Federal Court Discovery Rule Changes: Are they Friend or Foe?

by Jay Krulewitch

This article originally appeared in the February 2018 issue of Trial News, the monthly publication of the Washington State Association for Justice .

“The labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before….” — Benjamin Cardozo

“The history of procedure is a series of attempts to solve the problems created by the preceding generation’s procedural reforms.” — Judith Resnick

“I’ll let you write the substance, you let me write the procedure, and I’ll screw you every time.” — Rep. John Dingell

A change has befallen the practice in Federal Court regarding how civil discovery is to be conducted. It seems, to some, that a quiet revolution has taken place, and all of us who practice in this realm are deeply affected. In 2015, a sea-change occurred with respect to the Federal Court Rules of Civil Procedure. Joseph Marinelli, among other authors, has chronicled these changes in a nice piece for Business Law Today in its February 2016 edition, put out by the American Bar Association. See Joseph F. Marinelli, “New Amendments to the Federal Rules of Civil Procedure: What’s the Big Idea?”, Business Law Today, February 2016 (https://www.americanbar.org/content/dam/aba/publications/blt/2016/02/civil-procedure-201602.authcheckdam.pdf). In my piece, I will be focusing on one of these major changes, which is with respect to Fed. R. Civ. P. 26, the Civil Discovery Rule, which has reinstituted the proportionality rule as the primary yardstick for setting up and conducting discovery on civil cases. It is also the rule which Federal Court judges will be applying to defense attacks to plaintiff discovery requests from this point forward. In other words, you would be wise to become familiar with this rule and to take notice as to how judges are interpreting this new civil rule of discovery.

Let’s review the change that has taken place with Fed. R. Civ. P. 26. Remember the old rule? It used to have as its guide whether the discovery request at issue sought information or documents which was admissible or likely to lead to admissible evidence. In essence, Rule 26(b)(1) said:

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).” — Fed. R. Civ. P. 26(b)(1) (2010)

Now compare the old rule to the new rule, which states as follows:

“Unless otherwise limited by court order, the scope of discovery is as follows: 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.” — Fed. R. Civ. P. 26(b)(1) (2015)

According to the Committee Comments on the 2015 Amendment to Rule 26, “Rule 26(b)(1) directed the court to limit the frequency or extent of use of discovery if it determined that ‘the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.’” See Comments, 2015 Amendments to the Federal Rules of Civil Procedure. Further changes were made with respect to the 1993 Amendments, leading to what we have today. The 1993 Committee Note reflected rising concerns about discovery abuse:

“[T]he information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression. . . . The present amendment again reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management. It is expected that discovery will be effectively managed by the parties in many cases. But there will be important occasions for judicial management, both when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own.” — Comments, 1993 Amendments to the Federal Rules of Civil Procedure

What makes the 2015 Amendments stand out is the fact that courts are now instructed to put the proportionality rule into practice. This standard is no longer permissive but rather mandatory. It is front and center in how courts handle discovery disputes. The drafters of the new rule explained:

“Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” — Comments, 2015 Amendments to the Federal Rules of Civil Procedure

Yet, can we truly expect defense attorneys to police themselves and refrain from using boilerplate objections to avoid answering discovery? Remember, this is an adversarial system, and it is rare for a defendant to simply provide inculpatory or damning evidence to plaintiffs in response to a properly worded discovery request without resistance. There are reasons spoliation arises. So, what is to stop a defendant from hiding behind the proportionality rule, knowing a particular Federal Judge might provide cover while they avoid disclosing harmful information or documents? Beware of this new proportionality defense to broad-ranging discovery requests. For a concise discussion of these changes, consider Max Kennerly’s blog post: A Plaintiff’s Guide To Fed. R. Civ. P. 26 Discovery Proportionality, Litigation and Trial: The Law Blog of Plaintiff’s Attorney Max Kennerly, July 12, 2017 (https://www.litigationandtrial.com/2017/07/articles/attorney/frcp-26-discovery-proportionality/).

So, while these amendments are still relatively new, how have they actually impacted plaintiff practitioners in Federal Court? How will courts apply the proportionality standard now embedded in Rule 26(b)(1)? Only time will tell how restrictive courts in the Western and Eastern Districts of Washington—ultimately the Ninth Circuit—will be in handling discovery disputes. It is a brave new world in Federal Court. Alas, we are reminded of an old Bob Dylan song, “The Times They Are A-Changin’,” and perhaps this change isn’t all for the better.

Jay Krulewitch, EAGLE Member, practices personal injury, civil rights, and criminal defense in Lake City, Seattle. He is the Editor-in-Chief of the Trial News.