One would think that an amendment to the rules of civil practice would result in a change to those rules. That some aspect of what is required of litigators would change, and that the rules had been substantively modified to cause such a change. But the modification made as of Dec. 1 to the provisions of Federal Rule of Civil Procedure 26(b)(1), in fact, did not cause a substantive change to the rules. What it did, apparently, was rearrange the concepts to make them more apparent, to cause litigators to take notice, and to cause a correction in the way we practice by reminding us of existing notions that we may have ignored. This reminder came, perhaps, a month early—the amendment of the rule is a call for a New Year’s resolution to correct the way we approach the scope of discovery.
The advisory committee notes regarding the amendment of Rule 26(b)(1) are quite clear. “The present amendment restores the proportionality factors to their original place in defining the scope of discovery.” Following the amendment to the rules in 1993, factors used to define the appropriate scope of discovery had been moved from the scope provisions of Rule 26(b)(1) to a new subdivision buried in Rule 26(b)(2)(C)(iii). The 2015 committee notes observe that this separation removed the proportionality provisions from the scope limitations of Rule 26(b)(1). Thus, while the relevant concepts were always present in the rule, lawyers and courts may have lost focus on them as guiding principles in discovery practice. As the notes state, “[r]estoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality.”
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