When the 2015 Amendments to the Federal Rules of Civil Procedure were proposed and enacted, proponents and commentators widely assumed that revisions to the core discovery provisions of Rule 26 were aimed at limiting the scope of discovery. Specifically, the elimination of the popular phrase ‘‘reasonably calculated to lead to the discovery of admissible evidence’’ was designed to refocus the inquiry of courts away from the hunt for every potential lead to evidence, no matter how attenuated, and onto such discovery as is ‘‘proportional’’ to the case. Early decisions under the new Rule 26, however, suggest that some courts may read the revised language to expand discovery of settlement negotiations, even though they are inadmissible in evidence under Federal Rule of Evidence 408. Prior to the Amendments, courts were divided on discovery of settlement negotiations, but had often given them heightened protection from discovery.
BNA’s Securities Regulation & Law Report
BNA Insights: Unintended Consequences—Revisions to Rule 26 Could Lead to Discovery of Settlement Talks With Regulators
August 15, 2016