Is It Discoverable?

• Author: Ashley S. Lipson
• Pages: 45-78

Every gain in speed increases not only the attacker’s

security but the defender’s insecurity.

-B.H. Liddell Hart

Chapter 2

Is It Discoverable?

Table of Contents

§2.10 What Is the Scope of Discovery?

§2.11 The Courts’ Discretion

§2.12 Does Discovery Equate to Admissibility?

§2.20 Is It Discoverable?

§2.21 Degree 1: Immediately Discoverable

§2.22 Degree 2: Discoverable

§2.23 Degree 3: Discovery Qualified

§2.24 Degree 4: Discovery Unlikely

§2.25 Degree 5: Not Discoverable

§2.26 Degree 6: Never Discoverable

§2.30 Are Electronic and Digital Information Discoverable?

§2.40 What Are the Available Discovery Weapons?

§2.50 Is There a List of Every Conceivable Defense to Every

Discovery Demand?

§2.60 Is Discovery Permitted for ADR (Alternative Dispute

Resolution)?

§2.61 Private Agreements

§2.62 The Federal Arbitration Act

§2.63 State ADR Statutes

§2.70 Foreign Discovery – How Do I Handle It?

§2.71 Using the FRCP

§2.72 The Hague Convention

§2.73 Appeal for Assistance

§2.80 Criminal Discovery – Does It Exist and Is It Civilly

Relevant?

§2.90 The Forms That You Need

Form 2.1(a) Motion for Letter of Request1

Form 2.1(b) Letters of Request

Form 2.2 Criminal Discovery Checklist

Form 2.3 Victim’s Request for Records

Form 2.4 Motion for Early Punitive Damages Discovery

§2.10 Guerrilla Discovery 2-2

1 Institute for Wildlife Protection v. Norton, 337 F. Supp. 2d 1223 (W.D. Wash 2004). To maintain an action in federal court, an

actual case or a controversy must exist; discovery may not be used to conduct a fishing expedition in the hopes that some fact

supporting an allegation will be uncovered. Rule 26(b)(1) provides that:

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, including the existence, description, nature, custody,

condition, and location of any books, documents, or other tangible things and the identity and location of persons who know

of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter

involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calcu-

lated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(c).

Those federal practitioners who still cling to more “liberal” times will appreciate Donahay v. Palm Beach Tours & Transp., Inc.,

242 F.R.D. 685 (S.D. Fla. 2007), which seems to diminish the “claim or defense” language of Rule 26(b)(1) by holding that

under the general discovery rule, relevancy is construed broadly so as to encompass any matter that bears on, or that rea-

sonably could lead to another matter that could bear on, any issue that is or may be in the case. Accordingly, discovery is not

limited to the issues raised by the pleadings because it is designed to help define and clarify the issues; information can be rel-

evant and therefore discoverable, even if it is not admissible at trial, so long as the information is reasonably calculated to lead

to the discovery of admissible evidence.

See also EEOC v. Thorman & Wright Corp., 243 F.R.D. 426 (D. Kan. 2007). Relevancy for discovery purposes is broadly con-

strued, and a request for discovery should be considered “relevant” if there is any possibility that the information sought may

be relevant to the claim or defense of any party. A request for discovery should be allowed unless it is clear that the informa-

tion sought can have no possible bearing on the claim or defense of a party. When the discovery sought appears relevant, the

party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery

(1) does not come within the scope of relevance as defined under the Federal Rules of Civil Procedure; or (2) is of such mar-

ginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad

disclosure. When a discovery request is overly broad on its face, or when relevancy is not readily apparent, the party seeking

the discovery has the burden to show the relevancy of the request.

Gingerich v. City of Elkhart Probation Dept., 273 F.R.D. 532 (N.D. Ind., 2011). “Relevancy,” for discovery purposes, is con-

strued broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any

issue that is or may be in the case. Even when information is not directly related to claims or defenses identified in pleadings,

the information still may be relevant to the broader subject matter at hand, and thus discoverable. A party objecting to a dis-

covery request has burden to show with specificity that the request is improper.

2 Source: Rule 26(b) of the Federal Rules of Civil Procedure after the 2000 Amendments.

Martinez v. Cornell Corrections of Texas, 229 F.R.D. 215 (D.N.M., 2005). In a female detainee’s sexual assault (and civil rights

action) against jailers, information regarding the jail operator’s communications with Department of Justice (DOJ) regarding its

operation of the jail was discoverable through interrogatories; such evidence was relevant because the jail was the subject of a

DOJ investigation subsequent to the incident giving rise to the suit. Also, documents regarding incidents or allegations of physical

sexual misconduct by jail employees other than those that occurred between dates that the female detainee was allegedly sexually

assaulted by jail guards were also discoverable; such documents could be relevant to the jail operator’s policy, custom, or practice.

3 Hill and Griffith Co. v. Bryant, 139 S.W.3d 688 (Tex. App. Tyler 2004). Discovery proceedings have as their aim and purpose

the administration of justice by allowing the parties to obtain the fullest knowledge of issues and facts prior to trial.--continued on

page 2-3

This chapter, intentionally short, is designed for the

most impatient among you, i.e., attorneys like myself. Its

purpose is to provide fast answers to some of the most

common questions pertaining to discovery and where

they might be discussed. Some of the answers will quick-

ly lead you to other sections or chapters of the book.

§2.10 What Is the Scope of

Discovery?

Answer: The scope of discovery has changed

dramatically over the years. The mood favoring liber-

al discovery reached its peak in the 1970’s when the

so-called “fishing expedition” was a proud exercise

for all litigators. This positive attitude about discovery

has been on a downward spiral ever since then for a

number of reasons. Now limitations on the abuses of

discovery are in vogue. Here is a thumbnail summary

of the present state of affairs:

Federal: Any matter, not privileged, which is

rele vant to the claim or defense of any party.1

The information sought need not be admissible at

the trial if it appears to be reasonably calculat ed

to lead to the discovery of admissible evidence.2

Most States: Any matter, not privileged, which

is rele vant 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.3 The informa-

2-3 is it Discoverable? §2.10

Footnote 3 -- continued from page 2-2

Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600 (Tenn. Ct. App. 2004). Discovery rules are accorded broad and liberal treatment,

for the mutual knowledge of all relevant facts gathered by both parties is essential to proper litigation.

Christiansen v. Farmers Insurance Exchange, 116 P.3d 259 (Utah, 2005). In a bad faith lawsuit against an insurance carrier,

the insurer failed to show good cause for a protective order against discovery, even though the plaintiff had not yet estab-

lished a breach of contract; the claims of breach of express contract and bad faith were premised on distinct duties that gave

rise to divergent and severable causes of action. Moreover, a showing of breach of express contract by an insurer is not a

condition precedent to an insured seeking discovery in conjunction with an ongoing litigation of a bad faith claim, and in addi-

tion, the party seeking a protective order has the burden of showing that good cause exists for the issuance of that order.

4 The key term is “relevant to the subject matter” (which is noticeably absent from the federal counterpart). Some states apply

the term conservatively, some liberally. New Hampshire’s discovery is, for example, to no one’s shock, liberal. See Murray

v. Developmental Services of Sullivan County, Inc., 818 A.2d 302 (2003). In any event, the federal language: “relevant to the

claim or defense” is more restrictive.

5 See §2017 of the California Code of Civil Procedure.

As might be expected, California takes a liberal approach. See Garamendi v. Golden Eagle Insurance Co., 116 Cal. App. 4th

694 (1st District 2004), holding that discovery rules are applied liberally in favor of disclosure, and, contrary to popular belief,

fishing expeditions are permissible in some cases; moreover, the discovery process permits discovery of all relevant material

and is designed to eliminate surprise.

6 Florida has adopted the language of Federal Rule 26(b) verbatim, as it existed prior to December 1, 2000.

7 See §201 of the Illinois Rules of Civil Procedure.

8 See §3101 of the CPLR.

With respect to the federal stance in New York, see In re Flag Telecom Holdings, Ltd. Securities Litigation, 236 F.R.D. 177

(S.D.N.Y. 2006). The relevance of matters sought in discovery should be interpreted broadly to include any matter that bears

on, or that could reasonably lead to other information that could bear on, any issue that is or may be in the case.

9 See §4003.1 of Pennsylvania’s Rule of Civil Procedure.

See also Copestakes v. Reichard-Copestakes, 925 A.2d 874 (Pa. Super. 2007). While it is true that “fishing expeditions” are

not to be countenanced under the guise of discovery, requests for discovery must, nevertheless, be accorded liberality as the

rule rather than the exception.

tion sought need not be admissible at the trial if it

appears to be reasonably calculat ed to lead to the

discovery of admissible evidence.4

California:5 Any party may obtain discovery

regarding any matter, not privileged, that is rele-

vant to the subject matter involved in the pend-

ing action or to the determination of any motion

made in that action, if the matter either is itself

admissible in evidence or appears reasonably

calculated to lead to the discovery of admissible

evidence. Discovery may relate to the claim or

defense of the party seeking discovery or of

any other party to the action. Discovery may be

obtained of the identity and location of persons

having knowledge of any discoverable matter, as

well as of the existence, description, nature, cus-

tody, condition, and location of any document,

tangible thing, or land or other property.

Florida:6 Same as “most states.” (Supra.)

Illinois:7 Any matter relevant to the subject matter

involved in the pending action, whether it relates

to either the claim or defense of the party seeking

disclosure or of any other party, including the exis-

tence, description, nature, custody, condition, and

location of any documents or tangible things, and

the identity and location of persons having knowl-

edge of relevant facts. The word “documents,” as

used in these rules, includes, but is not limited to,

papers, photographs, films, recordings, memo-

randa, books, records, accounts, communications

and all retrievable information in computer storage.

New York:8 All matter material and necessary in

the prosecution or defense of an action, regard-

less of the burden of proof. Upon objection by a

person entitled to assert the privilege, privileged

matter shall not be obtainable.

Pennsylvania:9 Any matter involved in the pend-

ing action, whether it relates to the claim or