Posted on October 6, 2021 by John M. Barkett
Part I: Rulemaking
Beginning in 2012, I spent seven years on the Advisory Committee for Civil Rules. I had the privilege of working on the December 1, 2015 amendments to the Federal Rules of Civil Procedure—perhaps the most significant amendments to the civil rules since they were first adopted in 1938. I say this, in part, because Rule 26(b)(1) – the scope of discovery — contained two significant deletions that historically had a profound influence on the cost of litigation.
“Relevant to subject matter.” In 1938, Rule 26(b)(1) was numbered Rule 26(b) and was entitled, “Scope of Examination.” That’s right. It related to depositions, not document production. Hence, it made sense to say that a deponent “may be examined regarding any matter, not privileged, which is relevant to the subject matte involved in the pending action, whether relating to the claim or defense of the examining party . . . or any other party . . . .”
“What about document production?” you may be asking. Rule 34 then, as it does now, covered document production. However, it required a showing of “good cause” before documents could be obtained from a party. The court managed discovery of documents so there was no need to cover documents in the scope of discovery. That requirement was dropped in 1970 (contact me if you want to find out why) and what was then the “scope of examination” became the scope of all discovery. Thus, as of 1970, under Rule 26(b)(1), parties could obtain “discovery of any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.”
By 2000 discovery abuse had become so rampant that Rule 26(b)(1) was amended again. Discovery was allowed regarding “any matter, not privileged, relevant to the claim or defense of any party.” What happened to discovery “relevant to the subject matter”? It was repositioned towards the end of Rule 26(b)(1), and was only allowed upon a showing of good cause, just as was the case from 1938 until 1970 for documents.
This good cause requirement was universally ignored by courts.
Hence, on December 1, 2015, with the express approval of the Supreme Court, the Congress allowed the December 1, 2015 rules amendments to go into effect. The sentence, “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action,” was eliminated from the rules of civil procedure.
“Reasonably calculated to lead to the discovery of admissible evidence.” This clause was added to what was then Rule 26(b) in 1946, eight years after the federal rules of civil procedure went into effect. As noted above, at the time, Rule 26(b) represented the scope of deposition discovery only. But shortly after the Rules went into effect in September 1938, lawyers defending depositions were objecting to deposition questions that called for hearsay testimony, and some judges in post-deposition motion practice were sustaining these objections. So the Civil Rules Advisory Committee added to Rule 26(b)(1) a sentence that overruled these judges and made it clear that if deposition questions were reasonably calculated to lead to admissible evidence, they were permissible.
When Rule 26(b)(1) became the scope of all discovery in 1970, this hearsay-related sentence effectively became the scope of all document discovery, just around the time that the copy machine was becoming ubiquitous in offices throughout America.
The Advisory Committee sought to cabin the phrase in 2000 by repositioning “reasonably calculated to lead to the discovery of admissible evidence” and stating that information sought via this mechanism also had to be “relevant” referring back to “any nonprivileged matter relevant to any party’s claim or defense.”
That change was also universally ignored by courts. And in the era of electronically stored information, a hearsay-based standard increased discovery costs dramatically in federal court litigation.
Hence, on December 1, 2015, this phrase, too, with the express approval of the Supreme Court, was eliminated from Rule 26(b)(1).
Rule 26(b)(1). As a result of these changes, and the movement of limitations on discovery contained in Rule 26(c) (relating to protective orders), on December 1, 2015, Rule 26(b)(1) provided:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Environmental litigators – all litigators — could breathe a sigh of relief that a deposition-based scope of discovery developed in a litigation environment where documents could only be obtained by a showing of good cause had finally found a claim, defense, and proportionality-based footing in a litigation environment where individuals and business entities are routinely storing hundreds of gigabytes of information. (One gigabyte represents more than 100,000 pages of emails and more than 65,000 pages of Microsoft WORD pages.)
Part II: Nightmares
When courts do not read rules, rulemakers sweat. When courts of appeal do not read rules, rulemakers – even former rulemakers — have nightmares.
And I did the night after I read Davis v. United States Marshals Serv., 2021 U.S. App. LEXIS 8751 (5th Cir. Mar. 25, 2021).
The case involved a mundane document discovery question. The court of appeals easily found that there was no abuse of discretion by the district court, which had denied a motion to compel production of the documents. But read the court of appeals’ statement of the applicable legal principles. Note that the court of appeals correctly cited current Rule 26(b)(1) in the second sentence, but then cites to pre-December 1, 2015 case law and even cites a 2011 decision that quotes the 2000 version of Rule 26(b)(1):
This court recognizes broad and liberal treatment of the federal discovery rules. U.S. v. Holley, 942 F.2d 916, 924 (5th Cir. 1991). In civil cases, parties are entitled to discover all information relevant to any party’s claim or defense that is not privileged. Fed. R. Civ. P. 26(b)(1). Discovery requests are relevant when they seek evidence that is admissible or reasonably calculated to lead to the discovery of admissible evidence. Crosby v. Louisiana Health Serv. & Indem. Co., 647 F.3d 258 (5th Cir. 2011) (quoting Fed. R. Civ. P. 26(b)(1)).
As the party seeking to compel discovery, Davis has the burden of demonstrating clearly that the information sought is relevant to the case and would lead to admissible evidence. See SEC v. AmeriFirst Funding, Inc., 2008 U.S. Dist. LEXIS 28171, 2008 WL 926587, at *2 (N.D. Tex. Apr. 7, 2008). Likewise, as the parties resisting discovery, Federal Defendants must specifically articulate how each discovery request is not relevant or is overly broad, burdensome, or oppressive. In re Micron Tech, Inc. v. Sec. Litigation, 264 F.R.D. 7, 9 (D.D.C. 2010); Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006); Fed. R. Civ. P. 26(b)(1).
Oh my! A request is relevant when the evidence sought is reasonably calculated to lead to the discovery of admissible evidence — language no longer in Rule 26(b)(1)? There is no reference to proportionality or the proportionality factors. And how could there be when the court of appeals is citing cases dated in 1991, 2006, 2008, 2010, and 2011.
Then I read Akridge v. Alfa Mut. Ins. Co., 2021 U.S. App. LEXIS 18334 (11th Cir. June 21, 2021). Déjà vu! Another nightmare.
The case involved a district court’s grant of a summary judgment to a defendant. Before the order was issued, plaintiff was seeking a deposition of an executive vice-president with apparent knowledge of information relevant to plaintiff’s claim. Plaintiff’s request was strengthened by the fact that defendant’s Rule 30(b)(6) deponent was unable to provide the information. The failure to allow the deposition before the summary judgment was awarded was an abuse of discretion, the court of appeals held.
The holding was ho-hum. But the court of appeals’ statement of the law was not. It got off on the right foot by citing current Rule 26(b)(1), and then lost its way by citing to pre-December 1, 2015 case law applying an earlier version of Rule 26(b)(1).
[W]e begin our analysis with Federal Rule of Civil Procedure 26(b)(1) which sets forth the general scope of discovery: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Relevance in the context of discovery “has been construed broadly to encompass 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.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, (1978). And since the Rules “strongly favor full discovery whenever possible,” Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013), a civil litigant is generally entitled to “any information sought if it appears reasonably calculated to lead to the discovery of admissible evidence.” Degen v. United States, 517 U.S. 820, 825-26, (1996) (internal quotation mark omitted). Accordingly, information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
At the time Oppenheimer was decided, Rule 26(b)(1)’s scope, as noted earlier, provided for discovery of any matter “relevant to the subject matter involved in the pending action . . .”Indeed, the full quote from the opinion reads:
The key phrase in this definition – “relevant to the subject matter involved in the pending action” – has been construed broadly to encompass 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.
The court of appeals’ statement ignores Justice Powell’s citation to an earlier version of Rule 26(b)(1). As explained above, the Supreme Court demoted this clause in 2000 within Rule 26(b)(1) and limited its availability to a showing of “good cause.” And in 2015, the Supreme Court removed the text altogether from Rule 26(b)(1).
Degen cited to the 1983 version of Rule 26(b)(1) (actually the 1946 version) in contrasting the scope of discovery between the rules of civil and criminal procedure in a civil forfeiture case involving a Swiss national. He had refused to return to the United States to face a criminal charge but answered a civil forfeiture complaint. The Government was worried Degen would use the civil discovery rules to gain an “improper advantage” in the criminal matter, and it was in that context that Justice Kennedy referenced the “reasonably calculated” language of then-Rule 26(b)(1) as support for the Government’s concern. But, again, that text was removed from Rule 26(b)(1) by the Supreme Court in 2015 when amended Rule 26(b)(1) went into effect.
Aberrations? Yes. But I fear that the judges and lawyers in the Fifth and Eleventh Circuits may not realize it.
Part III: A Plea
I end with a plea to all federal judges and their law clerks and the lawyers who appear before them: Help all rulemakers sleep better at night. Read and apply current Rule 26(b)(1). Please do not blindly copy and paste the above language into your next discovery order, opinion or legal brief. And if you judge or practice in the Fifth or Eleventh Circuits, know that Davis and Akridge contain incorrect statements of law that should be chalked up to law clerk error and ignored.