written by NITA guest bloggers Tereza Horáková and Michael J. Dale
I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.
This quote comes from the 2015 Year-End Report on the Federal Judiciary issued by the Chief Justice John G. Roberts. Chief Justice Roberts was addressing the protracted, antagonistic, and wasteful discovery practices often present in today’s litigation. The eradication of such practices became the main focus of the Amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015 (hereinafter the 2015 Amendments). The 2015 Amendments represent one of the most significant changes to the Federal Rules of Civil Procedure in years. In the words of Chief Justice Roberts himself, they provide a concrete opportunity for actually getting something done.
While the 2015 Amendments address several topics, the most important changes affect Rule 26 defining the scope of the discovery and, most notably, electronic discovery. This post provides an overview of the impact and meaning of the 2015 Amendments to Rule 26 and how it will affect everyday federal litigation practice.
Return of Proportionality
A potential game changer with respect to discovery practice is the re-introduction of proportionality. The 2015 Amendments restore six proportionality factors to their original place in Rule 26(b)(1) and point out that parties must consider proportionality in all aspects of discovery. In particular, the Rule 26 was amended, with deletions stricken through and additions underlined:
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. 
Proportionality: Not a New Concept
The proportionality factors were first adopted in 1983 as an integral part of the scope of discovery provisions, with the objective to deal with the problem of overdiscovery and encourage judges to be more active in identifying and discouraging discovery overuse. Ensuing amendments separated the proportionality language from the integral scope of discovery provision into a separate paragraph. While the 1993 amendments made clear that the separation was intended merely for ease of reference and explicitly encouraged their active judicial use, the courts were nevertheless reluctant to limit the use of the discovery devices. The amendments adopted in 2000 incorporated an otherwise redundant cross-reference and further urged the courts to apply the proportionality limitations, albeit to no avail.
It was the 2015 Amendments that finally brought a change. Before the 2015 Amendments, the proportionality factors appeared in subsection Rule 26(b)(2)(C), which governs court-ordered limitations on discovery and, therefore, operated as a limitation used in motions for a protective order. The return of the proportionality factors to their original place in Rule 26(b)(1) makes them again an express component of the very definition of the permissible scope of discovery.
Underlying Reasons for the 2015 Amendments
The reasons for doing so are directly connected to the explosion of discoverable information. The technological progress of the last decades has created ample opportunities for abuse of discovery tools as instruments of delay or oppression. With the advance of e-discovery, its cost apparently often exceeds its utility and the potential for abuse is ever more present. As a consequence, one of the goals of integrating proportionality into the definition of discovery in the Federal Rules of Civil Procedure is to reduce its costs and remind both the courts and parties what should and should not be discoverable in any case.
The 2015 Amendments further advocate for active judicial involvement and supervision especially early in the case. However, judicial activism is also advised later on in cases where parties cannot overcome on their own important differences leading to ineffective case management.
“The Point Is to Make Sure We Don’t Look Just at the Dollars”
The 2015 Amendments point out that monetary stakes are only one of the proportionality factors to be considered. In fact, the courts should approach the factors in an evenhanded manner. Discovery requests addressed to an impecunious party do not automatically foreclose discovery, just as a party’s wealth does not justify limitless requests. Similarly, important personal or public issues often connected to public policy such as discrimination or First Amendment cases must be taken into consideration even if they are involved in litigation over small or no amounts of money at all. Moreover, the 2015 Amendments recognize that some cases involve an information asymmetry where a party seeking discovery of information may know little in comparison to the other party. This asymmetry may justify one party bearing heavier discovery costs than the other.
While the 2015 Amendments added some language, they also deleted three sections of the Rule 26(b)(1) for various reasons.
First, it is the enumerative list of discoverable matters  (“. . . 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”). The Advisory Committee on Civil Rules has explained that the list is so deeply entrenched in practice that the language is simply redundant. Nevertheless, the list of discoverable matters remains the same regardless of eradication of the express language of Rule 26(b)(1).
Second, the 2015 Amendments omit the provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. As it turns out, the scope of discovery with respect to matter relevant to a claim or defense and matter relevant to the subject matter in fact overlaps and the latter was rarely employed.
Third, the 2015 Amendments modified a problematic phrase regarding relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence. The “reasonably calculated” test was sometimes incorrectly interpreted as a general scope of discovery tied to the probability of discovering admissible evidence which in effect eliminated all other limits. The language is now replaced with a direct statement that information within the scope of discovery need not be admissible in evidence to be discoverable, such as hearsay testimony solicited during a deposition. In this way, Rule 26(b)(1) makes clear that discovery of nonprivileged information not admissible in evidence remains available as long as it is otherwise within the scope of discovery.
Relaxation of the Early Discovery Moratorium
Another important change in the 2015 Amendments concerns the time for serving a request for production under Rule 26(d). Prior to the 2015 Amendments, a party could not usually serve any discovery requests before meeting for a conference under Rule 26(f), which typically happens months after a complaint is filed. The 2015 Amendments allow requests for production to be served as soon as twenty-two days after service of process regardless of whether the Rule 26(f) conference already took place.
The aim of allowing early requests for production was to make Rule 26(f) conferences more productive. Specifically, negotiations at the conference may be more fruitful with the knowledge gained from each party’s initial set of requests for production, thus facilitating a more focused discussion. On the other hand, it is arguable whether parties will seize this new opportunity because doing so would provide the opposing party more time to prepare objections. Furthermore, the early requests may turn out to be inconsistent with agreements later concluded at the Rule 26(f) conference.
Effect on (Pending) Matters
Although it would be premature to jump to conclusions as to the impact of the 2015 Amendments, there are already some signs that courts have been making use of the amended Rule 26 and its proportionality principles. For example, in Henry v. Morgan’s Hotel Group, a court in the Southern District of New York declined to grant a Rule 45 subpoena because the discovery request for “all documents and communications” was determined to be overly broad and the requested information was not relevant to the disputed issues.
Similarly, in Gilead Sciences v. Merck in the Northern District of California, the court declined to grant additional discovery. The court found that no reason had been provided to doubt the proof tendered by the plaintiff, and given the cost and potential delay, additional discovery on that topic was precisely the kind of disproportionate discovery that Rule 26 was intended to preclude.
While it is undeniable that the 2015 Amendment stirred up the litigation waters of federal court discovery, its true impact on practitioners and litigants and potential to reshape certain discovery practices remains to be seen. Finally, further information about the 2015 Amendments may be found in the entire amendments packet sent to Congress.
Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at firstname.lastname@example.org.
Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at email@example.com.
 Leeron Morad, Andrew Bramhall, Digging Through The New Federal Rules of Civil Procedure, Law360 (May 26, 2015), http://www.law360.com/articles/654798/digging-through-the-new-federal-rules-of-civil-procedure (hereinafter Law 360).
 Jennifer A. Brennan, Hon. John M. Facciola, Hon. Mary M. Rowland, Just Follow the Rules! FRCP amendments could be e-discovery game changer, Metropolitan Corporate Counsel (Jul. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.
 Jennifer A. Brennan, Wendy Butler Curtis, FRCP Amendments: The Early Returns Courts Show Signs of Heeding the Call for Early and Active Management, Metropolitan Corporate Counsel (Mar. 3, 2016), http://www.metrocorpcounsel.com/articles/33591/frcp-amendments-early-returns-courts-show-signs-heeding-call-early-and-active-managem.
Texas attorney Dominique Sims says she learned a lot at the Northwest Trial Skills program we held in Seattle last fall, a program she attended through a scholarship funded by the NITA Foundation. “I love NITA programs, and I have grown as an attorney because of them,” she shared recently. “I am living proof of how much the scholarship helped build my infrastructure as an attorney.” It was only natural, then, that we’d want to follow up with Dominique to learn more about her program experience, the unique niche in which she practices, and how NITA fits in, to the benefit of her clients. When Dominique says she loves NITA programs, she’s not kidding: she’ll be in Boulder next month for the National Session, the crème de la crème of our trial skills teachings. Good luck, Dominique!
How did you hear about the Trial Skills program you attended last fall?
Through a friend who suggested the program as a new attorney practicing in complicated civil litigation matters.
How do you think finessing your trial skills has benefitted to your clients?
It helps with your overall bargaining power and understanding the strength and weaknesses of your case. Understanding what’s important to discovery early on in a case is what wins cases. Also, you realize how much you do not know. It is important to build a strong foundation. Once you build a strong foundation, the sky is the limit.
What surprised you about yourself when you were at the program? (A good surprise, or a suboptimal one—just something you were surprised to learn about yourself.)
How much I move my body when I talk. What appears to me as “making someone feel comfortable” when I move my body is actually more of a distraction. It takes the emphasis out of what I say.
You’re the first lawyer I’ve met who has a national security practice, which must be an intriguing space to work in. What kinds of things do you do?
As a national security lawyer, I advise companies on how to maintain their security clearance, which makes up approximately 10 percent of every government contract. For individuals, I help them maintain their security clearance. Oftentimes, when employees lose their security clearance, they lose their jobs. I fight to keep it.
How did you get into this specialized niche?
My father and godfather are military veterans. Plus, I saw a niche in which only a handful of attorneys practice. Even more surprisingly, no one offers the dual service of training and advocacy.
How often are you in court?
I am in court approximately once or twice a month. Oftentimes, I am advocating for my client through motion practice.
What do you most enjoy about working in the law?
I enjoy helping people fight for their rights.
What three things are vital to your day?
A computer, a printer, and my assistant, Angela; without her, I would not have a practice. Building a strong team is vital to your practice, no matter what developmental stage of you are in. “You’re only as strong as your weakest link.”
What do you like to do when you’re not busy doing all things lawyerly?
I coach fifth, sixth, and seventh grade girl’s AAU (Amateur Athletic Union) basketball. I am a former college athlete, so I try to help young aspiring athletes attain their goal of a college basketball scholarship.
What are you looking forward to?
Looking forward to the future. The future is unknown but it’s exciting. One day I hope to be on the front cover of Forbes.
Who are your heroes?
Jessica Alba. I know Jessica Alba is a weird choice, but look at the empire she has built from the ground up. She was an actress turned entrepreneur turned multimillionaire. Her story is very fascinating.
Also, my dad, because I would not be the person I am today if he did not expect the best from me.
The NITA Foundation awards a number of scholarships for our public trial and deposition programs to worthy applicants who have demonstrated a commitment to public service and/or financial need. Please support NITA’s mission to promote justice by training and mentoring lawyers to be effective advocates for their clients and donate now.
Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.
When I hung up the phone after talking to Barefoot Bankhead, one of our longtime Trustees, a few weeks ago, I thought, “Wow. He might be the nicest guy I’ve never met.” I asked Wendy McCormack, our Associate Executive Director, Operations, whether he was as nice in person as he seemed, and she replied, “YES. To the core.” Barefoot recently announced his plan to retire from Deloitte and to step down from the NITA Board next May—and so, the time is nigh for us to get to know him better by putting him through a quick round of “Asked and Answered.” Though his departure is still about a year off, we already know we’ll miss Barefoot’s contribution to and support of NITA, and, of course, his endless good cheer.
You are retiring from Deloitte at the end of May 2017. What do you think you’ll do your first day of retirement?
After reading the local paper and Wall Street Journal over breakfast on the patio, go play golf. I can’t ever remember actually reading the paper and having breakfast outside on the patio before going to work.
With the word “bank” in your name, it’s almost as if you were fated to work in accounting. What’s the earliest you remember realizing you had a head for figures and that you could to put it to good use in your career?
I got into accounting strictly by accident since I entered college planning to become a lawyer. My counselor advised me the best undergraduate majors would be either business or political science. Since business did not require any foreign language classes (I had taken Spanish classes since the seventh grade), I chose business. Business majors had to take accounting classes. That is how I was introduced to accounting. It came easy for me, and I enjoyed it. After four years of college, I decided against three more years of school and joined a public accounting firm.
While we’re on the subject of your name, let’s get the inevitable question out of the way. What’s the story behind Barefoot?
I was named after Judge Barefoot Sanders. He and my dad were classmates at the University of Texas. It is Judge Sanders’s middle name, and it is my middle name. It is a family name in Judge Sanders’s family, as he was a junior. It was his grandmother’s maiden name.
And what’s the W. stand for?
Wallace. That was my mother’s boss’s name.
The first thing I noticed about your CV is that you aren’t a lawyer at all. You’re a CPA and a partner at Deloitte in Dallas. How did you end up hanging out with so many trial lawyers? Just lucky?
A friend at Navigant Consulting encouraged me to get into litigation consulting about twenty years ago, at the height of the savings and loan crisis in the late 1980s. I had spent several years auditing financial institutions, two years in an accounting fellowship, then nine years working in banking. Navigant was working with the Department of Justice defending the Winstar cases, and my friend thought that my background and resumé would be a good fit for the work Navigant was doing with DOJ. After nine years with Navigant, I joined Deloitte in 2007.
And what brought you to NITA in particular?
I was referred to Mike Ginsberg by Anthony Jackson, one of my partners at Deloitte whose dad, Tom Jackson, is a partner in the Dallas office of Jones Day. At the time, NITA wanted to add a second non-attorney to the board, and Anthony thought I would have some interest considering the work I did in litigation support. After a few calls with Mike, I was nominated and elected to the Board.
You’ve served as an expert witness in cases involving professional malpractice, lending practices, and subprime mortgage loans, to name a few. Can you describe a case that has stood out in your memory as being really chewy and interesting to you, perhaps because of its intellectual complexity, the creativity (lawful or no) of one of its parties, or the presence of some other such aspect that intrigued you?
One of the first cases in which I testified was one of the Winstar cases against the United States and is one of the most interesting and satisfying simply because of the parties involved. I was at Navigant at the time and we were working with the Department of Justice. Me notwithstanding, the case included an impressive witness list for both the plaintiff and the defendant. Witnesses for the plaintiff included an individual who is generally credited with creating the mortgage-backed securities market and a finance professor at MIT who co-authored a textbook on corporate finance that is used in many of the major graduate schools of business across the country. Witnesses for the defense included a former Nobel Prize winner in economics and a DOJ attorney who would move on to eventually serve as Attorney General of New Jersey.
I understand that travel looms large in your future. Where are you going, and what do you plan to do while you’re there?
The plan is for my wife and me to fly to a location in the Pacific Northwest (exact location to be determined), rent a small RV, and begin a two-month tour of the northwestern United States and southwestern Canada. Must-stops along the way will be Yosemite, Lake Tahoe, Mt. Rainier, Lake Louise, the Calgary Stampede, Jackson Hole/Yellowstone, Sun Valley, Coeur d’Alene, and Great Falls. We will not be on a set schedule. We will stay as long in one place as we want, and I’m sure visit many places we don’t even know about yet. There is no way I could get my wife to spend two months in an RV. But I want to be in a small RV so we can stay overnight somewhere we want to be the next morning and accommodations are not available or convenient.
How did you select your itinerary?
Places I have been briefly such as Yellowstone or Lake Tahoe but didn’t have enough time to enjoy, and places I have only read about or seen pictures but know I want to see such as Lake Louise and the Calgary Stampede. Also, we will visit many places along the way just to see the natural beauty of the Pacific Northwest.
What else do you look forward to in retirement?
Once back from our trip to the Northwest, I intend to see how many days in a row golf can be played without getting bored or frustrated. But I am most excited about our plan to build a second home on a lot we own near Park City, Utah. We will spend three to four months and several holidays each year in the mountains. I also look forward to reading more books. I don’t take much time now to read for pleasure since there is so much to read to keep up professionally.
What is one thing that most improves your daily life?
Exercising. One of my best habits has been a regular exercise routine for most of my life. There is no better feeling than finishing an early morning workout knowing that is behind me and feeling refreshed and ready for the day.
What is a skill you’d like to learn and why?
To play the piano. My mom tried to get me to take piano lessons when I was a kid, but I wouldn’t do it. It is a decision I regret. Listening to music that includes a piano is enjoyable to me and a great way to unwind.
What makes you nostalgic?
The times my wife and I got to spend with our kids when they were younger. My two sons are now 27 and 24 and though they both live in Dallas, they are both working, and the time we all get to spend together as family is too infrequent. I miss coaching baseball games, walking golf tournaments, or vacationing with the kids and skiing or playing golf.
Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.
In NITA’s latest edition of Fulbright v. Americraft Industries and Parker, a high-school football star, John Fulbright, is thrown from his motorcycle and severely injured when it collides with a Cadillac that just pulled out of a parking lot. Most of the witnesses say Fulbright was speeding and not wearing a helmet, but a 14-year-old boy says otherwise. There is evidence that the Cadillac’s driver, Andrew Parker, an Americraft employee, had been drinking. Fulbright claims he became an epileptic as a result of his injuries. There is not a helmet law in the State of Nita. This latest edition contains four witnesses for both the plaintiff and the defendants.
Retail Price: $38
Leading NITA these past three and a half years, is a privilege of a lifetime. Why?
Why leave a fine-tuned 30-year career for parts unknown? Why leave a rich professional and personal life in DC, friends, law partners, farm and urban condo, children; why? Every friend asked that, back then. My pithy answer: “I love NITA.”
This morning, I deviated from my ritual skimming of the day’s Washington Post feeds, snared by news of Jimmy Page’s testimony: “Stairway to Heaven” was not, it turns out, composed at Bron-Yr-Aur. (Good story.) I could not resist clicking on the story’s concert videos of “Stairway.” (Wow; still wow, after all these years.)
It is that deviation that launched this reflection on service, greatness, and NITA. You see, after “Stairway,” the video that automatically loaded showed me Michelle Obama and Oprah Winfrey on stage. Their wide-ranging conversation drew me in. Three days ago, at the United State of Women conference, before an audience of 5000 women and men, they paused to discuss service, fame and greatness.
Now I admonish you: Resist the urge to save time by reading news summaries. Instead, watch the whole video. That conversation is not about sound bites on “men” (swagilicious though they may be), or “women” (wise though they can be). That fabric of their conversation gives everyone reasons to reflect.
Bringing me to my theme today: I left behind a “life well-planned” to take on NITA’s top position for the reasons that Martin Luther King taught, and “Mrs. O” and “Ms. O” reflected upon: “Everybody has the power for greatness, because anybody can serve.” It is not about fame. Simply put, I at NITA want to make you Great.
NITA is about service. Using Dr. King’s syllogism, NITA is this:
To you who do not yet know NITA well, you need to. Lawyers who passionately believe in how our courts and hearing rooms achieve justice through due process must . . .must . . . join up with NITA. We are a force.
To you who teach NITA every year, you know why your commitment means so much to you personally. You are great, every one of you. The lawyers in your programs see you work magic, bringing your witness and argument skills to them, and teaching them that they too can learn to do that. The drugs of gratitude and on-the-spot change, which NITA teachers enjoy in every program, feed our teaching service. Teaching for NITA builds our individual sense of greatness, and secures our understanding of NITA’s fame.
Please call me — NITA’s doors are wide open to new faculty who are great trial lawyers. Mid-career, aspiring, or already famous, if you have teaching talent it belongs with us.
“Greatness is determined by service.” I am here to serve our mission. Our faculty passionately teaches for the same reason. Your soul to will sing at the difference you can make for justice as a member of our NITA network.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy