As it currently stands, the text of FRCP 26(b)(1) states the following: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identify and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”
The proposed amendment would limit the broad scope of the current rule by requiring that discovery be “proportional to the needs of the case.” The text of the proposed rule 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 amount in controversy, the importance of the issues at stake in the action, 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 benefits.” The proposal would eliminate the option to have discovery “relevant to the action” and instead limits discovery to the claims and defenses in the action.
The Advisory Committee has decided to enact this more tailored version of the previous rule due to the fact that the old rule allowed discovery of any information so long as it was reasonably calculated to lead to the discovery of admissible evidence. Despite a revision of the rule in 2000, many lawyers and judges reading that language have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable. Given the growth in electronically stored information (“ESI”) and advances in storage capability, such an interpretation has rendered the discovery process unduly burdensome and expensive. The new rule will become effective on December 1, 2015.