Amendments to the Federal Civil Rules May Carry Unintended Consequences

By Zachary T. Graham, Esq.

The overarching goal of the recent amendments to the Federal Rules of Civil Procedure is described in the new text of Rule One – which promotes the “just, speedy, and inexpensive determination of every action and proceeding.”

Some of the changes Federal Civil Rules directed toward increasing the “speed” of the litigation process include shortening court deadlines and urging parties to negotiate small issues without the court’s intervention.

However, some of the more substantive changes occur within the discovery rules and are directed toward decreasing the expense of discovery. Before the recent changes, attorneys and courts alike interpreted the language “reasonably calculated to lead to the discovery of admissible evidence,” to define the scope of discovery. That language has been modified to limit discovery to “any nonpriviledged matter that is relevant to any party’s claim or defense and proportional to the needs of the case …” Thus, the implication is that information need not be admissible to be discoverable – merely nonprivileged, relevant, and proportional.

Additionally, the rule provides several factors that are to be considered by counsel and the court that speak to the proportionality aspect of the discovery rule, including: the importance of the issues at stake; the amount in controversy; each party’s access to relevant information; each party’s resources; whether burden or expense outweighs the likely benefit; and the importance of discovery in involving issues.

While the replacement of language defining the scope of discovery seems to broaden its scope, the emphasis placed on proportionality is intended to make parties demonstrate the importance of the desired information to their case – rather than merely making wholesale discovery requests with the hope that information sought might lead to some admissible evidence. Several recent cases have highlighted the courts intent to emphasize proportionality with respect to discovery requests. See Gilead Sciences, Inc. v. Merck & Co. Inc., 2016 WL 146574 (N.D. Cal. 2016); see also Herrera v. Plantation Sweets, 2016 WL 183058 (S.D. Ga. Jan. 14, 2016).

The Rules Committee will study the effect of the new rules; however, it will not be clear whether the changes have caused their intended effect for a long time.