8
then the burden it imposes, however slight, is necessarily
undue: why require a party to produce information the
requesting party has no right to obtain? The question then
becomes what sort of information is properly discoverable.
Where, again as here, no party has yet been specifically
named as a defendant, the only potential avenue for discovery
is Rule
26(d)(1),
which
provides
for
discovery
“by
court
order.” A district court’s discretion to order discovery in these
circumstances is, in turn, cabined by Rule 26(b)(1)’s general
requirements that a discovery order be “[f]or good cause” and
relate to a “matter relevant to the subject matter involved in
the action.” See Food Lion vy. United Food & Commercial
Workers Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997) (“[N]o
one would suggest that discovery should be allowed of
information that has no conceivable bearing on the case.”
(internal quotation marks omitted)).
The limits of the federal discovery procedures are
illustrated by Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340
(1978),
in
which
the
Supreme
Court
held
that
the
representative plaintiffs in a class action suit could not use
discovery tools to secure from the defendant the names of
members of the plaintiff class. /d. at 353. The Court
concluded that because the plaintiffs did “not seek this
information for any bearing that it might have on issues in the
case,” but instead simply in order to provide the class
members with notice of the litigation, they lacked a proper
discovery purpose. /d. at 352. It inferred this improper motive
in part from the plaintiffs’ conduct in the district court, where
they had offered to redefine the class to encompass only those
class members to whom they could already send notice. See
id. at 353. In a footnote, the Court emphasized—in language
especially relevant here—that “when the purpose of a
discovery request is to gather information for use in