Proposed FRCP Amendments: Rule 26(b)(1), Rule 26(b)(2)(C)(iii), Rule 30, Rule 31, and Rule 33

November 10, 2014

FCRP updateThe next rules we are going to look at in our series on the proposed amendments to the Federal Rules of Civil Procedure are Rules 26, 30, 31, and 33.

The proposed amendments would make changes to four subparts of Rule 26– Rule 26(b)(1), Rule 26(b)(2)(C)(iii), Rule 26(c)(1) and Rule 26(d)(2). Today we will concentrate on the changes to Rule 26(b)(1), Rule 26(b)(2)(C)(iii) and the related changes to Rules 30, 31 and 33.

Rule 26(b)(1) would be modified in four key ways.  The rule currently states, in part, that “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.

First, this sentence would be amended to exclude the language “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.”

This change is based on the Committee’s belief that the discoverability of 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 is so well established that the language is not needed in the rule.

The public comments raised questions regarding whether such discovery is actually established enough to delete the explicit language in the rule. As a result, the Committee revised the Committee Note to clarify that these areas are still discoverable.

Second, Rule 26(b)(2)(C)(iii) identifies certain elements to be considered in determining whether discovery is proportional to the needs of the case, including whether the discovery “outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues.”  These “proportionality factors” would be moved into Rule 26(b)(1) and Rule 26(b)(2)(C)(iii) would be amended to reflect this change.

The Committee’s goal in relocating the factors is to require their consideration by parties who are pursuing discovery and courts that are resolving discovery disputes.

Public comments were split. Some indicated that the “proportionality factors” were often overlooked in their current location and that moving them up in the rule would “help achieve the just, speedy, and inexpensive determination” of litigation.  Others were concerned that “proportionality” would become a new limit that favors defendants.   In order to avoid this, the Committee Note states that the burden of proving proportionately is not placed on the party seeking discovery and that the amendment does not authorize a boilerplate objection that discovery is not proportional.

Third, Rule 26(b)(1) currently provides “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” This reference to subject-matter discovery would be deleted.

The Committee contends that this provision is rarely used.  Very few public comments were received on this proposed amendment. The majority of those comments were in favor of the change.

Fourth, the sentence in Rule 26(b)(1) which states “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” would be replaced with “Information within this scope of discovery need not be admissible in evidence to be discoverable.”

This change is aimed at eliminating the use of the phrase “reasonably calculated” to define the scope of discovery, as that was never the intent of the phrase.

The majority of public comments expressed concern that the amendment “eliminate[d] a ‘bedrock’ definition of the scope of discovery.” This is the misinterpretation of the rule the amendment seeks to eliminate.

The “reasonably calculated” language was added to the Rules in 1946 in order to stop the practice of objecting to relevant questions because the answers were not admissible at trial. It was not intended to broaden the scope of discovery. In 2000, the Committee attempted to clarify this by adding “relevant information” to the beginning of the sentence. The 2000 Committee Note stated that “relevant means information within the scope of discovery” as defined  in Rule 26(b)(1).  The intent of the 2000 amendment was to put an end to attorneys and courts using “reasonably calculated” to expand the scope of discovery; however, the amendment did not have its intended effect.

By removing the phrase “reasonably calculated” altogether, the current amendment strives to prevent this common, but incorrect, reading  of Rule 26(b)(1,) while maintaining that inadmissibility is not a proper basis for objecting to discovery of relevant information.

In conjunction with the amendments to Rule 26(b)(1),  where Rules 30, 31, and 33 currently refer to Rule 26(b)(2), a reference to Rule 26(b)(1) has been added to direct parties and courts to the proportionality requirements that have been added to that subsection.