Rule 26(b)(1) was revised as part of the 2015 Amendments to the Federal Rules of Civil Procedure (1) to promote (2) by the incorporation of factors, then located in Rule 26(b)(2)(C), into the text of (b)(1), with the factors slightly re-adjusted and a new factor added. (3) Rule 26(b)(2)(C)(iii) now requires a court to the frequency or extent of when [iii] the burden or expense of the proposed is outside the permitted bv Rule 26(b)(1). (4) The revised permits of non-privileged information only if it is both to the claims or defenses of a party and is also to the of the case. The renewed emphasis on enforced through active case management, reflects a desire to achieve the goals of Rule 1. As Chief Justice Roberts put it in his 2015 Year-End Report, the amended crystalizes the concept of reasonable limits on through increased reliance on the common-sense concept of (5) I. Cases Interpreting the New Rules The flood of post-December 1 decisions on the and implementation of Rule 26(b)(1) and related changes is best summarized in the following categories, although the cases themselves need to be consulted as well. A. Relevancy The relevancy of sought to the claims or defenses continues to be the primary issue determining the scope of If the information sought is not relevant, courts need not focus on proportionality. For example, in LightSquared v. Deere & Co. the court acknowledged the amended but denied the based on a lack of relevance. (6) Courts refuse to ask a party to run down a rabbit hole chasing irrelevant information on collateral matters. (7) The threshold for relevancy under the amended remains relatively low, (8) in contrast to the enhanced showing of relevance required in some Circuits for purposes of securing an adverse inferences. (9) Some courts cite the terms of Federal Rules of Evidence 401, under which evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable. (10) Moreover, as Judge Francis and others have held, relevance is still defined broadly by pre-December 1 case law, including the 1978 Supreme Court decision in Oppenheimer Fund v. Sanders, (11) which is often cited for that proposition. (12) B. Proportionality A on the of designed to guard against redundant or disproportionate discovery, has been part of the Federal Rules of Civil Procedure since 1983. (13) After the 2010 Duke Litigation Conference, the Rules Committee acted on its conviction that discovery in civil litigation would more often achieve the goals of Rule 1 through an increased emphasis on proportionality, enforced through active case management. (14) Although the initial Draft Committee Note described this as a change designed to limit the of discovery, (15) the final version of the Committee Note more accurately states that it merely restores the factors to their original place in defining the of discovery. (16) A number of cases have explicitly denied of otherwise relevant information based on grounds, involving a variety of contexts. In Henry v. Morgan's Hotel Group, the court refused to enforce subpoenas against former employers as not proportional to the needs of the case where it was not even remotely apparent what relevance the information would have to the allegations in the case. (17) In another, requests were denied because they was precisely the kind of disproportionate that Rule 26--old or new--was intended to preclude. (18) In Wilmington Trust v. AEP Generating (19) the court concluded that the rule of proportionality would be violated if it ordered an additional search which might produce 200K documents that would have to be searched manually. …
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