Discovery Methods

Why This Matters

Discovery is the engine that drives civil litigation—it's the process that transforms vague allegations into concrete evidence and ensures neither party walks into trial blindsided. You're being tested on more than just knowing what discovery tools exist; you need to understand when each method is strategically appropriate, how the Federal Rules constrain their use, and what happens when parties fail to comply. These concepts connect directly to broader themes of procedural fairness, proportionality, and the tension between full disclosure and efficiency.

The discovery methods you'll encounter fall into distinct categories based on what they target (documents vs. testimony vs. physical evidence) and who they reach (parties vs. non-parties). When you see an exam question about discovery, don't just identify the tool—ask yourself what strategic purpose it serves and what limitations apply. Master the underlying principles, and you'll be ready for any fact pattern the exam throws at you.

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Written Discovery: Efficient Information Gathering

Written discovery methods allow parties to obtain information without the expense of live proceedings. These tools prioritize efficiency and create a paper trail that can be used throughout litigation.

Interrogatories

• Written questions requiring sworn answers—directed only to parties, not witnesses, making them ideal for pinning down the opposing side's version of events
• Numerically limited under Rule 33—typically 25 questions (including subparts) to prevent discovery abuse and encourage focused, strategic questioning
• Foundation-building tool—use interrogatories to identify witnesses, establish timelines, and clarify positions before investing in depositions

Requests for Admission

• Statements requiring admission or denial—uniquely powerful because unanswered requests are deemed admitted after 30 days under Rule 36
• Narrows issues for trial—establishes undisputed facts, reducing what must be proven and streamlining proceedings
• Strategic pressure device—forces opponents to commit to positions early, which can be used for impeachment if they later contradict themselves

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Document and Tangible Evidence Discovery

These methods target the physical and electronic evidence that often forms the backbone of modern litigation. The key principle here is proportionality—requests must be specific, relevant, and not unduly burdensome.

Requests for Production of Documents

• Formal demand for documents and tangible things—governed by Rule 34, covering everything from contracts to photographs to physical objects
• Specificity required—requests must describe items with "reasonable particularity" and relate to claims or defenses; fishing expeditions invite objections
• Sanctions for non-compliance—failure to produce can result in adverse inference instructions, cost-shifting, or even default judgment in extreme cases

Electronic Discovery (E-Discovery)

• Electronically stored information (ESI)—encompasses emails, text messages, social media, metadata, and cloud-stored data under Rule 34's broad scope
• Preservation obligations trigger early—litigation hold duties arise when litigation is reasonably anticipated, not just when filed
• Proportionality is paramount—courts balance the burden and cost of e-discovery against the likely benefit, making this a frequent source of discovery disputes

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Testimonial Discovery: Live Questioning

Depositions and related methods allow attorneys to question witnesses directly, assess credibility, and lock in testimony. These are the most expensive discovery tools but often the most valuable for case evaluation.

Depositions

• Oral examination under oath—conducted before a court reporter, creating a transcript that can be used at trial for impeachment or substantive evidence
• Duration limits under Rule 30—one day of seven hours per deponent, though parties can stipulate to longer or seek court approval
• Reaches parties and non-parties alike—unlike interrogatories, depositions can target any witness with relevant knowledge, making them essential for building the full evidentiary picture

Subpoenas

• Compels attendance or document production—issued under Rule 45, these are the only discovery tool that can force non-parties to participate
• Geographic and burden limitations—non-parties can challenge subpoenas requiring travel beyond 100 miles or imposing undue burden
• Contempt consequences—failure to comply without valid objection can result in civil contempt, fines, or even arrest

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Specialized Discovery: Court-Ordered Examinations

When a party's physical or mental condition is directly at issue, courts may order examinations that would otherwise constitute an invasion of privacy. This method requires heightened procedural protections because it involves bodily intrusion.

Physical and Mental Examinations

• Requires court order under Rule 35—the only discovery method that cannot be initiated unilaterally; movant must show the condition is "in controversy" and there's "good cause"
• Limited to parties or persons in party's custody—typically arises in personal injury, medical malpractice, or custody disputes where health status affects damages or capacity
• Reciprocal disclosure rights—the examined party can obtain the examiner's report and, by doing so, waives privilege over their own medical records on the same condition

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Quick Reference Table

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Self-Check Questions

1. Which two discovery methods can reach non-parties, and what procedural mechanism makes this possible?

2. A plaintiff in a car accident case wants to establish that the defendant was driving 80 mph. Which discovery method would most efficiently establish this as an undisputed fact for trial, and what happens if the defendant ignores the request?

3. Compare interrogatories and depositions: what are two strategic advantages of each, and when might you choose one over the other?

4. Your client anticipates being sued next month. What discovery-related obligation has already been triggered, and what are the consequences of failing to meet it?

5. An FRQ describes a plaintiff seeking to compel the defendant to undergo a psychiatric evaluation in a defamation case. Under what circumstances would the court grant this request, and what rule governs the analysis?