🪜Civil Procedure Unit 6 – Discovery

What's Discovery All About?

• Discovery process enables parties to obtain relevant information and evidence from the opposing side
• Helps parties prepare for trial by gathering facts, documents, and testimony
• Allows parties to assess the strengths and weaknesses of their case and the opponent's case
• Encourages settlement by providing a clearer picture of the dispute
• Prevents "trial by ambush" ensures no surprises at trial
• Governed by Federal Rules of Civil Procedure (FRCP) Rules 26-37 in federal courts and similar state rules in state courts
• Typically occurs after the complaint and answer have been filed and before trial

Types of Discovery Tools

• Interrogatories written questions served on the opposing party who must answer under oath (FRCP Rule 33)
  • Limited to 25 interrogatories per party unless the court permits more
  • Must be answered within 30 days of service
• Requests for Production (RFPs) demands for relevant documents, electronically stored information (ESI), or tangible things (FRCP Rule 34)
  • Responding party must produce the requested items or permit inspection within 30 days of service
• Requests for Admission (RFAs) written statements served on the opposing party who must admit, deny, or object to each statement (FRCP Rule 36)
  • Deemed admitted if not answered within 30 days of service
  • Can be used to establish undisputed facts and authenticity of documents
• Depositions oral questioning of a witness under oath before a court reporter (FRCP Rule 30)
  • Can be used to obtain testimony from parties, witnesses, and experts
  • Limited to 10 depositions per side and 7 hours per deposition unless the court permits more
• Subpoenas commands issued to non-parties to appear for a deposition, produce documents, or permit inspection (FRCP Rule 45)
• Physical and Mental Examinations court-ordered exams of a party whose physical or mental condition is in controversy (FRCP Rule 35)

Key Rules and Deadlines

• Initial Disclosures parties must exchange certain information without awaiting a discovery request (FRCP Rule 26(a)(1))
  • Includes contact information of individuals likely to have discoverable information, documents supporting claims or defenses, computation of damages, and insurance agreements
  • Due within 14 days of the Rule 26(f) conference unless otherwise agreed or ordered
• Rule 26(f) Conference parties must confer to discuss the nature and basis of their claims and defenses and the possibilities for settlement
  • Must develop a proposed discovery plan addressing topics such as the scope of discovery, ESI, and protective orders
  • Must occur at least 21 days before the scheduling conference or scheduling order is due
• Scheduling Order issued by the court setting deadlines for joining parties, amending pleadings, completing discovery, and filing motions (FRCP Rule 16(b))
  • Issued after receiving the parties' Rule 26(f) report or after consulting with the parties at a scheduling conference
• Duty to Supplement parties must supplement or correct their initial disclosures and discovery responses if they learn the information is incomplete or incorrect (FRCP Rule 26(e))
• Pretrial Disclosures parties must disclose certain information about the evidence they may present at trial (FRCP Rule 26(a)(3))
  • Includes the identity of witnesses, deposition designations, and exhibits
  • Due at least 30 days before trial unless otherwise ordered

Scope of Discovery: What's Fair Game?

• Relevance information is discoverable if it is relevant to any party's claim or defense and proportional to the needs of the case (FRCP Rule 26(b)(1))
  • Considers the importance of the issues at stake, the amount in controversy, the parties' resources and relative access to information, and the importance of the discovery in resolving the issues
• Privileges and Work Product certain information is protected from discovery
  • Attorney-client privilege protects confidential communications between an attorney and client for the purpose of seeking or providing legal advice
  • Work product doctrine protects an attorney's mental impressions, conclusions, opinions, or legal theories prepared in anticipation of litigation (FRCP Rule 26(b)(3))
• Limitations on Frequency and Extent the court can limit discovery if it is unreasonably cumulative or duplicative, can be obtained from a more convenient source, or is outside the scope permitted by Rule 26(b)(1) (FRCP Rule 26(b)(2)(C))
• Protective Orders the court can issue orders protecting a party from annoyance, embarrassment, oppression, or undue burden or expense (FRCP Rule 26(c))
  • Can forbid the disclosure or discovery, specify the terms for the disclosure or discovery, prescribe an alternative method, or limit the scope of discovery
• Sequence of Discovery unless otherwise stipulated or ordered, methods of discovery may be used in any sequence and the fact that a party is conducting discovery does not operate to delay any other party's discovery (FRCP Rule 26(d)(3))

Objections and Protective Orders

• Objections to Discovery Requests a party can object to a discovery request if it is irrelevant, privileged, work product, unduly burdensome, or otherwise improper
  • Must state the reasons for the objection and specify the part of the request objected to
  • Objections to interrogatories, RFPs, and RFAs must be stated in writing within 30 days of service
  • Objections to deposition questions must be stated concisely and in a non-argumentative and non-suggestive manner
• Duty to Confer parties must confer in good faith to attempt to resolve discovery disputes before filing a motion to compel or for a protective order (FRCP Rule 37(a)(1))
• Motions to Compel if a party fails to respond or provides evasive or incomplete responses to discovery, the requesting party can move for an order compelling disclosure or discovery (FRCP Rule 37(a))
  • The motion must include a certification that the movant has conferred or attempted to confer with the opposing party in good faith
• Protective Orders a party or person from whom discovery is sought can move for a protective order to protect them from annoyance, embarrassment, oppression, or undue burden or expense (FRCP Rule 26(c))
  • The court can forbid the disclosure or discovery, specify the terms for the disclosure or discovery, prescribe an alternative method, or limit the scope of discovery
• Claiming Privilege or Work Product a party withholding information based on privilege or work product must expressly make the claim and describe the nature of the documents, communications, or tangible things not produced or disclosed (FRCP Rule 26(b)(5))
  • The description must be sufficiently detailed to enable other parties to assess the claim without revealing privileged or protected information

Dealing with Electronically Stored Information (ESI)

• ESI is discoverable under the same rules as paper documents but presents unique challenges due to its volume, format, and location
• Duty to Preserve parties have a duty to preserve ESI when they reasonably anticipate litigation (common law)
  • Failure to preserve ESI can result in sanctions for spoliation of evidence
• Rule 26(f) Conference parties must discuss issues relating to preserving discoverable ESI and develop a proposed plan for discovery of ESI
• Form of Production the requesting party can specify the form in which ESI is to be produced (FRCP Rule 34(b)(1)(C))
  • If no form is specified, the responding party must produce ESI in the form in which it is ordinarily maintained or in a reasonably usable form
• Inaccessible ESI a party need not provide discovery of ESI from sources that are not reasonably accessible because of undue burden or cost (FRCP Rule 26(b)(2)(B))
  • The court can still order discovery if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)
• Allocation of Expenses the court can order the requesting party to pay some or all of the reasonable expenses incurred by the responding party in obtaining the discovery of ESI (FRCP Rule 26(c)(1)(B))
• Clawback Agreements parties can agree to procedures for retrieving privileged or work product protected ESI that was inadvertently produced (FRE Rule 502(e))

Discovery Mishaps and Sanctions

• Failure to Make Disclosures or Cooperate in Discovery if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), they may not use that information or witness at trial unless the failure was substantially justified or harmless (FRCP Rule 37(c)(1))
• Failure to Preserve ESI if ESI that should have been preserved in anticipation of litigation is lost because a party failed to take reasonable steps to preserve it, the court can order measures no greater than necessary to cure the prejudice or presume the lost information was unfavorable to the party (FRCP Rule 37(e))
• Failure to Comply with a Court Order if a party fails to obey an order to provide or permit discovery, the court can issue further orders, including:
  • Directing that matters or facts be taken as established
  • Prohibiting the disobedient party from supporting or opposing claims or defenses
  • Striking pleadings, staying proceedings, dismissing the action, or rendering a default judgment
  • Treating the failure as contempt of court (FRCP Rule 37(b)(2)(A))
• Failure to Admit if a party fails to admit what is requested under Rule 36 and the requesting party later proves the matter true, the court must order the party to pay the reasonable expenses incurred in making that proof, unless certain exceptions apply (FRCP Rule 37(c)(2))
• Signing Discovery Requests, Responses, and Objections an attorney or unrepresented party signing a discovery request, response, or objection certifies that it is consistent with the rules, not interposed for an improper purpose, and neither unreasonable nor unduly burdensome (FRCP Rule 26(g)(1))
  • If a certification violates this rule, the court must impose an appropriate sanction on the signer, the party, or both (FRCP Rule 26(g)(3))

Pro Tips for Effective Discovery

• Plan ahead develop a discovery plan that identifies the information you need, the sources of that information, and the most effective tools to obtain it
• Be specific and targeted in your discovery requests avoid overbroad or vague requests that may trigger objections or produce a deluge of irrelevant information
• Meet and confer early and often communicate with opposing counsel to discuss the scope of discovery, resolve disputes, and avoid unnecessary motions
• Prioritize and sequence your discovery start with the most important and time-sensitive information and proceed in a logical order
• Use interrogatories to obtain basic information and admissions, then follow up with document requests and depositions to flesh out the details
• Take advantage of Rule 30(b)(6) depositions to obtain testimony from an organization about designated topics
• Be prepared for depositions review the relevant documents and information in advance and outline your questions to ensure you cover all the key points
• Use experts strategically to provide opinions on technical or specialized issues and rebut the other side's experts
• Protect privileged and confidential information clearly label and segregate privileged documents and redact sensitive information before producing
• Keep track of deadlines and obligations use a calendar or case management system to ensure you meet all the discovery deadlines and requirements