On August 15, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published its “Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure.” While the committee has not yet approved the potential rule changes and has only published them for public comment running through February 15, 2014, these proposed changes could become effective December 1, 2015, if they are approved by the committee and thereafter the Judicial Conference and the Supreme Court. The proposed amendments present not only a significant shift in the scope of discovery allowed in federal court, but also would usher in a new era of other limitations on discovery. All of these proposed changes suggest that the committee is looking to revise Rule 26 of the Federal Rules in a way to expedite civil litigation and limit the costs incurred by litigants, which, depending on which side you find yourself on in a given dispute, may be a good or bad thing.
Rule 26 of the Federal Rules of Civil Procedure has long been the most important discovery rule for civil litigators practicing in the federal courts, as it provides the general framework of discovery. As set forth in the preliminary draft of the committee, Rule 26 would see the most significant changes in decades by the committee’s proposal to alter the scope of discovery rule in federal court. The rule in federal court, which is mirrored in several state civil rules, has long been that parties are allowed to seek discovery that is “reasonably calculated to lead to the discovery of admissible evidence.” Most who practice in federal court have this phrase from Rule 26(b)(1) memorized, and the courts are generally willing to grant the parties the ability to conduct broad-based discovery of parties, facts and issues based on this rule. However, “reasonably calculated to lead to the discovery of admissible evidence” in Rule 26(b)(1) is deleted in the committee’s proposed changes, and a new cost-benefit analysis rule is being proposed.
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