The December 1, 2015 amendments to FRCP 26 focus largely on the proportionality of discovery by expressly outlining factors to be weighed in determining the proper scope of discovery, including the “importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 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.”
While courts have long considered the burden created by discovery requests, these amendments affirm the growing importance of proportionality. The Advisory Committee which proposed the changes appears to have been motivated to curb the high costs of discovery, especially those presented due to the increasing role and utilization of electronically-stored information. To that end, FRCP 26(c)(1)(B) was also amended to expressly grant the court’s the authority to make orders regarding allocation of discovery expenses in ruling on protective order motions. The commentary which accompanied the amendments further indicates the motivation of the Advisory Committee, stating:
The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.
These high costs are particularly felt by institutional parties as they are more likely to have voluminous records and data subject to discovery. The amendments to FRCP 26 make the burden of preparing and producing discovery, and the potentially large amount of information, a primary consideration in determining how to proceed with discovery in a given case. They should also provide ammunition for institutional parties to fight back against opposing attorneys who seek to obtain leverage through overly abusive and costly discovery tactics. Until attorneys fully buy-in to the changes, we expect the amendments to FRCP 26 will result in a temporary increase in protective order motion practice initiated by parties seeking to avoid the burdens and abuses meant to be reduced by this new rule.
About Lether & Associates
Lether & Associates, PLLC is a boutique insurance law firm located on the shores of Lake Union in Seattle, Washington. Our focus is on complex insurance coverage matters in a number of jurisdictions across the United States and internationally. Our attorneys are licensed in Washington State, Idaho, Oregon, Alaska, Ohio, the Federal Courts in all of those jurisdictions, the 9th Circuit Court of Appeals, and the Federal Court for Colorado. The firm also handles cases from all over the United States on a pro hac vice basis. The firm specializes in all types of insurance litigation as well as the litigation of extra-contractual claims.
Thomas Lether our Founder, has been involved in the insurance industry for approximately 30 years. In addition to being an attorney, he acts as a mediator, lecturer, arbitrator, and expert witness on insurance related matters.
Although the firm focuses on complex insurance disputes, Lether & Associates enjoys a healthy sense of humor and outside activities which focus on our waterfront location.
L&A – Leading the way in insurance law through experience, collaboration, and results.