Discovery Outline

1. DISCOVERY

   1. Step 1: Initial Disclosures

      1. Rule 26(f): Parties Conference and Discovery Plan

• Parties must confer as soon as practicable, or by 21 days before a scheduling conference (16(b)).

• At the discovery conference, the parties must discuss how they could resolve their case, arrange initial disclosures, and submit a written report within 14 days. They must confer in good faith.

  1. Rule 26(a)(1): Initial Disclosures

• (A) Party must exchange info that the other party may need to support claims and defenses, without being asked.

  • (i) Must include:

    • (a) Info on people likely to have discoverable info.

    • (b) Description or copy of documents likely to be used.

    • (c) A computation of damages and supporting materials.

    • (d) Any insurance agreement that could satisfy all or part of the judgment..

• (B) ((Proceedings exempt from initial disclosures))

• (C) Timing: Initial disclosures must be made within 14 days after the 26(f) conference unless otherwise specified.

• (D) Parties joined after the 26(f) conference must make initial disclosures within 30 days of service.

• (E) Parties are not excused from initial disclosures because a matter isn’t fully investigated.

  1. Step 2: Scheduling Order

     1. Rule 16(b): Scheduling Order

• The judge must issue a scheduling order after receiving the parties report under 26(f) or after consulting with the parties at a scheduling conference.

• The judge must issue a scheduling order 120 days after Δ is served or 90 days after any Δ has appeared.

• The scheduling order limits the time to join parties, amend pleadings, complete discovery, and file motions.

• The schedule may be modified for good cause or with the judge’s consent.

  1. Step 3: Party Initiated Discovery

     1. Rule 26(b): Discovery Scope and Limits

• Parties may discover any nonprivileged matter that is relevant to any party’s claim or defense.

  • Relevant: reasonably calculated to lead to the discovery of admissible evidence.

  • Example: bank acct. info is irrelevant to the case unless punitive damages are sought.

    1. Rule 26(b)(2)(B): Limits on Electronic Info

• A party needn’t provide electronically stored info if it is not reasonably accessible because of undue burden or cost. Discovery of the data may be ordered if the requesting party shows good cause.

  1. Rule 26(b)(2)(C): When Court Must Limit Discovery

• The court must limit discovery if:

  • (i) it is unreasonably duplicative or can be obtained by less burdensome or costly means;

  • (ii) the party seeking discovery has had ample time to discover the desired info;

  • (iii) the burden of discovery outweighs the benefits.

    1. Methods of Discovery

       1. Rule 34: Requests for Production

• (a)(1): RFPs. Parties may request the other party produce:

  • (A) documents/electronically stored info in a usable form;

  • (B) tangible things;

  • (C) to be permitted to enter land or property.

• (b)(1): Contents. A request for production must:

  • (A) describe what is sought with reasonable particularity;

  • (B) specify a reasonable time, place, and manner for inspection;

  • (C) may specify the form in which electronic info is to be produced.

• (b)(2)(E): Form and Manner.

  • (i) Parties must produce materials as they are kept in the usual course of business or organize and label them to correspond to the request;

  • (ii) If a request doesn’t specify a format for electronic info, it must be delivered in the format in which it is ordinarily maintained or in a reasonably usable form.

  • (iii) A party need not produce the same electronic info in more than one form.

    1. Rule 35: Requests for Physical and Mental Examinations

    2. Rule 33: Interrogatories

• (a)(1) limited to 25 written interrogatories.

• (a)(2) may relate to any matter that may be inquired about under 26(b) (relevant and non-privileged)

• (b)(1) must be answered by the party to whom they are directed, or if a corp/gov agency, then by an officer/agent.

• (b)(2) answers must be served within 30 days of receipt.

• (b)(4) Objections: grounds for objection must be specified. Objections not made are waived.

• (b)(5) Person making answers must sign; attorney objecting must sign objection.

  1. Rule 36: Requests for Admissions

• These may be served on any other party; must be in writing; can be used to take an issue out of controversy.

  1. Depositions

• 30(a)(1): Any person may be deposed by oral questions without permission, except as in (2).

• 27(a)(2): Party must be served notice 21 days before the hearing date.

• 30(d)(1): Party is limited to one day of 7 hours with each deponent.

• Witnesses must answer questions unless they involve privilege. Relevance is not an issue.

Rule 30(a)(2): Limits on Depositions. Parties must obtain permission from the court if…

• (A) the parties have not stipulated to the deposition and…

  • (i) the depo would result in more than 10 depos being taken (each side is limited to 10)

  • (ii) the deponent has already been deposed;

  • (iii) the parties seek to take the depo before the time specified in 26(d) unless the deponent certifies that he will be leaving the country.

• (b)(1): must give reasonable written notice to every other party regarding person/time/place of depo.

Rule 30(c)(2): Objections to Questions

• Objections must be noted in the record, but the examination proceeds.

• Court may instruct a deponent not to answer only to preserve privilege, enforce a limitation ordered by the court, or present a motion to terminate or limit all deposition.

• (d)(2): Court pay sanction a party who delays or impedes depo.

Rule 30(d)(3): Motion to Terminate or Limit Deposition

• A party may move to terminate deposition because it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.

  1. Step 4: Exchange of Expert Information

     1. Rule 26(a)(2): Experts’ Statements, etc.

• (A) The parties must disclose the identities of all expert witnesses who will give testimony.

• (B) If the expert witness is retained specially to give expert testimony, she must submit a signed, written report...

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