By Andrew P. Holland and Jared M. Ahern
Rule 26 may be the most important Federal Rule of Civil Procedure because it governs discovery, which is arguably the most important part of modern civil litigation. On December 1, 2015 Congress amended Rule 26 to make “proportionality” a more prominent part of the rule.1 Generally, proportionality requires striking a balance between the need for the information sought in discovery with the burden imposed on the party who would have to supply that information.
By moving the proportionality language to the prominent “scope of discovery” section of Rule 26, the amendment effected substantive change in the law.2 This change will have an effect on courts, practitioners, and parties.
One possible result is that parties will more often address proportionality concerns at the outset of a case, for example at the Rule 26(f) joint discovery conference. However, it may be difficult to determine what information is needed, and what the cost will be to provide that information, until discovery is actually underway, making such early cooperation difficult.
More likely, proportionality will be addressed more often as issues arise during the course of discovery, and the parties can tailor their discovery in a way that fits with the spirit of the amended Rule 26. Or, if they cannot come to an agreement on what compliance with the amended rule looks like, the court can make such a determination for them.
In the short term, the amended rule may create more costs as a result of litigation over its meaning. A party—especially a well-funded one attempting to avoid complying with an expensive discovery request—may now find it advantageous to litigate discovery issues more often. Such party would have the lack of precedent and attendant uncertainty created by the new rule, as well as its arguably limiting effect on what is discoverable, as ammunition.
The new rule could also disadvantage plaintiffs who may run into defendants using the rallying cry of proportionality to resist producing information in discovery. In the long term its effect on plaintiffs in this regard will be determined by how the courts interpret the rule.
Liberal discovery rules are important as they “assist in the preparation and trial, or the settlement, of litigated disputes.”3 But liberal discovery often equates to more expensive discovery, which is a disadvantage to the litigant with limited resources. While there is a public policy interest in discovering the truth through adequate discovery and then trial, there is also a public policy interest in not having a court system that systemically favors well-funded litigants. The amended Rule 26 is the latest effort of Congress to balance these competing interests. Until more time passes the results of this effort remain to be seen, but it is clear that the framers of the amendment recognized that the ever-expanding scope and cost of discovery was something that needed to be addressed.4
1The Supreme Court promulgates amendments to the Federal Rules of Civil Procedure and if Congress does not take action they become law. 28 U.S.C. § 2074(a).
2See Noble Roman’s, Inc. v. Hattenhauer Distrib. Co., No. 1:14-CV-01734-WTL-DML, 2016 WL 1162553, at *7 (S.D. Ind. Mar. 24, 2016) (applying amended rule and denying discovery because the requesting party did not “demonstrate that the discovery is in any way proportional to the needs of this case . . . .”).
3Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984).
4See Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (referring to “protracted discovery” as “the bane of modern litigation.”).