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The Difficulty in Getting Courts to Follow Rules Changes: “This Time was Supposed to be Different”

It has been nearly a year since the most recent eDiscovery amendments to the Federal Rules of Civil Procedure were enacted. Since that time, many have praised the rule amendments. This is particularly the case with Rule 26(b)(1). Rule 26(b)(1) was revised to emphasize the temporizing influence of proportionality standards, eliminate subject matter discovery, and otherwise clarify the scope of discovery. Commentators have spotlighted cases applying these changes as helping tighten the focus of discovery for both requesting and responding parties.

Ignored Amendments?

What has received less attention is the less attractive side of this issue: decisions that have ignored the Rule 26(b)(1) amendments. For while many courts have properly applied the amended rule, others have disregarded it. As discussed in a recent article published by Big Law Business, this should probably come as no surprise. There is always a certain ramp up time in which courts become acquainted with and then apply rule changes.

This time was supposed to be different. The enactment of the 2015 amendments was heralded by an unprecedented amount of exposure in the form of continuing legal education programs, byline articles, and scholarly publications. The Federal Judicial Center undertook a sweeping effort to educate judges on the nature, scope, and application of the amendments. Even the Chief Justice of the U.S. Supreme Court spotlighted the amendments in his 2015 Year-End Report on the Federal Judiciary. In particular, Justice Roberts singled out Rule 26(b)(1) as “crystaliz[ing] the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” And yet, many courts still ignore the Rule 26(b)(1) amendments and fail to properly apply them.

“Reasonably Calculated”

This trend was underscored earlier this month by U.S. District Judge David Campbell in In re Bard IVC Filters Products Liability Litigation. Judge Campbell, who chaired the Civil Rules Advisory Committee during the amendment process, used Bard to gently chide several courts that recently misapplied Rule 26(b)(1).

Judge Campbell explained that the rule formerly provided for discovery on matters “reasonably calculated to lead to the discovery of admissible evidence.” While that provision was designed to permit discovery of inadmissible evidence, the Advisory Committee found that judges and lawyers unwittingly extrapolated the “reasonably calculated” wording to broaden discovery beyond the benchmark of relevance. To curtail this practice, Rule 26(b)(1) was amended to recraft the “reasonably calculated” language to the following: “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Judge Campbell clarified that this change removed any possibility that the “reasonably calculated” wording could define the scope of discovery.

Nevertheless, courts continue to apply the jettisoned “reasonably calculated” language to improperly define discovery. As Judge Campbell observed, “[o]ld habits die hard.” In Bard, he identified 10 different decisions from August 2016 that relied on or cited to “abrogated cases applying a prior version of Rule 26(b)(1).” Judge Campbell concluded his views on this issue by holding that the proper scope of discovery is whether matters are relevant to the claims or defenses and proportional to the needs of the case.

Dealing with the Problem

Bard, with its criticism of judges ignoring rule changes, is not an isolated decision. Nor do judges alone need to become educated on the issues. Many lawyers and litigants remain woefully uninformed about the 2015 rule changes. If the amendments are destined to “mark significant change,” as Chief Justice Roberts believes, then surely courts, counsel, and clients must follow his direction “to engineer a change in our legal culture.” That means becoming educated on the revised rules and following various guidelines articulated by cognoscenti on the issues. Unless action is taken to do so, the rule changes will have little impact on the manner in which discovery is conducted.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.