I’m headed to speak at the Eastern District of Texas Bench & Bar Conference and then at the AIPLA meeting in DC. One result of this (and of teaching civil procedure this year) is becoming very concerned about the new discovery rules, coming into effect in December. If you haven’t read them, do so. If you file a case after December 1, they will control; they also will control, to the extent practicable and just, to cases filed before then.
Apart from doing away with all forms except the one relating to waiver of service of process, the key change is with respect to the scope of discovery. Here is the old rule:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Here is the new:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
There are a lot of changes.
First, discovery has to be — not just relevant to an existing claim or defense — but also proportional to several factors or considerations. The answer to whether an issue is important is quite subjective, and, no doubt, turns on viewpoint. Does it bring in a subjective element? How do we determine whether the cost will exceed the likely benefit without knowing what the discovery would reveal?
But the key concern I have is the elimination of any ability to allow discovery beyond relevancy to a claim or defense. Given that there must be a rule 11 basis to plead something, how can certain affirmative defenses (especially inventorship and inequitable conduct) ever be pled? Because of this change, if it can’t be pled, there won’t be discovery. Local rules, of course, can’t be inconsistent with the FRCP.
The amendments are here.