2021 Discovery Order Offers Review of Discovery Principles for Practitioners
In an October 2021 order, the US District Court for the Eastern District of Arkansas (Judge Baker) required a party to address certain discovery issues related to a motion before the court. The opinion represents a thorough review of discovery principles and their application in litigation. It’s worth a read for all trial lawyers. Here are some nuggets:
“Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties 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 . . . .” Fed. R. Civ. P. 26(b)(1). The Rule is construed broadly to encompass “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)(construing the same language that appeared in a prior version of Rule 26); see alsoHofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence”). The spirit of Rule 26(a) is that discovery be self-effectuating, without need to resort to the Court, and that its scope be liberal, extending to all matters reasonably calculated to lead to admissible evidence. This standard is well-ensconced and is generally known and understood by civil practitioners. Hickman v. Taylor, 329 U.S. 495 (1947); Greyhound Lines, Inc. v. Miller, 402 F.2d 134 (8th Cir. 1968); Carlson Cos., Inc. v. Sperry and Hutchinson Co., 374 F. Supp. 1080, 1100 (D. Minn. 1974); National Organization for Women, Inc. (NOW), St. Paul Chapter v. Minnesota Min. & Mfg. Co., 73 F.R.D. 467 (D.C. Minn. 1977); see also Laker Airways Ltd. v. Pan American World Airways, 103 F.R.D. 22 (D.C. Cir. 1984).
“Discovery rules are to be broadly and liberally construed in order to
fulfill discovery’s purposes of providing both parties with ‘information essential to the proper
litigation of all relevant facts, to eliminate surprise, and to promote settlement.’” Rollscreen Co.
v. Pella Products, 145 F.R.D. 92, 94 (S.D. Iowa 1992); see also Davis v. Union Pacific R.R. Co.,
Case No. 4:07-cv-000521 BSM, 2008 WL 3992761, at *2 (E.D. Ark. 2008) (“A request
for discovery should be considered relevant if there is ‘any possibility’ that the information soughtmay be relevant to the claim or defense of any party.”); Moses v. Halstead, 236 F.R.D. 667, 671 (D. Kan. 2006) (same). Nevertheless, “there must be at least a ‘threshold showing of relevance’ before parties ‘are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.’” Kampfe v. Petsmart, Inc.,304 F.R.D. 554, 557 (N.D. Iowa 2015) (quoting Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992)).
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“Under the Ex Parte Young doctrine, a private party can sue a state officer in his official capacity to enjoin a prospective action that would violate federal law. In determining whether this exception applies, a court conducts “a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002) (alteration in original) (internal quotation omitted). Here, there is no dispute that the relief plaintiffs seek is prospective and that they have alleged Secretary Thurston, in his official capacity, is engaged in an ongoing violation of federal law. See 281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011).
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“Documents are “‘deemed to be within the ‘possession, custody, or control’. . . if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand.’” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000) (quoting In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)); see also In re Hallmark Cap. Corp., 534 F. Supp. 2d 981, 982 (D. Minn. 2008).
“[C]ontrol is defined as ‘the legal right, authority, or ability to obtain upon demand
documents in the possession of another.’” Id. (internal citation omitted). Because courts also
require production if the party has the practical ability to obtain the documents from another
“irrespective of his legal entitlement to the documents,” “‘control’ does not require that the party
have legal ownership or actual physical possession of the documents at issue; rather documents
are considered to be under a party’s control when that party has the right, authority, or practical
ability to obtain the documents from a non-party to the action.” Id. (citations omitted). Applying
the concept of “control” is “often highly fact-specific.” 8A Wright, Miller & Marcus, Federal
Practice and Procedure § 2210, at p. 397 (2d ed. 1994).
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The court then orders the non-movant to produce a privilege log:
“[F]or each document withheld, disclose a description of the document with as much specificity as is practicable without disclosing its contents, including:
(a) the general nature of the document;
(b) the identity and position of its author;
(c) the date it was written;
(d) the identity and position of its addressee;
(e) the identities and positions of all persons who were given or have received
copies of it and the dates copies were received by them;
(f) the document’s present location and the identity and position of its custodian;
(g) the specific request for production or requests for production to which Secretary
Thurston maintains the document is responsive; and
(h) the specific reason or reasons why it has been withheld from production or
See Doe v. Nebraska, 788 F. Supp. 2d at 983–87 (explaining this practice in relation to privilege
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“A party claiming requests are unduly burdensome cannot make conclusory allegations, but the party must provide some evidence regarding the time or expense required. See Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002).
The court then addresses specific discovery requests involved in the case.
Read the Order by clicking here.
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