April 26, 2018 Practice Points

The Lure of the Siren Cry: Fishing Expedition!

Consider your discovery objectives when drafting your client’s allegations and claims.

By Andrew J. Felser

“No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). We read that case in law school. But that won’t stop our over-reliance on the phrase. In Gopher Excavation, Inc. v. North American Pipe Corporation, 17-cv-01021 (D.Colo., 2017), a pipe-installation company sued its supplier for damages caused by leaky underground pipes. In discovery, the installation company requested documents related to any previous complaints of leaks of a substantially similar nature. Invoking the time-honored phrase, the supplier argued that because it admitted that it supplied the wrong O-rings, any previous complaints of defects were beyond the scope of discovery. The magistrate judge disagreed.

[Defendant] also relies on cases prohibiting “fishing expeditions.” See, e.g., McGee v. Hayes, 43 Fed.Appx. 214, 217 (10th Cir. 2002); XTO Energy, Inc. v. ATD, LLC, 2016 WL 1730171, at *12 (D.N.M. April 1, 2016); Rivera v. DJO, LLC, No. Civ. 11-1119 JB/RHS, 2012 WL 3860744, at *8 (D.N.M. Aug. 27, 2012). Discovery is a fishing expedition when it goes beyond the pleadings’ allegations to attempt finding additional violations or claims. [internal citations omitted]. In seeking information about the entire pipe product that it alleges is defective, Gopher’s requests do not go beyond the scope of its allegations.

Judging from the opinion, what might have made some difference in this case was the well-pled nature of the complaint. So, consider your discovery objectives when drafting your client’s allegations and claims. As for parties objecting to discovery demands, severing the other side’s line requires knowing what the courts say a fishing expedition really is.


Andrew J. Felser is an attorney in Denver, Colorado.


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