These disclosures are usually governed by an order of the trial court.
The Rule specifies three considerations which, if present, require the court to limit the scope of otherwise permissible discovery.
Rule 26(b)(2)(C) states: On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.14 Rule 26(b)(2)(C) grants courts the discretion to weigh the burden or expense of proposed discovery against an assessment of its likely benefit, considering the needs of the case and the importance of the discovery in resolving the issues.
The Rule “places an obligation on the trial court to limit the frequency or extent of discovery otherwise permitted by Rule 26(b)(1) based on a balancing analysis” that is “written in mandatory terms.”15 Courts have “considerable authority to limit a party's pursuit of otherwise discoverable information where the burden of a discovery request is likely to outweigh the benefits.”16 This coincides with the general direction of Rule 26 that “vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.”17 The purpose of the Rule is to “promote judicial limitation of the amount of discovery on a case–by–case basis to avoid abuse or overuse of discovery through the concept of proportionality.”18 This doesn’t necessarily mandate that the parties or the court must undertake a detailed assessment of the merits and their relationship to the discovery needs of the action.
“In general, it seems that the proportionality provisions should not be treated as separate and discrete grounds to limit discovery so much as indicia of proper use of discovery mechanisms; they do not call for counsel to undertake complex analysis.”19 Nor is it a “warrant to implement personal views about the importance of issues raised.”20 Nevertheless, advocates should anticipate arguments citing the factors of Rule 24(b)(2)(C), as reasons for limiting or denying discovery requests outright. Mandatory Initial Disclosures In most cases, Rule 26(a)(1)(A) requires each party at the outset of litigation to automatically make significant, self-executing “initial disclosures” in writing, without waiting for formal discovery requests from the opposing party.
However, the Rule also “signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.”12 The district court in Lest litigants and the court become consumed with the philosophical exercise of debating the difference between discovery relevant to the “claims and defenses” as opposed to the “subject matter” of the pending action—the juridical equivalent to debating the number of angels that can dance on the head of a pin—the practical solution to implementing the new rule changes may be to focus more on whether the requested discovery makes sense in light of the Rule 26(b)(2) factors, than to attempt to divine some bright line difference between the old and new rule.