Litigation in Federal Court
Discovery
The Basics
Scope and Limits
FRCP 26(b)(1): Parties may obtain discovery over any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case; proportionality is assumed unless disproven by the party opposing discovery; doesn’t need to be admissible as evidence to be discoverable.
Proportionality Factors:
[1] Importance of issues
[2] Amount in controversy
[3] Parties’ relative access to relevant information
[4] Parties’ resources
[5] Importance of discovery in resolving issues
[6] Burden or expense of the proposed discovery outweighs its likely benefit
General Rule: almost anything is discoverable so long as it is not disproportional or irrelevant.
Work Product Doctrine
General Rule: A party may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative (eg, attorneys, paralegals).
Exception: the documents are otherwise discoverable under FRCP 26(b)(1), and the party shows it has a substantial need or cannot obtain the information sought by other means without undue hardship.
FRCP 26(b)(3)(A)
Hickman v. Taylor, 329 U.S. 495 (1947)
Discovery Tools
Mandatory Discovery
[1] Witnesses to support your claims or defenses.
[2] Documents to support your claims or defenses.
[3] Documents for Damages.
FRCP 26(a)
Other Methods of Discovery
[1] Depositions — Live Questioning
FRCP 30
[2] Interrogatories — Written Questioning
FRCP 33
[3] Requests for Production — Documents and Other Things
FRCP 34
Electronically Stored Information
Limitations
FRCP 26(b)(2)(B): Discovery of ESI is not required if it’s from sources that the party identifies as not reasonably accessible because of undue burden or cost
Exception: the court may still order discovery if the requesting party shows good cause, and it’s shown to not be duplicative, there was no prior opportunity to request it, and it’s within the scope of FRCP 26(b)(2)(B).
Discovery Abuse — Failure to Preserve ESI
FRCP 37(e): If ESI that should have been preserved in the anticipation or conduct of litigation is lost:
[1] the court may cure the prejudice upon a finding of it, or
[2] if the intent was to deprive another party, the court may:
[A] presume that the lost information was unfavorable to the party,
[B] instruct a jury to presume that the information was unfavorable to the party, or
[C] dismiss the action or enter a default judgement.