The End of Fishing Expeditions – Proportional Discovery Comes to the Federal Courts

The concept of relevance and how it impacts discovery can be strange for clients. Under Rule 26 of the Massachusetts Rules of Civil Procedure, a litigant is entitled to seek discovery regarding anything that is relevant to the case. For something to be discoverable it does not need to be admissible itself, but rather reasonably calculated to lead to the discovery of admissible evidence. For a small matter this is not usually a problem. But for larger matters, in particular, those involving large corporate parties, this language opens the door to vast and unending discovery. A good lawyer can come up with a reason as to why almost any discovery request or document could reasonably lead to the discovery of admissible evidence. The costs associated with discovery can quickly skyrocket in relation to the amount in controversy in the actual litigation.

The Massachusetts rules do allow for a party to seek a protective order that includes an order that the discovery may be “had only on specified terms and conditions, including a designation of the time, place, or manner, or the sharing of costs.” But seeking a protective order puts a litigant on the defensive, requiring them to explain why the burdens of the discovery outweigh what the other side will always claim is the hugely important piece of admissible evidence that discovery will lead to.

In September 2014, the Judicial Conference of the United States, recognizing this problem, approved amendments to Federal Rules of Civil Procedure, Rule 26. The new Federal Rule 26, effective on December 1, 2015, no longer includes the phrase “reasonably calculated to lead to the discovery of admissible evidence.” Instead, the Rule states that parties may obtain discovery only if the discovery is both relevant 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. This new language limits the scope of discovery up front, forcing litigants to consider proportionality before they serve discovery. While it remains to be seen how much impact this new language will have, and whether Massachusetts will adopt similar language, the new Federal Rule 26 is a step in the right direction towards a more manageable discovery process.

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