The 2015 amendments to the Federal Rules of Civil Procedure (FRCP) have been heralded for their innovation and effectiveness in addressing discovery disputes. While far from perfect, the Rules changes—when applied—have generally helped counsel, clients, and the courts advance the tripartite mandate from FRCP 1 “to secure the just, speedy, and inexpensive determination” of litigation.
Despite their overall effectiveness, there remains the difficulty of getting courts to properly apply the amended Rules. In some instances, courts have not looked to the FRCP amendments for direction in governing the discovery process or otherwise resolving discovery disputes. Instead, courts have relied on abrogated provisions from the FRCP, outdated or inapposite case authority, or even gut calls to manage discovery issues. As U.S. District Judge David Campbell observed in In re Bard IVC Filters Prods. Liab. Litig. regarding this unfortunate trend: “Old habits die hard.
