United States: Catch Up With Discovery Practice Under Amended FRCP

Last Updated: March 9 2016
Article by Armen N. Nercessian

In December, proposed amendments to the Federal Rules of Civil Procedure took effect. These amendments introduce measures aimed at making discovery practice more efficient and effective. As Chief Justice John Roberts noted, these procedural reforms grew out of a concern that "civil litigation has become too expensive, time- consuming, and contentious, inhibiting effective access to the courts." The amended rules constitute an effort to give meaning to the "affirmative duty [lawyers representing adverse parties have] to work together, and with the court, to achieve prompt and efficient resolutions of disputes."

The rules crystallize the scope of discovery and introduce a standardized vocabulary for discussing and resolving disputes. These amendments impact (and can improve) discovery practice under Rule 34.

The Ground Rules: Scope of Discovery under Rule 26

The amendments clarify the general scope of discovery under Rule 26(b)(1) by stressing proportionality in civil discovery. As amended, Rule 26(b)(1) provides that " [p]arties 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." The rule sets forth the following factors to consider in evaluating whether discovery is proportional: "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."

Earlier language that justified expansive discovery is now gone. For instance, Rule 26(b)(1) no longer contains language allowing discovery of information "reasonably calculated to lead to the discovery of admissible evidence." This phrase, the Advisory Committee on Rules of Civil Procedure found, "has been used by some, incorrectly, to define the scope of discovery." Similarly, the committee deleted a little-used provision authorizing the court to order discovery into any matter relevant to the "subject matter" involved in an action. This amendment thus eliminates any potential distinction between discovery of information relevant to the parties' claims or defenses and discovery of information relevant to the subject matter of an action.

Proportionality in civil discovery has been an implicit consideration in litigation for some time. The notion of placing reasonable limits on discovery is inherent in Rule 1, which strives to "secure the just, speedy, and inexpensive determination of every action and proceeding." And many of the proportionality considerations now enumerated in Rule 26(b)(1) appeared in prior versions of the rules, including most recently in former Rule 26(b)(2)(C). The committee introduced most of these factors in 1983, when it amended the scope of discovery "to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry." Those 1983 amendments also included additional certification requirements under Rule 26(g), which imposes "an affirmative duty" on the parties "to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37." But, while the 1983 and subsequent amendments attempted to foster greater cooperation between the parties in discovery and in the efficient resolution of disputes, the adversarial nature of litigation won out and the same abuses remained.

Considering this history, the 2015 amendments to Rule 26(b)(1) may merely make explicit what previous iterations of the rules left aspirational. The additional clarity has two primary benefits. First, it focuses attention back on the actual purpose of discovery- to collect information that is necessary to resolving the dispute. As such, the amended rule requires litigants to engage in "careful and realistic assessment of actual need" in developing discovery requests. And it also "encourage[s] judges to be more aggressive in identifying and discouraging discovery overuse." Second, the factor-based rubric provides a standard vocabulary for articulating discovery arguments, though it remains to be seen how courts will resolve discovery disputes under the amended language.

The Main Event: Discovery Practice under Rule 34

With tighter case management deadlines and the allowance of early document requests, discovery practice under the amended rules now begins shortly after service of the complaint. Amended Rule 26(d)(2) allows any party to issue document requests starting 21 days after service of the complaint. These requests are deemed served on the date of the first Rule 26(f) conference, and the party receiving the requests has 30 days from this date to respond. As a practical matter, the amended rules push up the early case management deadlines by 30 days as well, absent good cause. By default, under Rule 16(b)(2), the judge must issue the scheduling order within the earlier of 90 days (previously 120 days) after any defendant has been served with the complaint or 60 days (previously 90 days) after any defendant has appeared. And the parties must hold the Rule 26(f) conference at least 21 days before the date the court issues its Rule 16 order.

To ensure higher quality discovery responses, amended Rule 34 also places heightened burdens of particularity on the party responding to document requests. If a responding party objects to any document request to any extent, Rule (34)(b)(2)(B) says the party must "state with specificity the grounds for objecting to the request, including the reasons." The response "must state whether any responsive materials are being withheld on the basis of that objection"; if a party objects to only part of a request, Rule (34)(b)(2)(C) says the party must specify the part and produce or permit inspection of the rest. The production must occur either by the date specified in the request or another reasonable time specified in the response per Rule 34(b)(2)(B). Given the emphasis on greater specificity, counsel for any party should develop a categorical understanding of their client's documents and electronically stored information early in the case. That means interviewing relevant custodians and commencing document collection and review efforts as soon as possible - prior to being served with discovery requests.

On balance, a party's obligations under the amended rules are not different in kind from what they have always been. Rather, the new requirements impose only greater burdens of articulation on both parties. For the party propounding a document request, it's a question of articulating need, which boils down to a combination of relevance and proportionality; for the responding party, it's about articulating burden in its various forms, and rebutting the proponent's need-based arguments. The apparent objective here is to develop better requests, i.e. ones tailored to the needs of the case, and better responses. The committee notes that "[t]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection."

By design, the procedures reward diligence and specificity. For instance, if a request is vague and ambiguous or overbroad, the responding party should - at a minimum - specify the problematic language within the request. It may even be helpful for the responding party to supply its own interpretation of this language, in order to better define the scope of production, if any.

Similarly, when challenging a request on relevance or burden grounds, the responding party should identify the specific nature of the burdens involved in producing the requested information, including cost information, and the importance of that subcategory of documents in resolving the issues in the litigation (which might include documents relevant to settlement). If the responding party can identify a subset of a document request that would yield the most relevant documents, while withholding subcategories of documents that pose an undue burden, all the better.

In other words, the party prepared with a more granular justification for its request (or objection) appears more likely to succeed in case of a dispute. For the party propounding discovery, that means developing a series of narrow requests targeted to the specific issues necessary to efficiently resolve the case. For the party responding to discovery, that means breaking down a discovery request into its constituent subparts and addressing how a particular objection, if any, provides grounds for withholding each subcategory of documents. At bottom, the amended rules embody a vision of discovery practice where both parties and the court are actively engaged in discovery practice, where disputes are tracked and refined early, and where every discovery request has the potential to advance some material aspect of a lawsuit.

Originally published in the Daily Journal on February 22, 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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