On December 1, 2015, some significant changes to the Federal Rules of Civil Procedure will take effect.  Among the changes are revisions to Rule 26(b), which defines the scope of discovery.  The amendments will place new constraints on discoverable information.  Attorneys and clients should be aware of how these changes will affect their discovery requests to opposing parties, and also how they can use the amendments to limit overbroad requests.

The amended FRCP 26 will clarify the scope of discovery by requiring that discovery is both “relevant to any party’s claim or defense” and “proportional to the needs of a case.”  Courts are currently permitted to consider proportionality factors in order to limit discovery, but the amendment more clearly ties the proportionality factor to the scope of discovery.

In addition, the amendments will remove the well-known current language in Rule 26(b)(1) that allows discovery of information “reasonably calculated to lead to the discovery of admissible evidence.”  It will be replaced with the statement: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”  According to the rule’s committee notes, the change is meant to correct the common misuse of the “reasonably calculated” phrase in defining the scope of discovery.  Instead, the new language is designed to allow discovery of non-privileged inadmissible information “so long as it is otherwise within the scope of discovery” (i.e., information that is both relevant and proportional).

These changes will likely limit the discovery burden that parties can attempt to impose on one another and encourage narrower discovery orders, especially in cases involving relatively small amounts of damages or clients with less resources.  All counsel practicing in federal court should stay abreast of these developments.