On June 3, 2013 the Judicial Conference's Committee on Rules of Practice and Procedure (i.
e.
the Standing Committee) approved for publication its report containing proposed amendments to Federal Rules of Civil Procedure.
The report was subsequently disseminated for comment and at its spring meeting in May, the Standing Committee approved the proposed amendments with minor revisions.
The proposed amendments will be considered by the Judicial Conference in September.
From there, the proposed amendments will be considered by the Supreme Court, and if approved, Congress will have seven months to either reject or approve the new rules.
If approved, the rules will take effect on or after December 1, 2014.
If passed, the proposed amendments will significantly change federal discovery practice.
Mostly, the amendments will limit discovery in several ways.
This article (and several future articles) explores the ramifications of the proposed amendments.
One significant amendment, if passed, will redefine the scope of discovery.
Under the amended Rule 26(b)(1), discoverability depends upon proportionality and relevance.
The amended rule states in part: "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 amount in controversy, the importance of the issues at stake in the action, the parties' resources, the importance of the discovery in resolving 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.
" Lawyers will recognize the concept of proportionality from Rule 26(b)(2)(C)(iii), which makes proportionality a consideration in the court's duty to limit the frequency or extent of discovery.
However, redefining the scope of discovery to include proportionality places the onus on parties and attorneys to observe the limitation without court order.
Notably absent from the amended rule is the language making discoverable even inadmissible information if reasonably calculated to lead to the discovery of admissible evidence.
The Committee Note provides that discovery of such information remains available provided it is otherwise within the scope of discovery.
However, the Committee Note also states, "The discovery of inadmissible evidence should not extend beyond the permissible scope of discovery simply because it is 'reasonably calculated' to lead to the discovery of admissible evidence.
" Also deleted from the current Rule 26(b)(1) is the authorization to the court, upon good cause shown, to order discovery of any matter relevant to the subject matter involved in the action.
The Committee believes proportional discovery of information relevant to any party's claims or defenses to be sufficient.
The Committee Notes suggest proportional discovery may support amendment to add claims or defenses, which would expand the scope of discovery.
Because of the expense associated with e-discovery, the amended rule will especially impact e-discovery.
Careful planning will be key.
Proportionality under the new Rule 26(b)(1) suggests in part a cost-benefit analysis, and consequently, the discoverability of electronically stored information may depend upon the ability to foresee potential e-discovery issues and craft cost-effective solutions.
For this reason, litigants should involve their e-discovery professionals at the earliest stages, prior to suit, if possible.
An e-discovery specialist, particularly one also an experienced attorney, has the skills to spot potential e-discovery challenges, weigh the solutions, and understand how best to manage the e-discovery in the context of the new rules.
As the proposed amendments continue through the approval process, further revisions may be made.
Attorneys will want to monitor further developments in the coming months.