We observed previously that “reasonably calculated” does not define scope of discovery, and it never has. Rather, discovery is limited, by the plain terms of F. R. Civ. P. 26, to “nonprivileged matter that is relevant to any party’s claim or defense . . . .” But even courts that are willing to read the rule are only halfway home, as a recent Kansas case, Kemp v. Hudgins, 2015 U.S. Dist. LEXIS 24994 (D. Kan. Mar. 2, 2015), demonstrates.

After correctly quoting the rule, the Kemp court added (emphasis supplied):

 “‘Discovery relevance is minimal relevance,’ which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). “Relevance is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action.” Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991).

This is incorrect. The cases cited, and countless others of the same import, trace back to Oppenheimer Fund v. Sanders, 437 U.S. 340 (1978), where the Court famously declared that discovery properly “encompasses ‘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.’” But the Court did so only because at that time the scope of discovery under Rule 26(b) was “‘relevant to the subject matter involved in the pending action. . . .’” Oppenheimer Fund v. Sanders, 437 U.S. 340, 350-351 (1978) (quoting Rule 26(b)) (emphasis supplied). And in the year 2000 Rule 26(b) was amended for the express purpose of limiting the scope of discovery – among other things, drawing a “dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action,” and making the latter discoverable only upon a showing of “good cause.” Read the entire Committee Notes on Rules—2000 Amendment and see all this – and more – for yourself.

Oppenheimer Fund is no longer the law on this point. It has not been the law for a decade and a half. Cases that cite Oppenheimer Fund on this point are no longer the law. Cases that cite cases that cite Oppenheimer Fund on this point – even ones decided last week — are no longer the law. Litigators that wish to protect their clients’ rights must assist courts with careful briefing on this point.