Applying Amended Rule 26(B)(1)

Full title: APPLYING AMENDED RULE 26(B)(1) IN LITIGATION

Court: Judicial Panel on Multidistrict Litigation

Date published: Jan 1, 2001

199 F.R.D. 396 (J.P.M.L. 2001)

Opinion

January 1, 2001

APPLYING AMENDED RULE 26(B)(1) IN LITIGATION: THE NEW SCOPE OF DISCOVERY ^_ Jeffrey W. Stempel ^__ Professor of Law William S. Boyd School of Law University of Nevada Las Vegas David F. Herr ^___ MASLON EDELMAN BORMAN BRAND, LLP Minneapolis INTRODUCTION

On December 1, 2000, several Amendments to the Federal Rules of Civil Procedure took effect. Mandatory initial disclosure, which had been so controversial during (and following) the making of the 1993 Amendments and was subject to variation according to local rule, has now been made mandatory and nationally uniform. Disclosure's fangs were removed, or at least blunted, because Rule 26(a)(1) now requires only that a party disclose information supporting its contentions. Rule 30(d)(2) now provides that a deposition should normally not exceed one day of seven hours. The sanction rules have been modified but not dramatically changed.¹

1 See text and notes 5-11, infra, reviewing changes in Rules brought about by 2000 Amendments. See also Amendments to Federal Rules of Civil Procedure, 192 F.R.D. 340 (2000).

However, one amendment — narrowing the scope of discovery available under Rule 26(b)(1) — was particularly controversial before the Advisory Committee, the Standing Committee, and the Judicial Conference. It is a change that had periodically been raised for decades before the most recent round of amendment discussion.² Amended Rule 26(b)(1) replaces the venerable "relevant-to-the-subject-matter" standard for the scope of discovery with the narrower "relevant-to-a-claim-or-defense" standard. The amendment also allows a party to bring a motion to expand the scope of discovery, upon a showing of "good cause," to the "subject-matter" standard that prevailed prior to December 1, 2000. One trial judge who opposed the change in discovery scope predicted ten years' worth of litigation to determine the application of new Rule 26(b)(1)³ as courts struggle to define and apply the new baseline standard of "claim-or-defense" relevancy and the provision of the new Rule that permits discovery as broad as the former "subject-matter" standard of relevance once a party has demonstrated "good cause."

2 See text accompanying notes 16-40, infra.

3 See Minutes of the Advisory Committee on the Federal Civil Rules April 1999 (Comments of Hon. Shira Scheindlin (S.D.N.Y.).

Undoubtedly, this judge is at least partially correct. Sorting out the meaning of the new scope standard will take some time and courts should expect extensive motion practice seeking to enforce or avoid the constrictions of the rule.⁴ The nature of the definition of scope necessarily uses open-ended words whose application to concrete fact situations will not always be obvious. This article offers some guidance on the new rule in hopes of streamlining the period of uncertainty and nonuniformity.

4 See Gregory P. Joseph, A Preliminary Analysis of the 2000 Amendments to the Federal Rules of Civil Procedure and Evidence, THE PRACTICAL LITIGATOR (Jan. 2001) at 7, 11 (observing that Advisory Committee Note envisions that Amended Rule 26(b)(1) will require courts to "develop a new body of case law distinguishing" between claim relevance and subject-matter relevance).

Other changes to the Rules in the 2000 Amendments should prove less difficult to apply. For example, the presumptive deposition limit of a sevenhour day is objective and verifiable. At the same time, lawyers know immediately that the deposition time limit should not be read hyperliterally and will be subject to common sense application by the courts. The literal meaning and the common sense contours of Rule 26(b)(1) are less easily agreed upon.

Although there is not yet a body of case law interpreting new Rule 26, its meaning can be discerned through an analysis of the new language, the background and context of discovery leading to the 2000 Amendments, and the historical meaning that courts have applied to the key terms such as "claim or defense" and "good cause." Part I briefly recaps the 2000 Amendments to the Civil Rules including Rule 26(b)(1)., Part II summarizes the history of discovery scope.⁵ Part III analyzes new Rule 26(b)(1). Part IV discusses proper application of the new default yardstick for the scope of discovery — whether information sought is relevant to a claim or defense in the action. Part IV also examines what constitutes good cause for the trial court to permit a party to go beyond this standard and to seek information relevant to the subject matter of the litigation.

5 Since 1993, of course, federal civil litigation includes a disclosure mechanism as well as a discovery mechanism. For ease of reference, this article will generally not speak of "discovery or disclosure" when discussing the information available to litigants but will specifically note when referring to the disclosure rules. Discussion of "discovery" generally refers to attorney efforts to obtain information from others after initial disclosures have been provided. See FED R. CIV. P. 26(a) 26(b).

I. The 2000 Amendments

The 2000 Amendments to the Federal Civil Rules, in major part:

1. Eliminate several local "opt-out" provisions in the discovery rules, including those relating to mandatory disclosure that was allowed for in the 1993 Amendments.⁶

2. Modify the initial disclosure obligation so that a party need only disclose information supporting its claim (thereby removing any requirement to disclose unfavorable information).⁷

3. Make disclosure mandatory without regard to the degree of particularity used in the pleadings.

4. Remove certain categories of "low-end" cases from disclosure.⁸ These are types of cases are thought to involve minimal discovery and hence are cases where requiring disclosure and its attendant procedure is likely to increase disputing costs beyond benefit obtained.

5. Establish a presumptive deposition time limit of one day of seven hours.⁹

6. Make failure to supplement disclosure responses expressly part of the Court's Rule 37 sanctioning power.¹⁰

6 Amended Rule 26(a)(1).

7 Amended Rule 26(a)(1) adds the language requiring a party to provide information "supporting its claims or defenses, unless solely for impeachment" rather than information relevant to any "disputed facts."

8 Amended Rule 26(b)(1)(E).

9 FED. R. CIV. P. 30(d)(2).

10 See FED. R. CIV. P. 37(c)(1).

Amended Rule 26(b)(1) shrinks the scope of discovery from anything relevant to the "subject matter" of the controversy to things relevant to a "claim or defense" interposed by the parties.¹¹ Rule 26(b)(1) (showing changes from the prior version of the rule) reads:

Parties may obtain discovery regarding any matter, not privileged, that which is relevant 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, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause shown, the court may order discovery of any information relevant to the subject matter involved in the action. Relevant The information sought need not be admissible at the trial if the discovery information sought appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by subdivision (b)(2)(i), (ii), and (iii). ¹²

11 In addition, Amended Rule 5(d) provides that discovery materials "must not be filed until they are used in the proceeding or the court orders filing." FED. R. CIV. P. 5(d).

12 Rule 26(b)(2) provides that the court may limit discovery that is relevant under the Rule 26(b)(1) standard if the court determines that the discovery is (i) unreasonably cumulative or more easily and cheaply available; (ii) the requesting party has already had ample opportunity to obtain the information sought; or (iii) the burden or expense of the discovery sought outweighs its likely benefit to the requesting party in light of the stakes of the case. See FED. R. CIV. P. 26(b)(2).

The Advisory Committee had also proposed a "cost-shifting" amendment to Rule 26, but this change was rejected by the Judicial Conference. That proposal would have permitted litigants to have somewhat broader discovery in the discretion of the court, provided that the requesting party paid the responding party's costs for providing the discovery.

Under Rule 26(b)(1), the default rule of civil litigation would provide for discovery where the information requested is "relevant to the claim or defense" of a party. If a litigant wishes to obtain additional information, it must be sought by motion, assuming the party holding the information will not voluntarily agree to provide the material. The requesting party may obtain information relevant to the "subject matter" of the dispute (not merely relevant to a "claim or defense") if the party persuades the court that there is "good cause" for the broader discovery request.

The scope narrowing was proposed by the Discovery Subcommittee of the Civil Rules Advisory Committee and discussed at some length by the Advisory Committee, which voted 9-4 in favor of the proposed change in the face of an amendment to delete the change.¹³ When the Proposed Rules were presented to the Standing Committee, the controversy continued but the Committee continued to back the change by a 10-2 vote.¹⁴ Before the Judicial Conference, the matter was also discussed extensively. This time, the change obtained only bare approval by a 13-12 vote.¹⁵ During the period of public comment, significant commentary was made concerning the proposed change, much of it arguing against the proposed change.¹⁶

13 See Minutes, Civil Rules Advisory Committee Meeting of April 19 and 20, 1999, at 24. The Minutes of the Committee Meetings are available at the website of the Administrative Office of the United States Courts: http://www.uscourts.gov/rules/sumit.htm

14 See Committee on Rules of Practice and Procedure, Minutes of Meeting of June 14-15, 1999, at 24 (on file with the authors).

15 See Confidential communication of Nov. 19, 1999 (on file with Author) (relating Advisory Committee and Judicial Conference votes). The 9-4 Advisory Committee vote on the scope amendment is of public record. See Minutes, Civil Rules Advisory Committee, Meeting of April 19 and 20, 1999, at page 22. The Standing Committee issues less extensive minutes that indicate action taken but provide little detail on the deliberations of the Standing Committee. The Judicial Conference publishes a report of its meetings but does not indicate the vote on such matters.

16 See Minutes, Civil Rules Advisory Committee, Meeting of April 19 and 20, 1999, at 5 (summarizing public comments and noting many comments and witnesses opposed narrowing of Rule 26(b)(1) scope).

II. History of the Discovery Scope Debate

Concern about discovery abuse existed well before the 2000 Amendments. During the past 25 years, many lawyers and judges have argued that discovery is too broad, burdensome and expensive.¹⁷ Although this complaint has been leveled at litigation generally, discovery has been viewed as particularly problematic. Despite its controversial status, the principle of broad discovery has nonetheless managed to survive, ¹⁸ although discovery has been gradually reined in.¹⁹ Proposals to narrow the scope of discovery, however, had been rejected or ignored until the amendments of 2000.²⁰

Broad discovery was part of the original Rules. The drafters hoped that the mechanism established in the Rules would serve "much the same function in the field of law as the X-ray in the field of medicine and surgery; and if its use can be sufficiently extended and its methods simplified, litigation will largely cease to be a game of chance."²¹ "Fishing expeditions" were to be allowed in the interests of developing facts in a relatively efficient way so that legal disputes could be determined in light of maximum factual information.²²

21 See Edson R. Sunderland, Improving the Administration of Civil Justice, 167 ANNALS. AM. ACAD. POL. Sct. 60, 76 (1933). See also GEORGE RAGLAND, JR., DISCOVERY BEFORE TRIAL 251 (1932).

22 See Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 ("[n]o longer can the time honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underderlying his opponent's case"); Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518, 521 (E.D. Tenn. 1977) ("fishing expeditions" permitted under discovery rules).

Although the mere enactment of the Rules did not immediately change pre-existing attitudes and practices, broad discovery began to take hold over the ensuing years. During the early days of the Civil Rules, the Advisory Committee worked to overcome resistance from bench and bar. In 1946, the discovery rules were revised to make clearer the breadth of the discovery wrought by the 1938 enactment. The 1946 Amendment added language stating that at a deposition, "[i]t is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence."²³ Since the 1970 reorganization of the discovery rules, this famous sentiment now applies to the scope of discovery by whatever device employed.

23 See 12A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE RICHARD L. MARCUS. FEDERAL PRACTICE AND PROCEDURE, Appendix C at 326-28 (2000) (reproducing 1946 Amendment).

The Supreme Court assisted the rulemakers' effort at cultural change. One extremely important discovery decision during this time period — Hickman v. Taylor ²⁴ — endorsed the broad scope of discovery provided for in the Rules but also upheld a qualified protection for attorney "work product."²⁵ By the 1950s and 1960s, the liberal ethos of the Rules on broad discovery became a central part of American litigation.²⁶ The 1970 Amendments to the Rules, which were primarily discovery amendments, continued this movement. Some of the changes were technical, reordering and renumbering the rules; other changes were significant, all in the direction of broadening discovery and increasing access to information.²⁷

24 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

25 See 329 U.S. at 509-10, 67 S.Ct. 385.

26 See generally Haydock Herr, supra note 20, at § 1.1; WILLIAM A. GLASER. PRETRIAL DISCOVERY AND THE ADVERSARY SYSTEM 35-55 (1968); Marcus, New World Order, supra note 18, at 160-61.

27 New Rule 26(b)(2) made insurance policies discoverable as a matter of course. Rule 34 was amended so that a showing of "good cause" was no longer required in order for a party to obtain documents. A party became entitled to obtain a copy of that party's own statement from the possession of another party. A new subdivision of Rule 26 provided for discovery regarding expert witnesses expected to be used at trial.
Although the 1970 changes have now been eclipsed by the 1993 Amendment providing for trial expert witness disclosure, the 1970 Amendment was a broadening of expert discovery, essentially adopting the approach of caselaw favoring more expert discovery over caselaw favoring less expert discovery. Rule 26(c) regarding protective orders (which resulted from a transfer of Rule 30(b) to the revised Rule 26) was amended to provide for discovery sanctions where a party continued to resist discovery after having lost a protective order motion. Rule 26(d) was amended to remove an right to "priority" in discovery.

Perhaps most important, the broad scope of discovery provided by the Rules was functionally expanded. After 1970, Rule 26(b)(1) provided that a discovery request was permissible (for both depositions and other forms of discovery requests) if it related to the "subject matter" of the action; the information need not be admissible itself if reasonably calculated to lead to the discovery of admissible evidence.

In discussing the 1970 discovery changes, the Advisory Committee appeared to have no misgivings about expanding the scope and amount of discovery.²⁸ But the tide had also begun to shift against litigation and against broad discovery.²⁹ The Pound Conference of 1976, organized by Chief Justice Warren Burger, criticized excessive litigation, particularly discovery and liberal pleading, and promoted alternative dispute resolution.³⁰ Simultaneously, significant scholarly and judicial commentary became critical of broad discovery.³¹ The ABA Section on Litigation proposed in 1977 that the scope of discovery be narrowed from the "relevant-to-the-subject-matter" standard to a "relevant-to-the-claims-and-defenses-of-the-parties" standard. Although the Advisory Committee published for comment a proposed new Rule 26 with "claim-or-defense" as the standard for relevancy, ³² there was substantial opposition to the proposal, and it as subsequently withdrawn by the Standing Committee.

28 The Committee noted research conducted by the Columbia Professor Maurice Rosenberg and interpreted the findings as supportive of its intuition in favor of continued broad or broadened discovery. See Explanatory Statement, Notes of Advis. Comm — 1970 Amends., reprinted at STEVEN BAICKER-MCKEE. WILIAM M. JANSSEN JOHN B. CORR. FEDERAL CIVIL RULES HANDBOOK 1158 (West 2001).

29 See generally ABA Litigation Section Special Committee on Abuse of Discovery: Report to Bench and Bar, 92 F.R.D. 137 (1977) (recommending limiting the scope of discovery, limiting the number of interrogatories, and requiring a discovery conference). The Civil Rules Advisory Committee in the late 1970s initially supported all three suggestions and published draft Rules for comment containing the narrowed scope of discovery. See Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, 77 F.R.D. 613 (1978). See also Marcus, New World Order, supra note 18, at 161-62 (describing "Post-1970 Effort at [Discovery] Containment" and noting irony of the containment effort coming so closely on the heels of the 1970 expansion of discovery: "Perhaps every action invites a reaction. Certainly there was a reaction to the procedural relaxation effected by the Federal Rules. By the mid-1970s, this reaction had achieved considerable momentum, and much of that momentum focused on discovery."); Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375 (1992).

30 See Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?, 11 OHIO ST. J. DISP. RES. 297 (1996); Stephen N. Subrin, Teaching Civil Procedure While You Watch it Disintegrate, 59 BROOK. L. REV. 1155, 1158-59 (1993).

31 See, e.g., William W. Schwarzer, Managing Civil Litigation: The Trial Judge's Role, 61 JUDICATURE 400 (1978) (suggesting that broad discovery and other liberal rules of procedure required judicial intervention to narrow issues and confine scope of litigation activity); Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 VAND. L. REV. 1295 (1978) (finding discovery too contentious, expensive, and time-consuming).

32 See Committee on Rules of Practice and Procedure, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, 77 F.R.D. 613 (1978).

The 1980 amendments provided generally for more active judicial management of cases with an eye toward controlling discovery, but did not narrow the scope of discovery in any other way. This round of amendments established a mandatory discovery conference, made signing of discovery requests by counsel a certification that the discovery request was justified, and "directed judges to curtail discovery that was disproportionate."³³ Because the 1980 Amendment to Rule 26 was discretionary (at least on its face) and was a procedural directive ("thou shalt meet") rather than a substantive directive ("thou shalt produce" or "thou need not produce"), critics characterized the Amendment as inconsequential. Notably, Justice Powell (joined by Justices Stewart and Rehnquist) dissented from the Court's adoption of the 1980 Rules, labeling them "tinkering" when more drastic discovery reform was in order.³⁴

33 See Marcus, New World Order, supra note 18, at 162. See also Fed.R.Civ.P. 26(g), which was added in the 1970 Amendments.

34 See 85 F.R.D. 521, 523 (Powell, J., dissenting from Court's approval of 1980 Amendments regarding discovery).

Perhaps taking the hint from Justice Powell, the 1983 Amendments both suggested a further contraction of the availability of discovery and increased judicial discretion as the front-line weapon in fighting perceived "discovery abuse." The 1983 Amendment to Rule 26(b) did not change the scope of discovery but added the following language:

The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice to a motion under subdivision (c).³⁵

35 See 12A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE Appendix C at 347-51 (2000) (1983 Amendment adding quoted language to Rule 26(b)(1), now codified in Rule 26(b)(2) per the 1993 Amendments and their revision of Rule 26).

The new Rule 26(b)(2) language merely codified what some courts had been doing during the process of granting protective orders under Rule 26(c) ³⁶ but was designed to encourage more of this sort of fine-tuning of discovery otherwise available under the broad definition of relevance.³⁷

36 See, e.g., Carlson Cos. v. Sperry Hutchinson Co., 374 F. Supp. 1080 (D. Minn. 1974); Dolgow v. Anderson, 53 F.R.D. 661 (E.D.N.Y. 1971); Mitchell v. American Tobacco Co., 33 F.R.D. 262 (M.D. Pa. 1963); Welty v. Clute, 1 F.R.D. 446 (W.D.N.Y. 1941), cited in FED. R. CIV. P. 26(b) — Notes of Advis. Comm. — 1983 Amends.

37 FED R. CIV. P. 26(b), Advis. Comm. Notes — 1983 Amends. ("On the whole, however, district judges have been reluctant to limit the use of discovery devices"; "[t]he rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis").

In addition, the 1983 Amendments added Rule 26(g), stating that discovery requests, objections, or responses must be signed and deeming the signature a certification of the bona fides of the discovery paper, particularly that it was legally justified, not interposed for delay or improper purpose, or unduly burdensome in light of the discovery at issue, the stakes of the case, and other sources of information. An attorney violating Rule 26(g) was subject to sanction. This new provision was "designed to curb discovery abuse by explicitly encouraging the imposition of sanctions" and was a parallel to the Rule 11 Amendment.³⁸

38 See FED R. CIV. P. 26(g), Advisory Comm. Note — 1983 Amends.

During the 1980s as well, local rules of civil procedure were tending to restrict the broad discovery that had been endorsed in the 1970 Amendments.³⁹ Most commonly, local district courts were adopting rules that limited the total number of interrogatories a party could employ as a matter of right or restricted the use of so-called "contention interrogatories" that ask the opponent to outline its theory of the case and legal support.⁴⁰

39 See Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity, Diversity and Emerging Procedural Patterns, 137 U. PA L. REV. 1999 (1989).

40 See, e.g., S.D.N.Y. Local R. Civ. P. 33.05 (restricting use of contention interrogatories and setting presumptive limit of 50 interrogatories per pary); E.D.N.Y. Local R. Civ. P. 33.02 (setting presumptive limit of 30 interrogatories per party). Many states enacted similar limits. See, e.g., MINN. R. CIV. P. 33.03 (setting presumptive limit of 50 interrogatories per party).

The 1993 Amendments instituted a system of initial disclosure in lieu of initial discovery with the aspiration that judges would be relieved of some of their discovery management duties. Presumptive limits were established for interrogatories (25 per party) and depositions (10 per side). The 1993 Amendments simultaneously provided that judges retained discretion to modify these limits if the party seeking discovery could justify the need for further interrogatories or depositions.⁴¹

41 See generally notes 65-85, infra, and accompanying text, for additional discussion of the 1993 Amendments and Stempel, Ulysses, supra note 17.

The 2000 Amendments continue the trend toward reining in the broad discovery established by the 1938 Rules and the liberalizing amendments of 1970, presenting the profession today with the question of exactly how much narrower the scope of discovery as a matter of right has become under to Amended Rule 26(b)(1).

III. Analyzing the Change in Amended Rule 26(b)(1)

The intent of the 2000 Amendment was to narrow the scope of discovery — but just how much? Just how much less is "claim-or-defense" discovery compared to the former "subject-matter" standard?

The change in the language of Rule 26(b)(1) and its drafting history, including the debate over efforts to drop the change, ⁴² all clearly suggest that the scope of discovery under new Rule 26(b)(1) is designed to be narrower than under old Rule 26(b)(1). But neither the language nor the drafting history is particularly helpful about the quantity or quality of the reduction in discoverable information.⁴³ However, several aspects of the process leading to new Rule 26 suggest that the amendment was designed to effect only a modest reduction in discovery. In particular, the drafters and the proponents of the change were concerned about runaway or highly burdensome discovery in a relatively small subset (estimated at 5-15%, depending on the source) of high-stakes cases that result in excessive discovery. Viewed in this light, Amended Rule 26(b)(1)'s definition of claim or defense relevance should be applied so that parties seeking discovery in "average," "regular," or "garden variety" cases continue to receive sufficient information to prosecute and defend cases. In larger cases, use of a claim-or-defense or-defense standard was thought to continue to provide adequate discovery (but not overdiscovery) because the very breadth of those cases would present a large number of claims, defenses, and directly relevant issues under each claim or defense.

42 The debate over the wisdom of Amended Rule 26(b)'s change in discovery scope in hearing testimony and before the Advisory Committee is discussed at length in Jeffrey W. Stempel, Politics and Sociology in Federal Civil Rulemaking: Errors of Scope, 52 ALA. L. REV. 529 (2001).

43 The advisory committee notes are the primary source of information in the nature of "legislative history." See STEVEN BAICKER-MCKEE. WILIAM M. JANSSEN JOHN B. CORR. FEDERAL CIVIL RULES HANDBOOK 1079 (West 2001). Here, however, the notes are a somewhat obscure crystal ball on the important question of how courts should measure "good cause" for broadened discovery.

It is also significant that the rule retains the express provision that discovery should be allowed where it might yield information that would merely lead to the discovery of admissible evidence. The discovery sought need not itself seek admissible evidence. This part of the definition of scope is essentially unchanged by the constriction to the claim-or-defense standard, as the standards of admissibility of evidence have always been gauged by the claims and defenses in the case, not the broader universe of "the subject matter." Additionally, information that will only be used for impeachment remains discoverable.

Claim-or-defense relevance is itself a rather broad standard that perhaps only looks narrow when compared to the subject-matter standard formerly in effect.⁴⁴ In many cases of contested discovery, counsel will succeed merely by articulating for the court (or opposing counsel during informal negotiations) the nature of the claim and the rationale for seeking the information. With core discovery of the type sought in most cases prior to the 2000 Amendments, it will be obvious that the request satisfies the new standard just as it satisfied the old standard.

44 See Joseph, supra note 4, at 12 (subheading of article's discussion of scope amendment reads "Expansive View of Claim-or-Defense Standard Likely"); Richard L. Marcus, The 2000 Amendments to the Discovery Rules, 2001 FED. CTS. L. REV. 1, 4, available online atwww.fclr.org/articles/2001fedctslrevl(main).htm, visited 3/26/01 ("the vast majority of current discovery would not be affected at all" by Amended Rule 26(b)(1).

For example, in a claim of gender discrimination, a plaintiff should ordinarily be entitled to information concerning the hiring and firing patterns of the employer in recent years. Even though other women employees may not be making the "claim" (only one plaintiff is suing the employer), the experiences of other female employees are relevant to the issue of whether the employer consistently favors men over women. Consequently, the experiences of these other female workers are relevant to the issue of whether the named plaintiff has been discriminated against.

Flipping the situation underscores the relevance of such information and also demonstrates that a reasonably broad view of claim-or-defense relevancy is fair to defendants as well as plaintiffs. In the discrimination case hypothetical, for example, consider the information sought from the defendant's perspective. If the track record of women employees as a group was good ( e.g., they got promoted at twice the rate of male employees), the defendant employer would surely seek to introduce this information at trial and would ordinarily be entitled to do so under the Federal Rules of Evidence.⁴⁵ It only makes sense that, conversely, the plaintiff would be entitled to introduce evidence of a bad track record on women employees. To get that evidence, of course, plaintiff must be allowed discovery of this information in order to determine whether it is consistent with a thesis of discrimination or nondiscrimination.

45 Fed.R.Evid. 401 makes evidentiary material "relevant" where it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In determining whether an employer discriminated against female employee X (the plaintiff), a factfinder would find it relevant to know about the employer's overall record treating female employees. See, e.g., Blackburn v. United Parcel Serv., 179 F.3d 81, 95 (3d Cir. 1999) (evidence of employer's practices toward entire workforce relevant to issue of alleged pretext of employer's proferred reason for adverse action toward plaintiff); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990) (testimony about treatment of other employees admissible in job discrimination action); Gibson v. American Broadcasting Cos., 892 F.2d 1128, 1133 (2d Cir. 1989) (qualifications and work record of other employees admissible on issue of alleged discrimination toward plaintiff).

In a case like this, permitting reasonable discovery under a claim or defense standard would appear to meet the original rulemakers' hope that discovery would encourage not only accurate adjudication but also settlement or the dropping of weak claims. When the individual woman plaintiff discovers that the aggregate data on the experience of women workers as a whole supports the employer, she may well seek voluntary dismissal or a quick settlement rather than long-shot litigation. Only if she has some rather powerful individual evidence of discrimination ( e.g., chronic lewd comments, offers of quid-pro-quo sex) would she be wise in pursuing the case if the defendant's records as a whole suggest nondiscrimination.

As another example of the breadth of claim-or-defense relevancy in many cases, consider a plaintiff that sues an insurer over denial of coverage because of an exclusion in the policy. Although the insurer would like to restrict the inquiry to only documents and other matter about the particular plaintiff's policy, this will probably not be persuasive to the court. Insurers do business through standardized contract language and most use language drafted by the Insurance Services Office, an industry organization.⁴⁶ Under these circumstances, a plaintiff policyholder that wants to obtain information about the drafting history of an exclusion, treatment of similar claims in the company's files, and the insurer's previous statements and conduct on the issue generally will almost certainly get it under a "claim-or-defense" definition of discovery scope just as the information was routinely produced under the former subject-matter standard.⁴⁷

46 See JEFFREY W. STEMPEL, LAW OF INSURANCE CONTRACT DISPUTES (2d ed. Supp. 2001) (describing insurance contracting practices, theory and background of insurance, construction of policies and specific policies and exclusions).

47 See, e.g., Morton Int'l v. General Acc. Ins. Co., 124 N.J. 1, 629 A.2d 831 (1993) (court uses drafting history of liability policy form to inform coverage dispute); JEFFREY W. STEMPEL, LAW OF INSURANCE CONTRACT DISPUTES § 14.11 (2d ed. 1999 Supp. 2001) (discussing differing court views on importance of insurance policy drafting history for determining meaning but suggesting that most courts have found the material discoverable and admissible); PETER J. KALIS, THOMAS M. REITER JAMES R. SEGERDAUL, POLICYHOLDER'S GUIDE TO THE LAW OF INSURANCE COVERAGE § 1.02 (1997) (suggesting that such discovery is commonplace for insurance coverage litigation).

The industry and company-wide background, use, and understanding of standard form contract language is relevant to the proper legal construction of the insurance policy provision at issue and whether the presence of the exclusion in the particular policy bars coverage. This type of background matter in this type of case is thus relevant to plaintiffs claims and defendant's defenses. The same would hold true regarding form contract language developed by a single party to litigation and used in its business operations.

Other illustrations provide similar support for a logically related notion of what is relevant to a claim or defense. Consider multiparty product liability litigation. A plaintiff might sue a single manufacturer. But is it not relevant what other manufacturers and the industry generally knew about the dangers of the product in question? Again, common sense suggests that this sort of information often will bear on a claim or defense, particularly where manufacturers or others in an industry are in frequent communication or share a common pool of information. This sort of discovery may establish a particular defendant manufacturer's constructive knowledge of the dangers of the product. If incriminating documents from another manufacturer are in the files of the defendant manufacturer, there may even be a smoking gun. Even documents solely in the file of another can be incriminating if they refer to knowledge possessed by the defendant manufacturer. To be sure, a nondefendant manufacturer (an interested third party but not a direct adversary) will find this discovery bothersome but that is hardly ground for withholding information linked so directly to plaintiff's claims against the defendant manufacturer.

Plaintiffs' efforts at discovery will not create much inconvenience for the third party if the request is reasonably tailored to the information sought. Where the burden of complying with a discovery request can be shown to exceed the likely benefit of the information, the resisting party can avail itself of Fed.R.Civ.P. 26(b)(2).

Consider as another example the a product liability case relating to a birth control device. If a plaintiff sues the manufacturer alleging injury, surely it is relevant to plaintiff's claim if the makers of other such devices elected to make the product in a different manner because test results suggested dangers in the defendant's design. Similarly, where a motor vehicle becomes the subject of significant litigation over alleged defects in its design that facilitated gas tank explosions and fires after rear-end collisions, a plaintiff presumably can seek to obtain information about industry safety standards for gas tank design. Likewise, in a suit is a product liability claim involving all-terrain vehicles, plaintiff should be able to determine if the manufacturer possessed information suggesting that other manufacturers were using a different design for safety purposes.

This sort of information is relevant to the claims of product defect and to the defense of nondefectiveness. It should ordinarily be discoverable, provided the request is reasonable in breadth, without the necessity of showing good cause. Put another way, the test for determining the scope of discovery should be whether the information sought is potentially admissible in evidence at a trial of the case. If so, the material sought is relevant to a claim or defense and discovery should be permitted.⁴⁸

48 See Joseph, supra note 4, at 12 (Amended Rule 26(b)(1)'s standard permitting "relevant information" to be discovered, combined with claim-or-defense standard of relevance allows discovery of "essentially all admissible evidence", including matter to be used solely for impeachment.

The "potentially admissible" standard of claim-or-defense relevancy is narrower than the "reasonably likely to lead to the discoverability of admissible evidence" standard that was curtailed, and in many cases eliminated, by the 2000 Amendments. Under the old standard, a party merely had to suggest a reasonable theory for venturing after a general category of information. Under our proposed articulation of the claim-or-defense standard set forth in the 2000 Amendments, the requesting party must seek a particular category of potentially admissible evidence. The new standard requires more of a rifle shot by counsel and less of shotgun but does not prevent parties from developing their case and obtaining facts necessary for accurate and fair adjudication. More important, our proposed "seeking potentially admissible evidence with adequate specificity" standard avoids the necessity of satellite motion practice over "good cause." Good cause motions can be reserved for situations where the requesting party is unable to fire a rifle shot and must seek permission to utilized the broader "relevant-to-the-subject-matter" standard.

The background and context of the 2000 Amendment to Rule 26 reinforce this commonsense intuition. Entities that argued for the narrower scope definition (such as the American College of Trial Lawyers and the ABA Litigation Section) complained that the subject-matter definition allowed discovery as a matter of right concerning a company's entire operations or the workings of an entire industry, even where the claim was specific only to a given incident, transaction, product, or product line.⁴⁹ Amended Rule 26(b)(1) was designed to avoid broad discovery reaching beyond the claim or defense as a matter of course but to permit it where a party seeking discovery could articulate a logical connection between the information sought and a claim or defense.

49 See Transcript of Hearing of Jan. 22, 1999 at 15 (testimony of Kevin Dunne, Esq.).

The Advisory Committee Note states:

The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims and defenses raised in a given action. For example, other incidents of the same type or involving the same product could be properly discoverable under the revised standard. Information about organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.⁵⁰

50 FED. R. CIV. P. 26(b)(1), ADVIS. COMM. NOTE — 2000 AMENDS., reprinted at 192 F.R.D. 340, 389 (2000).

IV. Applying the New "Claim or Defense" Definition of Scope A. A Recommended Test

We propose a context-specific standard for determining claim-or-defense relevancy:

An item of information sought is relevant to a claim or defense if the requesting party can articulate a logical relationship between the information sought and possible proof or refutation of the claim or defense at trial.

Either this verbal formulation or that set forth in Part III (seeking potentially admissible evidence with adequate specificity) provides a workable operational standard for determining when a discovery request relates to a claim or defense of the litigation.

B. The Logical-Relationship Test

Although the Committee does not use the term "logical relationship," this term encapsulates the intent behind the change to the claim-or-defense relevancy standard. In addition, the "logical relationship test" is a familiar one to federal courts and has been used for decades to assist courts in determining whether a counterclaim is compulsory under FED. R. CIV. P. 13(a), a cross-claim is proper under FED. R. CIV. P. 13(b), or an amended pleading relates back to the date of the initial pleading under FED. R. CIV. P. 15(c).⁵¹ In each of these cases, courts look to determine if a claim arises out of the "same transaction or occurrence" that produced the original claim. Although there is some variance in approaches, most courts find a transaction or occurrence to be the "same" for purposes of Rule 13 or Rule 15 if the matters in question are "logically related."

51 See ROGER S. HAYDOCK, DAVID F. HERR JEFFREY W. STEMPEL. FUNDAMENTALS OF PRETRIAL LITIGATION §§ 3.8, 3.12 (5th ed. 2001).

The Supreme Court articulated the logical-relationship concept 75 years ago:

Transaction is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.⁵²

52 See Moore v. New York Cotton Exchange, 270 U.S. 593, 609-10, 46 S.Ct. 367, 70 L.Ed. 750 (1926).

The case launching this definition involved a suit alleging antitrust violations based upon defendant's refusal to provide commodity price quotations. The Court held that defendant's claim for injunctive relief to prevent plaintiff from illegally obtaining the proprietary quotations was compulsory under Former Equity Rule 30, the precursor to modern FED. R. CIV. P. 13, because the counterclaim arose from the same "transaction" as did the antitrust claim because the two claims were logically related. According to the Court, "[t]he refusal to furnish the quotations is one of the links in the chain which constitutes the transaction upon which appellant here bases its cause of action. . . ."⁵³

53 Id.

The Court concluded that it was not necessary that there be an exact identity of facts forming the bases of the claims to constitute a sufficient relation to make the claims part of the same transaction. "To hold otherwise would be to rob this branch of the rule of all serviceable meaning, since the facts relied upon by the plaintiff rarely, if ever, are, in all particulars, the same as those constituting the defendant's counterclaim."⁵⁴

54 Id.

FED. R. CIV. P. 13 also contains the word "occurrence" as well as "transaction" in defining the standard for determining when claims are sufficiently related to be compulsory counterclaims or proper cross-claims. The term "occurrence" was included primarily to indicate that the Rule and its logical relationship test applied to tort actions as well as volitional commercial matters but also connotes a broader notion of events than does the term transaction. The dictionary defines an occurrence as something that happens, while a transaction is defined as both an exchange of goods or an "activity involving two parties or things that reciprocally affect or influence each other."⁵⁵

55 See MERRIAM WEBTER'S COLLEGIATE DICTIONARY 804, 1252 (10th ed. 1996).

Put differently, claims are considered sufficiently related for purposes of Rules 13 if they are connected in a logical manner that is not too attenuated. Certainly, courts applying these rules during the bulk of the 20th Century took this view in practice.⁵⁶ The same approach has governed judicial analysis of whether an amended pleading involves the same transaction or occurrence under Rule 15.⁵⁷ The logical relationship test has been applied flexibly rather than rigidly in these instances, ⁵⁸ and has been informed by consideration of (1) the similarity of factual and legal issues;⁵⁹ (2) the applicability of claim preclusion if the additional claim or counterclaim is not permitted;⁶⁰ (3) whether the same evidence bears upon either claim or counterclaim.⁶¹ These three considerations are often stated as separate tests under Rule 13, as is the logical relationship test. Overall, however, the logical-relationship test has been dominant and can be viewed as the dominant inquiry. If similar facts and evidence and the possibility of res judicata are present, this strengthens the case for finding a logical relationship.⁶²

56 See, e.g., Reiter v. Cooper, 507 U.S. 258, 263-64, 112 S.Ct. 1213, 122 L.Ed.2d 604 (1993) (shipper's claim of unreasonable tariff brought against common carrier under Interstate Commerce Act was a recoupment claim that was compulsory under Rule 13 in adversary proceeding brought by bankruptcy trustee seeking to collect tariff from shippers); Sage Realty Corp. v. Ins. Co. of N. Am., 34 F.3d 124, 129 (2d Cir. 1994) (counterclaim disputing amount of rent and expenses was compulsory under Rule 13 to action for unpaid rent); Painter v. Harvey, 863 F.2d 329, 333 (4th Cir. 1988) (defendant's defamation claim was compulsory in civil rights action against policy officer).
The analysis for determining whether a cross-claim arises out of the same transaction or occurrence is the same as that for determining whether a counterclaim is compulsory. See, e.g., Danner v. Himmelfarb, 858 F.2d 515, 521-24 (9th Cir. 1988); Allstate Ins. Co. v. James, 779 F.2d 1536, 1539 (11th Cir. 1986).

57 See, e.g., In re Dominguez v. Miller, 51 F.3d 1502, 1510 (9th Cir. 1995) (where claims involve same evidence, relation back is proper); Watkins v. Luhan, 922 F.2d 261, 265 (5th Cir. 1991) (amendment relates back if claim in amendment based on same underlying facts as set forth in original complaint).

58 See MOORE'S FEDERAL PRACTICE § 13.10[1][b] (3d ed. 1997 Supp. 2000) (Edward F. Sherman, Chapter Author).

59 See McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 303-04 (5th Cir. 1993).

60 See, e.g., Colonial Penn Life Ins. Co. v. Hallmark Ins. Adm'rs, Inc., 31 F.3d 445, 447-48 (7th Cir. 1994) (subrogated claim for payment of guaranty not compulsory, as relationship between claims lacked necessary logical relationship and would not have preclusive effect).

61 See Painter v. Harvey, 863 F.2d 329, 332 (4th Cir. 1988) (when same evidence will support or refute both claim and counterclaim, counterclaims will almost always be compulsory).

62 See, e.g., FDIC v. Hulsey, 22 F.3d 1472, 1487 (10th Cir. 1994) (court looks to all four considerations to determine whether counterclaim is compulsory); Burlington N. R.R. Co. v. Strong, 907 F.2d 707, 711 (7th Cir. 1990) (factors considered in logical relationship analysis include legal bases for recovery and respective factual backgrounds); Painter v. Harvey, 863 F.2d 329, 332 (4th Cir. 1988) (in determining status of counterclaim, court looks to similarity of facts, preclusion considerations, similarity and overlap of evidence, and logical relationship).

In the realm of discovery, the same evidence or similar facts tests may particularly illuminate the logical relationship inquiry. For example, in the gender discrimination, insurance coverage. and product liability hypotheticals set forth in Part III, the rationale for seeking discovery in each instance was that the information sought could provide probative evidence to the plaintiffs. It is also possible, particularly in the discrimination and insurance coverage hypotheticals, that the same information could develop evidence that could refute the allegations ( e.g., a record of hiring and promoting women at the firm; drafting documents suggesting a meaning of the policy favorable to the insurer). Consequently, the information sought in the hypotheticals presented above would appear to fit comfortably within the same evidence prong of the logical-relationship test.

As a practical matter, the application of a logical relationship test to the new standard of claim-or-defense relevance for the scope of discovery should be applied with somewhat greater breadth than in the context of Rules 13 and 15, where it is already applied with considerable liberality and flexibility. In cases under those rules, a decision of sufficient relatedness expands the litigation by adding new claims, requiring a counterclaim (unless the defendant chooses to be barred from later bringing the claim), or adds cross-claims among co-parties.⁶³ The litigation of necessity becomes larger and a resulting judgment will have more far reaching effect. By contrast, a decision that discovery sought by a party is sufficiently relevant to a claim or defense only requires some discovery. It usually does not fundamentally alter the legal substance of the litigation.

63 See, e.g., Lasa per L'Industria del Marmo Societa per Azioni of Lasa, Italy v. Alexander, 414 F.2d 143 (6th Cir. 1969) (finding cross-claims among several defendants proper on the basis of a logical relationship between the claims — all essentially concerned disputes over purchase, delivery, and use of marble in construction of Memphis City Hall). Lasa is a relatively well-known case (at least as cross-claim cases go) and has been reprinted in at least one civil procedure casebook, with a presentation suggesting some criticism of the court as having allowed a liberal view of Rule 13(b) to expand the litigation too greatly. See JOHN J. COUND, JACK H. FRIEDENTHAL, ARTHUR R. MILLER JOHN E. SEXTON. CIVIL PROCEDURE 601-05 (7th ed. 1997).

In addition, the "same transaction or occurrence" tests of Rules 13 and 15 serve different purposes than the scope of discovery definition set forth in Rule 26. The former seek to encourage related disputes to be tried in one action and to avoid duplicative litigation.⁶⁴ The latter seeks to permit disputants to develop sufficient information that their dispute will be adjudicated accurately and fairly at a reasonable cost. Too "liberal" a test under Rules 13 and 15 could expand litigation to the point of inefficiency or even unfairness (because a defendant, counterclaimant, or cross-claimant does not choose the forum for the dispute). Too liberal an application of the standard of claim-or-defense discovery scope merely results in some inefficiency in an isolated case. Too crabbed a view of Rule 26 discovery scope may impede accurate dispute resolution or the civil enforcement of law and public policy.

64 See MOORE'S FEDERAL PRACTICE § 13.10[2][2] (3d ed. 1997 Supp. 2000).

Furthermore, if discovery meeting the standard of claim-or-defense relevancy can be shown to lead to excessive discovery, the resisting party, despite having lost a logical-relationship argument concerning claim-or-defense scope, still retains the right to move for restrictions under Rule 26(b)(2) (on the ground that the burden of the discovery outweighs its likely utility) or for a protective order limiting discovery (where the resisting party demonstrates "good cause" under Rule 26(c)).

Applying the slightly broader and more flexible standard of the logical relationship test used under Rules 13 and 15 would provide a workable standard for defining the meaning of relevance to a claim or defense, although the standard for setting the parameters of discovery could not be as limited to precisely the "same" transaction or occurrence as is the case with Rules 13 and 15. Rather, it is sufficient if a party can demonstrate that the information sought functionally concerns the same material at issue in its claim or defense or the discovery-seeking party can articulate a logical relationship between information sought and the claim or defense, even if the information, strictly speaking, involves a distinct matter.

If discovery sought may provide evidence of negligence, injury, fraud, or other misconduct of one party toward another, the information sought is logically relevant to the claim raised (if the claim or defense involves negligence, fraud, breach of warranty, reckless disregard, etc.). Similarly, if the discovery sought involves a plaintiff's history of similar litigation or subsequent job history or pattern of misuse of a product, the information is relevant to a hypothetical product liability claim even though the claim in its narrowest sense could be described as plaintiff X suing defendant Y over alleged injury resulting from use of product Z.

C. Guidance from the Advisory Committee

Under a logical-relationship test, the term "claim or defense" would not be given a crabbed reading. But neither would the logical-relationship test support a broad reading of Rule 26(b)(1) that returns to the former subject-matter standard. Under the subject-matter standard, material is arguably relevant if it touches upon the industry in question or the parties in dispute. The 2000 Amendment attempts to prevent lawyers from obtaining discovery by using this high a level of generality ( e.g., "We're suing CompuStent, so everything CompuStent has ever done is relevant"). Under the claim-or-defense standard of relevancy, counsel must articulate a more specific logical relationship that is not unreasonably attenuated ( e.g., "We claim CompuStent's product malfunctioned because they rushed it to market without adequate testing and that they knew the testing was inadequate. Consequently, CompuStent's general testing and product development and release protocols are relevant. So are the records of the product development and testing of Walls 2001, the software we used that malfunctioned.")

An exchange during the drafting process of the 2000 Amendments illustrates the concept to some degree and provides a supporting example. One of the public comment hearings sponsored by the Advisory Committee was held Jan. 22, 1999 and included testimony by Max Blecher, Esq., a plaintiffs antitrust lawyer. He viewed the Proposed Amendment as a "clear signal to district judges to limit discovery in major commercial litigation, antitrust, intellectual property and the like."⁶⁵ Committee Member Magistrate Judge John Carroll pointedly asked Blecher "[w]hat sorts of discovery do you think that you can get under subject-matter that you would not be able to get under claim-or-defense?" Blecher responded:

65 See Transcript of Proceedings, Hearings Before the Federal Civil Rules Advisory Committee (Jan. 22, 1999) (testimony of Maxwell M. Blecher, Esq.) at 6 (on file with the author).

In an antitrust context, if we were going about monopolizing oranges and we wanted to ask a question about grapefruits, it would not relate to the claim or defense, but it could relate to the subject matter of how do you conduct your business, what kind of contracts, agreements and restrictive practices do you engage in.⁶⁶

66 Id. at 6.

Later in the hearing, a lawyer took issue with these expressed fears even though the Proposed Amendment would be more limiting than the current Rule 26(b)(1). This defense lawyer, a proponent of the claim-or-defense discovery standard, voiced the view that Attorney Blecher had indeed articulated grounds for obtaining discovery under the proposed new claim-or-defense standard.

I don't think if you make a modest change in the scope of discovery, such as is recommended, that the enforcement of the antitrust laws is going to suffer significantly. I believe that Mr. Blecher will get discovery of his oranges and his grapefruits and maybe even his apples, so he'll be able to discovery his apples and oranges in the same case.⁶⁷

* * *

Let's assume he alleges a conspiracy to fix the price of oranges in the Sacramento Valley or somewhere else in California. Should he be entitled as part of that to examine whether there is any conspiracy with respect to grapefruits? That could be a debatable question, but I don't think that we should assume that just because he has alleged claim[s] as to oranges, where he may have some evidence of a conspiracy, that he is entitled to explore whether there is a conspiracy about grapefruits or apples.⁶⁸

67 Id. at 175 (testimony of Albert Cortese, Jr., Esq.). Mr. Cortese is a partner in the Pepper Hamilton firm, and appeared representing the American Tort Reform Association, a largely manufacturer-based organization, for whom he has been a spokesman in rules revision matters during the 1990s.

68 Id. at 176 (testimony of Albert Cortese, Jr., Esq.).

The colloquy concerning this orange-vs.-grapefruit dilemma tends to blur the line between claim-or-defense relevancy and subject-matter relevancy but clearly suggests that even the defense bar would consider it to be discoverable if a plaintiff asserted a defendant to have engaged in a pattern of anti-competitive activity across two or more product lines. As to the proper characterization of the requested discovery, we think if falls within the scope of claim-or-defense relevancy provided that the seeking party has in fact alleged company-wide behavior or has a nonfrivolous basis for suspecting systemic anti-competitive behavior affecting the product line at issue for the plaintiff. Alternatively, some courts may see this type of discovery as outside the boundary of claim-or-defense relevancy but permit discovery under the good cause exception since the requested information is clearly relevant to the subject matter of the case (anti-competitive conduct by defendant) and not outlandish. The question is probably not even "debatable." If the plaintiff has some logical and reasonable ground for examining the defendant's overall approach to competition in related product lines, it should ordinarily be discoverable.

Discovery Subcommittee Chair Judge David Levi, speaking on behalf of the Advisory Committee before the Standing Committee at its June 1999 Meeting, took a position similar to ours regarding the impact of the Proposed Amendment and the meaning of claim-or-defense relevancy:

Judge Levi added that the current law makes almost everything relevant to the claims or defenses in civil rights and environmental cases. The amendment, he said, would not limit the broad array of information that plaintiffs presently receive through discovery. They will, for example, still be entitled under the amended rule to information about the treatment of other employees, a pattern of discrimination, or a continuing violation, as well as information extending beyond the statute of limitations. These types of information are all considered relevant to the claims and defenses under current law.⁶⁹

69 See Committee on Rules of Practice and Procedure, Meeting of June 14-15, 1999 (Newton, Massachusetts) at 23-24 (on file with the authors).

Other discussions at hearings on Amended Rule 26(b)(1) help determine the contours of the new scope standard. At the Jan. 22, 1999, hearing that produced the oranges-grapefruits-apples colloquy, another lawyer defending corporations characterized the problem as of overdiscovery as "endemic" but gave no specific examples.⁷⁰ Under questioning, however, he asserted a general problem in product defect cases.

70 See id. at 39 (testimony of J.J. Pickle, Esq., Associate General Counsel of Shell Oil).

The best examples is [sic] what we encounter in a product liability action. Rather than the discovery focusing upon the supposed defect if the product, under the circumstances of its use, at the time and place where it was being used. Instead what we get is discovery that says, give us everything that you have about the history of this product regardless of the circumstances of its use, regardless of the time, regardless of the relationship between anything else in this product and what happened in this case.⁷¹

71 Id. at 44 (testimony of J.J. Pickle, Esq.).

Prodded by a friendly question from a lawyer member of the Committee, this witness asserted that it was difficult to persuade judges to limit discovery because of the breadth of the subject-matter definition of relevance.⁷² This exchange suggests that the claim-or-defense standard of relevancy was not intended to limit discovery strictly to the facts of a given claim but simply to avoid use of the subject-matter standard as a ground for obtaining very broad discovery without the requirement of logically connecting the discovery sought to the pending claim or defense.

72 Id. at 46:

[Question by Committee Member Mark Kasanin, Esq.] Do you find that your lawyers are feeling that they can't accomplish anything in fighting discovery battles because of the use of the words "subject matter"?

[Reponse by J.J. Pickle, Esq.] That has been my experience.

Another defense lawyer saw the change as helpful in curbing the "fishing expeditions [that are now] routine" in that it would discourage lawyers for asking for full breadth subject-matter discovery because of the burden of demonstrating "good cause." As a practical matter, he interpreted the proposed claim-or-defense standard as a narrowing that would require him to provide less discovery.⁷³ He gave an example:

73 See Transcript of Hearing of Jan. 22 at 56 (statement of H. Thomas Wells, Esq.). Wells is a partner in the Birmingham, Alabama firm of Maynard, Cooper Gale, P.C.

I do have a certain pessimism about subject matter. I feel that subject matter means that I have to produce everything and I have not been terribly successful in trying to focus on the claims of my adversaries. If I might give you a couple examples. I have had a series of litigation over the years involving a product used in surgery. It is a fragile product, it can break. Frequently that product is thrown away. The claim is that it is a manufacturing defect. There is no product to examine, so basically discovery is for all documents under the universe and all kinds of people, and I have been unsuccessful over the years and at a tremendous cost to my client in producing this discovery. And rarely have I gotten relief.⁷⁴

74 Id. at 63.

Applied with a logical relationship standard, the "claim or defense" language of Amended Rule 26(b)(1) can respond to this complaint of defendants without unduly limiting plaintiffs' ability to develop a case. To obtain discovery under the claim-or-defense standard, the party seeking discovery must connect the type of information sought with germane parts of the claim or defense. In the example above, a product liability plaintiff could not ask for anything and everything about the product and its users but would be make a sufficient showing of logical connection to obtain data concerning past injuries associated with the product, testing and safety development, and the company's own concerns, if any about product safety. Clearly, the plaintiff operating under Amended Rule 26(b)(1) would be entitled to information about past claims arising out of similar uses of the product as this clearly would tend to show or negate inferences of product defect.

Even with judicious application of a logical relevance test for applying the claim-or-defense standard of relevancy, new Rule 26(b)(1) will generate many interpretative battles. In the example above, a court may decide that information about prior product injuries is not relevant to the claim or defense unless the type of injury is similar. The plaintiff's lawyer will undoubtedly want to see the records of prior incidents for herself and will seek to obtain it under the good cause prong of Amended Rule 26(b)(1), leading to the good cause motion hearing addressed at greater length in Part III below. But in many cases, the courts and parties will converge upon an apt notion of what is relevant to the claims and defenses of the case.

During hearings on the proposed amendment, the American College of Trial Lawyers weighed in with continued support for narrowing the scope of discovery, ⁷⁵ relying on its Report in favor of the change. The Report contained several illustrations that the College thought illustrated the need for a narrowing of discovery scope. One example in the College Report stated:

75 Id. at 117, 123 (testimony of Robert Campbell, Esq.). Campbell is a name partner in the Salt Lake City firm of Berman, Gaufin, Tomsic, Savage Campbell.

Case #1. [Plaintiff] A sued X Motor Car Company, claiming strict and negligent liability for the failure of a braking system allegedly due to the stress failure of a shearing pin mechanism in the wheel of the automobile. As to the claim and defense in the case, the question was whether the specific shearing pin was properly designed and manufactured to withstand the stress exerted by the sharply turning automobile.

[Plaintiff] A filed Rule 34 document requests and Rule 33 interrogatories claiming that the "subject matter" of the case was automobile safety design and, therefore, A was entitled to copies of all design drawings, expert witness reports, research and development materials and other data on each safety design feature of the automobile. X claimed that all that was required to be produced was the drawings, materials, and data surrounding the shearing pin.

Is the "subject matter" of the case safety design of the entire automobile, or is it the safety design and stress points of the shearing pin in the wheel base? The "subject matter" phrase would suggest the entire automobile.⁷⁶

76 See Report on the Deletion of the "Subject Matter" Phrase from Federal Rule of Civil Procedure 26(b)(1) — An Amendment Whose Time Has Come (Jan. 1998), submitted to the Advisory Committee as Dkt. No. 98-CV-122, at 6.

The College criticized this state of affairs as leading to routine overdiscovery with no tangible social benefit. This reasoning appears to have been persuasive to the Advisory Committee in determining to change Rule 26(b) relevancy from subject-matter or claim-or-defense relevance. The change to the "claim or defense" language would seem to suggest that discovery of the "entire automobile" lies outside the scope of claim-or-defense relevancy where the claim asserts a defective shearing pin. However, where the plaintiff asserting the shearing pin defect can articulate a logical connection between other information held by the manufacturer and the nature of the claim, discovery presumably is appropriate. For example, if the plaintiff is arguing that poor quality control accounts for a defective shearing pin, plaintiff would presumably be entitled to know something about the nature of defendant's quality control policies and operations.

Applying the claim-or-defense standard of new Rule 26(b)(1) may also require courts to determine the degree to which the requesting party has a factual basis for the articulated logical connection. Where a party's theory of discovery relevance is wholly speculative, courts will presumably deny claim-or-defense relevancy. At the same time, however, a court should not require the party seeking discovery to have ironclad proof of poor quality control or disregard of safety information. To some extent, this is what discovery is for, even under the claim or defense standard. Where the articulated reason for seeking discovery is logical and not based on farfetched facts, the discovery will presumably be appropriate even if it is not seeking material directly relevant to the claim or defense. Where matter is directly relevant ( e.g., the history of the particular product at issue, the manufacturing records of that batch of the product, injuries reported from consumers of that batch of product, etc.), the material is clearly discoverable even though the facts may ultimately show no problems with the product and no causal link between the product and plaintiff's injury. The claim-or-defense standard narrows the scope of discovery but it does not eliminate the need to provide some discovery whenever the claim withstands a motion to dismiss.

A relatively broad notion of claim-or-defense relevance also makes sense in light of the realities of modern commerce and modern litigation. For example, a plaintiff injured in a car accident may be pretty sure that the shearing pin is the culprit for the accident — but she cannot be positive. The manufacturer, of course, knows a good deal about the shearing pin and also knows a great deal about the making of the entire car. The car may be defective in ways other than the shearing pin. If the plaintiff is confined only to "shearing pin" discovery in all such cases, the potential for injustice is significant. The manufacturer may obtain a defense verdict even though it knows it was at fault (in, say, the making of the brake mechanism). Allowing a plaintiff in this type of case to find out generally how the car was designed, tested, made and used in the field is perfectly reasonable in light of the claim.

An excessively narrow judicial notion of what relates to a claim or defense will encourage litigants to allege too many broad claims and defenses merely to maximize discovery. The canny plaintiff will not draft a complaint pointing solely at the shearing pin. More likely is a complaint that alleges defects in the auto, including but not limited to the shearing pin. In short, too crabbed a standard of claim-or-defense relevancy will encourage broader pleading at odds with the judicial system's preference for narrower pleading when possible so that issues are more precisely framed for settlement and other pretrial motions.

In applying the claim-or-defense definition of scope, it of course must be remembered that the Federal Rules continue to provide that requested discovery shall be provided unless the party opposing discovery objects. The party seeking discovery need not articulate a justification for making the request unless challenged (litigation continues to remain an adversarial process; nothing in the 2000 Amendments changes that). However, if the relevance to a claim or defense is disputed, then the requesting party must explain the asserted relation between material requested and a claim or defense. The new scope standard has the potential of being abused by resisting parties who may be tempted to over-object and argue that the 2000 Amendments effected more narrowing of scope than is actually the case. Courts will presumably curb both over-discovery and over-resistance by sanctioning litigants who make unjustified objections or motions to compel.

Where counsel is unable to make a successful argument of claim-or-defense relevancy, counsel must seek court permission to pursue the information under the subject-matter definition of scope. To do this, as Amended Rule 26 states, counsel must demonstrate "good cause" for the broader discovery. Counsel must also, of course, persuade the court that the material sought falls within the subject-matter definition of scope. A showing of good cause is, to put it bluntly, no good if the information sought is not at least relevant to the subject matter of the litigation, a standard that will be measured according to the body of discovery law that predates the 2000 Amendment.

D. "Good Cause" under the Rules

"Good cause" is a simple phase, used elsewhere in the rules, but it is nowhere clearly defined. What exactly is "good cause"? According to the Advisory Committee recommending use of the good-cause standard in Rule 26(b)(1):

"[w]hen judicial intervention is invoked [by way of a motion for subject matter discovery for good cause], the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested."⁷⁷

77 See FED. R. CIV. P. 26(b)(1), Advis. Comm. Note — 2000 Amends., reprinted at 192 F.R.D. 340, 390 (2000).

Other federal rule provisions provide some meaning to "good cause." For example, a party seeking relief from a court's pretrial order must generally demonstrate good cause.⁷⁸ There is a modest body of case law interpreting the term in that context.⁷⁹ In addition, a party seeking a protective order limiting discovery or keeping information from the public record must demonstrate "good cause" under Rule 26(c).⁸⁰ This generally requires that the party resisting discovery demonstrate that the information sought is confidential and that the harm caused by disclosure outweighs the requesting party's need for the information.⁸¹ Even with this showing, however, a resisting party may not succeed in preventing discovery but only shielding its results from third parties and the public. Parties seeking to conduct an adverse medical examination of a party claiming injury must demonstrate good cause as well, which the limited case law essentially defines as merely the showing that the person (usually a party but not always)⁸² has put his or her physical or mental condition in issue. All of these uses of the good cause concept can be selectively marshaled by counsel seeking to expand or restrict discovery under the 2000 Amendment. Although not addressed by the Advisory Committee, it seems inevitable that courts will also make some assessment of the merits of the case in considering whether to expand discovery, reserving expanded discovery for cases that demonstrate some minimal level of plausibility on the merits.

78 See Fed.R.Civ.P. 16(b); MOORE'S FEDERAL PRACTICE § 16.14 (3d ed. 1997 Supp. 2000) (Wayne D. Brazil, Chapter Author).

79 See, e.g., Parker v. Columbia Pictures Indus., 204 F.3d 326, 339-41 (2d Cir. 2000) (party seeking amendment to pretrial order must demonstrate good cause, essentially defined as substantial need and must also demonstrate diligence in pursuing amendment in timely manner; whether to permit amendment is in court's discretion, reviewable under abuse of discretion standard.); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 363, 365-66 (M.D.N.C. 1987 (party that applied due diligence but could nonetheless not meet deadlines of scheduling order demonstrated good cause or modification of order).

80 See Bryan v. Eichenwald, 191 F.R.D. 650, 651 (D. Kan. 2000) (party seeking protective order bears burden of persuasion and must provide a particular and specific demonstration of fact and may not succeed by making "stereotyped and conclusory statements") (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).

81 See In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 354-57 (S.D.N.Y. 1996); Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 415 (M.D.N.C. 1991).

82 See, e.g., Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (independent medical examinations ordered of nonparty bus driver involved in accident leading to the litigation).

At this juncture, of course, with no body of interpretative decisions on Amended Rule 26(b)(1), invoking any of these good cause concepts by analogy is not frivolous. None has been rejected expressly by the drafting history of the amended rule. A case can be made for or against importing any of these other uses of good cause. However, none of these good cause standards is really the best analogy for assessing the meaning of good cause under Amended Rule 26(b)(1) because the matters at issue are all different than what is involved in ordinary discovery.

Modifying a scheduling order deadline logically requires a rather heightened notion of good cause because the other parties and the judicial system have to some extent relied on previous pleadings or statements and the case is usually well along, perhaps on the threshold of trial or in trial. A protective order, particularly if it seals a record or bars access to concededly relevant but sensitive information, requires a rather high standard of good cause because of the public interest in open judicial proceedings and full development of pertinent facts.

An attempt to obtain the trial preparation materials of another lawyer requires a very high standard (articulated as a party's "substantial need" for material without reasonably available equivalents rather than of good cause⁸³ because it runs counter to the basic tenants of the adversary system (i.e., each client and lawyer are entitled to the benefit of the lawyer's work and need not share it with adversaries) and because it is an exception to a general rule of qualified privilege established in Rule 26(b)(3).

83 See FED R. CIV. P. 26(b)(3) (party may obtain trial preparation materials only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

In all these instances, the notion of good cause is properly heightened. It probably does not make sense to import these heightened standards to attempts to obtain nonprivileged information. Here, despite the 2000 Amendment narrowing the scope of discovery, there remains a strong national policy of avoiding trial by surprise and permitting all parties to develop facts fully so that adjudication will be as accurate as possible based on all of the pertinent facts (subject to rules of evidentiary admissibility). In this situation, the good cause required for obtaining information should logically not be so stringent as to work against the general commitment to discovery necessary to serve the goals of the litigation system.

The Advisory Committee itself reached essentially this conclusion in drafting the 1970 Amendments, which removed the "good cause" requirement for document production under Rule 34. The 1970 Advisory Note justified deletion of the good cause requirement for document production in part because of divergent good cause standards evolving for use in determining when there is good cause for document disclosure (where the majority of courts appeared to find mere relevance sufficient) as opposed to forcing disclosure of trial preparation materials (where the majority of courts were "increasingly interpreting 'good cause' as more than relevance"). The Advisory Committee concluded that the higher standard was correct for work product and commanded by Hickman v. Taylor and that the relevance standard was better suited to document production. Because courts following the heightened work product standard of good cause might deny parties proper document production, the good cause standard was deleted from modern Rule 34.⁸⁴

84 See 12A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE APPENDIX C at 413-14 (reproducing Advisory Committee Note to 1970 Amendment setting forth rationale for eliminating good-cause requirement as prerequisite for document production).

The most likely analogy to the good cause that will be required under Amended Rule 26(b)(1) is the good cause standard that prevailed prior to the 1970 Amendments when counsel sought nonprivileged documents under Rule 34. Document production is more analogous to overall discovery than are motions for relief from deadlines or efforts to overcome a qualified privilege. Unfortunately, the pre-1970 caselaw of Rule 34 is not crystal clear, as opponents of Amended Rule 26 noted. Under pre-1970 Rule 34, courts were often unclear about what constituted good cause or inconsistent about what constituted good cause. As one court put it, "[t]here is no settled understanding of what "good cause" means; and because the determination depends to a large extent upon the facts of each case, a wide latitude of discretion is necessarily vested in the trial judge."⁸⁵

85 See Southern Ry. Co. v. Lanham, 403 F.2d 119, 126 (5th Cir. 1968).

Some courts found a mere showing of relevance to constitute good cause while others demanded something more such as a compelling need, inability to obtain the information through other sources, or a combination of practical factors bearing on the requesting party's burden in seeking to obtain information.⁸⁶ For example, in one noted case, the Third Circuit under former Rule 34 stated that a party seeking to prove good cause must show both relevance and that the information contained in documents sought was by its nature "within the exclusive knowledge of defendants" and realistically not available form other sources.⁸⁷

86 See MOORE'S FEDERAL PRACTICE § 26.App. 05[2] (discussing treatment of good cause under former version of Rule 34).

87 See In re Natta, 388 F.2d 215, 219 (3d Cir. 1968).

Good cause under the pre-1970 Rule 34 meant something beyond — but not greatly beyond — mere relevance. Similarly, good cause under Amended Rule 26(b)(1) today must mean something more than simple claim-or-defense relevance. One useful test employed by the District of Columbia Circuit under former Rule 34 put it this way:

That documents meet the requirement of relevance does not alone demonstrate that there is good cause for requiring their production. [Furthermore,] the burden of showing good cause is an affirmative one in that it is not satisfied merely by a showing that justice would be impeded by production of the documents. But good cause may ordinarily be sustained by a claim that the requested documents are necessary to establishment of the moving party's claim or that denial of production would cause the moving party undue hardship or injustice.

* * *

[However, where the document demand is large] a determination of good cause requires that all reasonable alternative be explored.⁸⁸

88 See Freeman v. Seligson, 405 F.2d 1326, 1336 (D.C. Cir. 1968).

As one court put it, the good cause required under old Rule 34 required "something more than relevance and something less than the demonstration required to overcome the work product immunity."⁸⁹ In attempting to further flesh out this concept, the court stated:

89 See Southern Ry. Co. v. Lanham, 403 F.2d 119, 126 (5th Cir. 1968).

The main objection to the good-cause-requires-special circumstances treatment [of the discoverability issue] is that it re-introduces the sporting aspect which the Federal Rules were thought to have excised from judicial proceedings . . . In view of the liberal spirit of the rules, the court should be disposed to grant such discovery as will accomplish full disclosure of the facts, eliminate surprise, and promote settlement. What must be shown under the requirement of good cause in Rule 34 are such circumstances as give the court reason to expect that the beneficial objectives of pre-trial discovery will be achieved.⁹⁰

90 See Southern Ry. Co. v. Lanham, 403 F.2d 119, 126 (5th Cir. 1968) (quoting Crowe v. Chesapeake Ohio Ry. Co., 29 F.R.D. 148, 150-51 (E.D. Mich. 1961).

This is a prudent approach for adjudicating good cause under Amended Rule 26(b)(1) as well.⁹¹ If the requesting party seeks matter relevant to the subject matter but not within claim-or-defense scope, the party must demonstrate a reasonable need for the material sought by articulating:

91 Accord, Marcus, supra note 44, at 4 (party seeking discovery beyond the baseline standard of relevance to claim or defense must "articulate a cogent reason for broadening discovery beyond that relevant to the current claims or defenses.").

the reason the information is important to the case;

the reason that the information is at least potentially likely to emerge from the discovery requested; and

why permitting the discovery will be more consistent with full factual development and accurate adjudication rather than furthering the purported discovery vices of increased cost, delay, or harassment of others.

If the requesting party makes this showing, the opponent may still be able to avoid this discovery if it can demonstrate that the burden of the subject-matter discovery outweighs its benefit. In addition, the resisting party may seek a protective order if other factors are present (such as trade secrets, etc.). where the requesting party shows that the resisting party has something of a monopoly on the information sought, the case for subject-matter discovery is enhanced. Where the information is rather readily available from other sources, the resisting party's case is enhanced.

An American College of Trial Lawyers representative speaking at an Advisory Committee hearing also provided an example of what might constitute "good cause" for providing subject-matter relevance discovery rather than merely claim-or-defense relevance discovery:

One of our [the College's] examples is a [product liability claim involving a] shearing pin issue. It is an aircraft case, 747, and the question is not only this shearing pin as it relates to the locking mechanism of the landing gear, but what about, has there been a significant review by the defendants of safety issues on other aspects of the airplane? So they wish to expand the whole area because the position is that perhaps the defendant has followed a course of conduct in which they have ignored safety, ignored safety in connection with not only tricycle landing gears but also perhaps with wing struts and other areas. That would be a basis for good cause.⁹²

92 Id. at 125 (testimony of Robert Campbell, Esq.). Campbell went on to state:

We hope that in any event, that the exception does not become the rule. And we take exception with those that say the court is simply going to have to hear good cause motions in every case. We think that is not going to be the case. Lawyers will work together and they will work within the framework of the case. They will stay on the ball, claims and defenses. . . .

It seems to us correct that this type of information should be subject to discovery provided that the party seeking the information has articulated a reasonable, not-too-attenuated relationship of the information (and what it might reveal) to the proofs involved in the case. The tougher question for us is whether upon such a showing, the discovering party must be forced to make a motion to compel discovery to obtain the information under the good cause exception allowing discovery relevant to the subject-matter. As discussed at length in Part III and in Part IV(A) above, a sufficiently sound articulation of a logical relationship between the information sought and proofs relevant to the case appears to us to satisfy the new claim-or-defense standard of relevancy set forth in Amended Rule 26(b)(1). If we are incorrect, of course, such information would presumably be readily producible upon motion under the subject-matter standard because the grounds for seeking the information surely constitute good cause even if they do not quite hit the claim-or-defense target, as conceded by the College representative testifying before the Advisory Committee.

In the debate over whether to amend former Rule 26(b)(1), Judge Scheindlin (S.D.N.Y.) was particularly critical of using "good cause" as the standard for determining when the current broad discovery might be available to requesting parties under the then-proposed amendment. "The 'good cause' requirement will lead to ten or twenty years of satellite litigation, while its meaning is worked out; the good cause requirement was abandoned from Rule 34 in 1970, and should not now be resurrected."⁹³ The most dire realization of her prophecy can be avoided if courts take a sufficiently broad view of the meaning of claim-or-defense relevance, thereby reducing the amount of unnecessary motion practice concerning good cause. If instead, counsel and courts take too restrictive a view of what is relevant to a claim-or-defense, there will be frequent motions that routinely result in discovery because a matter on the border of a narrow concept of claim-or-defense relevancy ordinarily will satisfy the tests of relevancy to the subject matter and a good cause basis for seeking the information. Under this latter scenario, Amended Rule 26(b)(1) would only increase disputing costs without changing the net sum of pretrial discovery, a result hardly in keeping with the intent of the Advisory Committee that drafted the 2000 Amendments.

93 See Minutes, supra, at 21-22. She continued by supporting Prof. Rowe regarding the lack of necessity for the change and expanding on the satellite litigation objection to the Proposed Amendment.

If it be said, as it often is, [by some supporters of the Proposed Amendment] that there is no change in the scope of discovery, why are we doing this? No plaintiff will accept[] less than present discovery. They will make good-cause motions in case after case. The proposal will increase cost and delay. In New York a discovery motion costs from $25,000 to $50,000. The change, further, will lead to overpleading. Careful plaintiffs will plead as broadly as possible. But the judge cannot know the case as well as the lawyers do; in ruling on good cause, the judge "can only make a stab at it." "Claim-or-defense" discovery in fact makes a change. It is narrower than subject-matter discovery.

Judge Scheindlin also noted similar problems affecting initial disclosure and its potential for only adding another layer of litigation activity.

According to Francis Fox, Esq., representing the American College of Trial Lawyers, the College had "studied this proposal intensely" and concluded that the current "subject-matter" scope of discovery was a problem in 10-15 percent of all federal cases and that a broad standard of discovery needlessly increased litigation costs.⁹⁴ This estimate may provide a useful yardstick for measuring the effect and proper application of Amended Rule 26(b)(1). If courts in the future find themselves presiding over hotly contested good cause motions in significantly more than 15 percent of the cases, this may be a sign that the new standard of claim-or-defense relevancy has been interpreted so narrowly as to prompt such motions with a frequency far beyond the impact expected by the drafters of Amended Rule 26.

94 See Minutes, supra, at 21.

CONCLUSION

Although Amended Rule 26(b)(1) clearly narrows the scope of discovery, change was not intended to be drastic but rather to discourage excessive or abusive discovery and to shift the default standard of the Federal Rules so that broad subject-matter scope discovery is available only with judicial approval or the adverse party's acquiesence. More constrained discovery scope is now the baseline norm, but this more constrained discovery should not be so crabbed as to interfere with the overriding goal of fair and accurate adjudication.

The new standard of claim-or-defense discovery scope retains considerable breadth, depending on the context of the case and the requesting party's ability to articulate a logical relationship between the material sought and the claim or defense in question. Where useful information lies outside the reach of such a non-attenuated argument for relation to a claim or defense, the court retains power to order the broader discovery so long as it is relevant to the subject matter of the dispute.

The key to obtaining subject-matter scope discovery by motion remains a persuasive argument that even though the material sought is not strictly related to the claims or defenses of the case, it contains information that may very well shed light on important facts that have a significant likelihood of bearing on the case and its accurate adjudication. Consequently, party behavior demonstrating care, lack of care, conspiracy, notice, warning, motive, and so on would appear to be discoverable under Amended Rule 26(b)(1) even when they are arguably outside the claims or defenses as currently pleaded in the litigation.

Under new Rule 26(b)(1), efforts to obtain potentially admissible evidence should satisfy the new standard of claim-or-defense relevancy. Information logically related to the litigation will normally seek such evidence and satisfy the standard. Where a party seeks information that does not readily bear on a claim or defense but may be important to the case and help develop potentially admissible evidence, this should ordinarily suffice as a demonstration of sufficient good cause for obtaining this further discovery. So interpreted, the 2000 Amendment to the scope of discovery would achieve the modest narrowing sought by the rulemakers without unduly truncating the effectiveness or accuracy of civil litigation.