Did the 2015 Deletion of “Not Reasonably Calculated” From Rule 26(b)(1) Change the Scope of Discovery?

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Defining the scope of discovery is fundamental.  Certain language has changed three times.

First, prior to 2000, Rule 26(b)(1) read: “The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”The intent was to make it clear that relevant information could not be withheld from discovery because it was, for example, hearsay or otherwise inadmissible.  Garcia v. State Farm Mutual Automobile Ins. Co., 2025 WL 2966364, at n. 7 (D.N.M. Oct. 21, 2025)(citation omitted).

Second, in 2000, the Rules were amended to state: “Relevant information need not be admissible at the trial if discovery appears reasonably calculated to lead to the discovery of admissible evidence.” This was a “housekeeping amendment.”  It clarified that inadmissible evidence must be relevant to be discoverable. Garcia, 2025 WL 2966364, at *4.

Third, in 2015, the phrase “if discovery appears reasonably calculated to lead to the discovery of admissible evidence” was deleted.¹

Frequently, that change is overlooked.  See Fischer v. Forrest, 2017 WL 773694, at *1 (S.D.N.Y. Feb. 28, 2017)(Peck, J.) (“Despite this clear change, many courts [and lawyers] continue to use the phrase. Old habits die hard…. The test going forward is whether evidence is ‘relevant to any party’s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.’”); A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts (Feb. 25, 2025; “Reasonably Calculated to Lead to Discovery of Admissible Evidence” (Nov. 6, 2024).

As of 2015, Rule 26(b)(1) reads: “Information within this scope of discovery need not be admissible in evidence to be discoverable.”  In my words, the emphasis focuses on the “scope of discovery,” i.e., the claims, defenses, and proportionality.

Garcia describes those amendments and explains them.

The Garcia court wrote that deletion of the “reasonably calculated” phrase “did not necessarily change discovery’s scope, but clarified it.” 2025 WL 2966364, at *4. The deleted phrase had “been used by some, incorrectly, to define the scope of discovery.” Id. (quoting the Advisory Committee). The Garcia court explained that:

Despite the 2000 amendment’s attempt to correct that misapplication by adding the word “Relevant” at the beginning of the sentence, the Committee found that the “reasonably calculated” phrase had “continued to create problems.”

Id.

In Garcia, the plaintiff referred to the “reasonably calculated” language.  Defendant State Farm argued that the language was superseded and: “In making his legal argument, Plaintiff does not adhere to these newer discovery standards; rather, he focuses on the old, broader discovery standards.” Id. at *4.

The Garcia court disagreed. Id.  It explained:

Notably, discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.... In other words, despite the 2015 changes—made for the purpose of clarifying and correcting past misuse of the deleted language—relevance 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.... In short, Plaintiff was not wrong in referencing the “reasonably could lead to” language, although confusion generated by that language probably warrants its avoidance.

Id. at *5 (cleaned up; quotations and citations omitted). 

The Garcia court stated “that the 2015 deletion did not change the basic principle that information does not have to be admissible in order to be subject to discovery.” Id. (emphasis in original).

In its exhaustive opinion, the Garcia court resolved more discovery disputes than I can count. In one holding, it wrote: “In sum, the discovery requests, as limited by Plaintiff in his reply brief appear relevant on their face—and may lead to the discovery of admissible evidence regarding the scope and the nature of investigation, if any, that State Farm undertook prior to rejecting Plaintiff’s UIM/UM claim.”  2025 WL 2966364, at *12 (emphasis added).

In note 8, the Garcia court cited Judge Browning’s observation in Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 379 (D.N.M. 2018), that the deletion did not change the scope of discovery and “[a]rguably, older lawyers will have to learn a new vocabulary and ignore the one they have used for decades. If the changes were not made to change the scope of discovery, it is unclear what the benefit of all this really is.”

Notes

1. There were other important changes in 2015 that are not discussed here. ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.