Discovery - Scope - Rule 26 Flashcards
Rule 26(a)(1)(A) Required Initial Disclosures
A party must disclose to other parties
- The name and, if known, the contact information for every person that may have discoverable information – and the subjects of information – that the party may use
- A copy – or a description – of all documents and tangible things that the party has and may use
- A computation of each category of damages claimed and the documents supporting these claims, unless they are privileged or protected from disclosure
- Any insurance agreement that may be liable for part or all of a possible judgment
Rule 26(a)(1)(B)
Proceedings exempt from disclosure
Rule 26(a)(1)(C)
Time for Initial Disclosures
A party must make initial disclosures within 14 days of the parties’ Rule 26(f) conference, with two exceptions.
Rule 26(a)(1)(D)
Time for Initial Disclosures for Parties Served or Joined Later
A party joined or served after the Rule 26(f) conference must make initial disclosures within 30 days of being served or joined.
Rule 26(a)(1)(E)
Basis for Initial Disclosure Unacceptable Excuses
A party must make its initial disclosures based on the information reasonably available. A party isn’t excused because it hasn’t fully investigated or because it challenges the disclosures another party made or because another party hasn’t made disclosures.
Rule 26(b)(1)
Scope
Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged matter that
- is relevant to any party’s claim or defense and
- proportional to the needs of the case, considering
- the importance of the issues at stake in the action,
- the amount in controversy,
- the parties’ relative access to information,
- the parties’ resources,
- the importance of the discovery in resolving the issues, and
- whether the burden or expense of the proposed discovery outweighs its likely benefits.
- Information within this scope of discovery need not be admissible in evidence to be discoverable.
Rule 26(b)(2)(A)
Limits on Frequency and Extent
A court may change the number of depositions and interrogatories and the length of depositions under Rule 30.
Rule 26(b)(2)(B)
Specific Limitations on ESI
A party doesn’t have to provide discovery of electrically stored information if it shows it’s not accessible without undue costs. On a motion to compel, the party must show the information is not reasonable accessible because of undue cost. The court my order discovery anyway if the requesting party shows good cause.
Rule 26(b)(2)(C)
When Required
The court must limit the frequency or extent of discovery if it determines
- The discovery sought is unreasonably cumulative or duplicative or can be obtained from a more convenient, less burdensome or cheaper source
- The party seeking discovery has ample opportunity to obtain the information by discovery in the action or
- The discovery is outside the scope permitted by Rule 26(b)(1)
Rule 26(b)(3)(A)
Documents and Tangible Things
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial But, subject to Rule 26(b)(4), those materials may be discoverable if
- They are otherwise discoverable under Rule 26(b)(1) and
- The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Rule 26(b)(3)(B)
Protections Against Disclosures
If the court orders discovery of those materials, it must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation
Rule 26(b)(3)(C)
Previous Statement
Any party or person can obtain its own previous statement about the case. If it’s refused, the party can motion to compel. Defines previous statement
Rule 26(b)(4)(A)
Deposition of Experts who May Testify
A party may depose any expert who may testify. If the expert must file a report under Rule 26(a)(2), the party must wait until the report is provided
Rule 26(b)(4)(B)
Protections for Drafts
Rules 26(b)(3)(A) and (B) protects any drafts of reports or disclosures.
Rule 26(b)(4)(C)
Protections for Communications Between Attorneys and Experts
Rules 26(b)(3)(A) and (B) protects any communications between a party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), except communications that
- Relate to the expert’s compensation
- Identify facts or data that the attorney gave the expert
- Identify assumptions that the attorney told the expert
Rule 26(b)(4)(D)
Experts Employed Only for Trial Preparation
Ordinarily, a party may not discover facts or opinions from an expert hired only for trial preparation. But they may do so only
- As provided in Rule 35(b) or
- On showing of exceptional circumstances that make it impracticable for the party to option the information
Rule 26(b)(4)(E)
Payment
Unless it is unjust, the court must require the party seeking discovery
- To pay experts a reasonable fee and
- For discovery under (D), to pay the other party reasonable fees and expenses it incurred by obtaining the expert’s facts and opinions
Rule 26(b)(5)(A)
Information Withheld
When a party invokes a privilege, it must do so expressly and describe the nature of the documents, communications, or tangible things not produced or disclosed in a manner that will enable the other parties to assess its claim without revealing the privileged or protected information.
Rule 26(b)(5)(A)
Information Produced
If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party
- must promptly return, sequester, or destroy the specified information and any copies it has;
- must not use or disclose the information until the claim is resolved;
- must take reasonable steps to retrieve the information if the party disclosed it before being notified; and
- may promptly present the information to the court under seal for a determination of the claim.
The producing party must preserve the information until the claim is resolved.
Rule 26(c)(1)
Protective Orders
Any party or person may move for a protective order in the court where the action is pending. The motion must include certification that the movant tried to work with the other parties to resolve the issue. The court may issue an order to protect any person or party from annoyance, embarrassment, oppression, or undue burden or expensed, including one or more of the reasons listed in this rule
Rule 26(c)(2)
Ordering Discovery
If a protective order is partially or fully denied, the court may order any person or party to provide or permit discovery.
Rule 26(c)(3)
Awarding Expenses
Rule 37(a)(5) applies to the award of expenses
Rule 26(d)(1)
Timing
A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
Rule 26(d)(2)(A)
Early Rule 34 Requests
Time to Deliver
More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
- to that party by any other party, and
- by that party to any plaintiff or to any other party that has been served.
Rule 26(d)(2)(B)
When Considered Served
The request is considered to have been served at the first Rule 26(f) conference.
Rule 26(d)(3)
Sequence
Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
- methods of discovery may be used in any sequence; and
- discovery by one party does not require any other party to delay its discovery.
Rule 26(e)(1)
Supplemental Disclosures and Responses
A party that had made disclosures or has responded to an interrogatory, request for production, or request for admission must supplement or correct its disclosure or response
- In a timely many if the party knows the information is materially incomplete or incorrect or
- As ordered by the court.
Rule 26(e)(2)
Expert Witness
For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party must disclose any changes or additions to the expert’s report or deposition.
Rule 26(f)(1) Conference Timing
The parties must confer at least 21 days before a scheduling conference is held or a scheduling order is due
Rule 26(f)(2)
Conference Content; Parties’ Responsibilities
The parties must consider their claims and defenses and possible settlement, make or arranges for required disclosures, discuss preserving discoverable information, and develop a discovery plan. The discovery plan must be submitted to the court within 14 days of the conference.
Rule 26(f)(3)
Required contents of a discovery plan.
Rule 26(f)(4)
Expedited Schedule
If necessary to comply with its expedited schedule for conferences, a court may
- Require the parties’ conference is less than 21 days before the scheduling meeting is held or a scheduling order is due
- Require the parties’ discovery plan is filed less than 14 days after the meeting or excuse filing a discovery plan in favor of an oral report at the Rule 16(b) conference
Rule 26(g)(1)
Signing Papers
Every paper must be signed by at least one attorney representing the party and must include his contact information. By signing, the lawyer certifies that to the best of his knowledge, information and belief
- With respect to a disclosure, it is complete and correct
- With respect to a discovery request, response or objection, it is
- It is consistent with these rules and the law or a reasonable argument to change the law
- Not interposed for any improper purpose and
- Neither unreasonable or unduly burdensome considering the factors listed
Rule 26(g)(2)
Failure to Sign
Other parties have no duty to act on unsigned papers and the court must strike them unless the party fixes the error in a timely manner
Rule 26(g)(3)
Sanctions for Improper Certification
If a certification violates this rule, the court must impose an appropriate sanction. The sanction may include an order to pay reasonable expenses.
