Required Disclosures
These must be provided within 14 days after the Discovery Conference but before any requests are made by parties
Initial Disclosures - 26(a)(1)(A), (C)
This is the basic test for scope of discovery requests
May obtain discovery of any:
- Nonprivileged matter,
- Relevant to any party's claim/defense
- Proportional to needs of case
Motions for protective orders must contain this.
Certification that the party--in good faith--at least tried to confer w/ the other parties in an effort to resolve the dispute w/o court action.
26(c)(1)
This is when parties must confer to plan discovery
As soon as practicable, but at least 21 days before a scheduling conference or a scheduling order is due under R 16(b)
a signature by at least one attorney is required for these disclosures/requests
All of them: requests, responses, objections
Unless it will be used only for impeachment, parties must provide this information in their initial disclosures
(i) Name and, if known, the address + telephone # of each individual likely to have discoverable information--along with the subject of that information--that the disclosing party may use to support its claims/defenses
(ii) Copy (or description by category + location) of all docs, ESI, and tangibles that the disclosing party possesses/controls and may use to support its claims/defenses
- 26(a)(1)(A)(i), (ii)
These are additional factors that courts weigh when ruling on challenged discovery requests
- Importance of issues at stake
- Amount in controversy
- Parties' relative access to relevant info
- Parties' resources
- Importance of the discovery in resolving issues
- Whether the burden/expense of the discovery outweighs its likely benefit
These are general reasons why a court may, for good cause, grant a protective order.
Protect a party/person from
- annoyance
- embarrassment
- oppression
- undue burden/expense
This should happen at the discovery conference
- Parties should consider nature and basis for claims/defenses and possibilities for promptly settling/resolving the case
-make/arrange for Initial Disclosures
- discuss issues surrounding spoliation
- develop a proposed discovery plan
- submit written report to the court within 14 days after the conference which outlines the plan.
This counts as a failure to disclose, answer, or respond
Evasive or incomplete disclosures, answers, responses
37(a)(4)
These experts must provide written reports in addition to being disclosed
One retained or specially employed to provide expert testimony, or
One whose duties as an employee regularly involve giving expert testimony
26(a)(2)(B)
If any of these factors are met, the Court must limit frequency or extent of discovery
- Discovery sought is unreasonably cumulative or duplicative, or can be obtained from other source that's more convenient, less burdensome, or less expensive
- Party seeking it had ample opportunity to obtain the info by discovery already
- It falls out side the scope allowed under 26(b)(1)
26(b)(2)(C)(i)-(iii)
Party seeking motion to compel must have--in good faith--conferred or tried to with party failing to make disclosure
37(a)(1)
Unless otherwise stipulated, these 2 provisions dictate the sequence for discovery
- methods of discovery may be used in any sequence
- discovery by 1 party doesn't require any other party to delay its discovery
This happens if a motion to compel is granted
Court must (after giving opportunity to be heard) require party/deponent whose conduct triggered the motion, party or attorney advising that conduct, or both to pay movant's reasonable expenses incurred (including attorney's fees)
BUT, must NOT order this payment if: (i) movant filed motion before attempting in good faith to obtain w/o court action, (ii) opposing party's nondisclosure was substantially justified, (iii) other circumstances would make it unjust.
37(a)(5)(A)
Witnesses who do not have to provide written reports must include these things in their disclosure
Subject matter of the evidence that witness is expected to present, and
Summary of the facts and opinions to which that witness is expected to testify.
26(a)(2)(C)(i), (ii)
Parties may depose any person identified as an "expert" whose opinions may be presented at trial, but are subject to these limitations
- If expert must provide a written report, cannot depose until after report is provided
- Drafts of reports or disclosures are protected
- Communications between party's attorney and any witnesses providing written reports (see 26(b)(4)(C) for limits to this)
- The expert was employed only for trial preparation and is not expected to be called as witness at trial (see 26(b)(4)(D) for limits to this)
These are ways in which a court may grant a protective order.
- forbidding disclosure/discovery
- Specifying terms for the disclosure/discovery
- prescribing discovery method other than the one chosen by party seeking discovery
- designating persons who may be present while discovery is conducted
- requiring a deposition to be sealed or only opened on court order
- requiring trade secrets/confidential research to not be revealed
- requiring parties to simultaneously file specified docs or info in sealed envelopes to be opened as court directs.
These are ways in which a court may grant a protective order.
Parties' views and proposals on:
- changes that should be made in the timing, form, requirement for disclosures under 26(a) (including a statement of when initial disclosures were made or will be)
- subjects for which discovery may be needed, when discovery should be completed, and whether it should be done in phases or limited to/focused on particular issues
- any issues w/ disclosure, discovery, preservation of ESI
- any issues about claims of privilege or protections
- changes to be made in the limits on discovery
- any other orders that the court should issue under 26(c) or 16(b)/(c).
This happens if a motion to compel is denied
Court may issue protective order and must require movant, attorney filing motion, or both to pay opposing party/deponent reasonable expenses
BUT, must NOT order this if motion was substantially justified or other circumstances would make it unjust.
37(a)(5)(B)
If the court does not stipulate or otherwise order, the parties must disclose the expert testimony at this time
At least 90 days before date set for trial, or
If evidence is solely meant to contradict or rebut evidence on same subject matter identified by other party under 26(a)(2)(B) or (C), within 30 days after the other party's disclosure
26(a)(2)(D)(i), (ii)
(1) If the party withholds info otherwise discoverable, that party must do these 2 things
(2) If parties disclose stuff they later think is privileged, this provision provides a remedy and this is what that party must do.
(1) Expressly make claim that the info sought is privileged or subject to protection as trial-prep material, and describe nature of docs, comms, or tangibles not produced/disclosed in a way that lets the other party assess the claim (26(b)(5)(A)(i), (ii))
(2) 26(b)(5)(B) Claw-back Provision. Party making claim must notify other party it received such info and the basis for its claim to withhold. After notice, recipient party of privileged info must promptly return, sequester, destroy specified info and any copies. It cannot use/disclose the info until the claim is resolved. Must take reasonable steps to retrieve it if disclosed before notification. May present info to court under seal for a determination.
These scenarios describe when it may be appropriate for a party to file a motion to compel
- deponent fails to answer a question under R 30/31
- Corporation/entity fails to make designation under 30(b)(6) or 31(a)(4)
- party fails to answer interrogatory submitted under R 33
- party fails to produce documents or fails to respond that inspection will be permitted (or fails to permit inspection) as requested under R 34.
Courts may do this pursuant to a local rule in order to expedite.
- require parties' conference to happen less than 21 days before scheduling conference or scheduling order due under R16(b)
- require the written report that outlines the discovery plan to be filed less than 14 days after the parties' conference (or excuse them from submitting a written report and permit an oral report at the 16(b) conference).
These 7 sanctions can be applied when someone disobeys a discovery order
- directing designated facts to be taken as established in favor of prevailing party (Adverse Inference jury instructions)
- Prohibit bad party from supporting/opposing designated claims/defenses or introducing them as evidence
- strike pleadings in whole or part
- staying further proceedings until order is obeyed
- dismissing the action in whole or part
-rendering a default judgment against bad party
- treating the failure as contempt of court (except orders to submit to physical/mental exam)