Changes to U.S. Discovery Rules: The New FRCP 26(b)(1)

Ted Folkman of Letters Blogatory has a “major conceptual change” to the rules on discovery in the United States to report:

European readers, who love to hate U.S. pretrial discovery—this one is for you. Absent action by Congress, on December 1, 2015, an amendment to Federal Rules of Civil Procedure (FRCP) 26 adopted by the Supreme Court will go into effect. The main change concerns the scope of permissible pretrial discovery.

Under the old rule:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.

But under the new rule:

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 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Of course, we don’t know how courts will apply the new rule yet, how they will weigh the factors mentioned in the rule, and so forth. It’s possible that the rule will mark a dramatic change in U.S. practice, and it’s possible that the rule will make hardly any difference at all in practice. If I had to guess, I would guess that it will make a difference at the margins; but courts and parties were already on a road to dealing with the problems of proportionality raised by e-discovery anyway. In principle, though, the amendment to Rule 26 is a major conceptual change in the theory of U.S. pretrial discovery that should be welcome to the many critics of the breadth of U.S. pretrial discovery.


Two brief comments on Ted’s post: First, this reminds me that I had been planning to post an update on Germany’s softening stand on discovery of documents under the Hague Evidence Convention for quite some time. It remains to be seen whether the proportionality test now being introduced on the other side of the pond will speed up things over here. Watch this space.

Secondly, I was, until today, not aware that the FRCP are adopted by the Supreme Court. In Germany, the Code of Civil Procedure (Zivilprozessordnung) is a legislative act and is passed by the Bundestag. The courts do not have a say, other than perhaps being asked to testify as experts in the legislative process, nor do they have powers to issue additional rules or guidelines interpreting or supplementing the Code. Ted tells me that the Rules Enabling Act, which allows the judiciary to make its own rules of procedure, was enacted in the 1930s. Until then, each federal court was supposed to apply the rules of procedure of the state in which it sat.


1 Comment

  1. Peter, thanks for cross-posting this. Some folks have commented that they don’t see why the change is a big deal, because the factors that are now included in Rule 26(b)(1) have always been among the factors that a judge could use in deciding whether to grant a protective order. True. But now proportionality goes to the basic question of discoverability. It’s possible, though not certain and maybe even not likely, that this will lead to a change in the legal culture that could have real effects. This is the reason why I write that the change is highly significant in principle though its effect in practice remains to be seen.

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