Defining the extent of discovery for an ediscovery matter
Scope describes the extent of discovery that the parties — sometimes with the court’s intervention — agree to produce in a case. Scope is generally defined by Federal Rule of Civil Procedure 26(b)(1). It states, “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.” Note that scope has nothing to do with whether information would be admissible in court; much that is within the scope of discovery is not admissible as evidence.
Relevance, proportionality, and lack of privilege are thus the explicit limits on scope. From there, though, scope is a flexible standard. It is defined by the parties to a case and describes what they expect to obtain in discovery. Because most of discovery now involves electronically stored information (ESI), a well-defined scope typically describes specific data types, sources, and formats. Scope may also encompass specific custodians.
This level of detail requires an individualized assessment that depends in large part on the resources of the parties and the complexity of the issues raised in the case. Consider the difference in discovery between a slip-and-fall case against a local corner market and an employment discrimination claim against a major nationwide retail chain.
Determining the scope of discovery in any case is an active process. This explains why scope is often referred to as a verb: scoping a case means actively delineating what data types and sources should be explored. The scope of a case is subject to change as the case develops and more information is gained.
Under Rule 26(f) of the Federal Rules of Civil Procedure, the parties must meet “as soon as practicable” to discuss the case. As part of that Rule 26(f) conference, the parties must “develop a proposed discovery plan.” This “meet and confer” represents a critical opportunity for parties to define and control the scope of a case.
To avoid squandering the opportunity, parties should define their desired scope ahead of time. That advance preparation calls first for analyzing the complaint, evaluating both the causes of action and potential defenses. With those legal and factual issues in mind, a party can identify the types of information that might exist to prove (or disprove) each element. Investigating potential custodians, data types, data sources, and data formats is another key element of scoping. That information can be used to propose keywords, scope limitations, and timeframes for production.
Scoping is a team effort that should involve in-house and outside counsel as well as the IT department, key custodians, and any ediscovery vendors that the party will use. When the litigants cannot agree on the appropriate scope of a case, the court can intervene to set binding limits as to what is — and isn’t — discoverable.
Finally, note that scoping is only a preliminary step in the discovery process. Information that has been determined to be within the potential scope of discovery should be preserved for later stages.
Scope is the extent of discovery that parties agree to provide in a case. The general scope of discovery under Federal Rule of Civil Procedure 26(b)(1) includes information that is relevant, nonprivileged, and proportional. Beyond that, an individual case’s scope is determined based on the needs of the case, the abilities of the parties, and the types of data available. Parties should be prepared to negotiate the case’s scope during a Rule 26(f) conference.