Will Amendments To Federal Rules Of Civil Procedure 26(b)(1) And 37(e) Reduce The Scope And Costs Of Discovery?

December 1, 2015, which quite fittingly has been declared the inaugural E-Discovery Day, marks the implementation of a package of amendments to the Federal Rules of Civil Procedure, concluding a process that began more than five years ago. Most notably, Rules 26(b)(1) and 37(e) have received substantial revisions. As many litigators will be surprised to learn, the language "reasonably calculated to lead to the discovery of admissible evidence" has been dropped from Rule 26(b) and replaced in part with a limitation that discovery must be "proportional to the needs of the case." As to Rule 37(e), courts are now prohibited from relying on inherent authority when imposing spoliation sanctions and are therefore limited as to when the most severe forms of sanctions can be imposed when electronically stored information (ESI) is lost or destroyed.

Statistics abound as to the costs of conducting discovery in today's digital age amid the growing volumes of ESI. But there is no need to delve into specifics to know that e-discovery is expensive, with costs ranging from tens of thousands to millions of dollars. Articles by commentators in recent months have indicated a great divide in thought as to whether these rule revisions will cause a drop in discovery costs by reducing the scope of discovery and ESI preservation efforts. Nevertheless, it remains to be seen how these amendments will cause a perceptible change in the scope of discovery or litigants' efforts to preserve ESI.

Amended Rule 26(b)(1)

Amended Rule 26(b)(1) has been viewed by many commentators as placing limits on the scope of discovery. This is technically true. But what impact will the revision truly have on discovery? To answer this question we must first review the new rule: Rule 26(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 nonprivileged 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.

As noted above, the language...