Arkansas Adopts Proportional Discovery and Discovery-Specific Certification (Rule 26(g)) While Clarifying Rule 11’s Reach Over Discovery Motions

1. Introduction

In In RE ARKANSAS SUPREME COURT COMMITTEE ON CIVIL PRACTICE - RECOMMENDATIONS TO ADOPT RULE 11(d); TO AMEND RULE 26(b); 26(c)(1) AND (2); 26(f)(1) AND (2); 26(f)1) AND (2); AND TO ADOPT RULE 26(g)(1), (2), AND (3) OF THE ARKANSAS RULES OF CIVIL PROCEDURE, 2026 Ark. 106 (per curiam), the Supreme Court of Arkansas exercised its rulemaking authority over civil procedure. Acting on proposals from the Arkansas Supreme Court’s Committee on Civil Practice, the Court adopted a package of amendments focused on modernizing discovery practice, tightening objection standards, and reallocating sanction authority between Rule 11 and the discovery rules.

The core issues were not merits-based disputes between litigants, but systemic questions of civil administration: (1) how broad discovery should be (including proportionality limits), (2) when protective limitations are mandatory, (3) how privilege and opinion-work-product disputes should be presented and reviewed, and (4) what certification and sanction framework governs discovery papers versus discovery motions.

2. Summary of the Opinion

The Court adopted, effective immediately, amendments and additions to the Arkansas Rules of Civil Procedure:

  • Adopted Rule 11(d) (inapplicability of Rule 11 to discovery disclosures/requests/responses/objections under Rules 26–37), while expressly leaving discovery motions subject to Rule 11.
  • Amended Rule 26(b)(1) to adopt a relevance-and-proportionality scope of discovery and to remove “reasonably calculated to lead to the discovery of admissible evidence.”
  • Restructured Rule 26(c) to add a new mandatory-limitation provision (Rule 26(c)(1)) and to preserve the traditional discretionary protective-order provision (Rule 26(c)(2)).
  • Adopted a detailed privilege assertion framework (Rule 26(f)(1)) and retained the existing framework governing interlocutory review factors for certain privilege/opinion-work-product orders (Rule 26(f)(2)).
  • Adopted Rule 26(g), a discovery-specific certification-and-sanctions regime, including a good-faith conferral prerequisite for motions alleging improper certification.
  • Amended Rules 33, 34, and 36 to bar “blanket objections,” require objection specificity, and (for Rule 34) require parties to state whether responsive materials are being withheld based on an objection.

The Court noted the amendments were published for comment and thanked the Committee. WEBB, J. did not participate.

3. Analysis

3.1 Precedents Cited (and Related Authorities)

A. Prior Arkansas per curiam in the same rulemaking sequence

The Opinion references: In re Ark. Sup. Ct. Comm. on Civ. Prac. - Recommendations to Adopt Rule 11(d); to amend Rule 26(b); 26(c)(1) and (2); 26(f)(1) and (2); and to adopt Rule 26(g)(1), (2), and (3) of the Ark. Rules of Civ. Proc., 2026 Ark. 65 (per curiam). This citation functions as procedural history—establishing that the proposals were previously published for comment and placed in the Court’s rulemaking pipeline.

B. Federal Rules of Civil Procedure (as persuasive models)

The Court’s Reporter's Notes repeatedly tie the Arkansas changes to federal counterparts, signaling interpretive intent:

  • Fed. R. Civ. P. 11(d) (model for new Arkansas Rule 11(d)). The Arkansas rule departs by omitting “motions” from the exclusion, thereby keeping discovery motions under Rule 11.
  • Fed. R. Civ. P. 26(b)(1) (model for the revised discovery scope—relevance plus proportionality).
  • Fed. R. Civ. P. 26(b)(2)(C) (model for the new mandatory limitation language placed in Arkansas Rule 26(c)(1)).
  • Fed. R. Civ. P. 26(b)(5)(A) (model for Arkansas Rule 26(f)(1), governing how privilege/work-product claims must be asserted and described).
  • Fed. R. Civ. P. 26(g) (model for Arkansas Rule 26(g), discovery certification and sanctions), with a key Arkansas addition: a good-faith conferral prerequisite for motions under Rule 26(g).
  • Fed. R. Civ. P. 34(b)(2)(B) and (C) (incorporated into Arkansas Rule 34(b)(2) procedures for production responses/objections, especially clarity about the scope of objections and withheld materials).

C. Advisory Committee Notes and local federal practice (as interpretive guidance)

  • Fed. R. Civ. P. 11, Advisory Committee N. (1993 Amend.) is cited to justify channeling discovery conduct into discovery-specific rules rather than the general Rule 11 framework.
  • Fed. R. Civ. P. 26, Advisory Committee N. (2015 Amend.) is cited to explain why “reasonably calculated” language was removed and how proportionality should constrain discovery.
  • Fed. R. Civ. P. 26, Advisory Committee N. (1993 Amend.) is cited regarding the level of detail necessary to “enable other parties to assess” a privilege/work-product claim.
  • Local Rule 33.1 of the United States District Courts for the Eastern and Western Districts of Arkansas is used as a model for heightened objection specificity in Arkansas Rules 33(b)(4) and 36(a), and (in part) Rule 34(b)(2).

D. Arkansas procedural cross-references (sanctions and interlocutory review)

  • Rule 37 is integrated throughout as the primary enforcement mechanism for discovery failures and as a source for expense-shifting standards (e.g., Rule 37(a)(4)).
  • Rule 45 is referenced regarding motions to quash and compelled production of subpoenaed materials.
  • Ark. R. App. P.-Civ. 2(f) is reaffirmed as the pathway for discretionary interlocutory appeals in certain privilege/opinion-work-product disputes, guided by the enumerated Rule 26(f)(2) factors.

3.2 Legal Reasoning

Although the Opinion is per curiam and largely administrative, the accompanying Reporter's Notes reveal a coherent set of policy choices:

A. Re-centering discovery on relevance and proportionality

By aligning Rule 26(b)(1) with the current federal formulation, Arkansas formally narrows discovery to what is both relevant and proportional to the needs of the case. The Court also removed the phrase “reasonably calculated to lead to the discovery of admissible evidence,” explaining that it could be misread to expand discovery beyond relevance. Importantly, the rule retains the principle that discoverability does not require admissibility at trial.

B. Creating mandatory limits on discovery when certain conditions exist

New Rule 26(c)(1) requires courts to limit discovery when it is cumulative/duplicative, when ample opportunity has already existed, or when it falls outside Rule 26(b)(1)’s scope. This is a structural shift toward more active judicial gatekeeping. Arkansas nevertheless preserves its culture of conferral by requiring a good-faith attempt to resolve the dispute before motion practice.

C. Standardizing privilege/work-product assertions and strengthening appellate gatekeeping for compelled production

Rule 26(f)(1) moves Arkansas toward more disciplined privilege practice: a party must expressly assert privilege/work-product protection and describe withheld materials sufficiently to allow assessment without revealing protected substance.

For orders compelling production (or denying a motion to quash) when the defense is a recognized privilege or the opinion-work-product protection, Rule 26(f)(2) requires factual findings and analysis of enumerated factors bearing on interlocutory appeal under Ark. R. App. P.-Civ. 2(f). This framework both (i) builds a record for discretionary immediate review and (ii) encourages careful trial-court calibration before ordering disclosure that could cause irreparable harm.

D. Reallocating sanctions: Rule 11 for motions; Rule 26(g) for discovery papers

New Rule 11(d) channels discovery disclosures/requests/responses/objections into the discovery-specific regime (Rules 26–37), principally new Rule 26(g), while keeping discovery motions within Rule 11. The Reporter's Notes emphasize that the federal structure can create a “gap” because federal Rule 11(d) exempts discovery motions while federal Rule 26(g) does not cover them; Arkansas avoids that result by narrowing the exclusion so that discovery motions remain subject to Rule 11’s standards.

New Rule 26(g) then imposes an affirmative certification duty for discovery papers—requiring a reasonable inquiry and certifying completeness/correctness (for disclosures) and legal/rule consistency, proper purpose, and reasonable burden (for requests/responses/objections). It also authorizes sanctions—expense-shifting and protective/enforcement orders—when certifications are violated without substantial justification.

E. Ending “boilerplate” discovery objections and clarifying waiver risk

Amendments to Rules 33, 34, and 36 explicitly reject “blanket objections,” require that objections be tied to specific requests/interrogatories/admissions, and require particularized grounds (mere assertions of nonrelevance or disproportionality are insufficient). Rule 33(b)(4) also states that unstated grounds are waived unless excused for good cause. Rule 34(b)(2) adds a significant transparency requirement: an objection must state whether responsive materials are being withheld on the basis of that objection.

3.3 Impact

A. Discovery scope litigation will increasingly focus on proportionality factors

The express proportionality factors (importance of issues, amount in controversy, access to information, resources, importance of discovery to resolving issues, and burden versus benefit) provide litigants and judges a structured framework. Expect motion practice to pivot from broad “relevance” arguments to evidentiary showings about burden, access, and marginal utility.

B. More active trial-court management, with mandatory limitation triggers

Because Rule 26(c)(1) is framed as mandatory (“the court shall limit”), parties resisting overbroad discovery now have a rule text that supports intervention even absent the more traditional “good cause” protective-order showing—so long as the listed criteria are met and conferral occurred.

C. Greater discipline—and potential sanction exposure—in discovery conduct

Rule 26(g) increases accountability for discovery positions (including objections) and should deter “papering” the record with improper objections or burdensome requests. Because the rule also reaches attorneys and parties (including self-represented litigants) and authorizes fee-shifting, it may change negotiating leverage in discovery disputes.

D. Cleaner records for privilege/opinion-work-product disputes and more predictable interlocutory review

Requiring factual findings and factor-based analysis in certain orders should improve appellate screening under Ark. R. App. P.-Civ. 2(f), and may reduce inconsistent handling of high-stakes privilege disputes. It also incentivizes early diligence, since diligence is expressly listed as a factor.

E. Reduced “boilerplate” objections and increased up-front clarity about withholdings

The amended objection rules (especially the Rule 34 requirement to state whether materials are withheld) are likely to reduce ambiguity that often fuels expensive meet-and-confer cycles and motions to compel. They also increase the risk of waiver for under-specified objections.

4. Complex Concepts Simplified

Proportionality (Rule 26(b)(1))
Even relevant discovery can be disallowed if it is too burdensome or expensive compared to what it is worth for deciding the case. Courts weigh listed factors (stakes, amount, access, resources, importance, burden vs. benefit).
Protective order vs. mandatory limitation (Rule 26(c))
A traditional protective order (now Rule 26(c)(2)) is discretionary and requires “good cause” to protect against annoyance, embarrassment, oppression, or undue burden/expense. The new Rule 26(c)(1) additionally instructs that the court must limit discovery if certain objective conditions are found (e.g., cumulative or outside scope).
Privilege and work product; “opinion” work product
Privilege generally protects certain communications (like attorney-client communications) from disclosure. Work product protects materials prepared for litigation. “Opinion” work product is the most protected category—mental impressions, legal theories, and opinions of counsel.
Certification (Rule 26(g))
Signing a discovery request/response/objection is not a formality: it is a representation that the signer conducted a reasonable inquiry and that the position is legally proper, not for an improper purpose, and not unreasonably burdensome.
Rule 11(d) “inapplicability to discovery” (and the Arkansas twist)
In Arkansas, Rule 11 no longer governs discovery papers (those are governed by Rules 26–37, especially Rule 26(g)), but discovery motions remain subject to Rule 11—avoiding a lower-standard “gap” for motion practice.
“Blanket objections” and “particularity”
Parties may not object to an entire set of discovery requests at once or rely on generic phrases (e.g., “irrelevant” or “disproportional”) without explaining why for each specific request. Under Rule 34, they must also clarify whether they are actually withholding documents because of the objection.

5. Conclusion

2026 Ark. 106 marks a substantial modernization of Arkansas discovery practice. The Court (1) narrows discovery to what is relevant and proportional, (2) mandates judicial limitation in enumerated circumstances, (3) standardizes privilege assertion mechanics and strengthens the record required for discretionary interlocutory review, (4) reallocates sanction authority by creating a discovery-specific certification regime in Rule 26(g) while keeping discovery motions within Rule 11, and (5) targets boilerplate objections across key discovery devices (interrogatories, production requests, and admissions).

Practically, the decision signals a statewide expectation of more disciplined, transparent, and cost-aware discovery—backed by clearer sanctions tools and fewer tolerances for generic objections or strategic overreach.