For those who closely follow the law and literature about electronic discovery, “proportionality” is a word and concept that has great significance. Until the current proposed rule changes, however, the “P” word did not appear in the rules but was understood to comprise the factors enumerated in existing Rule 26(b)(2)(C)(iii) — sometimes known as a cost-benefit analysis — that a court must use when it considers whether to limit the frequency or extent of discovery, namely that: “[T]he burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Several proposed amendments seek to promote proportionality in discovery by directly amending the scope of discovery, promoting clearer responses to Rule 34 requests for production, reducing the presumptive limits on the number of depositions and interrogatories, adding a limit to the number of requests for admission, and explicitly recognizing the authority to allocate expenses in discovery.

Rule 26(b)(1)

The Committee notes that “[i]n 1983 the Committee thought to have solved the problems of disproportionate discovery by adding the provision that has come to be lodged in present Rule 26(b)(2)(C)(iii).” And well might they have thought that. Repeated studies have demonstrated that discovery is, was, and has always been, conducted in proportion to the needs of the case. However, there are a number of cases in which discovery runs amok, and the Advisory Committee believes that the number of such cases and the burdens experienced by the litigants present problems serious enough to warrant additional modifications to the rules. One proposal was to keep the present language but require that discovery be “proportional” or “reasonably proportional”; however, concern was raised that the mere addition of the “P” word would be too open-ended and invite more satellite litigation. Instead, the Committee decided to take the language found in the limiting provision and integrate it with the definition of the scope of discovery, with the result that discovery must be:

[P]roportional 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 benefit.

Proposed Rule 26(b)(2)(C), from which the cost-benefit language was taken, now refers to (b)(1), stating that the court must limit discovery that exceeds the restrictions that now appear in the earlier provision.

Rule 26(b)(1) as proposed will no longer allow discovery regarding “any matter relevant to the subject matter involved in the action.” Discovery is limited to the parties’ claims or defenses — that is, the information about the case that is found in the pleadings.

Rule 26(b)(1) as proposed replaces the penultimate sentence with a new, more limited formulation:

  • Existing: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence”
  • Proposed: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”

This change stems from a long-standing complaint. In the early years after the Rules’ initial adoption, parties objected to discovery if the evidence would not be admissible at trial — for example, if it were hearsay — and discovery would be denied on that basis. However, the clarification introduced in 1946 was transformed into the actual scope of discovery, such that discovery of the most attenuated evidence was sought and allowed if it “appear[ed] reasonably calculated to lead to the discovery of admissible evidence.” In 2000, the word “relevant” was added to the beginning of the sentence to address this complaint and to clarify that discovery sought must be of relevant evidence. However, by 2000, the “reasonably calculated” language had de facto become the definition of the scope of discovery. With the removal of the “reasonably calculated” language, the Committee hopes that the purpose of the 2000 amendment will at last be realized.

Rule 26(c)

Proposed Rule 26(c)(1)(B) adds an explicit statement of the court’s authority to enter a protective order that allocates the expenses of discovery. Although the Committee recognized that the authority was implied in Rule 26(c) as it now stands, and that the power is being used more frequently since the advent of electronic discovery, the amendment seeks to silence the arguments that the present rule does not authorize cost sharing or cost shifting. The Committee is poised to take up at a later time consideration of the long standing presumption that the responding party pays for the costs of the production.

Rules 30, 31, 33 and 36

Proposed Rules 30 and 31 will reduce the presumptive limit of 10 party depositions from 10 to five, with allowance for the court to grant leave for additional depositions. Proposed Rule 30(d) reduces the time for a deposition from seven hours in a day to six hours. Proposed Rule 33 reduces the presumptive limit of interrogatories from 25 to 15. For the first time, a presumptive limit is imposed on Rule 36 requests for admission. Presumptive limits on Rule 34 requests to product were considered but not adopted.

The provisions limiting presumptive numbers were considered at length. Judges at the Duke Conference expressed the view that many civil litigators over-use the deposition, believing that every witness who will testify at trial must be deposed. Yet, lawyers effectively cross-examine witnesses who were not previously deposed, and lawyers seldom seem to effectively impeach witnesses based on prior deposition testimony. And certain data indicated that nearly 80 percent of cases had 10 or fewer depositions. Importantly, as noted in the first article in this series, commenters have expressed very strong opinions against these proposed provisions.


The next article in this series will address proposed rules changes that address cooperation.