Sunday, March 5, 2017

Two Different Perspectives on Rule 26

According to Judge Andrew Pack of the S.D. N. Y., lawyers need to learn and understand the amended FRCP Rule 26(b)(1), the rule governing the scope of discovery, because lawyers can't just request anything, regardless of its relevance. Previously, Rule 26(b)(1), permitted information that was "reasonably calculated to lead to the discovery of admissible evidence." The amended rule re-defines the scope of discovery as "any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Also, lawyers should work together and cooperate on what documents can be requested for discovery, in order to save clients money and avoid aggravation.

A second article states the "new" proportionality concept of Rule 26(b) did not change much since proportionality was already covered by the old Rule 26(b)(2)(C)(iii), which stated discovery was limited when its burden outweighed its benefits, and the old Rule 26(g)(1)(B)(iii), which stated that lawyers must certify that discovery will not be unduly burdensome. Although much hasn't changed with the 2015 Amendment, the new language has streamlined the process by emphasizing the need to analyze proportionality before requesting discovery information.