Relevance: The Most Important Limitation on Discovery Abuse?

Last week, I had the opportunity to participate in a webcast reviewing the case law highlights from 2011.  One of the topics we discussed was the certification requirement of Rule 26(g).  In preparing for the webcast, none of the panelists, including me, thought that the rule had received much attention since Judge Grimm’s opinion in Mancia v. Mayflower Textile.  Turns out we were wrong.  A quick Westlaw search turned up at least 80 cases in 2011 alone in which Rule 26(g) was referenced.  I did the math, and that averages more than one opinion every week, some of which are quite interesting.  So it turns out that Rule 26(g) just might be gaining some ground in reducing the pervasiveness of overly broad requests for discovery and knee-jerk boilerplate objections.  Thank you, Judge Grimm.

Still, whenever I hear a discussion about discovery abuse and limitations on discovery, there’s one word that just doesn’t seem to get enough airtime: relevance.  I can recall being on a panel with a very well respected federal judge who will remain nameless for reasons that will soon become abundantly clear.  To this day, I cannot recall the topic on which we were speaking, but, in the middle of the discussion, this wise representative of the federal bench pronounces, “But remember, the rule is that if it is relevant or reasonably likely to lead to the discovery of relevant evidence, it is discoverable.”  I was stunned.  I hope that you are stunned as well.  If not, you need to get out your copy of the Federal Rules of Civil Procedure, because that is most decidedly not what the rule says.

The rule says this:

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[.] … Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”  Fed. R. Civ. P. 26(b)(1) 

Relevance is the touchstone.  If it is not relevant, it is not discoverable.  Period. 

In fairness, that federal judge is not the only one that has muddled up the basic rule on the scope of discovery.  I used to represent a manufacturer as national discovery counsel, and, in that role, I had the opportunity to visit state courts from Alaska to Alabama and New York to California to argue discovery motions.  After a bit, I learned to start every argument with an introduction to Rule 26(b) or its state law equivalent, and, I would say eight times in ten, the judge would reach for his or her rule book when I made the outrageous suggestion that information had to be relevant to be discoverable.  Not, “reasonably calculated to lead to the discovery of relevant evidence.”  That construct is false and the result of faulty memories and years of hearing how liberal discovery is.  Liberal, yes.  Limitless, no.  Relevance is the first and most important limit on discovery, and it is remarkable how many people miss that fact.

So, I am encouraged that, more than once every week, some judge in the federal system is citing Rule 26(g) to hold attorneys accountable for the breadth of their discovery requests and the cogency of their responses.  But don’t forget about good, old Rule 26(b)(1) and that tired old notion of relevancy.   If you can’t explain why it is relevant, then I am not producing it.  (Unless, of course, I happen to be in front of a particular federal judge who will continue to remain nameless.)

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