[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Ho v. Jefferson Financial Credit Union, 2024 WL 4119422 (E.D. La. Sept. 9, 2024), provides a succinct summary of the scope of discovery under the December 2015 amendments to the Federal Rules of Civil Procedure. It – surprisingly – sustained boilerplate objections. The case involved a loan gone south.
Scope of Discovery
The Federal Rules of Civil Procedure provide that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. Proc. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. The Rule requires consideration of the following factors in assessing proportionality: “the importance of the issues at stake in the action, 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.” Id.
Prior to the 2000 amendments, the Federal Rules provided for discovery of nonprivileged matter “relevant to the subject matter involved in the pending actions.” The 2000 amendments deleted the quoted language, limiting the scope of discovery to nonprivileged matters “relevant to the claim or defense of any party” and allowing for discovery “of any matter relevant to the subject matter involved in the action” only upon a showing of good cause. Fed. R. Civ. Proc. 26; see XTO Energy, Inc. v. ATD, LLC, No. CIV 14-1021 JB/SCY, 2016 WL 1730171, at *12–13 (D.N.M. Apr. 1, 2016) (analyzing the progressive rule changes); see also 8 Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 2008 (3d ed.). The change “signal[ed] to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signal[ed] to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.” Fed. R. Civ. Proc. 26 advisory committee’s notes to 2000 amendment. The committee explained that the parties should “focus on the actual claims and defenses involved in the action,” but that a variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action.” Id. Following the 2015 amendments to the Rules (which removed reference “to the subject matter involved in the action” entirely), courts have concluded that “[r]elevance is still to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party’s claim or defense.’ ” XTO Energy, Inc. v. ATD, LLC, No. CIV 14-1021 JB/SCY, 2016 WL 1730171, at *17 (D.N.M. Apr. 1, 2016) (quoting State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14CIV9792WHPJCF, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015), aff’d, No. 14CV9792, 2016 WL 4530890 (S.D.N.Y. Mar. 24, 2016)); Walker v. H & M Henner & Mauritz, L.P., No. 16 CIV. 3818 (JLC), 2016 WL 4742334, at *2 (S.D.N.Y. Sept. 12, 2016).
While construing relevance broadly, this Court is anchored by the parties’ pleadings. “To implement the rule that discovery must be relevant to the claim or defense of any party, district courts have examined the relationship of the requested discovery and the facts it is intended to uncover to the specific claims and defenses raised by the parties.” Thibault v. BellSouth Telecommunications, Inc., No. CIV.A. 07-200, 2008 WL 4808893, at *2 (E.D. La. Oct. 30, 2008) (M.J. Wilkinson). [emphasis added].
Of course, the December 2015 amendments also emphasized proportionality and the Court’s role in actively supervising discovery.
Interestingly, the Ho court sustained what appear to be boilerplate objections that plaintiff’s requests were “overly burdensome” and “irrelevant….” Id. at *3. While boilerplate objections are generally ineffective, see General Objections, Dracula, and “Whac a Mole” (Apr. 16, 2024), there were unique facts in Ho.
In sustaining boilerplate objections, the Ho court essentially determined that the information sought by plaintiff could be obtained from documents that had been produced by the defendant.
Michael Berman, E-Discovery LLC.
In sustaining boilerplate objections, the Ho court essentially determined that the information sought by plaintiff could be obtained from documents that had been produced by the defendant.
“For example, in light of production of loan documents in response to Interrogatory No. 8, it would be unduly burdensome to require the Credit Union to identify the date, time, place and method of any and all contacts between defendant with Do or anyone acting on his behalf. Similarly, identification of details of transactions in response to Interrogatory No. 11 is unduly burdensome where the account statements have been produced.” Id. at * 3.
To give another example:
Additionally, the Court finds that the Credit Union has properly objected to producing “backup tapes” containing email or electronic data related to this action from 2017 to present (Request for Production No. 21), exact copies of all hard drives related to this action from 2017 to present, and exact copies of all removable media (e.g., thumb drives) related to this action from 2017 to present (Request for Production No. 23). No basis for such invasive and expensive production has been offered in light of the production of relevant information responsive to plaintiff’s other more specific requests.
Id.
Those requests are almost per se beyond the scope of discovery. See Discovery is the Lawyer’s X-Ray; However, an MRI May Not Be Reasonable (Sept. 4, 2024); Requests for “Any and All” Documents Are Obsolete (Jul. 6, 2024).
“The days when the requesting party can expect to ‘get it all’ and the producing party to produce whatever they feel like producing are long gone.” Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228, 245 (D. Md. 2005).
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