Federal Rules of Civil Procedure Changes

I attended the Federal Bar Association meeting on Tuesday to hear Magistrate Judge Keith Ball talk about the upcoming Rules changes.

Judge Ball went in depth about the changes to the Local Rules.  Of interest was the removal of the word “shall”.  The reason was that at least one federal judge believes its use is archaic.  I tend to agree.  When we speak, we rarely say “I shall take a walk.”

I was interested in the changes to FRCP 26.  The federal courts are trying to make rule changes to address the increasing costs of litigation.  These are referred to at s the “proportionality changes.” For example,

The current Rule 26(b)(1) reads:

Rule 26(b)(1)—Scope of Discovery

Scope in General. 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—including the 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. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). (Emphasis added)

The proposed Rule 26(b)(1) reads:

Scope in General. 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 amount in controversy, the importance of the issues at stake in the action, 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.  (Emphasis added).

I’m interested in your thoughts and comments about this Rule change and whether this should be considered for the Mississippi Rules of Civil Procedure.

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