice of discovery under the federal rules has been touted by many as a way of developing more focused and effective discovery practice. On the other hand, the amendments have also been sharply criticized for greatly restricting the scope of discovery. Despite the great divide, until the rules have been in practice for quite some time, it remains to be seen whether the amendments will actually have significant practical implications long-term.

Ashley Rouse is an associate with Boardman & Clark LLP and is a member of the firm's Litigation and Labor and Employment practice groups. Prior to joining Boardman & Clark in 2015 as an associate, Ashley spent two summers as a law clerk with the firm during law school. Ashley is licensed to practice law in Wisconsin and Illinois.

References
1 Fed. R. Civ. P., 2015 Notes of Advisory Committee.
2 Id.
3 Id.
4 Id.
5 Andrew M. Kennedy, "Amended Federal Rules: Streamlining Litigation," ABA Journal, Vol. 41., No. 2 (Winter 2016).
6 Richard B. Moriarty, "And Now for Something Completely Different: Are the Federal Civil Discovery Rules Shifting Back in Time?," Western District of Wisconsin Bar Association (May 2015).
7 Fed. R. Civ. P., 2015 Notes of Advisory Committee.
8 Id.
9 Moriarty, "And Now for Something Completely Different," supra note 6.
10 Discovery Proportionality Guidelines and Practices, 99 Judicature No. 3 (Winter 2015).
11 Id. Visit