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September 29, 2018 Practice Points

Another Reason to Understand the 2015 Amendments and Committee Notes to Rule 26(b)(1)

CRST is a lesson to attorneys who argue "my way or the highway" in discovery disputes.

By Andrew M. Toft

CRST Expedited, Inc. v. Swift Transportation Co. of Arizona, LLC, Civ. No. 17-CV-25-CJW (N.D. Iowa, July 24, 2018), is an example of counsel reconsidering the scope of discovery requests when faced with a motion to compel and a court looking favorably on the proposed compromise narrowing the scope of discovery.

The dispute arose when CRST served discovery seeking information about commercial truck drivers hired by Swift while the drivers were still under contract with CRST. CRST’s initial discovery request sought certain information about each driver hired by Swift who was under contract with CRST at the time of hiring. The initial request did not specify a time period for which the information was sought. Swift objected on several grounds, including that the request for information pertaining to all drivers who were under contract with CRST was unduly burdensome and not proportional to the needs of the case. CRST indicated that it would accept information for all subject drivers hired by Swift on or after January 1, 2012. The court stated that this limitation brought the request “closer to the realm this Court views as proportional middle ground.” The court further limited the scope of discovery to the period on or after January 1, 2013, to the date of the order, but other than that, Swift was ordered to provide all of the information that CRST sought.

Another interesting aspect of this case was the court’s discussion of how the timing of a discovery request may impact the permissible scope of discovery. CRST’s motion to compel was filed early enough in the case that the court and parties had not yet made a final determination of the proper theory of damages in the case. CRST had alternative theories of damages and sought information relevant to both, while Swift argued that CRST was entitled to the information relevant to only one. Because the court had not yet determined which theory of damages should be applied, the judge determined that CRST would be permitted to discover information relevant to both of the alternative theories. The court concluded that Swift had not met is burden of demonstrating either that the requested discovery did not come within the broad scope of relevance under Rule 26(b)(1) or that the discovery was of such marginal relevance that the harm that might be caused by the discovery would outweigh the presumption in favor of broad discovery.

CRST is a lesson to attorneys who argue “my way or the highway” in discovery disputes. If an opposing party resists responding to the discovery being sought, try to find ways to respond to the objections without compromising your client’s most important discovery goals. Looking for “proportional middle ground” may benefit the client more than refusing the compromise and leaving all the decision-making to the judge.


Andrew M. Toft is an attorney in Denver, Colorado.

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