TPLF Tuesday, Week 6: Relevance

Some courts have denied motions to compel disclosure of TPLF contracts after concluding they are not “relevant to any party’s claim or defense” under Rule 26(b)(1).

An analogous situation existed prior to the 1970 adoption of Rule 26(a)(1)(A)(iv), which requires disclosure of insurance agreements. In promulgating that rule, the Advisory Committee on Civil Rules observed that many courts were rejecting discovery requests for insurance agreements “reason[ing] from the text of Rule 26(b) that it permits discovery only of matters which will be admissible in evidence or appear reasonably calculated to lead to such evidence.” The Advisory Committee rejected this argument, instead concluding that policy considerations require their disclosure, and so should the FRCP. The Advisory Committee noted that the courts denying disclosure of insurance agreements had “avoid[ed] considerations of policy, regarding them as foreclosed.”  

For similar reasons, courts and lawyers should not treat Rule 26(b)(1) as a bar to disclosure of TPLF contracts. Rather, they should see that TPLF disclosure is necessary for the same policy reasons the Advisory Committee articulated for insurance disclosure: because it “will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.” Fed. R. Civ. P. 26 advisory committee’s note to 1970 amendment.