Redefine Scope of Discovery

On August 3, 2013 the Judicial Conference’s Committee on Rules of Practice and Procedure (i. e. the Standing Committee) approved for publication its report containing planned changes to Federal Rules of Municipal Procedure. The report was subsequently disseminated for comment and at its spring meeting in May, the Standing Committee approved the planned changes with minor revisions. The planned changes will be considered by the Judicial Conference in September. From there, the planned changes will be considered by the Better Court, and if approved, Congress will have seven months to either decline or say yes to the new rules. If approved, the foundations will take influence on or after November 1, 2014 legal dianabol.

If passed, the planned changes will significantly change federal discovery practice. Mostly, the changes will limit discovery in several ways. This article (and several future articles) explores the outcome of the planned changes.

One significant change, if passed, will redefine the scope of discovery.

Under the amended Rule 26(b)(1), discoverability depends upon proportionality and importance. The amended rule states partially:

“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 amount in controversy, benefit of the issues endangered in the action, the parties’ resources, benefit of the discovery in resolving issues, and whether the burden or expense of the planned discovery outweighs its likely benefit. Information in this scope of discovery need not be admissible in evidence to be discoverable. inch

Lawyers will recognize the concept of proportionality from Rule 26(b)(2)(C)(iii), which are proportionality considered in the court’s duty to limit the frequency or extent of discovery. However, redefining the scope of discovery to include proportionality places the onus on parties and lawyers to observe the issue without court order.

Notably absent from the amended rule is the language making discoverable even inadmissible information if reasonably calculated to lead to the discovery of admissible evidence. The Committee Note provides that discovery of such information remains available provided it is otherwise within the scope of discovery. However, the Committee Note also states, “The discovery of inadmissible evidence should not extend beyond the permissible scope of discovery simply because it is ‘reasonably calculated’ to lead to the discovery of admissible evidence. inch

Also erased from the current Rule 26(b)(1) is the consent to the court, upon good cause shown, to order discovery of any matter relevant to the subject matter active in the action. The Committee believes proportional discovery of information relevant to any party’s claims or safeguarding to be sufficient. The Committee Notes suggest proportional discovery may support change to add claims or safeguarding, which will expand the scope of discovery.

Because of the expense associated with e-discovery, the amended rule will especially impact e-discovery. Careful planning will be key. Proportionality under the new Rule 26(b)(1) suggests partially a cost-benefit analysis, and consequently, the discoverability of in an electronic format stored information may rely on the ability to foresee potential e-discovery issues and craft cost-effective solutions.

For this reason, litigants should involve their e-discovery professionals at the earliest levels, prior to suit, if possible. An e-discovery specialist, particularly one also an experienced attorney, has the skills to spot potential e-discovery challenges, weigh the solutions, and know how far better manage the e-discovery in the context of the new rules.

As the planned changes continue through the approval process, further revisions may be made. Lawyers will want to monitor further developments in the coming months.