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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

THOMPSON, et al. Plaintiffs v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al. Defendants

: : : : CIVIL ACTION NO.:MJG-95-309

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MEMORANDUM AND ORDER

Plaintiffs are class representatives of African American residents of Baltimore's public housing developments. They filed suit in January, 1995 against the U.S. Department of Housing and Urban Development and its' secretary (the "federal defendants") and the Housing Authority of Baltimore City ("HABC"), its executive director and the Mayor and City Council of Baltimore (the "local defendants"). The class

action lawsuit alleged that the defendants and their predecessors, from 1933 through the present, established and perpetuated de jure racial segregation in Baltimore's public housing, in violation of the 5th, 13th, and 14th Amendments to the United States Constitution, as well as Title VI of the

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Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. Sections 1981, 1982, and 1983, the U.S. Housing Act of 1937 and the Housing and Community Development Act of 1974. Plaintiffs seek declaratory, injunctive, and

equitable relief, and attorneys' fees. In the spring of 1996, the parties entered into a partial consent decree that settled certain claims against the defendants. The decree is ambitious in its scope, and to

oversee its implementation a special master was appointed by the court. From the approval of the consent decree until the

middle of 2000, most of the attention of the parties has been devoted to its implementation. However, in mid-2000 the

plaintiffs initiated discovery against the defendants, and the undersigned was referred the case for resolution of discovery disputes. Pending is the motion by the plaintiffs to compel

the local defendants to provide responsive answers to Rule 33 and 34 discovery requests. Paper No. 233. The dispute is fully briefed,

No hearing is necessary, Local Rule 105.6.

Although counsel presented their dispute in a summarized chart format, that included a space for the court's ruling with respect to each of the disputed interrogatories and document production requests, a format that generally works well to expedite the resolution of differences regarding Rule 33 and

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34 discovery, the dispute presents issues of first impression regarding the December 1, 2000 changes to the Rules of Civil Procedure governing the scope of discovery. Because of the

likelihood of similar disputes, in other cases, regarding these same issues, a more formal ruling that discusses in more detail than appropriate for a summary ruling may be of assistance to counsel in this and other cases. For the reasons that follow, I am denying the plaintiffs' motion, without prejudice, and returning this dispute to the parties to meet, confer, and take the further action discussed below. DISCUSSION The July 1, 1970 changes to the Rules of Civil Procedure transformed Rule 26 from one governing only depositions, to a rule that regulated "the discovery obtainable through any of the discovery devices" listed in the rules. 26, 48 F.R.D. 457, 498. FED. R. CIV. P.

The "new" Rule 26 remained in place

until December 1, 2000, and established the scope of discovery broadly as follows: "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not

ground for objection that the information sought will be inadmissible at the trial if the information sought appears 3

reasonably calculated to lead to the discovery of admissible evidence." (Emphasis added). The 1993 changes to the

rules of procedure added provisions to Rule 26(b)(2) to: enable the court to keep tighter rein on the extent of discovery. The information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression. . . . The revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery . . . FED. R. CIV. P. 26, 146 F.R.D. 401, 638. changes, Rule 26(b)(2) stated: The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c) (Emphasis added). The combined effect of the changes to Rule 26(b)(1) and (2) was to create a procedural syllogism of sorts, which defined the contours of the scope of discovery. Under it, Following these

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facts were discoverable if:(1) relevant to the subject matter of the litigation; and (2) not privileged; and (3) if not themselves admissible, then reasonably calculated to lead to admissible evidence, UNLESS the court, sua sponte, or at the request of a party, determined that the discovery sought was: (a) unreasonably cumulative, duplicative, or obtainable from another more convenient, less burdensome or less expensive source; or (b) the party seeking the discovery had had sufficient opportunity by discovery in the pending action to obtain it; or, (c) following a costs-benefits analysis that balanced (i) the burden or expense associated with the requested discovery; (ii) the likely benefit to the requesting party of the challenged discovery; (iii) taking into account the following factors: (aa) the needs of the case; (bb) the amount in controversy, (cc) the parties resources, (dd) the importance of the issues at stake in the litigation, and (ee)the importance of the proposed discovery in resolving the issues, the court determined that the requested discovery should not be allowed. For purposes of applying the above test the definition of relevance in FED. R. EVID. 4011 was most helpful; Rule 26(b)(5)

FED. R. EVID. 401 defines relevant evidence as having any tendency to make a fact that is of consequence to the 5

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and Discovery Guidelines 5 and 9 of this court required that privileges be identified with particularity in order to justify a refusal to disclose requested information, and courts were quick to add that unparticularized claims of burden or expense were insufficient. Marens v. Carrabba's Italian Grill, Inc., 196 F.R.D. 35, 38-39 (D. Md 2000) (citations omitted). Moreover, application of the cost-

benefit factors identified in Rule 26(b)(2) enabled the court to allocate the costs of discovery between the parties, thereby, in appropriate cases, requiring a party seeking contested discovery to pay all or part of the expenses of obtaining it. Id. at 38.

Despite the obvious utility of the Rule 26(b)(2) factors in tailoring discovery to accommodate fair disclosure without imposing undue burden or expense, they have tended largely to be ignored by litigants, and, less frequently than desirable,

used by the courts, sua sponte, to manage discovery2. Instead, particularly with respect to disputes involving Rule 33 and Rule 34 discovery, the focus of the litigants tends to be the party seeking discovery's perceived "right" to all

litigation more or less probable than it otherwise would be. Court Rules, 192 F.R.D. 340, 390 "The [Advisory] Committee has been told repeatedly that courts have not implemented these [Rule 26(b)(2)] limitations with the vigor that was contemplated". 6
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information relating to the broad "subject matter" of the litigation, without any reflection as to the real usefulness of the information sought, or the burden or expense required to produce it, countered by the party resisting the discovery's unparticularized claims of burden, expense, irrelevance, and privilege. Further, despite the requirements

of Local Rule 104.7 and Discovery Guideline 1(d) of this court, the efforts of the litigants to resolve their disputes before seeking court intervention infrequently demonstrated that, during their discussions, the parties themselves attempted to evaluate the Rule 26(b)(2) factors to reach a common ground. The most recent revisions to the discovery rules imposed changes intended to reach lingering concerns about the overbreath and expense of discovery, and remind the courts and litigants of the fact that in determining what discovery should take place in a particular case, Rule 26(b)(1) is but the first step, necessarily followed by balancing the Rule 26(b)(2) factors. Accordingly, the December 1, 2000 changes

to Rule 26(b)(1) restricted the scope of discovery to unprivileged facts relevant to "the claim or defense of any party", unless the court determines that there is "good cause" to permit broader discovery relevant to the subject matter of

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the action, but not more directly connected to the particular claims and defenses. They additionally required that

discovery of inadmissible facts that appear reasonably calculated to lead to the discovery of admissible evidence also must be within the scope of permissible discovery. Furthermore, they emphasize that "all discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii)", the cost-benefit balancing factors. F.R.D. 340, 388-90. The commentary to the rule changes clarifies that the amendment to the scope of discovery provisions of Rule 26(b)(1) "is designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery", so that, if there is "an objection that discovery goes beyond material relevant to the parties' claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action." Id. at 389. It also See Court Rules, 192

emphasizes the desirability of courts more vigorously applying the Rule 26(b)(2) cost-benefit factors in determining allowable discovery. Id. at 390.

Although the rule changes do not specifically explain the

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difference in scope between discovery relevant to "claims and defenses" in the litigation, and discovery relevant to the "subject matter"3, it is clear that the former is intended to be narrower than the later, and that the broader discovery is only to be allowed for "good cause". Further, it seems clear

that the most valuable reference to use in implementing the new change in the scope of discovery is the pleadings that have been filed, as that is where the claims and defenses are stated. as: [a] variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product could be properly discoverable under the revised standard. Information about organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action. Commentary to Rule Changes, Court Rules, 192 F.R.D. 340, 389.
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However, the pleadings are only the starting place,

"The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision." Commentary to the rule changes, Court Rules, 192 F.R.D. 340, 389. 9

Thus, counsel should be forewarned against taking an overly rigid view of the narrowed scope of discovery. While

the pleadings will be important, it would be a mistake to argue that no fact may be discovered unless it directly correlates with a factual allegation in the complaint or answer. Such a restrictive approach would run counter to the

underlying purpose of the rule changes, as explained by the commentary, run afoul of FED. R. CIV. P. 1, and undoubtedly do disservice to the requirement of notice pleading in Rule 8, as parties would be encouraged to plead evidentiary facts, unnecessary to a "short and plain statement of the claim showing that the pleader is entitled to relief", Rule 8(a)(2), simply to increase the likelihood of getting broader discovery. It equally is clear, however, that the new rule

represents a change from the old version, and that, unless expanded by the court for good cause shown, it is intended that the scope of discovery be narrower than it was, in some meaningful way. Lest litigants and the court become consumed with the philosophical exercise of debating the difference between discovery relevant to the "claims and defenses" as opposed to the "subject mater" of the pending action-- the juridical equivalent to debating the number of angels that can dance on

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the head of a pin

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