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“Reasonable calculated”: Confusion Over the Scope of Discovery

By Matthew C. Perushek


I practice personal-injury law. The scope of discovery—specifically as it relates to the plaintiff’s medical history—is the subject of frequent contention in cases. It is axiomatic that a plaintiff’s health is relevant in a personal-injury case. But where is the line drawn? Is your entire medical history discoverable? Or is the defense only permitted to discover past treatment similar to that claimed in the lawsuit? Defense attorneys, of course, argue for the broadest interpretation. To achieve that end, they attempt to expand the scope of discovery beyond that which is actually stated in the Rules.


The Rules define the scope of discovery as follows: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Rule 4:1(b)(1). This is the complete standard stated in the Rules. The scope of discovery is relevance; nothing more, and nothing less.


Here is where the expansion comes into play: Attorneys argue that the scope allows discovery that is “reasonably calculated” to lead to the discovery of admissible evidence. The problem, however, is that there is no authority to support this argument. After limiting the scope of discovery to relevance, Rule 4:1(b)(1) states, “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”


The “reasonably calculated” language does not modify the scope of discovery; instead, it limits when a party can object on the grounds that the information sought will be inadmissible at trial.


Here is an example of why the distinction is important: In a personal-injury case, is the plaintiff’s OBGYN treatment relevant (i.e., does it tend to prove or disprove any material issue in the case)? Probably not. But is the OBGYN treatment reasonably calculated to lead to admissible evidence? Probably yes; it is possible that there is something admissible, which makes it reasonably calculated (or so the defense attorney’s argument goes). If the attorneys or the Court apply the “reasonably calculated” standard, the defense attorney now gets to dig through the plaintiff’s OBGYN records.


Under the Federal Rules, the scope of discovery is relevance. See Fed. R. Civ. P. 26(b)(1). Federal Rule 26 previously contained a version of the “reasonable calculated” language. Id. In 2015, Federal Rule 26 was amended to remove the “reasonably calculated” language. The Advisory Committee’s Notes explained the reasoning:


  The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” . . . The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments.


Id. at Advisory Committee Notes on 2015 Amendments (emphasis added).


The Supreme Court of Virginia should consider taking similar action and removing the “reasonably calculated” language from the Virginia Rules. It certainly causes problems among personal-injury attorneys, but I suspect the problem applies to many other areas of practice (if not all). Until any formal change happens, it is the duty of young lawyers across the Commonwealth to know the correct standard and apply it appropriately when handling discovery and discovery disputes.


Matthew Perushek is an associate attorney at Sickels, Frei & Mims, L.L.P., where he practices personal injury law. He is the current President of the Fairfax Bar Association’s Young Lawyers Section, and he is the Fifth District Representative of the Virginia State Bar’s Young Lawyers Conference. He can be reached at matthew.perushek at