Rules 26 - 37: Discovery

Question 1

What is discovery? (Q)

Answer 1

Discovery is the process by which the parties provide and obtain information about their claims and defenses before trial.

Question 2

What is discovery in a civil case? (Q)

Answer 2

Discovery is the process by which the parties provide and obtain information about their claims and defenses before trial. Discovery is primarily directed at matters of fact, though it can also encompass the application of law to fact.

Question 3

What is the scope of discovery? (Q)

Answer 3

The scope of discovery is the total range of information that a party can obtain through discovery. Information that is subject to discovery is said to be discoverable.

Question 4

What three factors define the overall scope of discovery in federal civil cases? (Q)

Answer 4

Parties can use discovery to obtain any information that is: not privileged, relevant to any party’s claim or defense, and
proportional to the needs of the case.

Question 5

What does it mean for information to be privileged? (Q)

Answer 5

A privilege is a legal right, exemption, or immunity that grants an individual the legal freedom to do or not to do a given act. If information is privileged, the holder of the information may refuse to disclose the information or bar such evidence from being disclosed in a judicial proceeding.

Question 6

What does it mean for information to be relevant to any party’s claim or defense? (Q)

Answer 6

Under the Federal Rules of Evidence, evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence, and (2) the fact is of consequence in determining the action.

Question 7

In a federal civil case, what factors determine whether a proposed item of discovery is proportional to the needs of the case? (Q)

Answer 7

Whether the proposed discovery is proportional depends on: the burden or cost of producing the information as compared to its likely benefit, the parties’ relative access to the information, the parties’ resources, the amount in controversy, the importance of the issues being litigated, and the importance of the discovery in resolving the issues.

Question 8

Is the scope of federal discovery limited to information that would be admissible as evidence at trial? (Q) (GG)

Answer 8

No. Information can be discoverable even if it is not admissible at trial.

Question 9

Under what circumstances is the court required to limit the frequency or extent of discovery? (Q)

Answer 9

The court must limit the frequency or extent of discovery if: requested discovery is unreasonably duplicative, or can be obtained from less burdensome, less expensive, or more convenient sources; the party seeking the discovery has already had ample opportunity to obtain the information; or
the proposed discovery exceeds the scope of discovery as defined by the FRCP.

Question 10

What are the proportionality inquiry considerations for discovery? (Q)

Answer 10

(1) The importance of the issues at stake in the action
(2) The amount in controversy
(3) The parties’ relative access to relevant information
(4) The parties’ resources
(5) The importance of the discovery in resolving the issues

Question 11

Who bears the cost of discovery?

Answer 11

The party producing the documents, unless the discovery poses an “undue burden or expense.” (Zubulake)

Question 12

What are interrogatories? (Q)

Answer 12

Interrogatories are written questions that one party serves on another party, to be answered in writing and under oath.

Question 13

What is a request to produce? (Q)

Answer 13

A request to produce, or request for production, is a written request made by one party to another asking the responding party to produce documents, electronic information, or tangible things in the responding party’s possession, custody, or control. The requesting party may then inspect, copy, test, or sample whatever is produced. A request to produce can also ask the responding party to allow the inspection of land within the responding party’s control.

Question 14

What is a request for admission in federal discovery? (Q)

Answer 14

A request for admission is a writing sent from one party to another asking the responding party to admit the truth of some statement regarding the law or the facts. The responding party must answer the request in writing.

A request for admission may address any topic within the scope of discovery, including the facts, the application of law to the facts, opinions about the law and the facts, or the authenticity of specified documents.

Question 15

Can the court limit the numbers of interrogatories, requests to produce, or requests for admission used by a party? (Q)

Answer 15

Yes. The court can limit the number of depositions, interrogatories, and requests for admission. The court can also limit the length of depositions.

Question 16

What materials are protected from discovery by the work-product doctrine? (Q) (GG)

Answer 16

Under the work-product doctrine, a party normally may not discover: documents and tangible things; that are prepared by, or for, another party or its representative; in anticipation of litigation or for trial. This includes opinion work-product - the mental impressions of counsel.

These protected materials are often called a party’s work product. Work product generally is protected to prevent one party from taking advantage of another party’s preparations, instead of doing its own preparations. (Hickman)

Question 17

Under what circumstances can a party discover materials that would otherwise be protected from discovery as work product? (Q)

Answer 17

A party can discover material that would otherwise be protected as work product if the party can show that it: has a substantial need for the material to prepare for trial and cannot obtain substantially equivalent information from another source without undue hardship. If the court allows discovery of work product, the court must take steps to protect against the disclosure of the theories, conclusions, or thought processes of the preparing party or its attorney.

Question 18

Is the work-product doctrine limited to materials prepared by or for a party’s attorney? (Q)

Answer 18

No. Protected work product can include materials prepared by or for persons other than a party’s attorney, such as a party’s consultant, insurer, agent, or other representative.

Question 19

In a federal civil case, what are the three main categories of required disclosures that a party must make during discovery, without waiting for a request by another party? (Q)

Answer 19

The main categories of required disclosures are:

• initial disclosures at the start of the case, expert witness
• disclosures at least 90 days before trial, and
• pretrial disclosures at least 30 days before trial.

Question 20

What information must a party include in its required initial disclosures (automatic disclosure)? (Q)

Answer 20

The required initial disclosures must include:

the names, addresses, and telephone numbers of individuals who are likely to have discoverable information that the disclosing party might use in the case, unless the use would be solely for impeachment;
a copy or description of all documents, electronically stored information, and tangible things that the disclosing party has in its control and might use in the case, unless the use would be solely for impeachment;
a computation of the party’s damages, and any documents or materials on which the computation is based; and
any relevant insurance agreement.

Question 21

What is hearsay? (GG)

Answer 21

Hearsay are statements made by one person concerning the statements of another.

Question 22

What must a person do if they wish another party to be compelled to release information during discovery? (GG)

Answer 22

The person must certify that she has conferred with the objecting party, in an effort to resolve the discovery dispute without involving the court. (37a)

Question 23

What isn’t protected by privilege? (GG)

Answer 23

Underlying facts of the case are not protected by privilege.

Question 24

What must the party claiming privilege do? (GG)

Answer 24

(1) Expressly make the claim and
(2) Describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (26b5a)

Question 25

What must a party disclose during discovery? (GG)

Answer 25

The disclosing party must disclose documents they may use to support their claims or defenses. Doesn’t have to help the other side. (26a1Aii)

Question 26

If a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, what must the party do? (GG)

Answer 26

(i) Expressly make the claim; and

(ii) Describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (26b5)