Revised Federal Rule 26 Limits Scope of Discovery

The U.S. Supreme Court has adopted amendments to the Federal Rules of Civil Procedure, effective December 15, 2015.  Two of the Court’s amendments will have a direct and important impact on the scope of civil discovery under Rule 26.  While the Court’s intention in amending Rule 26 is to rein in overbroad and expensive discovery requests, that goal likely will be difficult to accomplish.

Since 1946, Rule 26 has defined the scope of permissible discovery as anything “reasonably calculated to lead to the discovery of admissible evidence.” Courts have interpreted the rule as broadly permissive, finding anything that may “reasonably” lead to the discovery of admissible evidence to be fair game.  Although such language has been criticized as allowing for discovery “fishing expeditions”, past attempts to narrow the scope have been unavailing.

The new amendments add a subjective component to the judicial role in the discovery process. The first amendment encourages judges to restrict discovery by applying five subjective factors: 1) the amount in controversy; 2) importance of the issues at stake in the action; 3) parties’ resources; 4) importance of the discovery in resolving issues; and 5) whether the burden or expense of the proposed discovery outweighs its likely benefit.   The second amendment authorizes protective orders that include “allocation of expenses” arising from discovery.  This will provide parties who are faced with unreasonable discovery requests with a means of recourse and may ultimately lead litigants to narrow their discovery requests.  These changes will require the judiciary to determine what is reasonable.

Not everyone supports the amendments.  Opponents in Massachusetts argue that judges already lack the resources to handle current discovery disputes, and the addition of such subjective factors is unrealistic.  They suggest that instead of simply evaluating the legal merits of a claim, judges will now need to assess the parties’ litigation strategies.

Others argue that the amendments will not achieve the intended results. Naysayers suggest that while some, more powerful, litigants will benefit either monetarily or tactically, the change will not ensure a higher level of justice.  Many worry that litigants will use the new restrictions as a shield against their opponents’ access to damaging documents. 

Looking forward 

How, and to what degree the amendments will affect current discovery practice will depend both on judges’ interpretations and on whether litigators can revise their longstanding views of what is appropriate and necessary discovery.   It may turn out that, rather than reducing discovery costs and increasing speed, the amendments simply create new controversies to be litigated