Ca. Litig. Rev. 2016

Federal Practice

By Jessica N. Leal and Geoffrey D. Wilson1

Old Things Are New Again with Amended Rule 26’s Proportionality Standard

Effective December 1, 2015, the language of Federal Rules of Civil Procedure rule 26(b)(1), which governs the scope and timing of discovery, changed in several ways to improve a system of civil litigation that "in many cases [ ] has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts."2 The rule no longer refers to information "relevant to the subject matter involved in the action," but rather information "relevant to any party’s claim or defense." The rule no longer refers to information "reasonably calculated to lead to the discovery of admissible evidence," but rather information "proportional to the needs of the case." The 2015 amendments place a greater emphasis on active judicial involvement, and cooperation among counsel and their clients to limit the expense and burden of discovery while still providing enough information to allow parties to test claims on the merits. As Chief Justice Roberts wrote of the amendments, "The key here is careful and realistic assessment of actual need[,] [which may] require the active involvement of a neutral arbiter – the federal judge – to guide decisions respecting the scope of discovery."3

The Rules Committee has made clear that "[t]he present amendment restores the proportionality factors to their original place in defining the scope of discovery" and "reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses or objections."4 The Committee further explained that "[r]estoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality."5

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