“Discovery” is the “compulsory disclosure, at a party’s request, of information that relates to the litigation.”[1] The process of discovery allows the parties to discover information about the facts and allegations involved in litigation. It enables the parties to narrow and more clearly define the issues that are in dispute and that must be determined by the court.
The rules of civil procedure dictate how and when discovery occurs. State rules control discovery in state court while the Federal Rules of Civil Procedure, rules 26-37, control discovery in federal court. Some courts have additional rules that may apply specific requirements to discovery conducted in cases pending before their courts. Because state rules are generally modeled after the federal rules and because the federal rules apply to federal courts throughout the country, this course will focus on the federal rules. Still, note that there may be important distinctions between your state’s rules of civil procedure and the federal rules.
In this module, we will focus on the first of the federal rules that govern discovery, Rule 26, which is entitled “Duty to Disclose and General Provisions Governing Discovery.” This rule covers the basics of discovery, including its timing, sequence, and certification; required disclosures; and its general scope and limits.
Timing, Sequence and Certification
Before parties can begin discovery, they must have a discovery conference, which includes the judge overseeing the case as well as the parties involved in the litigation, represented by their attorneys.[2] The discovery conference must be held “as soon as practicable” after a case is filed, and its purpose is for the parties to develop a discovery plan.[3]
The discovery plan must outline when initial disclosures are due, the subjects on which discovery is needed, when discovery must be completed and whether it should be limited to particular issues. The plan and conference must also address any requests that the court modify the normal discovery procedures for the pending case.[4] Once the discovery conference and a discovery plan are completed, the court issues a scheduling order, which provides a schedule of how the case will proceed and when certain tasks should be completed. This helps avoid undue delays and protracted litigation.[5]
After the summons and complaint are served upon the defendant, the parties must wait at least 22 days before they can serve Rule 34 (document production) requests upon other parties to the litigation.[6] Rule 34 requests include those for document production, electronically stored information, and tangible things or requests to enter onto or inspect land.[7]
Other than these Rule 34 timing rules, any discovery method can be used in any order, and discovery by one party does not require that any other party delay its own discovery.[8] However, all parties who participate in are under continuing obligations to supplement or correct responses if a party later learns that its responses were materially incomplete or incorrect.[9]
Every disclosure, discovery request and response must be signed by the attorney of record for the filing party. By signing, the attorney represents that to the best of his or her “knowledge, information and belief formed after a reasonable inquiry” the disclosure is correct and complete as of the time it is filed. By signing and filing any discovery response, request or objection the attorney certifies that the filing is:
- Consistent with the rules and warranted by the law or by non-frivolous argument to modify the law;
- Not filed for any improper purpose such as harassing, delaying, or needlessly increasing the cost of litigation; and
- Not unduly burdensome, expensive, or unreasonable under the circumstances.[10]
If the attorney or unrepresented party fails to sign one of these documents, then the party who receives the document is under no obligation to act on it. Furthermore, if the signature is found to be absent or improper and the party cannot show adequate justification, the court can impose sanctions, which can include an order to pay any reasonable expenses incurred by the violation.[11]
Mandatory Disclosures
There are three types of disclosures that are required by the federal rules: initial disclosures, disclosure of expert testimony and pretrial disclosures. Unless the case falls under one of the categories exempted by the rules or unless the court orders otherwise, parties must disclose this information without being asked.
Initial Disclosures
Parties must make initial disclosures within 14 days after the discovery conference.[12] Because the parties may not have had time to fully investigate at this point, they must make the disclosures based upon the information that is reasonably available to them at that time. If new information comes to light later, the parties must correct the information with supplemental disclosures.[13]
Initial disclosures must include:
- The names and contact information of each person that the party knows is likely to have discoverable information about the case and who the party may use to support its claims or defenses, as well as the subjects of the information that such parties may have;
- A copy or description of all documents and tangible things that the party has in its possession, control or custody that the party may use to support its claims or defenses; and
- A computation of each type of damages that the party is claiming, along with access to the documents and information upon which those calculations are based.[14]
The initial disclosures answer basic questions that each party may have about their opposition’s claims related to the litigation. Who supports your claims? Based upon what information? What damages do you claim to have suffered? What proof do you have to show that you suffered those damages? This information tells the parties where to begin their investigations.
- Expert Testimony Disclosures
Federal Rule 26(a)(2) requires the parties to disclosure the identity of any expert witnesses the party may use at trial. Additionally, if the expert witness is retained (is paid) to testify as an expert at trial, the party must also submit a written report, prepared and signed by the expert witness. This report must contain six things:
(1) a statement of all the opinions the witness will express and the basis for them;
(2) the data and facts that the expert considered in forming his or her opinion;
(3) the exhibits that the expert will use, if any, to support or summarize his or her opinions at trial;
(4) the expert’s qualifications, including all the expert’s publications within the past 10 years;
(5) a list of the cases that the expert has testified in as an expert witness within the past 4 years; and
(6) how much the expert will be paid for his or her work related to the litigation.[15]
Different rules may apply if the expert witness is not hired to provide expert testimony in the case, but is instead hired for example, to consult with the party during trial preparation. In that case, the expert witness may not have to be disclosed and is not required to produce a written report.[16]
Expert disclosures are generally due at least 90 days before trial unless there is a stipulation or court order to the contrary. However, if the expert’s evidence is only intended to contradict the evidence provided by the opposition’s expert (rather than to prove the party’s claim in the first instance), then the expert disclosure is due within 30 days of the opposition’s expert designation.[17]
- Pretrial Disclosures
Pretrial disclosures are the last disclosures to be filed and generally must be filed at least 30 days before trial is set to begin.[18] These disclosures serve to give the parties an idea of what witnesses are expected to testify, what witnesses may testify if necessary, witnesses whose testimony a party will seek to submit by deposition, exhibits the parties expect to use and a list of exhibits the party may use if necessary.[19] Clearly, there is not much of a trial that is left to surprise in these matters. Instead, the parties generally know what information, witnesses, and exhibits the opposition will use to support their case.
After the parties have filed pretrial disclosures, the opposing party has 14 days to file objections to the presentation of testimony or exhibits that the opposition intends to use at trial. If these objections are not made, they are waived, unless failure to object is excused by the court for good cause.[20] As Pretrial disclosures must be made in writing, signed, and served upon the other parties to the litigation.[21]
Limitations on Discovery
Although discovery can be obtained from anyone, only parties to the litigation can seek discovery. Parties can inquire into “any matter not privileged, that is relevant to the subject matter of the action.”[22] To be discoverable, the information does not even have to be admissible at trial. For example, second-hand reports of witness statements are discoverable even though they are probably inadmissible hearsay.
However, discovery must be reasonable, considering the issues being litigated, the amount of money at stake, accessibility of information and the parties’ resources. Courts will apply a “burden-benefit analysis” to this inquiry; that is, does the burden on the party from which the information is being sought outweigh the benefit to the process that the information will provide?[23]
Although discovery is generally broad, the federal rules and courts impose limitations, including those on the frequency and duration of discovery and the discovery of trial preparation materials.
Frequency and Duration
The court may impose reasonable limitations on the number of depositions and interrogatories that a party can request or on the length of depositions. Additionally, either the court or local rules can limit the number of requests for admission.[24]
The rules also provide limitations upon electronically stored information. The general rule is that a party from whom discovery of electronically stored information is requested need not provide the information if it is “not reasonably accessible because of undue burden or cost.”[25] The court may, however, order that even burdensome requests be complied with for “good cause,” which usually means that the information is important to the litigation and cannot easily be otherwise obtained.[26]
The court also may limit discovery if:
- The information sought is unreasonably duplicative or cumulative, or if it can be obtained by other means that are less burdensome, less expensive, or more convenient;
- The party seeking discovery has already had adequate time and opportunity to obtain the information via discovery; or
- The discovery sought is generally outside the scope permitted by the FRCP.[27]
Trial Preparation Materials and Work Product Rule
Trial preparation materials are documents and tangible things that are prepared by a party to litigation or its attorney “in anticipation of litigation” or in preparation for trial. These items are protected from discovery under the work-product doctrine.
The rationale behind this is that if the attorney’s mental impressions, opinions, and theories of the case were discoverable to the opposition, then it would effectively destroy the incentive of each party to work hard during discovery. Each side would have the incentive to piggy back on the other side’s work. Discovery would devolve into game of chicken where each party does only the work she believes that the other side will not do. Moreover, if attorney’s written work product were discoverable, it would disincentivize committing thoughts, impressions and analyses to paper, thereby further degrading the quality of litigation preparation.
The court may allow discovery of work product if the party seeking discovery can show that it has “substantial need [of] the materials to prepare its case and cannot, without undue hardship, obtain the substantial equivalent by other means.”[28] The classic example is where a witness interviewed by one party’s attorney dies, making the interview notes the one way the other side can learn the witness’ information. Even in such case, the attorney’s conclusions, mental impressions, legal theories, or opinions about the litigation are protected.[29] In such case, the party that conducted the interview could be compelled to turn over the interview notes, but may redact (which means to cross out or remove) information that constituted the attorney’s thoughts, impressions and analysis.
The Rules provide special rules for the deposition of experts who are retained to assist at trial.
First, any party can depose an expert that the opposing party disclosed as likely to testify at trial. If that expert is required to produce a written report, then she cannot be deposed until after the report is provided.
Second, all draft (non-final) expert reports and expert designations are protected from discovery.[30]
Third, all communications between an attorney and an expert witness who is required to provide a written report are protected from discovery, including letters, emails, telephone calls and texts. The only exceptions from protection are where the communication relates to the expert’s compensation or the information that the attorney provided to the expert and on which the expert based his or her opinion.[31]
Fourth, opinions of experts who are not retained to testify are not discoverable. It is common for attorneys to employ experts to consult with the attorneys and educate them about the case. If they will not be testifying, these experts do not have to produce written reports and their opinions are not discoverable. However, there is an exception allowing discovery where a physical or mental examination is ordered by the court, or where the party seeking discovery shows “exceptional circumstances under which is its impracticable for the party to obtain facts or opinions on the same subject by other means.”[32] This may happen for instance, if the other parties have difficulty finding and retaining the services of this particular type of expert.
Fifth, when a party seeks discovery related to an expert witness, the party seeking discovery must pay the expert a “reasonable fee” for the time the expert spends responding to the discovery. Once experts become involved in litigation, it can become very expensive very quickly. Depending upon their area of expertise, it is not uncommon for experts’ hourly rate to range from $250 to $550.
[1]Black’s Law Dictionary (Seventh Edition, 1999), Definition: discovery (2), p. 478. St. Paul, Minn.: West Group.
[2] U.S. Government (2017), Federal rules of civil procedure 2017 annotated, Rule 26. Duty to Disclose; General Provisions Governing Discovery, (d) Timing and Sequence of Discovery and (f) Conference of the Parties; Planning for Discovery.
[3] FRCP 26(f)(1).
[4]FRCP 26(f)(2) and (3).
[5] FRCP 16.
[6] FRCP 26(d).
[7] FRCP 34.
[8] FRCP 26(d)(3).
[9] FRCP 26(e).
[10] FRCP 26(g)(1).
[11] FRCP 26(g)(2) and (3).
[12] FRCP 26(a)(1)(C).
[13] FRCP 26(a)(1)(C) and (E).
[14] FRCP 26(a)(1).
[15] FRCP 26(a)(2)(A) and (B).
[16] FRCP 26(a)(2)D).
[17] FRCP 26(a)(2)(D).
[18] FRCP 26(a)(3)(B).
[19] FRCP 26(a)(3)(A).
[20] FRCP 26(a)(3)(B).
[21] FRCP 26(a)(4).
[22] Black’s at definition of discovery, p. 478.
[23] FRCP 26(b)(1).
[24] FRCP 26(b)(2)(A).
[25] FRCP 26(b)(2)(B)
[26] Id.
[27] FRCP 26(b)(2)(C).
[28] FRCP 26(b)(3)(A).
[29] FRCP 26(b)(3)(B).
[30] FRCP 26(b)(4)(A) and (B).
[31] FRCP 26(b)(4)C).
[32] FRCP 26(b)(4)(D).