A new definition of relevance in US eDiscovery?

The US may be about to see a change to the Federal Rules of Civil Procedure which brings their rules about the scope of discovery / disclosure closer to those which have obtained in England and Wales since 1999. If our experience is anything to go by, the wording will need reinforcement by judicial control.

Those of us who get excited about the crossover between law and technology perhaps seem a rather sad bunch to those with wider interests. If Ralph Losey and I have difficulty in persuading you that a new definition of relevance in the US discovery rules is exciting, that may be because the contribution which the present wide US definition makes to overbroad discovery has become lost in debates about other things – about preservation and legal hold, about the proper place for sanctions in controlling misbehaviour, and in the much more interesting subject of search technology. Nevertheless, I am entirely with Ralph with his excitement about the possibility of a new definition of relevance in the US.

This is, in fact, only one of the subjects he covers in his article Georgetown Part Two: New Rules Are Coming! For the purposes of this article I will skip over his sections dealing with judicial wish lists, with possible revisions to Rule 37(e) which covers the “safe harbor” from sanctions given in respect of documents deleted as part of a business process, and with wider considerations about preservation, and will stick to what he says about relevance.

Ralph refers to a proposal which will change the definition of relevance from this:

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—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. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

to this:

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 stake 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 [within this scope of discovery]{sought} need not be admissible in evidence to be discoverable. [The italics are mine]

This requires the scope of discovery to be qualified by the words “proportional to the needs of the case…” The provision that relevant information “need not be admissible in evidence” is itself qualified by the reference to proportionality.

The Civil Procedure Rules of England and Wales did away with relevance and train of inquiry discovery in 1999 – if you want train of inquiry disclosure now, you have to make out the case for it, and the hurdle is a high one. The old test of relevance was replaced with the very much narrower Standard Disclosure which is set out in Rule 31.6 CPR as follows:

“Standard disclosure requires a party to disclose only –

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.”

The language in the proposed new US rule about “the amount in controversy” etc parallels the UK’s overriding objective and appears also as limitations round our definition of the scope of search. Lastly, the reference to “whether the burden or expense of the proposed discovery outweighs its likely benefit” is language similar to a passage in the UK CPR which requires case managing judges to make that same balancing exercise in almost identical terms.

You do not need to have read the UK rules to arrive at the proposed new wording as a sensible set of constraints around the hitherto unrestricted definition of “relevant”, but I like to think that the spirit of the UK rules has had some influence in the drafting of the proposed new wording.

The history of the change in the English rules from the old relevance test to the CPR 31.6 definition set out above may foreshadow what is likely to under the proposed new US rule. For a long time after the change, and even now in rather too many cases, lawyers continue to behave as the test were relevance instead of the more restrictive test which actually applies. This is true not only of those who seek disclosure (whom one might expect to want to expand the scope of disclosure) but also from those giving it, because they find it easier and cheaper to dispense with the discrimination which is necessary to meet the new test. Old habits die hard, and we can expect to see US lawyers carrying on as if the rule had not changed. One for the rising generation of “activist judges” perhaps.

Disputes about the scope of disclosure usually relate to large categories, but in a UK case called Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011), Rule 31.6 was closely analysed in relation to a single document which the Claimant very much wanted to see.

After setting out Rule 31.6 as above, the Court of Appeal said this at paragraph 25:

It is notable that the word “relevant” does not appear in the rule. Moreover the obligation to make standard disclosure is confined “only” to the listed categories of document. While it may be convenient to use “relevant” as a shorthand for documents that must be disclosed, in cases of dispute it is important to stick with the carefully chosen wording of the rule. Thus in my judgment the first of the questions ventilated before the judge was not quite the right question.

We might expect similar close analysis of the precise wording of the new US wording as and when it passes into the rules.

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