Also known as: discovery scope · Rule 26(b) scope
Written by attorneys — see sources below.
A procedural limit in civil litigation that authorizes parties to obtain discovery of any nonprivileged matter relevant to a claim or defense and proportional to the needs of the case.
Scott Summers sued Spectrum Financial alleging improper account fees. He requested five years of internal compliance reports from every department. Spectrum produced only the records tied to his account. The court denied further production because the burden of searching unrelated files outweighed any marginal benefit to resolving the fee dispute.
Simon Stern sued Sterling Dynamics for employment discrimination. He sought every email sent by any manager over three years. Sterling produced only messages mentioning his name or department. The court refused the wider request because most messages lacked any connection to the termination decision.
Laura Zubulake worked as an equities salesperson at UBS Warburg LLC from August 23, 1999, until her termination on October 9, 2001. She was a director on the U.S. Asian Equities Sales Desk and reported to Matthew Chapin after Dominic Vail left the position. Zubulake filed an EEOC charge alleging gender discrimination on August 16, 2001, and commenced this action on February 15, 2002, claiming sex discrimination and retaliation. On June 3, 2002, Zubulake served her first document request seeking all documents concerning communications by or between UBS employees concerning her. UBS produced approximately 350 pages of documents, including about 100 pages of emails, in July 2002. The parties entered into an agreement on September 12, 2002, providing that UBS would produce responsive emails from five specified individuals if retrieval was possible. Zubulake produced over 450 pages of emails herself, including a chain with a message from Chapin to Andrew Clarke indicating that it was not a question of if but when they would get rid of her. UBS's email system used HP OpenMail, with backups created daily, weekly, and monthly using Veritas NetBackup, resulting in 94 tapes that might contain responsive emails from Chapin, Clarke, Tong, Datta, and Hardisty. UBS also archived external emails sent or received by registered traders on optical disks searchable with Tumbleweed software. After UBS declined to search backup tapes due to estimated costs of $300,000, the parties appeared before Magistrate Judge Gorenstein on December 2, 2002. UBS produced Christopher Behny for deposition on January 14, 2003, who described the backup protocols and restoration process, which takes about five days per tape. UBS later estimated restoration costs at approximately $175,000 to $180,000 plus attorney time. Zubulake moved for an order compelling UBS to produce emails from backup tapes and imposing sanctions for failure to preserve and produce those emails.
View caseSteven Silva brought a securities class action against Southland Foods. He sought internal audit memos from every division. Southland produced only documents discussing the specific statements at issue. The court limited discovery to those materials because broader production would not advance the class certification inquiry.
Between June 3, 1999, and December 7, 2001, Halliburton Company and one of its executives made a series of public statements about the company's potential liability in asbestos litigation, its expected revenue from construction contracts, and the anticipated benefits of a merger with another company. Respondent Erica P. John Fund, Inc., serving as lead plaintiff, alleged that these statements were materially false and misleading and were made to inflate the price of Halliburton's common stock. Halliburton later issued corrective disclosures that EPJ Fund contends caused the stock price to drop and produced losses for investors who had purchased shares during the class period. EPJ Fund moved in the United States District Court for the Northern District of Texas to certify a class of all investors who purchased Halliburton common stock during the class period. The district court determined that the proposed class satisfied the four threshold requirements of Federal Rule of Civil Procedure 23(a). It nevertheless denied certification under Rule 23(b)(3) because Fifth Circuit precedent at the time required securities fraud plaintiffs to prove loss causation at the class certification stage to rely on the presumption from Basic Inc. v. Levinson. The Fifth Circuit affirmed the denial of class certification on the same ground. The Supreme Court granted certiorari, vacated the judgment of the Fifth Circuit in Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804 (2011), and remanded the case. On remand, Halliburton presented evidence that none of its alleged misrepresentations had actually affected the company's stock price and argued that this evidence rebutted the Basic presumption, so that individual issues of reliance would predominate. The district court declined to consider the price impact evidence at the certification stage and certified the class under Rule 23(b)(3). The Fifth Circuit affirmed the certification order. It acknowledged that Halliburton's price impact evidence could be used at trial on the merits but held that such evidence could not be considered at the class certification stage to rebut the presumption of reliance. The Supreme Court granted certiorari a second time to address whether Basic's presumption should be overruled or modified and whether defendants may present evidence of no price impact before class certification.
View caseSean Steele sued Stonehaven Properties for breach of a development contract. He requested all internal legal memos evaluating the project. Stonehaven withheld memos prepared by its counsel. The court sustained the withholding because the memos contained legal advice and fell outside the nonprivileged scope of discovery.
In January 2001, shortly after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group. The Group was directed to develop a national energy policy designed to help promote dependable, affordable, and environmentally sound production and distribution of energy. The President assigned agency heads and assistants, all federal employees, to serve as members of the committee. He authorized the Vice President, as chairman, to invite other officers of the Federal Government to participate as appropriate. Five months later the NEPDG issued a final report and, according to the Government, terminated all operations. Following publication of the report, Judicial Watch, Inc., and the Sierra Club filed separate actions in the United States District Court for the District of Columbia that were later consolidated. The plaintiffs alleged that the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act. Non-federal employees including private lobbyists regularly attended and fully participated in non-public meetings. Respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee. The suits named Vice President Cheney, the NEPDG, government officials who served on the committee, and the alleged de facto members as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA's requirements. The District Court granted the motion to dismiss in part and denied it in part. It dismissed respondents' claims against the non-Government defendants. Because the NEPDG had been dissolved, it could not be sued as a defendant, and the claims against it were dismissed as well. The District Court held that FACA's substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act and against the agency defendants under the Administrative Procedure Act. The court allowed respondents to conduct a tightly reined discovery to ascertain the NEPDG's structure and membership. The District Court denied in part the motion to dismiss and ordered respondents to submit a discovery plan. Petitioners including the Vice President sought a writ of mandamus in the Court of Appeals for the District of Columbia Circuit to vacate the discovery orders, direct the District Court to rule on the basis of the administrative record, and dismiss the Vice President from the suit. A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President's attempted interlocutory appeal. The Supreme Court granted certiorari.
View caseRule 26(b)(1) requires courts to weigh the importance of the issues, the amount in controversy, the parties' access to information, their resources, the importance of the discovery for resolving the issues, and whether the burden outweighs the likely benefit.
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No. Information within the scope of discovery need not be admissible in evidence if it is relevant and proportional.
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Discovery reaches only nonprivileged matter relevant to any party's claim or defense. Requests that seek information outside those claims or defenses fall beyond the permitted scope.
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The court must limit discovery that is unreasonably cumulative or duplicative or that can be obtained from a more convenient or less expensive source.
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