Thursday, October 22, 2015

The Scope of Discovery is Changing!

The Pennsylvania Bar Institute (PBI - famous for their "yellow books" in these parts) contacted me to update a chapter I had previously contributed to their Taking and Defending Depositions coursebook - seminar coming soon to PhillyPittsburgh, and Mechanicsburg (sadly, I cannot participate in the actual seminar, but I'll be there in book form!). "No problem!" I said. After all, how much can the discovery rules change in a couple of years . . . .

Whoah! Did you know the scope of discovery is changing? Here's a brief excerpt from the updated chapter:
Amendments to the Federal Rules of Civil Procedure are scheduled to take effect on December 1, 2015 (available online at http://www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf, last visited Oct. 17, 2015). The rules include a significant change to the scope of permissible discovery. Currently, Rule 26 allows discovery of information that is relevant to any claim or defense, including information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The amendments will replace the “reasonably calculated” standard with a “proportionality” standard: 
Scope in General. 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)(amendment eff. Dec. 1, 2015). The new rule narrows the scope of permissible discovery.
That's a big change! The ABA has a nice article and commentary on the new rules here: Significant Changes to Discovery and Case Management Practices.