Big changes are coming to the Federal Rules of Civil Procedure. A few of these changes make some pretty significant amendments to language in the discovery rules. Depending on how they are applied and interpreted, there is real potential for a reduction in the amount of information that can be discovered, which would reduce the cost of litigation across the board.
The Changes
Here’s a quick breakdown of the changes that were approved by the Supreme Court in April:
- Getting rid of the language in Rule 26 that allows for discovery of information “that may lead to the discovery of admissible evidence.”
- Relying on a balancing test to limit the scope of discovery.
- Making fee-shifting a bigger deal when handling protective orders.
- Requiring objections to requests for production to state if documents are actually being withheld as a result of the objection.
- Making changes to how electronically stored information (ESI) is preserved and destroyed.
- Getting rid of the appendix of forms.
- Reducing the time to serve a summons after filing a complaint by 30 days.
- Reducing the time for a court to enter a scheduling order by 30 days.
What This Means For Discovery
Changes in discovery rules is a big deal. We have been all playing under the old rules for a long time now. This is a big change. Discovery is ALWAYS a battlefield in civil litigation. We are all looking for some angle to advance our case in a way that increases (plaintiffs, the good guys) the value of the case.
FRCP 26 as it currently reads allows for discovery of relevant information AND information that “may lead to the discovery of admissible evidence.” The reach of Rule 26 is unbelievably broad. Given this massive reach, it is fairly easy to bury an opposing party in document requests when you can essentially use a shotgun blast to do the work of an arrow. Getting rid of the “may lead to” language, I think, really shows an intent to narrow the scope of Rule 26. The question now becomes exactly how narrow is that scope?
In finding that answer, litigants and courts will have to rely on new language that sets out a proportionality requirement. Discovery must now be:
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.
Goodness, judges have a lot of discretion on this. This is such a beauty is in the eye of the beholder question.
One of the gatekeepers of discovery is proportionality. The rules have always contemplated whether the information sought was so burdensome that its utility was outweighed by its cost. Rule 26(b)(2) was really the only rules-based guidance on proportionality, but the addition of this new verbiage would provide stronger guidelines for courts when looking at a discovery dispute.
One thing that strikes me about this language is the addition of “the amount in controversy” as a factor. Does this mean that a personal injury lawsuit for $75,001 is less important than a multi-million dollar lawsuit between two corporations in the eyes of the Federal Rules? The intersection of the 1st, 5th, and 14th Amendments create a right of access to the courts. So wouldn’t this right be diminished or misapplied if the small personal injury victim gets less access to the courts simply because the amount at issue?
Also, is it the absolute amount in controversy or is it how much it means to the parties? My client has a million-dollar personal injury case and Apple has a billion-dollar patent infringement case. Which one has a high amount in controversy? I can assure you that the million dollars to my client is worth a lot more than the billion dollars to Apple. Is that baked into this calculus?
The New Rules and Personal Injury Lawsuits
These new rules have special relevance to personal injury lawsuits, employment cases, product liability suits, or really any lawsuit that involves individual plaintiffs taking on big corporations. In your garden variety product liability or premises liability suit, the defendant is generally a giant corporation with thousands, maybe even millions, of documents that they may have to fork over if served with comprehensive discovery requests. Meanwhile, individual plaintiffs typically do not have anywhere close to that amount of discoverable documentation in their possession. As a result, a plaintiff can place a huge monetary and labor-related burden on the defendant just to produce all of this information. Litigation between two large corporate entities usually doesn’t produce this problem in light of the threat of “mutually assured destruction” from voluminous document requests. But you’ll often see a lot of companies settle cases just to forgo the massive efforts expended to produce discovery.
This is not a bad thing. Plaintiffs who are real victims have interests that are diametrically opposed to those who garner settlements because of fear of publicity or cost of discovery. So that is a good byproduct. But the new rules might produce some results that could hurt real victims. If the scope of discovery is indeed limited by this new language, plaintiffs won’t be able to put these huge corporations’ feet to the fire in discovery to produce information that could yield real fruit simply because it is only one case and is not big enough to put the corporation through all the effort. This would be a very bad outcome.
So Will This New Wave of Change Actually Happen?
The impact of these new rules will vary wildly by judge. This rule will give judges broader discretion to do whatever they want to do. Because they will be even more bulletproof on discovery issues.
When do these rules take effect? Assuming Congress does not amend these changes — and they won’t — they will go into effect on December 1, 2015.