You’ll want to stop doing this in Federal Court.

A couple of weeks ago, I sat in the audience at a very illuminating keynote panel of a number of federal judges and lawyers at Legaltech NYC. The moderator used fact patterns to quiz the audience on how they would respond given the changes to the Federal Rules of Civil Procedure that went into effect December 1, 2015 and the results showed that more than 54% of the audience at LEGALTECH did not know about a major change that affects every argument you will have over what discovery can be obtained.

54%.

And that’s 54% of people who are interested enough in electronic discovery to attend Legaltech, which is not an inexpensive commitment. So, if only 54% of people attending Legaltech didn’t know about this change, chances are good you need a refresher.

So here it is — the biggest change from the amendments in 2015 that you missed and that you NEED to pay attention to:

The amendment to Rule 26 of the FRCP eliminated the language “reasonably calculated to lead to the discovery of admissible evidence”.

YES.  You read that right.

That language that you have lurking in every brief on a motion to compel or discovery motion, in your standard instructions for discovery requests, every letter you’ve written in discovery negotiations — you have to change them all.  You’ll need to stop using the “reasonably calculated” language that has been ingrained in your brain since law school. 

So what is the “new” language?

The new language retains “relevance” and puts front and center the predominate theme of the 2015 amendments: Proportionality.  The amended Rule 26(b) now reads:

(b) Discovery Scope And Limits.

(1) Scope In General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged 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.

Note too that the Advisory Committee on the Federal Rules of Civil Procedure replaced the language with a more “direct declaration of the phrase’s original intent” — that “Information within this scope of discovery need not be admissible in evidence to be discoverable.”  Fed. R. Civ. P. 26(b)(1);  In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016).  The Committee Notes from the Advisory Committee on the Federal Rules of Civil Procedure detail the basis for the change:

The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “relevant” at the beginning of the sentence, making clear that “relevant” means within the scope of discovery as defined in this subdivision….” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments.

Fed. R. Civ. P. 26 Committee Notes; In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 563 (D. Ariz. 2016)

Federal judges across the country started holding lawyers to the new rules. Just yesterday, Magistrate Judge Peck issued the following warning to lawyers in his Court:

The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rules and update their “form” files. From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).

Fischer v. Forrest, et al., 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017). See also Ramos v. Town of E. Hartford, 2016 WL 7340282, at *2 (D. Conn. Dec. 19, 2016).

The Takeaway

This language change to Rule 26 and the scope of discovery is BIG. Share this information with your colleagues, partners, lawyers, litigation group, etc. — whoever you need to share it with to make sure you don’t end up making this mistake in federal court.  And keep your eyes on your state rules, as they may follow. We’ll keep you posted.  But a decision telling you to read the rules won’t be good for you OR your relationship with your client.

Note the change and update your documents and thought processes accordingly.  Or face the wrath of the Bench and maybe your clients.
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