The Scope of Discovery

Most cases settle, and victory is not in the scathing cross, but in the tedious review of documents. Success is in the details, the expertly drafted interrogatories or request for records, and in the ingenious strategy to obtain the statement allegedly protected by privilege. For it is Discovery which we do. The motions, the papers, the depositions. This is the numbing, ditch digging work that determines the winner.”[1]

This expansive—and intrusive—approach to pre-trial discovery, followed in most American courts in civil cases, is remarkable and unusual. In most court systems around the world, the development of the case rests primarily in the hands of the judge. Even here, discovery is much more limited in criminal cases than it is under the civil rules.

THE RULES GIVETH: THE BASIC TEST OF RELEVANCE

The rules of discovery are powerful not only because they compel the production of evidence, but also because of the broad scope of the evidence that must be produced. The scope of discovery is governed by Rule 26(b)(1):

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

This provision, which allows parties to obtain virtually any information relevant to the claims or defenses raised in the case, seems about as broad as it could be. Interestingly, however, the scope of discovery under Rule 26(b)(1) used to be even broader: Until 2000, the standard allowed discovery of “any matter, not privileged, relevant to the subject matter involved in the pending action.” Under this broader language the Supreme Court had held that a party could discover

any matter that bears on, or that reasonably could lead to other matter involved that could bear on, any issue that is or may be in the case. . . . Consistently with the notice pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues.