As you likely know, important changes were recently made to the Federal Rules of Civil Procedure, including changes in the discovery realm, captured in Rule 26.
In late January, Snell & Wilmer partner Mitch Klein wrote about the amendments, particularly in regard to environmental and natural resource litigation.
He is some of what he said in his well-written blog post:
“Previously, parties were entitled to conduct discovery regarding anything that might be ‘reasonably calculated’ to lead to relevant and admissible evidence. In practice, this led to some parties deposing witnesses and subpoenaing documents with only a tenuous relationship to the real issues of the case. This kind of behavior caused significant costs and delays in litigation.”
“In environmental and national resource litigation, abusive discovery conduct typically results from parties without any real evidence looking for some (fishing expeditions), deep-pocketed parties trying to overwhelm their adversaries under a pile of documents and/or multiple and lengthy depositions, or parties who have no real idea what they were doing and are trying to figure it out along the way.”
“The new rule now requires an analysis of ‘proportionality.’ Rather than seeking everything but the kitchen sink, a party conducting discovery has an obligation to show why the discovery is reasonable under the facts and circumstances of the case.”
You should read the whole thing here.
Of course, I’ve been around long enough to know there’s more than one way to look at rule changes. And when I see phrases like “abusive discovery,” “fishing expeditions,” and “everything but the kitchen sink,” I would guess at least a few lawyers would want to characterize things differently.
So today I wonder:
- Should we cover this topic in Arizona Attorney Magazine? and
- How would you describe the discovery rule changes? As Mitch did, or otherwise?
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