In 2010, the Federal Rules of Civil Procedure were amended to change the scope and method of expert discovery in federal courts under Federal Rule of Civil Procedure 26. Rule 26 has long been one of the most important rules for civil litigators in federal court, as it provides the basic guide for discovery in federal cases. Now, more possible changes to Rule 26 are on the horizon and subrogation professionals and litigators should be mindful of these potential changes and the impact they will have on the discovery process in subrogation matters in federal court.

On August 15, 2013, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published its proposed amendments to Federal Rule of Civil Procedure 26. The first significant proposed change is to the “scope” of discovery in federal court. The rule in federal court, which is similar to the rule of several state civil rules, has long been that a party is allowed to make discovery requests that are “reasonably calculated to lead to the discovery of admissible evidence.” This phrase has often been broadly interpreted by the federal courts and sister state courts, and can sometimes lead to discovery on collateral issues that end up prolonging discovery, such as requests for underwriting files of little, if any, relevance, and depositions of various vendors involved in the rebuild of a property at issue in a subrogation claim when there is no real dispute on the repairs performed. The proposed amendment to Rule 26 will significantly shift the traditional scope rule by deleting that rule and replacing it with a “proportional” standard. The proposed new rule would require that discovery sought be “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 issues, and whether the burden or expense of the proposed discovery outweighs the likely benefit.” If approved, this new standard could provide an added tool in the subrogation litigator’s tool kit to avoid unnecessary discovery on collateral issues.

The other proposed changes to Rule 26 will also significantly impact discovery under Rule 26. The following is a brief summary of the additional proposed changes:

• limiting the number of requests for admissions to 25;
• reducing the number of standard fact witness depositions allowed from 10 to 5;
• reducing the standard time allowed for depositions from 7 hours to 6 hours;
• reducing the number of interrogatories allowed per party from 25 to 15; and
• reducing the time for serving process on a defendant from 120 days to 60 days, although leave can still be sought for more time upon filing a motion.

Admittedly, these changes will bring some challenges for those of us seeking discovery in complex cases with multiple parties. However, in a case where the parties, the facts and the issues are straightforward and do not present unique issues, these new amendments could increase “the speed limit” on the discovery highway for subrogated actions. Indeed, several of the committee’s comments on the proposed changes suggest a goal of decreasing costs and expediting cases.

Subrogation litigators and professionals should keep an eye on these proposed amendments, because these changes will usher in a more streamlined and speedy discovery process in the federal courts for matters that do not involve complex or multidistrict litigation and may allow subrogation professionals to either limit an opponent’s effort to seek unnecessary discovery or increase the speed at which a case is litigated in federal court.