The Actual Changes To The Text Of Rule 26(b)
Fed.R.Civ.P. 26(b)(1) now says,
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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
The 2015 Amendments changed the text of Rule 26(b) in three ways:
- First, the language defining the scope of permissible discovery was changed to omit discovery “reasonably calculated to lead to the discovery of admissible evidence.”
- Second, the language describing relevant evidence was changed to omit discovery of “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,” but only because, as the Advisory Committee Note states, “discovery 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.”
- Third, when it comes to “proportionality,” which was already part of Rule 26(b), “[t]he considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition.” See Advisory Committee Notes. That “one addition” was the explicit instruction that courts consider “the parties’ relative access to relevant information.”
