Editor’s Note: This is Part 2 of a three-part series discussing the 2015 changes to the Federal Rules of Civil Procedure. Part 1 discussed the changes to Rules 1, 4, and 16, and is available here. Part 3 will discuss the changes to Rules 30, 31, 33, 34, 37, 55, and 84.
By William C. Groh, III
The changes to Rule 26(b)(1), which governs the scope of discovery, have generated considerable controversy and debate. The amended rule introduces two main changes. First, it does away with the “reasonably calculated to lead to the discovery of admissible evidence” language while clarifying the definition of “relevant information” in relation to the proper scope of discovery. Second, the amended rule emphasizes that discovery must be “proportional to the needs of the case,” introducing a six-factor test by which the courts must determine proportionality.
The “relevance” standard under New Rule 26(b)(1) is narrower and more streamlined than in the prior rule. While Prior Rule 26(b)(1) allowed for discovery relevant to any claim or defense, it also allowed for discovery of “any matter relevant to the subject matter involved in the action” upon a showing of good cause. It provided that “relevant” information need not be admissible “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” New Rule 26(b)(1) is more restrictive. It does away with the “relevant to the subject matter” and “reasonably calculated” standards. The new rule requires that discovery be “relevant to any party’s claim or defense.” Discovery fitting this relevance criterion “need not be admissible in evidence to be discoverable.”
The elimination of the “reasonably calculated to lead to the discovery of admissible evidence” language is technically less substantive than it may seem. The Committee Notes point out that the wording of Prior Rule 26(b)(1) has caused practitioners to cite the “reasonably calculated” language as the general standard for the scope of discovery instead of the true “relevance” standard. The Committee Notes emphasize that the appropriate scope is “relevance” to claims and defenses, and New Rule 26(b)(1) removes the “reasonably calculated” language to prevent further confusion.
New Rule 26(b)(1) also no longer permits discovery that is merely “relevant to the subject matter involved in the action,” even on a showing of good cause. Discovery under the new rule must be “relevant to any party’s claims or defense,” but what does that mean in practice? The Committee Notes cite illustrative examples including “other incidents of the same type, or involving the same product”; “information about organizational arrangements or filing systems”; and “information that could be used to impeach a likely witness.” The Federal Rules Advisory Committee first introduced these examples in the Committee Notes to the 2000 amendments to Rule 26. The Committee Notes to the 2000 amendment acknowledge that a bright-line rule distinguishing “relevance to claims and defenses” from “relevance to subject matter” is not practical, given the case-specific nature of the criteria.
New Rule 26(b)(1) also no longer expressly describes the scope of discovery as 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 change is cosmetic. As the Advisory Committee explains, “[d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples.”
The above changes refocus the scope of discovery on relevance to claims and defenses. These changes make it more likely that courts will sustain objections to discovery of subject matter that is not in itself “relevant” to the parties’ claims and defenses as expressed in the pleadings.
The Six-Factor “Proportionality” Test
Possibly the flagship feature of the 2015 amendments to Rule 26, New Rule 26(b)(1) requires that, in addition to being relevant, discovery be “proportional to the needs of the case.” The New Rule also sets out six factors that guide the determination of “proportionality”:
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.
Many public commentators have expressed both optimism and concern about the “new” requirements that the proportionality test would impose on litigants and the courts. Opponents argued that a formal proportionality test would make discovery more difficult by imposing a new layer of motions practice over “proportionality” in every case. As one commentator wrote:
I strongly oppose the amendment to Rule 26(b) injecting a proportionality test into the Rules. Under the current Rules, many of my adversaries routinely include boilerplate objections in to their responses to virtually every discovery request that I send. If this proposed change is adopted, I am confident that those boilerplate objections will be joined by an objection that the discovery requests are not proportional to the needs of the case. This, in turn, will generate unnecessary litigation over proportionality every time that a new discovery request is served.
Other commentators expressed optimism about the changes. As one supporter wrote:
This change would provide a significant improvement compared to the overbroad scope of discovery defined by current Rule 26(b)(1) by reducing the costs and burdens in discovery practice. In addition, I support moving the proportionality language presently found in Rule 26(b)(2)(C)(iii) to 26(b)(1). This modification would remind parties that the principle of proportionality applies to all discovery and would encourage parties and judges to focus on what discovery should mean to each individual case.
In addressing these and other comments, the Advisory Committee emphasized that Rule 26 already includes most of the above “proportionality” requirements. Indeed, the only new factor is “the parties’ relative access to relevant information.” Other proportionality factors found in the old version of 26(b)(2)(C) include (1) analysis of the burden imposed by the discovery versus its likely benefit, (2) the importance of the issues at stake, (3) the amount in controversy, (4) the resources of the parties, and (5) the importance of the discovery in resolving the issues. In other words, the “proportionality” test does not introduce an altogether “new” standard so much as it re-emphasizes and re-prioritizes existing standards. The amended criteria are designed to refocus norms of discovery practice by giving existing proportionality requirements more conspicuous treatment in the rules.
The proportionality test found in New Rule 26(b)(1) borrows much of its language from Prior Rule 26(b)(2)(C), which allowed the courts to limit discovery upon a determination that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Prior Rule 26(b)(1) subjected the scope of discovery to the “limitations imposed by 26(b)(2)(C)” but only incorporated the limiting language by reference. The new rule expressly imports this language from Prior Rule 26(b)(2)(C) and places it “front and center” in Rule 26(b)(1).
The Committee Notes describe the above changes as a re-emphasis of current standards, stating:
The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections. Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.
Something old, something new. For better or for worse, commentators generally agree that, by putting the question of proportionality front and center, disputes over proportionality will likely increase motions practice as the new rule takes effect. The Tenth Circuit did not require courts to make formal findings applying the proportionality factors as they existed under the old rules. Courts and litigants generally did not systematically apply these factors in discovery or related motions practice. As the District of Maryland observed:
Despite the obvious utility of the [Prior] Rule 26(b)(2) factors in tailoring discovery to accommodate fair disclosure without imposing undue burden or expense, they have tended largely to be ignored by litigants, and, less frequently than desirable, used by the courts, sua sponte, to manage discovery. Instead, particularly with respect to disputes involving Rule 33 and Rule 34 discovery, the focus of the litigants tends to be the party seeking discovery’s perceived “right” to all information relating to the broad “subject matter” of the litigation, without any reflection as to the real usefulness of the information sought, or the burden or expense required to produce it, countered by the party resisting the discovery’s unparticularized claims of burden, expense, irrelevance, and privilege.
It is therefore important to consider how courts might formally apply the six criteria as a group in the context of determining whether challenged discovery meets the proportionality requirements of the new rule.
Factor 1: importance of the issues at stake. The Rules Committee deliberately chose “the importance of the issues” as the first of the six factors, placing it before even “the amount in controversy.” The Committee made this decision to emphasize that the amount in controversy does not trump issues of substantive justice. What constitutes an “important issue,” however, remains open to question. The Advisory Committee cites the earlier 1983 Committee Note, which discussed this concept in terms of “vitally important personal or public values,” stating:
The 1983 Committee Note recognized “the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.
The placement of “importance of the issues” before “amount in controversy” was also in response to comments strongly objecting to a prior version of the amendment that placed “amount in controversy” first. As one attorney warned, “[f]ew of our cases are likely to garner in excess of six figures, so putting ‘the amount in controversy,’ before ‘the importance of the issues at stake,’ spells the death knell for employment litigation.”
Other comments questioned the wisdom of requiring judges to evaluate the “importance” of some cases over others. As one commentator noted:
One judge will assess the “importance of the issues at stake” vastly differently from another or perhaps even differently than the judge himself might on another day (for reasons initially described in Judge Jerome Frank’s “Courts on Trial,” but that are becoming more well-documented through studies of decision-making based on “implicit biases” or “blind spots”). Judges—like all humans—are likely to value issues with which they have experience over issues with which they have little or no experience. Justice Thurgood Marshall presumably would place greater value on civil rights issues based on his legal background; Justice Tom Clark, who he replaced, presumably would place greater value on national security issues and corporate fraud or antitrust issues based on his experiences. . . .
Nonetheless, New Rule 26(b)(1) provides potential ammunition for those seeking discovery in cases implicating important policy questions, even if the amount in controversy is relatively small. On the other hand, the “importance of the issues” criterion could pose an obstacle in cases involving small amounts in controversy, high discovery costs, and garden-variety legal issues.
Factor 2: the amount in controversy. This criterion is relatively straightforward, though not uncontroversial. Cases involving low amounts in controversy implicitly mandate a more streamlined approach to discovery, lest the parties spend more than the case’s monetary value on costly discovery issues.
Consideration of the amount in controversy invites analysis of the costs of the proposed discovery. An amount in controversy of $20,000 would theoretically weigh against allowing a discovery request that would cost $20,000 to comply with. On the other hand, what if the discovery costs are high because the responding party’s records are disorganized or difficult to search?
One may expect courts to tackle this problem by assessing whether the responding party’s asserted costs are reasonable under the circumstances. However, with information storage and retrieval technology rapidly changing even from year to year, it would be difficult for the courts to develop objective metrics that would keep pace with changing technology.
Factor 3: parties’ relative access to relevant information. As the “new factor” in the equation, the Advisory Committee Notes describe “Relative Access” as an attempt to address the problem of “information asymmetry.” As the Committee Notes point out:
One party—often an individual plaintiff—may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.
This factor therefore deals with whether the party seeking discovery has reasonable access to the information requested by other means. Even if the requesting party technically has other means of access, this factor may still favor discovery if the producing party can produce the requested information quickly and easily.
Factor 4: the parties’ resources. While New Rule 26(b)(1) requires consideration of the parties’ resources, the Advisory Committee has cautioned against an overuse of this factor in limiting or allowing discovery. Citing prior Committee Notes on the subject, the Committee Notes state:
[C]onsideration of the parties’ resources does not foreclose discovery requests addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy party. The 1983 Committee Note cautioned that “[t]he court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.”
Where the parties’ resources are a factor, a protective order under New Rule 26(c)(1)(B), which explicitly provides for the allocation of expenses, can also shift the costs of producing the discovery in appropriate cases.
Factor 5: the importance of the discovery in resolving the issues. The “importance” factor requires assessment of the degree to which the discovery is necessary to prove a claim or defense. Courts analyzing this factor may consider the discovery’s relevance to a claim or defense as well as whether the issues implicated are central to the case.
Factor 6: whether the burden or expense of the proposed discovery outweighs its likely benefit. While much case law currently addresses the cost-benefit analysis of discovery, the Committee Notes also point out that this analysis should consider the ever-evolving capability of electronic search methods, stating:
The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.
These comments make clear that the relevance of today’s arguments about burden and expense may change significantly as new means of search and retrieval of ESI become commonplace.
This factor is also controversial. While it may limit unnecessarily burdensome discovery, commentators have expressed concern that “burdensomeness” arguments provide opportunities for gamesmanship. Comments submitted by the American Association for Justice cautioned that “this factor upends the incentives for defendants to preserve documents in an easily accessible format and encourages them to ensure that discovery will be too expensive or difficult to retrieve.” On the other hand, the courts have been and remain equipped to compel important discovery if it finds a party’s alleged “burden” in producing the discovery appears to be self-inflicted.
Other considerations regarding the proportionality test. Some public commentators have expressed concern that the “proportionality” test will burden the party seeking discovery with demonstrating proportionality.
The Committee Notes imply a shared burden to demonstrate (or refute) proportionality, pointing out that the proportionality test “does not place on the party seeking discovery the burden of addressing all proportionality considerations,” and is not intended to “permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” 
While courts have not yet interpreted the “shared” burden to demonstrate proportionality, existing case law suggests that each party will be required to present facts within their possession in objecting to or compelling discovery.
As the District of Colorado has observed:
When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. . . . However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.
Shifting the cost of discovery. Rule 26(c)(1)(B) has also been amended to recognize expressly the court’s authority to allocate discovery costs as part of a protective order. Such orders may be especially useful in cases in which the parties cannot agree on proportionality. Depending on the circumstances, a party may seek a cost-shifting protective order as a way to resolve controversies over the burdensomeness of particular requests.
Early discovery requests and discovery sequencing. New Rule 26(d)(2) allows parties to deliver Rule 34 production requests ahead of the Rule 26(f) conference. Under the new rule, responses are not considered served until the conference occurs. Responses are due within 30 days (not 33) after the conference. The new rule allows the parties to stipulate or move the court for longer deadlines. Finally, New Rule 26(d)(2) allows the parties to stipulate as to the sequence of discovery without requiring a motion or court order.
. See New Rule 26(b)(1).
. Prior Rule 26(b)(1).
. See id.
. See New Rule 26(b)(1).
. 2015 Committee Notes, supra note 4 at 24.
. See New Rule 26(b)(1).
. 2015 Committee Notes, supra note 4 at 23.
. Fed.R.Civ.P. 26 at Committee Notes to 2000 Amendment. The 2000 Committee Notes emphasize that “[t]he dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision,” and caution that the relevance of particular information to the case “depends on the circumstances of the pending action.”
. New Rule 26(b)(1).
. 2015 Committee Notes, supra note 4 at 23.
. Comment from Allan Karlin, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2171.
. Comment from Gregory Grisham, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2218.
. See 2015 Committee Notes, supra note 4 at 19.
. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1194 (10th Cir. 2009) (finding that Fed.R.Civ.P. 26(b)(2)(C)(iii) does not require a formalistic and detailed balancing of the factors listed therein.).
. Thompson v. Department of Housing and Urban Development, 199 F.R.D. 168, 171 (D.Md. 2001).
. 2015 Committee Notes, supra note 4 at 17.
. Fed.R.Civ.P. 26 at 1983 Amendment Committee Notes.
. Comment from Suzanne Tongring, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-1908.
. Comment from J. Byran Wood, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2112.
. 2015 Committee Notes, supra note 4 at 20-21.
. 2015 Committee Notes, supra note 4 at 22.
. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litigation, 301 F.R.D. 449, 455 (N.D.Cal., 2014.)
. 2015 Committee Notes, supra note 4 at 22.
. Comment from American Association for Justice President J. Burton LeBlanc (submitter Richard Williger), www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2046.
. See, e.g., Foster v. Logan’s Roadhouse, Inc., 2013 WL 1498958, at *4 (N.D.Ala. 2013) (“Even so, plaintiff should not be prevented from obtaining necessary discovery simply because defendant has chosen to maintain its records in a manner that makes searches difficult and time-consuming. Overall, the importance of the discovery to plaintiff outweighs defendant’s burden in producing it.”).
. See, e.g., Comment from John Vail, Center for Constitutional Litigation, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0199 (“Instead of a requesting party being entitled to information unless the opposing party shows disproportionality, a requesting party now would be entitled to information only upon affirmatively demonstrating proportionality.”).
. 2015 Committee Notes, supra note 4 at 43.
. Bonanno v. Quizno’s Franchise Co., LLC, 255 F.R.D. 550, 552 (D.Colo. 2009).
. Because New Rule 16 deems the Rule 26(f) conference to constitute “service” of a previously delivered Rule 34 request, the “service” was not accomplished by the prior delivery of the requests. As such, delivery of a Rule 34 Discovery Request by electronic means prior to the Rule 26(f) conference should not trigger the time extending provisions of Fed.R.Civ.P. 6(d) that would apply if the requests were electronically served after the Rule 26(f) conference.