Proposed Proportionality Amendment To Federal Rule Of Civil Procedure 26(b)(1)


On May 8, 2013, the Civil Rules Advocacy Committee (“Committee”) proposed several changes to the Federal Rules of Civil Procedure. The proposal includes amendments to the following rules: 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37. As part of these revised amendments, the Committee has proposed a series of revisions referred to as the “Proportionality Discovery Proposals.” The Proportionality Discovery Proposals refer to the proposed amendments to the Federal Rules designed to balance the benefits of discovery derived by one party with the other party’s burdens to meet those benefits. What kind of impact can be expected from the “Proportionality Discovery Proposals?”  One revision seeks to further enforce limitations on the costs of discovery by adding a proportionality requirement to Federal Rule of Civil Procedure (“Rule”) Rule 26(b)(1).

Rule 26(b)(1)Narrowing the Scope of Discovery through Cost-Benefit Analysis

The Committee determined that Rule 26(b)(1) is not as clear as the Cost-Benefit Analysis found in Rule 26(b)(2)(C)(iii). Under Rule 26(b)(2)(C)(iii), a judge, on motion or sua sponte, must limit the scope of discovery if the burden of discovery outweighs the benefits of the discovery process. Even though this provision states that the Court “must” on its own limit the scope of discovery, the Committee has expressed concerns that this requirement is not always enforced in Rule 26(b)(1).  In response, the Committee has proposed to adopt the language of the Cost-Benefit Analysis under Rule 26(b)(2)(C)(iii) into Rule 26(b)(1). Accordingly, if adopted, Rule 26(b)(1) will include the following language:

proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’s resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

By incorporating the Cost-Benefit Analysis language of Rule 26(b)(2)(C)(iii) into Rule 26(b)(1), the Committee believes the scope of costly discovery will be narrowed. In addition, to ensure a more consistent and uniform application of the rule, Rule 26(b)(2)(C)(iii) will be amended to cross reference the language of  Rule 26(b)(1): “the court remains under a duty to limit the frequency or extent of discovery that exceeds these limits, on motion or on its own.”  The reference will reinforce the courts power to act on its own and limit the scope of discovery if the court finds that the discovery burdens exceed the discovery benefits.  Thus, by revising the language of Rule 26(b)(1), the Committee hopes the courts will have a more uniform and consistent application in limiting the discovery burdens on litigants.

The Committee met in the beginning of June 2013 to discuss the proposed changes to the Federal Rules. A six-month public comment period will begin on August 15, 2013.  The amendments, if adopted, are expected to be finalized no later than December 2015. Please stay tuned to this blog for future developments regarding these proposed changes.

A special thanks to Melissa Cefalu a law clerk at Cullen and Dykman LLP, for help with this post.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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