As part of the December 1, 2015 amendments to the Federal Rules of Civil Procedure, Rule 26(b)(1) was revised to remove the statement that "the court may order discovery of any matter relevant to the subject matter involved in the action." "New" Rule 26(b)(1) permits discovery only "regarding any nonprivileged matter that is relevant to any claim or defense."
In May, S.D.N.Y. Magistrate Judge Francis IV discussed the scope of this new rule in Lifeguard Licensing Corp. v. Kozak, 15 Civ. 8459 (LGS)(JCF) (May 23, 2016). The defendants sought pre-answer discovery of information "relevant to the[ir] likely defenses and counterclaims." Referencing the newly revised Rule 26(b)(1), the court stated that it would not permit discovery on unpled defenses for three reasons: (1) "it would be a waste of resources to devote discovery to issues that may never be addressed in the litigation"; (2) "a party and its attorney must have conducted 'an inquiry reasonable under the circumstances' before filing a pleading," so permitting discovery on unpled claims or defenses would dilute the requirement to do so on all claims; and (3) "the plain language of the Rule does not provide for discovery of 'likely,' antcipated' [sic], or 'potential' claims or defenses." Put simply, "the pleadings in this case define the scope of discovery," and defendants constrained their own discovery rights by choosing to file a motion to dismiss without answering the complaint.