"Duke Rules Package" Implementation: Revisions to the Federal Rules of Civil Procedure Four Months Later

Last year, we published a four-part series about the so-called “Duke Rules Package”—a set of proposed amendments to the Federal Rules of Civil Procedure developed during the 2010 Federal Rules Advisory Committee meeting held at Duke University. Those amendments, appropriately, have been nicknamed the “Duke Rules.” The Supreme Court adopted most of the “Duke Rules” effective December 1, 2015. So, if March Madness led you to click on this blog post in hopes of seeing predictions about the Duke-Oregon game later this week, I am sorry to disappoint. But if you were anxiously awaiting an update on how federal courts have applied key changes to the Federal Rules of Civil Procedure, then you have come to the right place.

As discussed in “Why Businesses May Like the ‘Duke Rules Package’ Part 1 of 4: Lightening the Load of Discovery,” one of the most dramatic changes involves a potential narrowing of the scope of discovery under Rule 26(b). Formerly, the scope of discovery was exceptionally broad, including any nonprivileged matter relevant to a claim or defense and information that “appear[ed] reasonably calculated to lead to the discovery of admissible evidence.” While there were protections in Rule 26(b)(2)(C), which might assess the proportional needs of the case, it took a motion or court order to trigger such protections. Now, under the new rule, the scope of discovery includes any nonprivileged matter relevant to a claim or defense “and proportional to the needs of the case.”

Given amendments to the language in Rule 26(b), will federal courts significantly limit discovery? Will new Rule 26(b) save litigation costs or be used as a tactic to stonewall otherwise proper discovery?

Based on Eramo v. Rolling Stone LLC, No. 3:15mc11, 2016 U.S. Dist. LEXIS 8590 (W.D. Va. Jan. 25, 2016), one of the first Virginia cases to apply the new standard, it appears courts may fairly consider “proportionality” without dramatically hampering parties’ ability to conduct discovery. Eramo involves a claim against Rolling Stone magazine for allegedly defaming a University of Virginia Associate Dean of Students (Dean Eramo) as a result of their now infamous article “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.” Rolling Stone denies liability, arguing that it acted reasonably in investigating the story. Dean Eramo counters that the magazine failed to interview a number of known witnesses before publication, thereby missing numerous “red flags” that suggested the story was not credible.

As part of the litigation, Dean Eramo sought third party discovery from “Jackie,” the student at the center of the allegations. Jackie resisted discovery of her communications on a number of grounds including “relevance and proportionality.”

Addressing the proportionality issue, United States District Judge Glen Conrad discussed the history of the amendment, the advisory committee notes, and relied in large part on pre-amendment cases that discussed proportionality in the context of Rule 26(b)(2)(C). The Court found that “pre-amendment cases are still applicable” but “put a greater emphasis on the need to achieve proportionality.” And, the Court held that, “[d]espite the additional proportionality consideration required under the amendment to Rule 26 . . . the [2015 amendment] does not place on the party seeking discovery the burden of addressing all proportionality considerations.”

Throughout its analysis, the Court considered proportionality and found that the requested discovery was “reasonable and proportionate,” with one exception. Certain communications that Jackie made under the alias “Haven Monahan” were beyond the scope of discovery because they involved people that Rolling Stone was unaware of before publishing the article. In other words, Rolling Stone could not have behaved negligently for failing to contact sources unknown to its staff, so such information was deemed “irrelevant” and not discoverable on that basis.

It is not clear whether or not the additional “Haven Monahan” communications would have been discoverable under the former standard that included information “reasonably calculated to lead to the discovery of admissible evidence.” It might have been fair game in the past. Still, the majority of discovery requests were permitted despite the narrower rule and repeated consideration of the proportionality standard, suggesting that the amendment’s impact on discovery could be marginal.

It is possible, however, that the proportionality rule did not have much of an impact given the seriousness of the issues involved in Eramo—maybe “proportionality” will further limit discovery in cases of less gravity? The real value of the new standard is likely to be found in those cases where damages and public interest are minimal, and discovery requests are needlessly broad.