Golden Oldie #4 – What Does it Mean to Limit Discovery to the “Claims and Defenses” Instead of the “Subject Matter” Involved in the Action?

Thompson v. HUD, 199 F.R.D. 168 (D. Md. 2001)(“Thompson I”), was a class action by Baltimore public housing residents.  Thompson I explained the 2000 change in the scope of discovery that remains in force, with some changes, today.[1]

Thompson I dealt in part with the December 2000 amendment to Fed.R.Civ.P. 26 which changed the scope of discovery from “any matter, not privileged, which is relevant to the subject matter involved in the pending action,” to unprivileged facts relevant to “the claim or defense of any party,” unless the court determines that there is “good cause” to permit broader discovery.[2]

The Thompson I Court wrote:

Although the rule changes do not specifically explain the difference in scope between discovery relevant to “claims and defenses” in the litigation, and discovery relevant to the “subject matter”, it is clear that the former is intended to be narrower than the later, and that the broader discovery is only to be allowed for “good cause”. Further, it seems clear that the most valuable reference to use in implementing the new change in the scope of discovery is the pleadings that have been filed, as that is where the claims and defenses are stated. However, the pleadings are only the starting place…. [Emphasis added].

Importantly, the Court noted that the dividing line between the two standards “cannot be defined with precision….” [citation omitted].

On the one hand, it wrote: “Thus, counsel should be forewarned against taking an overly rigid view of the narrowed scope of discovery. While the pleadings will be important, it would be a mistake to argue that no fact may be discovered unless it directly correlates with a factual allegation in the complaint or answer.”

On the other hand, the Thompson I Court noted: “It equally is clear, however, that the new rule represents a change from the old version, and that, unless expanded by the court for good cause shown,[3] it is intended that the scope of discovery be narrower than it was, in some meaningful way.”

The 2000 GAP Report to Rule 26(b)(1) explains that the change from “subject matter” discovery had been first proposed, and rejected, in 1978.  It wrote:

The Committee has heard that in some instances, particularly cases involving large quantities of discovery, parties seek to justify discovery requests that sweep far beyond the claims and defenses of the parties on the ground that they nevertheless have a bearing on the “subject matter” involved in the action….

The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action….  The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings. In general, it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial intervention. When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.

The Thompson I Court offered the following analysis:

Lest litigants and the court become consumed with the philosophical exercise of debating the difference between discovery relevant to the “claims and defenses” as opposed to the “subject matter” of the pending action—the juridical equivalent to debating the number of angels that can dance on the head of a pin—the practical solution to implementing the new rule changes may be to focus more on whether the requested discovery makes sense in light of the Rule 26(b)(2) factors,[4] than to attempt to divine some bright line difference between the old and new rule. Under this approach, when confronted with a difficult scope of discovery dispute, the parties themselves should confer, and discuss the Rule 26(b)(2) factors, in an effort to reach an acceptable compromise, or narrow the scope of their disagreement.

The Court suggested:

This means that the parties must set aside their differences as adversaries and make a good faith effort to reach common ground on the disputes. It strikes me that this case is a perfect example of how creative counsel can employ the phasing methods used by the Court in Marens to permit the plaintiffs to have access to some, but less than all, of the information they seek, with the understanding that if, following the initial, limited review, additional discovery would make sense under the Rule 26(b)(2) factors, it will be provided. Cost shifting or sharing also should be considered.

In my opinion, Thompson I stands for the proposition that “claims and defenses” discovery is narrower than “subject matter” of the action discovery, and the former is best defined by a review of the pleadings that is guided by proportionality considerations.

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[1] For a discussion of Thompson II, please  see the first blog in this series.

[2] This blog does not address the December 2015 amendments and Fed.R.Civ.P. 26(b)(1) now reads: “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 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, 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 within this scope of discovery need not be admissible in evidence to be discoverable.”  The “good cause” expansion was deleted.

[3] Id.

[4] The reference to Rule 26(b)(2) pre-dates the 2015 amendments.  See Fed.R.Civ.P. 26(b)(1).