As of December 1, 2015, the Federal Rules of Civil Procedure (FRCP) were amended in an effort to update and fulfill FRCP 1’s objective of creating / arriving at “just, speedy, and inexpensive” resolution of cases. This article looks at the amendment to FRCP 26(b)(1), relating to discovery requests after the initiation of litigation.
As discussed previously, once litigation commences – whether from the plaintiff’s or defendant’s perspective – the most vital step to achieve resolution of the dispute is discovery, the request and exchange of information and documents, identification of witnesses, and the narrowing of the relevant facts, so that only the pertinent information remains and the issues can be efficiently decided.
Discovery is, currently, a lengthy and time-consuming process. It is also the most expensive and can drive up the cost of litigation. This is especially true because some of the costs of discovery are determined by the opposing party. For example, if the opposite side responds to a request for production of documents with 100 pages, it will be much less expensive to review those documents than if they submit 1,000+ pages for review.
The amendment to FRCP 26(b)(1) seeks to change that. Previously, that rule defined the scope of discovery to include any and all “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.” This is a very broad definition. It means that an attorney can, basically, ask for almost any documents and information – except those covered by privilege, such as attorney-client privilege – and the attorney will receive it. As long as the request is “reasonably calculated to lead to the discovery of relevant information,” it is a valid request.
The idea was to open the free-flow of information, so that all facts are available to all parties. Unfortunately, the result was that many attorneys chose to play discovery games, scheming and strategizing of ways to obfuscate the truth and hide documents and information, while still abiding by the letter of the rule (all while driving up costs for both sides of the lawsuit). A common game for parties with large assets invested in litigation is to drown the opposition in paperwork by asking for any and all documents possible, even if it is only barely tangentially related to the dispute at hand. And the worst part is, such a request under the old rule was entirely legitimate.
The new rule defines the scope of discovery under FRCP 26(b)(1) as “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.” Id (emphasis added).
This is a much narrower scope, and requires parties to take into account the actual issues at controversy, as well as the type and nature of the discovery request. The amendment seeks to restrict discovery games and strategies; instead preferring to have the truth and the facts carry the day; rather than which party has more resources.
Currently, this amendment only affect those cases which function under FRCP, that is, federal cases. This amendment does not yet apply to Hawaii court cases. Yet, the Hawaii Rules of Civil Procedure (HRCP) often directly parallels the FRCP. It is to be expected that, within the next few years, HRCP 26 is updated to reflect the amendment to its federal counterpart.
This amendment is a step in the right direction and a huge boon for companies and individuals who have disputes they want resolved. More efficient discovery allows litigation to become a more reasonable method of dispute resolution because it will both limit costs and be more efficient. Arbitration and mediation need not be a company’s or individual’s only time- and cost-efficient recourse anymore. With a focused search and refined issues, discovery can be more effective, more efficient, and make litigation less time consuming, cutting down the costs, and allowing parties to resolve their differences through the judicial process.
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