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Rule 26(b)(1): What’s the big deal?

Posted 02/4/16 9:01 PM by Clint Williams

With the changes to the Federal Rules of Civil Procedure, affectionately known as FRCP, having gone into effect on December 1st, 2015, I thought that it might be a good time to take a look at the much-discussed change to Rule 26(b)(1). Many have argued that the changes to this rule regarding proportionality will have a significant impact on discovery costs by limiting the scope of discovery while others believe that it will have little or no discernable impact.

  

Here is how the rule reads now with the added text being underlined and the removed text being struck out:

  1. Scope in General. Unless otherwise limited by court order, the scope of discovery is 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 issue 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. Including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.  All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

The new rule lays out six elements which should be considered when determining if the request is “proportional to the needs” and they are as follows:

  • 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.

  • Whether the burden or expense of the proposed discovery outweighs its likely benefit.

For the most part, the gist of the proportionality standards has been present since 1983. It is possible that the renewed focus on proportionality will strengthen responding parties’ stance when faced with unreasonable requests. As noted by the Advisory Committee the reasoning behind this is to “restore the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections.” Will the changes regarding proportionality have a significant impact on limiting the scope of discovery? That is yet to be seen.

 

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Clint Williams

About The Author

Clint Williams has been in the legal services sector since 1999 and has served as Managing Shareholder of the Oklahoma City office for the past 12 years. Attorneys running the gamut from boutique law firms to Fortune 500 companies have found extraordinary value in partnering with Clint concerning their discovery management needs. Utilizing best-of-breed technologies and customized workflows, Clint has a proven track record of delivering solutions focused on reducing both cost and risk.

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