Scope of Discovery
The scope of discovery has three gates, and a piece of information has to clear all three.
13. Scope of Discovery
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and that is proportional to the needs of the case.
- The purpose of discovery is to help narrow the issues for trial and facilitate ending the litigation through settlement or summary judgment. Those purposes support broad discovery.
- The complaint and answer define the parameters of permissible discovery: any matter relevant to a claim, defense, [or damages] is subject to discovery.
- Privilege rules apply to discovery. Parties may not obtain privileged materials. [Parties that claim privilege, however, must describe the nature of withheld materials in a privilege log.]
- The rules impose a limit of “proportionality” on discovery based on:
- The importance of issues at stake in the litigation,
- The amount in controversy,
- The parties’ relative access to information,
- The parties’ resources,
- The importance of discovery in resolving the issues, and
- Whether the burden of the proposed discovery outweighs its likely benefit. This proportionality limit seeks to avoid unduly burdensome discovery and control the costs of discovery.
The scope of discovery has three gates, and a piece of information has to clear all three: it must be relevant to a claim or defense, proportional to the needs of the case, and nonprivileged.
- 1Relevant to some party's claim or defense. The pleadings set that boundary: the complaint and the answer define what matters, so any matter relevant to a claim, a defense, or damages is fair game.
- 2Proportional to the needs of the case. The point of the proportionality limit is to avoid unduly burdensome discovery and to control its costs.
- 3Nonprivileged. A party may not obtain privileged materials at all. But a party that withholds materials on a claim of privilege must describe the nature of the withheld materials in a privilege log.
Proportionality is measured by a fixed set of factors: the importance of the issues at stake, the amount in controversy, the parties' relative access to the information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden of the discovery outweighs its likely benefit. Those are the factors.
Relevance for discovery is broad and is set by the pleadings. The purpose of discovery is to narrow the issues for trial and to push the case toward settlement or summary judgment, and those purposes support broad discovery.
The amount in controversy shows up in this concept only as one of the proportionality factors. It is not a dollar threshold a case has to meet before discovery is allowed.
The jurisdictional amount-in-controversy requirement is a separate diversity device; it has nothing to do with whether a given request is within the scope of discovery.
Three gates: relevant to a claim or defense, proportional to the needs of the case, and nonprivileged.
Miss any one and the request is outside the scope.
The pleadings (complaint and answer) set relevance; the six listed factors set proportionality; privilege removes a matter entirely, but the withholding party must still log it.
Watch the amount in controversy. Here it is only one proportionality factor, never a dollar threshold discovery has to clear. If an answer treats it as a jurisdictional minimum, eliminate it.
Privilege is a hard no on production, but a soft yes on disclosure: you cannot get the privileged thing, yet the other side must describe what it withheld in a privilege log.
A former employee sues a company for wrongful termination. During discovery, the employee asks for the company's internal personnel records about how it handled comparable terminations. The company objects, arguing the records will not be admissible at trial and that the amount the employee seeks is small.
The records are within the scope of discovery. The amount in controversy is weighed as one proportionality factor; it is not a dollar threshold the case must clear, and the records do not have to be admissible to be discoverable.
An option that treats the amount in controversy as a jurisdictional dollar threshold a request must clear, or that imports the diversity amount-in-controversy requirement into the scope-of-discovery question.
Here the amount in controversy is one of the listed proportionality factors only. The jurisdictional amount-in-controversy requirement is a separate diversity device, independent of whether a request is within the scope of discovery.An option that turns on whether the requested material would be admissible at trial, or that it would not by itself prove the claim.
Admissibility at trial is not the scope test. The scope is relevance to a claim or defense plus proportionality plus nonprivileged status; relevant, proportional, nonprivileged matter is discoverable even if inadmissible.An option that adds a proportionality factor not on the list, drops the relevance or privilege requirement, or treats nonprivileged status alone as enough.
The requirements are relevance to a claim or defense, proportionality measured by the six listed factors, and nonprivileged status. The six factors are the stated set, and all three gates must be cleared.An option that reaches the correct outcome but rests it on the wrong ground, for example calling the material admissible, or invoking proportionality where privilege controls.
Name the operative ground. Within scope means relevant to a claim or defense and proportional and nonprivileged; out of scope for privilege is decided by privilege, not by proportionality or admissibility.An absolute option, such as a party may obtain any matter at all, or any business records, or that privilege never limits discovery.
Discovery reaches only nonprivileged matter relevant to a claim or defense and proportional to the needs of the case. Privileged materials may not be obtained.the stem hands you a discovery request and an objection, and asks whether the material is within the scope of discovery.
Run the three gates in order.
Is it relevant to a claim or defense, as framed by the complaint and answer?
Is it proportional to the needs of the case under the six listed factors?
Is it nonprivileged?
If all three are yes, it is within the scope.
Watch for two planted distractors: an answer that treats the amount in controversy as a jurisdictional dollar threshold rather than one proportionality factor, and an answer that turns on trial admissibility, which is not the test.
If a matter is privileged, it is out of scope entirely, but the withholding party must still describe it in a privilege log.
A former employee sued a manufacturer for wrongful termination. During discovery, the employee requested the manufacturer's internal personnel files showing how it had handled comparable terminations, material directly bearing on the wrongful-termination claim and unavailable to the employee from any other source. The manufacturer objected that the dollar amount the employee was seeking was modest and fell below the figure ordinarily required to bring a federal case based on the parties being from different states.
Is the requested material within the scope of discovery?
A plaintiff sued a contractor over a defective roof. The plaintiff requested the contractor's records of complaints about similar roofs the contractor had installed, material relevant to the plaintiff's claim and reasonable in scope given the needs of the case. The records are not privileged. The contractor objected that the complaint records would not themselves be admissible as evidence at trial.
Is the requested material within the scope of discovery?
A defendant company withheld a set of documents in response to a discovery request, asserting that the documents are privileged. The requesting plaintiff did not contest that the documents are in fact privileged, but complained that the company refused to say anything at all about what it was withholding.
Which statement best describes the company's obligations as to the privileged documents?
A plaintiff served a broad set of discovery requests on a defendant company, and the company objected that the requests were not proportional to the needs of the case. The court considered the importance of the issues at stake, the amount in controversy, the parties' relative access to the information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden of the proposed discovery would outweigh its likely benefit.
Did the court rely on the correct considerations in assessing proportionality?
A plaintiff sued a defendant company for breach of a single supply contract. The plaintiff then requested discovery of the company's pricing on unrelated contracts with other customers, contracts that have nothing to do with the agreement at issue and are not mentioned in the complaint or the answer. The company objected that the request sought matter outside the scope of discovery.
Is the requested material within the scope of discovery?