Applying Amended Rule 26(B)(1) in Litigation: The New Scope of Discovery

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On December 1, 2000, several Amendments to the Federal Rules of Civil Procedure took effect. Mandatory initial disclosure, which had been so controversial during (and following) the making of the 1993 Amendments and was subject to variation according to local rule, has now been made mandatory and nationally uniform. Disclosure's fangs were removed, or at least blunted, because Rule 26(a)(1) now requires only that a party disclose information supporting its contentions. Rule 30(d)(2) now provides that a deposition should normally not exceed one day of seven hours. The sanction rules have been modified but not dramatically changed.

However, one amendment-narrowing the scope of discovery available under Rule 26(b)(1)-was particularly controversial before the Advisory Committee, the Standing Committee, and the Judicial Conference. It is a change that had periodically been raised for decades before the most recent round of amendment discussion. Amended Rule 26(b)(1) replaces the venerable “relevant-to-the-subject-matter” standard for the scope of discovery with the narrower “relevant-to-a-claim-or-defense” standard. The amendment also allows a party to bring a motion to expand the scope of discovery, upon a showing of “good cause,” to the “subject-matter” standard that prevailed prior to December 1, 2000. One trial judge who opposed the change in discovery scope predicted ten years' worth of litigation to determine the application of new Rule 26(b)(1) as courts struggle to define and apply the new baseline standard of “claim-or-defense” relevancy and the provision of the new Rule that permits discovery as broad as the former “subject-matter” standard of relevance once a party has demonstrated “good cause.”

Undoubtedly, this judge is at least partially correct. Sorting out the meaning of the new scope standard will take some time and courts should expect extensive motion practice seeking to enforce or avoid the constrictions of the rule. The nature of the definition of scope necessarily uses open-ended words whose application to concrete fact situations will not always be obvious. This article offers some guidance on the new rule in hopes of streamlining the period of uncertainty and nonuniformity.

Other changes to the Rules in the 2000 Amendments should prove less difficult to apply. For example, the presumptive deposition limit of a seven-hour day is objective and verifiable. At the same time, lawyers know immediately that the deposition time limit should not be read hyperliterally and will be subject to common sense application by the courts. The literal meaning and the common sense contours of Rule 26(b)(1) are less easily agreed upon.

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199 F.R.D. 396 (2001).

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