Reining in Meta-Discovery: An Expert Perspective on the FRCP

It’s hard to break habits—especially bad ones. And one common habit, in the eyes of many a bad habit, in e-discovery is the tendency to indulge in meta-discovery, or discovery about discovery.

Discussing Hon. David Campbell’s In re Bard IVC Filters Products Liability Litigation (D. Ariz. September 16, 2016) ruling, Judge John Facciola explains, “lawyers and judges seemed to believe that permission granted by former Rule 26 to seek the discovery of inadmissible evidence if it ‘appears reasonably calculated to lead to the discovery of admissible evidence,’ meant that the standard for discovery was not relevance to a claim or defense but the right to seek any discovery that ‘appears reasonably to lead to the discovery of admissible evidence.’”

While that quote requires a fair bit of mental gymnastics to unpack, it’s fair to say that (mis)interpretations of that ruling increasingly led to self-referential discovery processes far removed from the original stated purpose of the FRCP—namely the “just, speedy, and inexpensive” resolutions of civil disputes.

Recently, practically minded judges have been using the amended language of Rule 26 to rein in this tendency toward meta-discovery. Judge Facciola notes, “Now the only standard is a far simpler one: is the evidence sought to be discovered relevant to a claim or defense, and, even if it is, is it proportionate to the needs of the case?” Two years on from the amendments, proportionality has traction with the courts. Judge Facciola concludes, “Judge Campbell’s In re Bard decision is being frequently cited by courts who now discuss with precision the scope of discovery as now defined by amended Rule 26. To his delight, those old habits seem to be finally dying.”

If you’d like to dig deeper into the case law behind the pushback against meta-discovery, download our case law white paper, No More Diminishing Returns.