Discovery Outline

STAGE SIX: DISCOVERY

1. General Discovery – FRCP 26

   1. Synthesized Rule/Procedure

      1. Π/Δ should meet in a 26(f) conference at least 21 days before the FRCP 16(b) scheduling conference.

      2. ASAP, but within 14 days after 26(f) conference, Π* must provide Δ* with the names and locations of witnesses, documents, damages, and insurance, and vice versa.

   2. Textual Rule

      1. Required Disclosures: Π* must provide Δ* with:

         1. the name and contact of each individual likely to have discoverable information as well as the subjects of that information that Π* may use to support its claims or defenses;

         2. name/location of documents;

         3. a computation of each category of damages;

         4. any insurance agreements related to suit. FRCP 26(a)(1)(A).

         5. Timeline: within 14 days of 26(f) conference. FRCP 26(a)(1)(C).

      2. Scope of Discovery: Δ/Π may obtain discovery regarding any nonprivileged matter that is relevant to Π/Δ’s defense or claim. FRCP 26(b).

      3. Timeline: discovery begins after the FRCP 26(f) conference, except for required disclosures. FRCP 26(d).

      4. Supplement: if Δ* remembers something later, Δ* must supplement the testimony etc. or risk FRCP 37(a)(1) sanctions.

      5. Conference: Π/Δ should meet at least 21 days before FRCP 16(b) scheduling conference, arrange for settlement or resolving case, arrange for disclosures required by FRCP 26(a)(1), etc. FRCP 26(f).

         1. E-Discovery: consideration of e-discovery should be made during the design of the discovery plan. FRCP 26(f)(3)(C).

   3. Analysis

      1. Purpose

         1. Under FRCP 26(b), Π/Δ must show that info sought appears calculated to lead to discovery of admissible evidence.

         2. Π* is not required to disclose their attorneys’ work product during discovery. The purpose of discovery is to narrow and clarify issues as well as ascertain facts, but not the other party’s work. Hickman.

         3. Before proceeding with anything, both parties must make commonsense determinations regarding

            1. all the circumstances;

            2. that info is significant enough to justify discovery;

            3. that the discovery tool is most efficacious and cost-beneficial;

            4. and that the timing of the probe is sensible. In re Convergent Techs.

         4. If the discovery request is meant to harass, Π* may be sanctioned or Δ* may not have to respond until completing substantial discovery. In re Convergent Techs.

      2. Required Disclosures

         1. This includes all info not admissible as evidence but which may lead to admissible evidence.

         2. This is enforced by FRCP 37(c)(1), which forbids nondisclosed materials from being used including in discovery (e.g. Δ questions deposed witness re: undisclosed material) .

         3. If Δ* is excused because the discovery was inaccessible (e.g. e-discovery): FRCP 26(b)(2)(B).

      3. Preservation of Evidence

         1. All evidence must be preserved or risk of sanctions or criminal punishment.

      4. Relationship to FRCP 8, 9 & 11

         1. Discovery may not be used to assess whether a cause of action exists or who the Δs are. In re I35-W Bridge Collapse Site Inspection (D. Minn 2007).

         2. Information likely to be found in discovery may not be used to comply with FRCP 11. In re Landry-Bell (W.D. La. 2005).

            1. But Π may get some discovery prior to filing an amended complaint when the complaint states a claim but lacks sufficient detail. Zavala v. Wal-Mart Stores, Inc. (D.N.J. 2005).

         3. Discovery may be used to satisfy the particularity requirements of a special pleading under FRCP 9, however. Remnes v. Int’l Flavors & Fragrances, Inc. (N.D. Iowa 2006).

      5. Timeline

         1. 21(a)(1)(A) automatic disclosures, then 26(f) conference, then 16(b) conference (within 90 days of Δ’s appearance or 120 days of service), then discovery.

         2. Experts must appear 90 days before trial.

   4. Cases

      1. Hickman v. Taylor (U.S. 1947, 344): lawyers’ work products during discovery are protected and not available; all other non-privileged matter that is relevant to a claim or defense should be made available, however, because there is now no such thing as a “fishing expedition.”

      2. In re Convergent Techs. Secs. Litigation (N.D. Cal. 1985, 347): Δ sent 1000 “contention” interrogatories in response to Π’s complaint. Since the purpose of these is likely gaming, Π doesn’t have to respond until completing substantial discovery.

2. Pretrial Conference – FRCP 16; 26(f)

   1. Synthesized Rule/Procedure

      1. Π/Δ should attend the pretrial conference with the judge ASAP, but at least 21 days after their 26(f) conference. If they don’t show up or are unprepared, they may be sanctioned.

   2. Textual Rule

      1. Purposes: establish control, improve quality of trial with preparation, prevent wasteful activities, and facilitating settlement. FRCP 16(a).

      2. Scheduling Conference: the court must make a scheduling order ASAP, within the earlier of 120 days after Δ has been served or 90 days after Δ has appeared. FRCP 16(b).

      3. Contents: scope and extent of discovery, dates for pretrial conferences and trial, etc. FRCP 16(b).

      4. Attendance: Π/Δ should attend with someone who knows things. FRCP 16(c).

      5. Sanctions: if Π/Δ fails to appear, is not prepared, or fails to obey a scheduling order, may be sanctioned, including with attorneys’ fees, unless noncompliance was substantially justified. FRCP 16(f).

   3. Analysis

      1. Scheduling & Management Conference

         1. The court may require Πs to specify info they are required to find pursuant to FRCP 11(b)(3) (factual contentions have evidentiary support). E.g., may dismiss case because Πs fail to specify uranium injuries. Acuna v. Brown & Root, Inc. (5th Cir. 2000).

3. Depositions – FRCP 27–32

   1. Synthesized Rule/Procedure

      1. Π* may depose Δ* or a nonparty, but the number of depositions is limited. Objections during depositions are also limited.

   2. Textual Rule

      1. Preservation of Evidence: depositions may be used to preserve evidence even though Π shows Π is unable to commence litigation at the moment. FRCP 27.

         1. In this sense a witness who may not be available later can have their testimony used in court. FRCP 27(a).

      2. Procedure: depositions may be requested on “reasonable written notice.” FRCP 30(b)(1).

         1. A deposition may be...

Buy the full version of these notes or essay plans and more in our Civil Procedure Outlines.