Proportionality of Discovery Under Amended Rule 26(b)

Federal Rule of Civil Procedure 26(b) governs the appropriate scope of discovery in federal litigation. In December 2015, the Supreme Court amended Rule 26(b) to emphasize the proportionality factors that had been previously tucked away in subsection (b)(2) and were often overlooked by courts and litigants. The amendment also added consideration of “the parties’ relative access to relevant information” to the list of proportionality factors. As amended, Rule 26(b) now states in relevant part:

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 the scope of discovery need not be admissible in evidence to be discoverable.

Thus, under amended Rule 26(b), information is discoverable only if (1) it is relevant to any party’s claim or defense and (2) is proportional to the needs of the case.