|
5
Let's move on to formal discovery. What the new rules do here is create two types of discovery, two tiers if you will. The presumption, supported by FJC research in the 1990's, is that most discovery is routine and conducted by the attorneys with little or no judicial intervention. Under the new Rule 26(b)(1), the scope of that discovery will "any matter, not privileged, that is relevant to the claims and defenses of any party." But the new rule goes on: "For good cause shown, the court may order discovery of any matter relevant to the subject matter involved in the action." Those are the two tiers: discovery "relevant to the claims and defenses," which is managed by counsel, and discovery "relevant to the subject matter," which is supervised by the judge. In relation to computer-based discovery, this change in scope may mean that broad requests for all emails, or all word processing documents, will be out. Is this a distinction without a difference? We'll have to see how this works out in practice. In theory, the parties will exchange routine discovery requests for information related to the claims and defenses raised by the pleadings. If one or the other wants to broaden the scope of discovery, they will need to seek permission of the Court. Perhaps reality might be more like this: a discovery request is issued that looks much like it did before December 1. But now the responding party files for a protective order or objects in part or in whole and waits for the other side to file a motion to compel. And now the judge has to consult a new body of case law attempting to draw the line between what is "relevant to the claims and defenses" and what is "subject matter." If the judge finds that the request relates to the claims and defenses, the discovery is allowed and the judge bounces it back to the parties to work out the details. If it's determined to be "subject matter," the judge is under an obligation supervise that discovery, which the parties might not want. Another language change which tightens the scope: "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." The comparable language in the old rule didn't have the word "relevant." A final addition to Rule 26 is a new sentence, reminding litigants that there is a rule of reason in discovery: The new sentence is, "All discovery is subject to the limitations by Rule 26 (b) (2) (i), (ii), and (iii)." That is a reference to the proportionality standards, under which a judge the power to limit otherwise permissible discovery if it is found to be unreasonably cumulative, duplicative, available to the parties from another source, or if the burden or expense of the proposed discovery outweighs its likely benefit. There is no substantive change here, just a reminder that the judge is in charge and will act to bring the parties in line. |