Is It Discoverable?

• Author: Ashley S. Lipson
• Pages: 41-66

2-39

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?

§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 Request39

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 2-40

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 calculated 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 reasonably 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 relevant 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 construed, 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 information 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 marginal 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 construed 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 discovery 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 adminis-

tration of justice by allowing the parties to obtain the fullest knowledge of issues and facts prior to trial.--continued on page 2-3

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

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 information sought need not be admissible at