Last week, I attended an excellent program of the Federation of Defense and Corporate Counsel regarding how the December 2015 amendments to the Federal Rules of Civil Procedure are impacting the defense of class actions and other complex litigation. (For a summary of the amendments pertinent to class action practice, see my November 20 blog post). Here are my takeaways from the FDCC program:
- It appears that Defendants are not yet asking for shifting/allocation of costs in discovery because this area of the rule amendments has not yet resulted in court decisions. This is a fertile area for defendants to test the waters, but they should pick the right test cases.
- With respect to the requirement that discovery be proportional to the needs of the case, recent decisions have demonstrated that defendants need to give courts the tools they need to cut down on “fishing expeditions” by plaintiffs. This often involves filing some type of affidavit with respect to the nature and extent of the burden and perhaps cost imposed by the discovery being sought. Defendants that have been able to demonstrate the burden with greater specificity, where that is possible, have been achieving good results. Some courts have not applied the proportionality requirement where the defendant has failed to file a burden affidavit.
- Defendants should remind courts that the “reasonably calculated to lead to the discovery of admissible evidence” language that was part of Rule 26 for many years is no longer there. It has been deleted, but some courts are still referencing it, erroneously, in discovery rulings.
- Defendants’ briefs on discovery issues should emphasize that the proportionality balancing that the new Rule 26 requires is mandatory, not optional.