Discovery
The process of compelled exchange of information between parties to a law suit.
Discovery- Six Devices
Under Fed. R. Civ. P. 26-37, parties may use six devices– automatic disclosure, requests for production of documents, interrogatories, depositions, requests or admissions, and physical or mental examinations– to obtain information about the case from other parties, and from nonparty witnesses. The Federal Rules not only create these discovery devices; they require the parties to respond to requests for information made through them.
Is Discovery Mandatory?
Discovery, no matter how intrusive, is mandatory. The parties may object to burdensome or inappropriate discovery requests , and the court may limit discovery, but the parties must still respond to requests for discovery by producing information.
Scope of Discovery
Unless limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Proportionality
Discovery must be proportional to the needs of the case. Used to limit the “relevant to a claim or defense in the action” standard.
Information is Not Admissible as Evidence?
Rule 26(b)(1) expressly provides that information is discoverable even though it isn’t admissible as evidence at a trial. For example: hearsay is discoverable.
Pleadings
Pleadings play an important role in determining the scope of discovery. By raising issues in the pleadings, the parties lay themselves open to discovery on issues which otherwise might remain free from inquiry.
Objection
The party receiving the discovery request will have to assess independently whether the requested information is relevant to a claim or defense in the case, and object if she concludes that the informaiton is not relevant.
Privilege
Privilege bars production of information even though it is relevant to issues in the case. Privileged information is protected from disclosure under the rules of evidence.
Privilege and Factual Information
Privilege only protects from disclosure of communications, it does not protect disclosure of the underlying facts by those who communicate with the attorney.
Privilege and Factual Information- Example
Defendant is asked whethere he had told his priest that he knew his brakes were malfunctioning, he could refuse to answer if the jurisdiciton recognizes a priest/penitent privilege. But the privilege does not protect facts about the litigation events themselves, simply because they were the subject of a privileged communication.
Automatic Initial Disclosures- Supportive Witnesses
Rule 26(a)(1) describes categories of information that must be disclosed at the outset of the case without the need for a discovery request. this includes, in Rule 26(a)(1)(A), the name and location information for “each individual likely to have discoverable information– along with the subjects of that information– that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
Response to Interrogatories
Under the Federal Rules of Civil Procedure, a party’s answer to an interrogatory must be candid, direct, truthful, and complete; the responding party must also use reasonable diligence and inquiry to get the answers right. Although the answers to interrogatories will commonly be drafted by a party’s lawyer, the party must adopt the draft as his own and actually sign the answers.
Interrogatories
Certain discovery tools may only be served on parties, and may not be used to seek information from nonparties. For example, interrogatories may be used only to seek information from another party to the lawsuit, and may not be served on nonparties.
Permission for Deposition
In general, a party requires the court’s permission for a deposition if (1) the deposition would result in more than 10 depositions being taken by any one side in the litigation, (2) the deponent has already been deposed once in the case, (3) the party seeks to take the deposition before discovery has begun, or (4) the deponent is incarcerated. Fed. R. Civ. P. 30(a)(2).
Returning Signed Interrogatories
Under Rule 33, a party must serve its answers and objections to interrogatories within 30 days after being served with those interrogatories, unless that deadline is changed by stipulation or court order. A party must answer interrogatories in writing and under oath. A represented party’s lawyer must sign any objections to the interrogatories.
Here, the defendant’s answers and objections satisfied each of these requirements, except that the defendant’s lawyer did not sign the objections. Thus, the defendant’s answers and objections as a whole did not comply with the procedural rules governing interrogatories.
Non-Party Deposition Distance
A subpoena commanding a nonparty to attend a deposition, hearing, or trial must command attendance within 100 miles of where the nonparty resides, is employed, or regularly transacts business in person. Fed. R. Civ. P. 45(c)(1)(A).
What is the purpose of discovery in litigation?
- Preserve evidence
- Narrow issues in dispute
- Allow parties to learn more about the case
Discovery helps resolve issues on merit and prevents surprises during litigation.
Name the types of discovery devices.
- Depositions
- Interrogatories (Rogs)
- Requests for Production (Doc Requests)
- Requests for Admission (RFA)
These devices are used to gather information relevant to a case.
What does FRCP 26(a) require regarding initial disclosures?
- Names, addresses, phone numbers of persons involved
- Description and location of documents
- Computation of damages claimed
- Insurance agreements
These disclosures must be made upfront before formal discovery requests.
True or false: Depositions can only be served on parties involved in the litigation.
FALSE
Depositions can be served on both parties and non-parties.
What is the definition of Depositions (FRCP 30a/31)?
Process of taking testimony (questioning) a witness under oath
Depositions are recorded by a stenographer and can be used for fact-finding.
What are Interrogatories (Rogs) as defined by FRCP 33?
Written questions sent to other parties
Interrogatories are limited to 25 questions and must be answered within 30 days.
What does Requests for Production (Doc Requests) authorize?
Requires an opponent to produce designated documents or things for inspection and copying
This can include documents, emails, and even physical items.
