For over a hundred years Americans have enjoyed Josh Billing’s chestnut, “I’d rather not know so much, than to know so much that ain’t so.” For nearly seventy years, American lawyers have known one big thing that ain’t so: “information is discoverable if it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’” This particular expression of error is from the Fifth Circuit, In re Leblanc, 559 Fed. Appx. 389, 392 (5th Cir. 2014), but it hardly seems fair to single out this court; the reporters are chock full of similar, equally-erroneous statements.
Who says it’s error? Rule 26, to begin with. Read it for yourself, carefully, as if for the first time. You’ll see that the “reasonably calculated” formula has one function, and one function only: to provide the criteria for determining whether “relevant” evidence is discoverable in the face of a particular objection, to wit, that it would be inadmissible at trial. Put another way, if the document or information sought is not “relevant,” it is not discoverable. Period. Even if it does “appea[r] reasonably calculated to lead to the discovery of admissible evidence.”
Need better authority? How about the Advisory Committee on Civil Rules? Explaining its now-pending proposal to eliminate the “reasonably calculated” sentence, which has been in place since 1948, the Committee declared (emphasis supplied): “the sentence has never been intended to define the scope of discovery. It is merely a ban on admissibility-based refusals to provide relevant discovery.”
The proposal is likely to take effect this December; an excellent analysis can be found here. But you don’t have to wait. On the authority of the Advisory Committee (and the Rule itself) you can start basing your discovery responses on the correct legal standard, rather than the one that, despite what everyone knows, just ain’t so.Robert ("Bob") M. Frey