Scope Under Rule 26(b)(1)

Scope Under Rule 26(b)(1)

Rule 26(b)(1) fixes what discovery may reach. Unless a court order limits it, a party may obtain discovery of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, and information within that scope need not be admissible in evidence to be discoverable.¹ The opening phrase, “unless otherwise limited by court order,” makes the rule a default that a judge may reshape for a particular lawsuit. Within that default, the rule gives requesting parties, responding parties, and the court a single yardstick. Without one, each side would argue from its own view of what the case needs, and every dispute over a request or an objection would be a contest of bare assertions.

The rule's elements work as filters. Privilege and relevance to a claim or defense mark out the pool of information that could be discovered. Proportionality then asks a different question of that pool: whether a given item is worth obtaining in this case at this cost. The rule lists the considerations: the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.² Information can therefore clear the first two filters and still fall outside the scope. This unit takes those first two filters in order, and the next section takes proportionality.

The same yardstick gives content to the signature duties covered earlier. A lawyer who signs a request, response, or objection certifies that it is neither unreasonable nor unduly burdensome, and that judgment turns on considerations the scope rule also names: the needs of the case, the amount in controversy, and the importance of the issues. A lawyer who has tested a paper against Rule 26(b)(1) has done most of the work the signature certifies. A request that reaches beyond the scope, or an objection built on a mistaken view of it, is a paper whose certification may later be questioned.

Nonprivileged Matter

The first limit sits in the rule's opening words: discovery reaches “any nonprivileged matter” that is relevant and proportional.³ A privilege lets a person refuse to reveal certain information, most often a confidential communication, even when the information would help the other side. Because Rule 26(b)(1) writes that exclusion into its own definition of scope, a privileged communication never enters the pool of discoverable matter, however relevant it is.

Privilege and admissibility are separate questions, and students often run them together. The scope rule says that information within it need not be admissible to be discoverable, so a rule that would keep an item from the jury does nothing to keep it from discovery.⁴ A design-defect suit by an injured driver against a car manufacturer shows the line from both sides. The confidential communications that the driver's lawyer makes to the driver during and in furtherance of the representation are privileged, so the manufacturer cannot discover them. The manufacturer's later redesign to cure the defect would ordinarily be inadmissible at trial to prove liability under Federal Rule of Evidence 407, yet the driver may still discover it if it is relevant and proportional.⁵ The redesign records are not privileged, and that fact decides the question: inadmissibility governs what the jury may hear, while privilege governs what an opponent may demand. An analysis that calls an item undiscoverable merely because it would be excluded at trial applies the wrong test.

Because the opponent cannot see what is being held back, a claim of privilege or trial-preparation protection carries a procedure with it. When a party withholds otherwise discoverable information on that ground, Rule 26(b)(5)(A) requires it first to expressly make the claim.⁶ The party must then describe the nature of the documents, communications, or things not produced, in a manner that lets the other parties assess the claim without revealing the protected information itself. The court in Liguria Foods, Inc. v. Griffith Labs., Inc. stressed that the rule demands more than bald assertions of privilege.⁷ Each half of the procedure has its own job. The express claim tells the opponent that something has been held back, and without it an omitted document looks exactly like one that never existed. The description gives the opponent something to test, since a bare label is a conclusion that can be neither accepted nor challenged intelligently. Because the description stops short of the protected content, the privilege survives the testing, and the opponent and the court can resolve a dispute on a record.

The procedure also closes the quieter routes of avoidance. A manufacturer that holds an internal study concluding that paying occasional accident claims is cheaper than fixing a defect cannot silently withhold it on the strength of its lawyer's view that it is work product. Nor can it move the study out of reach by handing it to that lawyer, because a document held for a party by its lawyer remains within the party's control.⁸

Trial-preparation protection differs from privilege in one structural respect: it is qualified. Documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative are ordinarily protected, but Rule 26(b)(3)(A) lets the opponent obtain them if they are otherwise discoverable under Rule 26(b)(1) and the opponent shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.⁹ A lawyer's litigation memoranda, such as an associate's research memo on the governing law or a summary of an interview with a prospective witness, therefore stay out of reach without that showing.¹⁰ The showing has two parts, and each does work. Substantial need ties the request to the importance of the materials for the case, and the inability to get the equivalent without undue hardship forces the seeker to use its own tools, such as a deposition, before taking the other side's file. The need-based showing belongs to the trial-preparation provision, so the rule's text does not supply it against a privileged communication. The express-claim-and-description procedure, by contrast, reaches both categories, because Rule 26(b)(5)(A) covers information withheld as privileged and as trial-preparation material.¹¹

Privacy interests that fall short of a privilege receive different treatment. In exercising their discretion over discovery, courts have long recognized that interests in privacy may call for a measure of extra protection even where the information sought is not privileged. The 1970 advisory committee note gave income tax returns as its example, which are generally held not privileged, and legitimate privacy interests are among the proper subjects of Rule 26(c)'s protection.¹² A privilege has fixed boundaries, so it can work as a categorical exclusion from scope. Privacy interests vary in strength with the information and with the other side's need, so the rule leaves them to the court's discretion to tailor or limit discovery. A party that resists on privacy grounds is asking the court to exercise that discretion, and it cannot claim the exclusion that the scope rule reserves for privilege.

Relevant to Claims and Defenses

The second limit on scope ties relevance to the pleaded dispute. Discovery reaches nonprivileged matter that is relevant to “any party's claim or defense,” and the presumptive scope that results is quite broad.¹⁴ Two features of the wording do most of the work. The word any makes every claim and every defense in the case an anchor, so a defendant may seek discovery bearing on the plaintiff's claims and a plaintiff may seek discovery bearing on the defendant's defenses. The admissibility sentence separates two questions that students often merge: discovery asks whether information bears on what the parties are litigating, while a trial ruling asks whether the jury may hear it.¹⁵

The discovery rules have long been described as clearing the way, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.¹⁶ Breadth with no tether, however, would turn every lawsuit into a general investigation of the other side. The pleaded claims and defenses supply the tether. They are the parties' own statement of what the lawsuit is about, so tying relevance to them gives a requester a standard to meet and gives a court a standard to apply when a request is challenged.

The text did not always read this way, and its history explains why decisions of different ages seem to use different tests. Until 2000, Rule 26(b) authorized discovery of “any matter, not privileged, relevant to the subject matter” of the action, a phrase far wider than any single claim or defense.¹⁷ The 2000 amendment created two tiers. Matters relevant to a claim or defense could be discovered without court authorization, while matters relevant only to the subject matter of the action required a finding of good cause. In 2015 the rules were amended again to eliminate the second tier entirely, regardless of whether good cause could be shown.¹⁸ A second change travelled with it. Before 2015, lack of proportionality was not part of the definition of scope but a ground for limiting discovery that was otherwise relevant and nonprivileged, and the 2015 amendment moved those considerations, with revisions, into the scope definition itself.¹⁹

The history carries a practical warning for reading cases. Opinions written under earlier versions of the rule quote the former wording. Zubulake v. UBS Warburg LLC, for example, reproduces the former good-cause sentence and the former statement that relevant information need not be admissible if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.²⁰ The current rule says only that information within the scope need not be admissible, and it contains no good-cause expansion.²¹ Decisions that quote the older text remain reliable for principles such as the breadth of discovery and the need for a connection to the issues, but they do not state the text you apply today.

The narrower anchor still leaves relevance broad. The advisory committee note to the 2000 amendments explained that a variety of information could be relevant to the claims or defenses even if not directly related to the incident in question, and the 2015 note echoed the point, emphasizing that discovery would remain available into other incidents of the same type or involving the same product, information about organizational arrangements or filing systems, and information that could be used to impeach a likely witness.²² A driver who sues a car manufacturer over a design defect can therefore ask about other accidents involving the same model, while the manufacturer can ask about the driver's medical condition and what the driver knows about the crash, in each case whether or not the information would be admissible at trial.²³ Each request ties back to the pleaded dispute, because the other accidents bear on whether the design was defective and the medical facts bear on damages. Courts accordingly describe relevance for discovery purposes as an extremely broad concept.²⁴

Because relevance is measured against the claims and defenses as the case actually stands, neither side can fix the boundary alone. The Eighth Circuit has explained that Rule 26(b)(1) gives no party “the unilateral ability to dictate the scope of discovery based on their own view of the parties' respective theories of the case,” because litigation in general and discovery in particular are not one sided.²⁵ A responding party that refuses production because it thinks the requester's theory is weak is therefore arguing from the wrong yardstick. The court in Liguria Foods restated the working rule from its own earlier decision: as long as the parties request information relevant to the claims at issue, in good faith and without undue burden, discovery proceeds, and the party resisting production bears the burden of establishing lack of relevancy or undue burden.²⁶

The outer edge of that breadth appears in re Williams-Sonoma, Inc., where the Ninth Circuit treated a request made to find a client to serve as the named plaintiff before class certification as outside the scope of Rule 26(b)(1).²⁷ The court relied on Oppenheimer Fund, Inc. v. Sanders, in which the Supreme Court held that a request for class members' names and addresses, made so the requesters could send class notice, was outside Rule 26(b)(1) because the requesters did not seek the information for any bearing it might have on the issues in the case.²⁸ Oppenheimer was decided when scope was measured against the subject matter of the action. Because the amendments replaced subject-matter relevance with claim-or-defense relevance, a request that falls outside the broader test falls outside the narrower one as well. The plaintiff in Williams-Sonoma argued that the information bore on class certification issues such as commonality and typicality, and the court answered that this did not dilute the central point.²⁹ Relevance asks what the information does for a claim or defense already in the case, and a request to locate someone who might assert a claim serves a purpose outside the pleaded dispute.

Relevance is also only the first filter on what a party actually receives. In Convolve, Inc. v. Compaq Computer Corp. the court accepted that a computer maker's bills of materials were relevant under the broad discovery definition, yet it declined to require their production. Compiling them for every system would take time and resources far out of proportion to their marginal value, and nothing showed that they would go beyond the summary information already supplied.³⁰ That decision came before the 2015 amendment, when proportionality limited otherwise relevant discovery and was not part of the scope definition. Since 2015 the same considerations sit inside Rule 26(b)(1), which is the subject of the next section.³¹ The rule's opening words, which make scope subject to any court order, also mean that a court can narrow the relevant universe for a particular case. A court that limits discovery to class certification issues, for example, thereby circumscribes what counts as relevant and proportional at that stage.³²

On an exam, a request described as related to the lawsuit or to the general subject of the dispute has not yet shown relevance, because the question is which claim or defense the information bears on. A stem that adds that the information would be inadmissible at trial has not shown irrelevance either, since admissibility is no condition of discoverability. A request that cannot be tied to any claim or defense in the case lies outside the scope, however much material it would turn up.