MBE Civil Procedure - Discovery

Process for parties to obtain information from each other and third parties. Categories:

Mandatory disclosures; and

Requests for information

Unless otherwise ordered by the court:

Initial disclosures: 14 days after discovery conference. FRCP 26(a)(1)(C)

If party was served or joined after Rule 26(f) conference, deadline is 30 days after being served or joined. FRCP 26(a)(1)(D)

Expert testimony: 90 days before trial. FRCP 26(a)(2)(D)(i)

If evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), then the deadline is within 30 days after the other party’s disclosure. FRCP 26(a)(2)(D)(ii)

Pretrial disclosures: 30 days before trial. FRCP 26(a)(3)(B)

Mandatory disclosures;

Interrogatories;

Request for Admissions;

Request for Documents and Tangible Items;

Requests for Mental or Physical Examinations; and

Depositions

Unless otherwise limited by court order, any information that is:

Relevant;

Proportional to the needs of the case; and

Not privileged

FRCP 26(b)(1)

Information that is:

Irrelevant;

Privileged; or

Work product (unless there is a showing of substantial need or undue hardship)

FRCP 26(b)(1)

If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible.

Initiates the discovery process. Requires that parties meet “as soon as practicable” to:

Discuss claims & defenses; and

The possibility for settlement

If no settlement is reached, the parties must develop a discovery plan to submit to the court within 14 days of the settlement conference.

FRCP 26(f)

At least 21 days before scheduling conference is held.

Rule 16(b)

Contact info for individuals likely to have discoverable information;

Documents that support a party’s claims and defenses;

Damages calculation & material upon which the calculation is based; and

Insurance agreements that could satisfy all or part of a possible judgment

Rule 26(f)(2)

Conference where the judge issues a scheduling order detailing deadlines for disclosures, filings, and other discovery issues. FRCP 16(a)

Deadline: As soon as is practicable, but within 90 days of D being served, or within 60 days of when D appears, whichever is earlier. FRCP 16(b)(2)

Yes, insurance agreements are initial disclosures required by Rule 26(a)(1).

Attorney/client

Doctor/patient

Spousal

Priest/penitent

Work product

Journalist (protection from revealing confidential sources)

5th Amendment protection against self-incrimination

Yes, absolute bar.

Any documents or tangible things prepared in anticipation of litigation or trial by or for another party or its representative.

FRCP 26(b)(3)(A)

No.

If materials 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.

FRCP 26(b)(3)(A)

Mental impressions, conclusions, opinions, and theories regarding the case.

FRCP 26(b)(3)(B)

Communications that:

Are between the attorney and client;

Were intended to be, and were, in fact, kept confidential; and

Were made for the purpose of obtaining or providing legal advice

Expert: List of all expert witnesses and any info used to form the basis of their opinions.FRCP 26(a)(2) (Deadline: 90 days before trial, unless ordered otherwise)

Lay: List of all witnesses and documents that will be used as exhibits at trial. FRCP 26(a)(3) (Deadline: 30 days before trial, unless ordered otherwise )

Name and contact information of the expert;

Expert’s final report;

Expert’s opinion and credentials;

List of all other cases in which the expert has testified in (past 4 years only);

Data relied on by the expert; and

Amount of compensation to be paid for the study

FRCP 26(a)(2)

No, unless exceptional circumstances make it impracticable for the parties to obtain the info by other means.

The subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

Summary of the facts and opinions to which the witness is expected to testify

FRCP 26(a)(2)(C)

Proceedings held during the course of discovery (before a trial) where a witness is questioned orally by an attorney under oath

Parties: Reasonable notice compels attendance

Nonparties: Notice doesn’t force a party to appear, a subpoena may need to be issued

Parties can subpoena corporations, and then the corporation/entity must then designate one or more officers, directors, or managing agents, or other persons to testify on its behalf about information known or reasonably available to the organization.

FRCP 30(b)(6)

Scope: Anything that is discoverable, even if the evidence itself would not be admissible. ⚠️ Remember that privileged information is almost never discoverable.

Objections are allowed if nonargumentative. Although objections will be noted in the transcript, the deponent must answer anyways (unless privileged).

FRCP 30

Written questions used for disclosure of routine information.

FRCP 33.

25 (including all discrete subparts), unless court approves or other party agrees.

FRCP 33(a)(1).

No, only on parties.

30 days.

FRCP 33(b)(2)

The response to an interrogatory must:

Be in writing under oath; and

Include objections with specificity

Signed by the person answering (or the attorney making the objections)

FRCP 33(b)

Requests for documents, tangible evidence and electronic evidence.

Deadline: must respond within 30 days after the request served.

FRCP 34

Yes, may be compelled by subpoena under FRCP 45.

Only when a person's mental or physical state is in controversy. Requesting party must show good cause and specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

FRCP 35(a)

Requests for parties to admit the truth of certain evidence.

Response options:

Admit information is true;

Deny information is true;

Explain why party cannot admit or deny; or

Object to request

FRCP 36

30 days after receipt of request.

FRCP 36(a)(3)

Deemed admitted for trial.

FRCP 36(a)(3).

Orders a noncompliant party to comply with a discovery request.

FRCP 37(a)

Answer questions in a deposition

If a corporate defendant → designate an individual for purposes of deposition

Answer an interrogatory

Produce documents or permit inspection of documents

FRCP 37(a)(3)(B)

Certification that movant made a good faith attempt to confer with the person resisting discovery to see if judicial intervention can be avoided.

FRCP 37(a)(1)

Other party will be ordered to comply

Court may impose sanctions

Moving party may be entitled to attorney's fees

FRCP 37(a)(5)

The court may:

Direct that the information at issue must be viewed in the way that the prevailing party asserts (i.e. if X requests emails that are meant to show evidence of fraud, and Y does not comply with a court order ordering production, the court will assume that the emails actually showed evidence of fraud).

Prohibit the disobedient party from supporting or opposing claims that the evidence related to

Strike pleadings, stay proceedings until the order is obeyed, dismiss the action, or render a default judgment against the disobedient party

Hold the disobedient party in contempt

FRCP 37(b)

The court may issue a protective order barring discovery of the relevant information.

In addition, the moving party may be required to pay attorney's fees to the other side unless motion was substantially justified.

FRCP 37(a)(5)(B)

To prevent “annoyance, embarrassment, oppression, or undue burden or expense”

Moving party must show that she conferred or attempted to confer with the other party to resolve the dispute.

Either:

Timing of discovery;

Scope of discovery; or

Forbids discovery altogether

Certifies that the disclosures are:

Complete and correct (mandatory disclosures only);

Consistent with the rules;

Warranted by existing law;

Not made for an improper purpose; and

Not unreasonably burdensome

(Discovery counterpoint to Rule 11)

There is no safe harbor for Rule 26(g), so a party served does not have 21 days to correct their error.

Deposition cannot be more than 100 miles from where the person lives & works.

10 per party unless good cause is shown.

Each deposition is limited to one day for a maximum of 7 hours, unless otherwise dictated by the court.

FRCP 30(a)(2)