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The Scope of Discovery

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The Advisory Committee on the Civil Rules recommended the somewhat narrower “relevant to any party’s claim or defense” language in an effort to rein in excessive discovery at the outer bounds of relevance. Under this revised provision, discovery will be limited to the issues framed by the parties’ pleadings. However, while the rule may be narrower than the anything-goes standard of the prior rule, it is still extremely broad.[2]

While the presumptive reach of discovery is broad under Rule 26(b)(1), information is not automatically subject to production if it meets the broad relevance standard. Rule 26 provides that relevant information is discoverable unless “otherwise limited by court order.” A party who receives a discovery request may seek a “protective order” from the court limiting discovery even of information clearly within the relevance standard in Rule 26(b)(1)—“to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The court may enter a protective order limiting discovery for various reasons, including the burden and expense of producing the information, the potential for revealing intimate facts that should remain private, the potential for use of discovery to annoy or intimidate an opponent, to protect proprietary business information, or for other reasons.


Although Rule 26 creates a broad presumption in favor of discovery of all relevant evidence, it also taketh away through several important exceptions to discovery. Rule 26(b)(1) itself limits discovery to information that is “nonprivileged.” Courts have long recognized that some evidence, even though relevant to litigation, should be protected from disclosure in a lawsuit. Despite the general principle that “the law is entitled to every person’s evidence,” courts have created privileges where some policy favoring confidentiality is judged to be more compelling than access to the evidence. “Their warrant is the protection of interests and relationships that, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.” McCormick on Evidence (6th ed. 2006), §72, p. 339.

The classic example is the attorney-client privilege, which bars inquiry into communications between a client and her counsel in the course of legal representation. The rationale for the privilege is that effective representation requires full and frank communication between lawyer and client. See Upjohn v. United States, 449 U.S. 383, 389 (1981). Such communication would be inhibited if opposing counsel could essentially “listen in” on these communications by asking about them at trial—or in discovery. If Murrow sends an interrogatory to Pyle, asking him whether he admitted to his lawyer that he ran the red light at the time of the accident, Pyle’s counsel may respond “The defendant objects to Interrogatory #7 on the ground that the requested information is protected by the attorney-client privilege.” Although Pyle’s conversations with his lawyer about the accident are relevant to Murrow’s claim under the broad standard in Rule 26(b)(1), the policy of confidentiality underlying the attorney-client privilege is deemed to outweigh the opponent’s need for this information.

[2]. Clearly, the rule makers intended the new standard to be more restrictive: The second sentence of the new rule allows the court to expand discovery to the reach of the old standard where necessary. There would be no point to this provision if there were no difference in the two standards.

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