On December 1, 2015, several new amendments to the Federal Rules of Civil Procedure became effective. Among those amendments were notable changes to Federal Rule of Civil Procedure 26. For example, Rule 26(b)(1) now reads:
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 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.
In other words, information is discoverable if it is relevant to any party’s claim or defense and it is proportional to the needs of the case, which will be determined by consideration of the following six proportionality factors: 1) the importance of the issues at stake, 2) the amount in controversy, 3) the parties’ relative access to relevant information, 4) the parties’ resources, 5) the importance of discovery in resolving the issues, and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
While it is unclear whether these factors are listed in order of importance or merely listed as considerations, the committee notes to the changes explained that “the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.” Rather, “parties may begin discovery without a full appreciation of the factors that bear on proportionality.” However, regardless of whether all the factors must be considered or not, it appears the amended Federal Rule of Civil Procedure 26(b)(1) requires consideration of at least some of the proportionality factors in determining whether the discovery requested is proportional to the needs of the case.
Importantly, the addition of the proportionality factors should not change the existing responsibilities of the court and parties to consider proportionality; rather, the addition merely clarifies and brings together the specific set of factors the court is to consider in determining proportionality.