In today’s post, I’m going to try and explain the concept of Discovery in civil cases and what the boundaries or scope of that discovery is. I’ll use some examples from California law as well as New York law and also some tidbits from federal law as well. Depending on the court that your case is in (for instance, California Superior Court versus US District Court), one set of rules and laws will apply, but not the other.
Be forewarned, though, that the topic of civil discovery can get very, very, very complicated. Lots of specific requirements apply. It can absolutely get very frustrating. It’s similar to how taxes work and why, for instance, certain tax rules make no logical sense when compared to the real world. The vast majority of people, of course, just follow the rules when it comes to taxes and don’t bother worrying about why tax rules are the way they are. When it comes to discovery, in my opinion, a lot of these complexities are unnecessary and the whole discovery process could be made easier and more efficient without prejudice or harm to any litigant. However, it’s not up to me — at least not yet — and instead it depends on the whims and fancies of politicians and legislatures. It is what it is.
Having said that, let me start with a basic definition of what “discovery” actually is: it’s the process in litigation where the various parties can seek or obtain evidence or facts that are relevant to the case. As the adage goes, each party puts all of their cards on the proverbial table. Discovery can occur in both civil cases and criminal cases.
The idea is that any legal dispute should ultimately depend on the facts and the evidence. If all the parties have equal access to all of the relevant facts and evidence, then the truth is more likely to become apparent earlier. The dispute is, therefore, more likely to resolve earlier with each party likely to save time and expense. To contrast, suppose that transparency or equal access to evidence was not required or was heavily-discouraged. The dispute is likely to last longer because each party is likely to be operating at least somewhat in the dark. The party knows their own evidence, but has no idea what evidence the other parties have. Or, worse yet, a party is completely mistaken about what evidence the other party has and engages in a prolonged and expensive futile fight on a case that could never have been won. Each party is likely to waste considerable time and expense.
The complexity and inefficiency I mentioned earlier arises because of the manner in which evidence and facts can be obtained. Depending on what the evidence is, a party might not be able to obtain it at all or might be absolutely entitled to it, but only under certain circumstances. Even then, there could be tons of additional rules about how that evidence has to be requested and the timeline on which that evidence has to be provided and the format in which it has to be provided. Again, there is tremendous potential for frustration.
Scope of Civil Discovery
One preliminary aspect to understand about civil discovery is its scope. In other words, what can be obtained or sought in civil discovery? There is no single universal answer to this. It’s going to depend on the laws that apply to your particular case. As you can hopefully see, though, there are similarities.
California
For instance, in California state court, the scope of civil discovery is described in California Code of Civil Procedure section 2017.010 as:
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”
The part that I’ve bolded and underlined is what most California lawyers I know carry out as a rule of thumb for the scope of civil discovery, namely “any matter, not privileged, that is relevant to the subject matter involved in the pending action“. This is just for simplicity-sake, of course. As with every rule of thumb, you have to dive in to the details — in other words, research the applicable law thoroughly — before you act on it. Also, in a prior post, I defined what relevancy is under California law so take a look at that if you need to. I also have a similar post that goes over the meaning of relevancy under New York law and Federal law.
New York
In New York state court, the scope of civil discovery is defined in New York Civil Practice Law and Rules section 3101(a) which says:
“There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof…”
Section 3101(a) then lists out various categories of persons who have to provide this “full disclosure”. In California, there is a limitation that civil discovery can only be on matter that is “not privileged”. New York has a similar exclusion, but it’s enumerated in a separate section, namely Section 3101(b) of the Civil Practice Law and Rules, which states:
“Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.”
Section 3101(c) describes a similar exclusion for an Attorney’s work product.
If you compare the New York rule on scope to the California rule, you should hopefully see several high-level similarities. As always, of course, you can’t ignore the details. For instance, in California, the standard is “relevant to the subject matter”. In New York, though, the analogous standard is “material and necessary”. It is by no means a guarantee that these two standards would be the same in all instances.
Federal
If your case is in federal court, then neither New York law or California law applies. Instead, the law that applies is described in the Federal Rules of Civil Procedure. The scope of civil discovery is specifically mentioned in FRCP Rule 26(b)(1), which states:
“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.”
Like before, the part I bolded and underlined is the rule of thumb the majority of lawyers I know keep in mind. The federal rule is similar to California’s rule in that the two main criteria are that the evidence being sought is “nonprivileged” and “relevant”. The FRCP, however, adds an additional requirement that the discovery must be “proportional to the needs of the case”. The rule than goes on to describe various factors — for instance, the amount in controversy and the resources of each party — that can be considered in determining what is and is not “proportional to the needs of the case”.
If you’ve read this far, thanks. As always, this post was not intended to be a comprehensive discussion, but rather to be a superficial or cursory overview. If you have a case where the scope of civil discovery is or will be super-important, please research the law thoroughly before proceeding. This can include hiring an attorney for a short time (e.g. an hour) to discuss the details that might apply to your particular situation. If your case is in New York, please remember that although I have been licensed to practice law in New York since 2012, I do not maintain an office in New York as of the date of this post. Under Judiciary Law Section 470, therefore, I can’t actually represent clients in New York cases.
Good luck!
Andy Chen
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