The scope of discovery may be more limited than you think. The Cole’s Wexford opinion provides a thorough dissection of the history and past iterations of Rule 26 and a clear explanation of the status of the current rule as amended in 2015.
Judge Joy Flowers Conti, chief district judge of the U.S. District Court in the Western District of Pennsylvania, addressed the question of relevancy under amended Federal Rule of Civil Procedure 26 in this September 2016 decision involving a discovery dispute between Cole’s Wexford Hotel and Highmark (Cole’s Wexford Hotel v. Highmark, 2016 WL 5025751 (W.D. Pa. Sept. 20, 2016). In her decision, Judge Conti criticized the continued post-amendment reliance on the broad relevancy benchmark of Oppenheimer, writing that “discovery requests are not relevant simply because there is a possibility that the information may be relevant to the general subject matter of the action.”
In this discovery dispute, Cole’s Wexford had sought discovery concerning base insurance rates approved by the Pennsylvania Insurance Department and also the rates charged by the defendant, Highmark. The special master recommended that the court deny these requests, “because Cole’s Wexford did not satisfy its burden to show that the information it seeks is relevant under Federal Rule of Civil Procedure 26.”
Although the court ultimately accepted the special master’s recommendation, Judge Conti disagreed with the special master’s understanding of the term “relevant,” which she found to be inconsistent with the 2015 amendments to Rule 26, noting that the special master “considered relevancy to be as broad as the subject matter, which is broader than the scope of discovery contemplated by Rule 26.”
In determining the proper scope of Rule 26 as amended, Judge Conti considered the history of Rule 26:
1937 Rule 26 addressed taking depositions. The advisory committee notes indicated that discovery limited in accordance with the “‘old chancery practice’ … ‘to facts supporting the case of the party seeking it’” had been “‘largely abandoned by modern legislation.’”
1946 Rule 26 continued to address taking depositions. The advisory committee notes clarified “‘the broad scope of examination and that [Rule 26] may cover not only evidence for use at the trial but also inquiry into matters in themselves inadmissible as evidence but which will lead to discovery of such evidence.’” The advisory committee further explained the broad scope of Rule 26 as a means to “‘search for facts … which may aid a party in the preparation or presentation of a case.’”
1970 This amendment “broadened the scope of Rule 26 to include ‘all of the discovery devices provided in the discovery rules.’” The Supreme Court in Oppenheimer wrote that under the 1970 amendment, “‘parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action …’” with relevant being construed 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.’”
1980 The advisory committee considered an amendment to Rule 26 to “combat the abuse of discovery” but ultimately determined that no change was needed, concluding “‘abuse can best be prevented by intervention by the court as soon as abuse is threatened.’”
1983 Rule 26 was updated to reduce excessive discovery. The advisory committee discussed the problem of discovery abuse, noting that “‘excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems’” and impede the “fundamental goal of the ‘just, speedy, and inexpensive determination of every action.’” Further, the advisory committee explained that the use of discovery as a “‘tactical weapon’” violated the rules and resulted in “‘excessively costly and time-consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake.’” The 1983 amendment also addressed proportionality in discovery by considering “a case’s nature and complexity, the importance of the issues at stake, the limitations of a financially weak litigant, and the significance of the substantive issues.”
1993 Rule 26 was not changed, but the advisory committee notes called attention to the “‘information explosion’” and how it was changing the cost and scope of discovery as well as increasing the potential for “‘discovery to be used as an instrument for delay or oppression.’”
2000 Rule 26 was amended in another attempt to prevent overbroad discovery and further involve the court in controlling discovery. The advisory committee notes explained the distinction between party-controlled and court-controlled discovery: “‘the amendments describe the scope of party-controlled discovery in terms of matter relevant to the claim or defense of any party’” with the court keeping “‘authority to order discovery of any matter relevant to the subject matter involved in the action for good cause.’”
2015 Rule 26 was amended as follows: unless otherwise limited by a court, “‘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.’” The amendment removed the sentence authorizing the court to expand the scope of discovery to any matter relevant to the subject matter.
Despite the 2015 amendment to Rule 26 and the limitations imposed by the amendment, some courts have continued to allow discovery “if there is ‘any possibility that the information may be relevant to the general subject matter of the action.’” Judge Conti explains that “this statement of the law prior to the 2015 amendment was – at best – incomplete, and now, following the 2015 amendments is erroneous. That interpretation of Rule 26(b)(1), furthermore, is contrary to the advisory committee’s pervasive and continuing concerns about the abuse of discovery, which stem back to the 1980 amendment to Rule 26.”
In the 2015 amendment to Rule 26, court-controlled discovery of matter relevant to the subject of the case was removed, so that “now, under amended Rule 26, the scope of all discovery is limited to matter that is relevant to the claims or defenses in the case and proportional to what is at stake in a given case” – that is, party-controlled discovery. Because of this, Oppenheimer and any reliance on it is wrong, according to Judge Conti. Oppenheimer construes relevance as part of a phrase – “‘relevant to the subject matter involved in the pending action’” – and the 2015 amendment to Rule 26 and the related committee notes make it clear that relevance should be construed in relation to the claims and defenses and in conjunction with proportionality regarding the needs of the case.
So when you next come across an opponent or judge who seems unaware of the substantive changes to Rule 26, Judge Conti’s thorough opinion may be just the road map you need to get everyone back on course.