Question

Due to the recent amendments to the FRCP, the concept of Proportional Discovery was enacted. What is it? How is it different than prior law. Be specific and detailed

Answer 1

First, Rule 26(b)(1) contains a new "proportionality test" that has already changed the landscape of discovery disputes. Omitted is the old, familiar statement: "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." This phrase was often mischaracterized as the scope of discovery pre-December 1, 2015, although astute readers will recognize that the actual scope of discovery was (and remains) the ability to "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense . . . ." Instead of the "reasonably calculated" language, the new Rule 26(b)(1) states that parties may obtain discovery regarding non-privileged matters 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."

Across the nation, litigators are wondering if the new language of Rule 26(b)(1) contemplates some sort of paradigm shift in the manner in which the federal courts expect discovery to be conducted. Before making any such sweeping pronouncements—which necessarily would suffer from the fact that this author was not on the Advisory Committee and has not interviewed any such member—however, it is important to note that much, if not all, of the new Rule 26(b)(1)'s language is from the old Rule 26(b)(2)(C)(iii). The difference, of course, is the emphasis, and the restatement of these principles in Rule 26(b)(1) is equivalent of a promotion from a late night talk show to a (slightly) more primetime spot.