By: Lauren G. Goetzl
On December 1, 2015, amendments to the discovery rules in the Federal Rules of Civil Procedure went into effect, which may prove beneficial to employers in federal employment-related litigation.
Most notably, the amendments delete the broad definition of relevance formerly contained in Rule 26(b)(1), known to generations of lawyers, that discovery is permitted in a federal case if it is “reasonably calculated to lead to the discovery of admissible evidence.” This broad standard has been used by plaintiffs for decades to seek information from defendant employers that is only marginally relevant to a case. Although undue burden objections were available under the old Rules, most courts consider burden arguments in relation to the size and resources of the defendant, rendering those objections difficult to sustain for large corporate employers despite the added litigation costs of such discovery.
The watchword for relevant discovery under the amendments is “proportionality.” Under the new Rules, the scope of discovery is limited to “matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Courts are now required to consider proposed discovery in light of, among other things, the amount in controversy and the importance of the discovery in resolving the issues in the case. It is still to be determined whether courts, which had the authority to consider proportionality under the old Rules, will find the proportionality standard to materially alter the scope of permissible discovery now that it is embedded in the very definition of relevancy. Some commentators are of the opinion that the amendments will not amount to a sea change in discovery practice, but merely moved the existing standards around in the Rules.
Employers facing employment litigation should keep the proportionality standard in mind when responding to a plaintiff’s discovery, particularly the common “fishing expedition” requests for information about an employer’s history of unrelated complaints of discrimination and scores of personnel files of individuals not directly involved in the lawsuit. Defense would be well-advised to test the waters on the new standard before its meaning is solidified in judicial opinions, particularly in matters where the amount in controversy is modest and/or the potential probative value of the discovery is far afield from the material issues in the lawsuit.