When will a court impose limitations on discovery pursuant to Federal Rule of Civil Procedure 26(b)(1)?

How Far Can Discovery Really Go? Relevance and scope limitations on discovery in light of the Cosby litigation

Author: Nick Plinio

Case Citations: Green v. Cosby, 192 F. Supp __ (D.Mass 2017); Green v. Cosby, 2017 U.S. Dist. LEXIS 55229 (D.Mass 2017)

Employee/Personnel/Employer Implicated: Plaintiff’s Counsel, Owner of Stenograph Services Company, District Court Judge

eLesson Learned: While documents might be more accessible in the age of e-discovery, under Federal Rule of Civil Procedure 26(b)(1) courts can and will quickly curtail requests for information that is irrelevant or does not relate to the claims or defenses in the case.

Tweet This: Avoid the temptation, litigators! Just because a party might have thousands of documents stored electronically doesn’t mean a court will let you request them all. See Green v. Cosby (2017)

In a line of cases infamous for bringing a wave of sexual assault litigation to Hollywood, I bet you didn’t think civil procedure would be the blog-worthy topic. Well, think again. Green v. Cosby, No. 3:14-cv-30211 (D. Mass. April 11, 2017), spawned from Constand v. Cosby, the 2005 case which accused comedian Bill Cosby of sexual assault, highlights the pitfalls of over-extensive discovery under Federal Rule of Civil Procedure 26. For litigators everywhere, especially in today’s world of mass e-discovery, Green can teach a lesson in seeking only relevant information.


In 2005, Cosby gave a deposition in connection with the Constand case, stenographically recorded by KLW. Parts of this deposition were filed under seal with the court as exhibits. In 2006, the Constand case eventually settled and dismissed. 

When the Green action commenced in 2015, Judge Robreno of the Massachusetts District Court ordered the 2005 exhibits unsealed as Cosby allegedly made damaging admissions during the deposition. Plaintiff’s counsel thereafter received a full transcript of the 2005 deposition–this is where the major procedural issue arose. Apparently, the owner of KLW independently determined that Judge Robreno’s unsealing order meant the entire deposition could be released, as opposed to only the portions filed under seal as exhibits in the Constand case. The result of this interpretation was to send copies of Cosby’s full deposition transcript not only to Plaintiff’s counsel but to numerous other outlets as well. 

In early 2016, Cosby attempted to file a lawsuit against AMI, the company who hired KLW for the stenograph services, and Constand’s counsel, KLW and Constand’s lawyers acted improperly by disclosing or failing to prevent the disclosure of confidential information contained in the deposition as mandated in the Constand settlement agreement. This action was dismissed. 

In the Green case, the claims and defenses of both parties center on defamation, invasion of privacy, intentional infliction of emotional distress, and tortious interference. However, Cosby issued a subpoena—presumably to “backdoor” in the claims from his failed action against AMI and Constand’s attorneys—which called for corporate testimony from KLW on numerous subjects including the circumstances surrounding the release of the 2005 deposition as well as the production of thirteen different categories of documents.         

Federal Rule of Civil Procedure 26

FRCP 26(b)(2)(C)(iii) limits the frequency and extent of discovery allowed under the rules if a court determines that the proposed discovery is outside the scope permitted by Rule 26(b)(1).[i]  Rule 26(b)(1) provides that

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, considering the importance of the issues at stake in the action, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense or the proposed discovery outweighs its likely benefit.[ii]

Evidence is relevant if it “moves the needle,” so to speak, toward making something more or less likely to have occurred. 

The Holding

The court in Green held that Cosby’s subpoena exceeded the scope of 26(b)(1) because the basis of KLW’s decision to release the full Cosby deposition was not relevant to any of the claims or defenses in the case. Though the subpoena may have been relevant to Cosby’s earlier action against AMI, that action had long been dismissed.

Cosby attempted to assert that his subpoena was relevant to showing that KLW engaged in misconduct, which the court may remedy pursuant to its equitable power.[iii] However, the court disposed of this argument reasoning that an affidavit filed by KLW sufficiently “allay[ed] any concerns . . . regarding alleged misconduct.”[iv] In the affidavit, KLW insisted that the decision to release the transcript was made independent of anyone outside the organization. Further, upon learning that the release of the full transcript was in dispute, KLW immediately sought guidance from Judge Robreno. Finally, even if the full deposition had not been released by KLW, Green’s counsel would have later obtained it in the ordinary course of discovery anyway.

E-Discovery and Litigation Takeaways

In the age of E-Discovery and mass-document production, concerns of relevancy and the allowable scope of discovery are hot-button issues. With computers, the internet, and various cloud services, lawyers can store and share thousands of documents at the press of a button. This, however, does not mean that courts will allow requests for irrelevant information just because a party might be able to produce it. Green is just one of many cases that highlight what can happen when parties to litigation try to go on a “wild goose chase” for information in the hundreds of thousands of files another party may have retained on its servers. As a general rule, if the information sought is not relevant to the claims or defenses asserted in the litigation, a court is not going to permit the discovery simply because it could revel some other prospective allegation (e.g. the misconduct by Constand’s lawyers and KLW).

Green gives us another key takeaway: courts may be willing to give parties some leigh way when they make a mistake in their disclosure obligations if the party takes the necessary steps to correct the error. In Green, KLW was able to prove that it inadvertently released more than was required by the initial unsealing order because it attempted to remedy the situation by means apparently satisfactory to the court. As such, while litigators should always ensure that the services they use to store or collect documents/information correctly comply with court orders, an “over-inclusive” disclosure may not be fatal if concerns of misconduct can be reasonably dispelled. 

Nick is a Seton Hall University School of Law student (Class of 2018), focuses his studies in the areas of general litigation, labor, employment, and sports law.

[i] See Fed. R. Civ. P. 26(b)(2)(C)(iii).

[ii] Fed. R. Civ. P. 26(b)(1).

[iii] “[A] court may, within its discretion, exercise its inherent “equitable powers . . . over [its] own process, to prevent abuse, oppression, and injustice.” Green v. Cosby, No. 3:14-cv-30211-MGM, 2017 U.S. Dist. LEXIS 55229, at *9 (D. Mass. Apr. 11, 2017) (quoting Gumbel v. Pitkin, 124 U.S. 131, 145-46, 8 S. Ct. 379, 31 L. Ed. 374 (1888)).

[iv] Green v. Cosby, No. 3:14-cv-30211-MGM, 2017 U.S. Dist. LEXIS 55229, at *9 (D. Mass. Apr. 11, 2017)

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