Concept
Baseline Scope of Discovery
Scope of discovery, proportionality, and e-discovery
Scope, Proportionality, and E-Discovery
Baseline Scope of Discovery
Federal Rule of Civil Procedure 26(b)(1) fixes the outer boundary of discovery, the pretrial process by which each side obtains information from the other. Unless a court order says otherwise, a party may discover any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.1 Read the sentence as a gate with three bars: the matter must be free of privilege, it must bear on a claim or defense, and the burden of producing it must be justified by what is at stake. The rule's final sentence then loosens the gate in one respect, providing that information within the scope of discovery need not be admissible in evidence to be discoverable.2
The gate is set wide because the pleadings that precede discovery say so little. Notice pleading lets a plaintiff start suit with a minimal complaint and amend liberally afterward, and jurisdictions that adopt that policy tend to construe discovery just as liberally, however their rules phrase it.3 Peter Painter's suit against Toyota over an accident in one of its cars shows what that generosity buys each side. Toyota may discover facts about Painter's medical condition, what he knows or asserts about the accident, and perhaps even his prior driving record. Painter may discover how Toyota designed and manufactured his car, other accidents involving the same model, and probably Toyota's later redesign of the car to correct accident-causing defects. Neither side's entitlement turns on whether the material would be admissible at trial.4
Broad access also serves purposes beyond the immediate case. Discovery preserves the testimony of witnesses who may be unavailable at trial, reveals facts, helps formulate the issues, and freezes testimony so as to prevent perjury. It lets each side test the strength of the other's case, which promotes settlement, and when settlement fails it should help produce a crystallized trial.5
Lawyers write the requests, and the opinions are candid about how that goes: lawyers customarily serve interrogatories and document requests that are far broader, more redundant, and more burdensome than they need to be to resolve the case.6 The limits in Rule 26(b)(1) therefore matter most when a responding party objects, and each bar of the gate has to be understood on its own terms. The three subsections that follow take relevance, privilege, and admissibility in turn. Proportionality, which the rule builds into the definition of scope itself, is the subject of the next section.
Relevance to Claims or Defenses
Rule 26(b)(1) confines discovery to matter “relevant to any party's claim or defense,” a phrase that emerged from two successive narrowings of an older, looser test.7 The current rule has neither the good-cause tier for subject-matter discovery that once stood beside it nor the clause that made discovery proper whenever it appeared reasonably calculated to lead to admissible evidence.8 Many frequently cited discovery opinions predate those changes, so the first question to ask of any of them is which version of the rule it applied. The versions run in three stages:
- Before 2000, discovery reached any matter relevant to the subject matter involved in the action.9
- From 2000 until 2015, discovery reached matter relevant to any party's claim or defense without court authorization, and a court could order discovery of matter relevant to the subject matter on a showing of good cause.10
- Since the 2015 amendment, only the claim-or-defense standard remains, and proportionality is built into the definition of scope.11
The pre-2000 standard is the baseline the later amendments cut back from. In Oppenheimer Fund, Inc. v. Sanders, the Supreme Court read the phrase “relevant to the subject matter involved in the pending action” to cover any matter that “bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.”12 The Court tied that breadth to notice pleading: a complaint supplies only a skeleton of the claim, so discovery cannot be confined to the issues the pleadings raise, because discovery itself helps define and clarify the issues.13 Even that generous standard had edges. The Court observed that discovery may properly be denied of matter relevant only to claims that have been stricken, or to events before the limitations period, unless the information is otherwise relevant to issues in the case. It also held that class plaintiffs who wanted class members' names and addresses only to send notice were not seeking information that bore on any issue in the case.14 Treat this language as the former test and not the current one.
The 2000 amendment split relevance into two tiers. Matter relevant to any party's claim or defense stayed available on counsel's own requests, while matter relevant only to the subject matter of the action required a finding of good cause by the court.15 The breadth of the older provision had become the focus of a serious attempt to narrow federal discovery, and the Rules Committee recommended the narrower language to rein in excessive discovery at the outer bounds of relevance.16 The message to litigants was that they have no entitlement to discovery to develop new claims or defenses that the pleadings have not already identified.17
The 2015 amendment removed the second tier altogether, so discovery of the subject matter of the litigation is unavailable even on a showing of good cause.18 The same amendment deleted the “reasonably calculated” clause, which is taken up below under admissibility, and it deleted the rule's illustrative list of discoverable items: the existence, description, nature, custody, condition, and location of documents and things, and the identity and location of persons with knowledge. Deleting the list did not shrink what discovery can reach. According to the Advisory Committee, those items remain within scope whenever they are relevant to a claim or defense, because “[d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples.”19
Narrowing the formula did not make the standard cramped, because relevance to a claim or defense does not stop at facts about the incident in suit. The Advisory Committee identified three kinds of matter that may remain reachable: other incidents of the same type or involving the same product; information about a party's organizational arrangements or filing systems; and information that could impeach a likely witness, even though it is not otherwise relevant to the claims or defenses.20 Whether such matter is discoverable in a particular case depends on the circumstances of the pending action.21
Painter's suit supplies requests to test against that standard. Painter may discover other accidents involving the same model of car, which bear on the design defect he pleaded. His demand for all repair records on other models stands on weaker ground and may approach the point where the material is so remote from the issues that its burden will substantially exceed its benefit. Toyota's inquiry into Painter's private life probably exceeds that point unless something Painter pleaded puts the subject at issue.22 Courts have two ways to police such requests. Some take a narrow view of relevancy, but the rules offer more direct relief by limiting discovery to what is proportional to the needs of the case and by authorizing a Rule 26(c) protective order against relevant but unduly burdensome discovery.23
Because the test looks to claims and defenses, each side is tempted to define them in whatever way helps it resist or demand a request. In Liguria Foods, Inc. v. Griffith Labs., Inc., a federal district court in Iowa rejected that move, explaining that Rule 26(b)(1) gives no party “the unilateral ability to dictate the scope of discovery based on their own view of the parties' respective theories of the case.”24 The court added that relevance and discoverability are fluid, so parties may revise their views of what information matters, and even their theories, as discovery reveals new facts and relationships. It placed the burden of establishing lack of relevancy or undue burden on the party resisting production, and it found nothing to suggest that a more restrictive view of scope had become the norm.25 That flexibility works inside the pleaded dispute, however. A party who wants discovery aimed at a claim the pleadings do not contain has no entitlement to it.26
The line is hardest to draw when the pleaded injury is itself amorphous, and EEOC v. Simply Storage Mgmt. shows a court drawing it anyway. Two claimants alleged severe emotional distress, including post-traumatic stress disorder. The employer argued that those injuries put all of their Facebook and MySpace content in play, while the EEOC wanted production limited to content that directly addressed matters alleged in the complaint.27 The court chose a middle course. It made discoverable the profiles, postings, and messages from the relevant period that reveal, refer, or relate to any emotion, feeling, or mental state, together with communications about events that could reasonably be expected to produce a significant emotion. Third-party messages came in when they gave context to a claimant's own communications, and photographs of a claimant from the period were generally discoverable because appearance may reveal emotional state, but a picture on someone else's profile in which the claimant was merely tagged was less likely to be relevant.28 The court conceded that it could not draw the lines with the precision lawyers want, and it confined its order to severe-distress claims, leaving garden-variety distress claims for another day.29 The opinion dates from 2010, so the rule text it quotes is the pre-2015 wording, but it remains a useful example of how a court cuts a relevance line through a broad pleaded injury.30
Nonprivileged Matter
The definition of scope reaches only “nonprivileged matter,” so a valid privilege is a complete ground for refusing to disclose information even when it is relevant and proportional to the needs of the case.32 The civil rules do not create privileges. The law of privileges belongs to evidence law, and it protects information transmitted between individuals in relationships such as doctor and patient or lawyer and client.33 That law has already judged that encouraging confidence in those relationships matters more than discovering what was said within them, so a judge managing discovery has no occasion to reweigh the requester's need against the speaker's confidence.34
A privilege is not the only way to protect sensitive information, but the other way works differently. In Pearson v. Miller, the court observed that the Federal Rules permit a court to restrict or preclude discovery when justice requires, in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.35 Because that protective power is discretionary, it answers how much of the relevant material a requester receives and on what terms. Privilege answers whether the information may be discovered at all.
The Painter suit shows where the line falls. Suppose Toyota demands the confidential advice Painter's lawyer gave him about the case. The demand seeks a communication made in confidence within the lawyer-client relationship, so privilege puts it outside discovery however directly it bears on the claim.36 A request that Painter describe what he saw and did at the time of the accident gets the opposite answer, because Toyota is entitled to discover what Painter knows or asserts about the accident.37 The privilege protects the confidential communication, and the facts remain open to discovery from the person who knows them.
Work product is a separate protection with its own reading. In Hickman v. Taylor, the owners of a sunken tugboat expected suit and retained a lawyer, who interviewed witnesses to the accident. The plaintiffs later sought his notes of those interviews, and he objected.38 That dispute, and not a confidential exchange between client and lawyer, frames the work-product question.
Which body of law decides whether a privilege exists depends on the case. In a diversity action, state privilege law, not general federal principles, controls. If a plaintiff sues for intentional infliction of emotional distress in an Ohio federal court and the defendant wants to depose the plaintiff's psychotherapist about the extent of the anguish, Ohio privilege law determines whether patient-psychotherapist confidences are protected.39
Admissibility Is Not Required
The last sentence of Rule 26(b)(1) provides that information within the scope of discovery “need not be admissible in evidence to be discoverable.”42 The sentence adds no fourth bar to the gate. It tells you which question the gate does not ask, namely whether a judge would let the jury hear the item. Scope asks whether the information matters to the dispute. The rules of evidence ask a later question, put to the trial judge when a party offers the item, and the civil rules keep the two apart so that the second never narrows the first.
The separation follows from what discovery is for. One federal district court, quoting Eighth Circuit authority, called discovery an investigatory tool that helps litigants understand the key persons, relationships, and evidence in a case even if the evidence discovered is later deemed not admissible.43 A condition of admissibility would also be circular, since a requesting party would have to prove an item admissible before seeing it, yet admissibility usually turns on facts about the item, such as who made a statement and in what circumstances, that only discovery can reveal. Under the federal rules and their state counterparts, it is proper to discover facts that are not themselves admissible.44
The Painter illustration supplies a second evidence rule that does not limit discovery. Painter may discover Toyota's later redesign of the car to correct accident-causing defects, even though evidence of such subsequent repairs will ordinarily be inadmissible at trial to prove liability under Federal Rule of Evidence 407.45 The redesign bears on the defect he pleaded, and that is all Rule 26(b)(1) asks. Whether the jury ever sees it is a question the evidence rules answer at trial, after the information has cleared the gate.
The admissibility sentence cuts in one direction only. An objection that an item would be excluded at trial is no objection to discovery, but an objection that the item bears on no live claim or defense is a good one, and calling the item a possible lead does not answer it. Oppenheimer shows the second kind of objection succeeding. It is proper to deny discovery of matter relevant only to claims or defenses that have been stricken, or to events before an applicable limitations period, unless the information is otherwise relevant to issues in the case, and the Court refused the class plaintiffs' request for class members' names and addresses because they sought the information to send notice and not for any bearing on an issue in the case.46 The redesign evidence and the stricken-claim material fail, if they fail, at different points. The redesign is relevant and is kept from the jury, if at all, by a rule of evidence after it clears the gate, while the stricken-claim material never clears the gate because it bears on nothing left in the case. Oppenheimer applied the broader pre-2000 standard, so matter that failed that test fails today's narrower one as well.
The text of the sentence changed in 2015, and the change affects how you read older opinions. Before the amendment, Rule 26(b)(1) said: “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”47 The amendment eliminated that condition and left only the statement that information within the scope of discovery need not be admissible.48 The deleted clause was easy to misread as a test of scope itself, so that anything that might lead to admissible evidence qualified without a separate showing of relevance to a claim or defense. The current text gives that reading nothing to stand on. Scope is set by privilege, relevance to a claim or defense, and proportionality, and the admissibility sentence says only that inadmissibility is no reason to withhold what is within scope.
Opinions written before the change often lean on the old clause. In Kinetic Concepts, Inc. v. Convatec, Inc., a federal district court in North Carolina quoted the pre-amendment wording and observed that relevance at discovery differs from relevance at trial and is closer to “germane” than to competency or admissibility.49 That observation still describes how broadly discovery runs, but the clause it rested on is gone, and a decision that treats a possible lead as enough should be checked against the current text. Some such decisions might have come out differently under the amended rule.50 On an exam, argue relevance to a claim or defense and proportionality, and treat an evidentiary objection as a question for trial.