Proportionality Under FRCP Rule 26(b) – A New Regime or More of the Same?
May. 31, 2017|By Seth T. Goertz
In December 2015, Rule 26(b) of the Federal Rules of Civil Procedure was amended to narrow the scope of admissible discovery. The purpose of the amendment was to bring a greater focus to the concept of proportionality. Nearly two years later, the amendment has resulted in widescale debate, but its actual impact remains unclear.
Under the previous Rule 26(b) standard, relevant information was discoverable as long as it “appear[ed] reasonably calculated to lead to the discovery of admissible evidence.” Thus, information was discoverable even if was not admissible. The new Rule 26(b) standard still requires information to be relevant, but it must also be “proportional to the needs of the case.”
By removing the “reasonably calculated to lead to the discovery of admissible evidence” standard and replacing it with one based upon proportionality, the federal rules advisory committee sought to narrow the scope, burden, and expense of discovery. Under the new Rule 26(b), judges are encouraged “to be more aggressive in identifying and discouraging discovery overuse” by analyzing whether the information sought is actually proportional to the needs of the case. See State Farm Mut. Auto. Ins. Co. v. Fayda, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015).
This emphasis on proportionality is not isolated to the federal rules, but is part of a nationwide trend towards greater efficiency in civil litigation. Arizona, for instance, recently created a commercial court to expedite the resolution of lawsuits involving businesses. Arizona’s commercial court was created in July of 2015 and is in the midst of a three-year pilot program in Maricopa County.
One of the Arizona commercial court’s main areas of emphasis is proportionality in the discovery of electronically stored information (“ESI”). As a result, parties that litigate in the commercial court are provided with an ESI checklist and must confer about ESI prior to the Rule 16(b) scheduling conference. The e-discovery needs of each party are also addressed at the Rule 16(b) scheduling conference to ensure that e-discovery is proportional throughout the course of litigation.
While the ultimate impact of Rule 26(b) remains unclear, the importance of proportionality in civil discovery is undeniable. Over the last decade, litigation costs have grown exponentially. Federal judges, and judges in most states (including Arizona), now have the ability to “proportionally” limit discovery in civil cases. Accordingly, commercial litigants should prioritize discovery at the start of litigation by considering the nature of the documents and custodians at issue, and by engaging in early conversations with opposing counsel.