[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
If I got a nickel for every mistake I made, we’d be talking about this on the balcony of my condo in Aruba, watching the sunset. Alas, I didn’t get the nickels and don’t have the condo. 😊
Rig Consulting, Inc. v. Rogers, 2024 WL 4608354 (W.D. Pa. Oct. 29, 2024), is a thorough and well-reasoned decision.
However, the court wrote:
The information sought [in discovery] need not be admissible at trial so long as the discovery request is reasonably calculated to lead to the discovery of admissible evidence. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d 253 (1978). [emphasis added].
Rig Consulting, Inc. v. Rogers, 2024 WL 4608354 (W.D. Pa. Oct. 29, 2024).
The court also wrote that the party moving to compel failed to meet that standard: “Very little ink is expended in describing how and why these seemingly exceptionally broad requests might lead to the discovery of admissible evidence.” Id. at * 5; see also id. at *3 (“either admissible in itself or reasonably calculated to lead to the discovery of admissible evidence.”).
I suggest that statement may be worth a nickel in an otherwise great opinion. I suggest that it is not the correct test.
Before explaining why, I want to note that the court did quote the Rule containing the correct test. Id. at *2 (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”). I also want to acknowledge that the court was faced with multiple motions by multiple parties. In my entire practice, I have never had a caseload as heavy as that of a United States District Judge.
I recently wrote a blog suggesting that “not reasonably calculated” was deleted from Fed.R.Civ.P. 26(b)(1) in 2015. “Boilerplate” Objections Are Generally Condemned; Except When They’re Not (Oct. 9, 2024). There, I discussed another recent decision, Jacobs v. The Journal Publishing Co., 2024 WL 4333199 (D. N. Mex. Sept. 27, 2024), where a litigant used the “not reasonably calculated” language in an objection that was not decided by the court.
The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1) advisory committee’s note (2015) (emphasis added).
The December 2015 Advisory Committee Note to Fed.R.Civ.P. 26(b)(1) states:
The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that “‘relevant’ means within the scope of discovery as defined in this subdivision …” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery. [emphasis added].
The December 2015 Advisory Committee Note to Fed.R.Civ.P. 26(b)(1).
Fed.R.Civ.P. 26(b)(1), as amended in 2015, states:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. [emphasis added].
Fed.R.Civ.P. 26(b)(1), as amended in 2015.
Oppenheimer was decided in 1978. In proposing and adopting the 2015 amendments, the Rules Committee and Supreme Court apparently felt that the new standard differs from the old “reasonably calculated to lead to admissible evidence” standard for the scope of discovery.
The Rig Consulting court’s analysis of the other discovery issues is worth reading. The court wrote that: “As a general proposition, all parties to this action are hereby cautioned to consider carefully their discovery obligations in responding to or withholding discovery, as the Court believes practicality and fairness should always trump gamesmanship.” Id. at *9. The Rig Consulting court clearly implemented that philosophy in its well-reasoned decision comprehensively addressing multiple issues.
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