Reeling in Fishing Expeditions: Proposed Amendments to the Federal Rules Are Aimed at Narrowing the Scope of Discovery and Increasing Judicial Management
Litigants frustrated by endless discovery and skyrocketing costs may find solace in knowing that change may be on the way. Proposed amendments to the Federal Rules of Civil Procedure, as well as recent case law, signal efforts to narrow the scope of permissible discovery and increase judicial management of issues that arise. The proposed amendments -- guided by the overarching goal of the just, speedy, and inexpensive determination of every action embodied in Federal Rule of Civil Procedure 1-- are aimed at reeling in so-called “fishing expeditions” in which litigants attempt to use discovery to uncover additional causes of action not previously known, or, more nefariously, foist undue cost and burden on their adversary in the hopes of gaining a strategic advantage.
A recent Colorado Supreme Court case illustrates this long-standing quandary surrounding the scope of discovery disputes. In In re: DCP Midstream, LLP v. Anadarko Petroleum Corp., the Colorado Supreme Court attempted to narrow the scope of discovery, but found little guidance in the Colorado and Federal Rules of Civil Procedure. Colorado Rule of Civil Procedure 26(b)(1), which closely parallels Federal Rule of Civil Procedure 26(b)(1), contemplates a two-tiered approach to discovery. The first tier allows discovery of any matter “relevant to the claim or defense,” while the second allows the court to expand discovery to any matter “relevant to the subject matter” of the litigation. This tiered approach, coupled with the provision that information need not be admissible but only “reasonably calculated to lead to admissible evidence,” allow for overly broad discovery that becomes the focal point and most expensive aspect of litigation. This becomes critical in all stages of litigation as, in many cases, the anticipated cost of discovery can be the driving force behind settlements and related business decisions.
As the Colorado Supreme Court found, both state and federal rules of civil procedure evince an intent to narrow the scope of discovery, but ultimately fail as the two-tiered approach creates more confusion than clarity. Spurred in part by a concern over the growth in discoverable information due to the ubiquity of electronically stored information (ESI), proposed amendments to Rule 26 of the Federal Rules of Civil Procedure aim to eliminate the two-tiered approach. The proposed amendments invoke limiting factors embodied in Rule 26(b)(2)(c)(iii) and emphasize judicial authority to actively manage discovery in the first instance based on the needs of the case. The proposed Rule (with emphasis we have added) reads as follows:
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 amount in controversy, the importance of the issues at state in the action, 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 need not be admissible in evidence to be discoverable.
The proposed amendments also eliminate the provision that too many attorneys and judges misunderstood as granting unlimited discovery, whereby information that would be inadmissible at trial is nonetheless discoverable if it is “reasonably calculated” to lead to the discovery of admissible information. Many commentators believe that this provision was never intended to broaden the scope of discovery; rather, it’s intent was not to preclude certain discovery simply because the targeted information may be inadmissible.
The increased amount of information available to litigants due to the shift from paper records to ESI has increased the importance of properly defining and limiting the scope of discovery at an early stage. It is no secret that discovery can quickly spiral out of control, exponentially increasing the cost of litigation. As the Colorado Supreme Court found, state and federal rules clearly intend to impose limitations on discovery, but fail to give litigants and judges adequate legal support to do so. Ideally, by empowering judges, providing the analytical framework, and tying discovery to specific criteria, the proposed amendments to the Federal Rules may better equip litigants and judges with the tools necessary to set the parameters of discovery at the outset based upon the needs of the case.
Check back for updates on the status of the proposed amendments to the Federal Rules of Civil Procedure.
Marc D. Bianchi is an Associate in the Gibbons Business & Commercial Litigation Department.