Legal Memorandum: Discovery to Develop Unpleaded Claims

Issue: Whether discovery may be permitted to develop unpleaded claims.

Party-controlled discovery does not entitle a party to discovery to develop new claims that are not already set forth in the pleadings.  6 Moore’s Federal Practice §26.41[a], at 26-152; see Rule 26(b)(1) advisory committee’s note to 2000 amendments (hereinafter “Rule 26(b)(1) committee note”) (“the amendments describe the scope of party-controlled discovery in terms of matter relevant to the claim or defense of any party”).  The second category permits a court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action.  “The 2000 Amendments thus narrowed the scope of discovery available without a court order.”  6 Moore’s Federal Practice § 26.41[1], at 26-152 (emphasis added); see Rule 26(b)(1) committee note.  Although the amended Rule 26(b)(1) still provides for broad discovery, courts should not grant discovery requests based on pure speculation as to what the facts might be, especially when admissions already establish what the facts actually are.  Permitting discovery in such a situation is “nothing more than a fishing expedition into actions . . . not related to the alleged claims or defenses.”  Collins v. City of N.Y., 222 F.R.D. 249, 253 (S.D.N.Y. 2004).  See also Paradigm Sales, Inc. v. Weber Marking Sys., Inc., 151 F.R.D. 98 (N.D. Ind. 1993) (discovery order that required initial disclosures similar to those that would be required by then-proposed rule 26(a)(1), could not be construed to require a party to disclose information concerning unpleaded claims).

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