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Chapter
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DISCOVERY
FRCP 26(b) describes what may be discovered under the federal rules. Unless discovery has been otherwise limited by a protective order of the court, a party may discover any matter that is:
(1) relevant to a claim or defense;
(2) reasonably calculated to lead to discovery of admissible evidence;
(3) not privileged;
(4) not constituting work product (A special showing is required for discovery of work product prepared or acquired in anticipation of litigation or for trial.)
Discovery may include:
(1) information already in the discoverer’s possession – Even when the discoverer already knows or possesses certain information, he is entitled to discover it from his adversary.
(2) impeachment material – Discovery includes material that may impeach an opponent’s witnesses.
(3) opinions and contentions – Discovery is not limited to facts, but may also include opinions held by non-experts and contentions regarding the facts or the application of law to the facts.
(4) insurance agreements – FRCP 26(a)(1) expressly requires disclosure of insurance agreements available to satisfy any or all of any judgment, even though they remain inadmissible at trial.
§ 9.02 Questionable Areas of Discovery
[a] Financial Information
Unless the amount of a party’s assets is itself a relevant issue in the case, as it would be in an action to enforce a money judgment or in an action for punitive damages measured by the amount of the assets, discovery of assets other than insurance, and of related information such as tax returns and bank statements, may be beyond the scope of discovery. Even when assets are relevant and discoverable, privacy concerns may warrant postponing discovery until the discoveree has had an opportunity to contest the claim to which the assets are relevant.
[b] Electronic Information
FRCP 26(b)(2) is silent about information stored in electronic form. In fact, the discovery rules generally appear to be document-oriented. Nevertheless, courts have almost universally interpreted FRCP 34 to allow discovery of electronic information if it is relevant and non-privileged.
§ 9.03 Privileged Communications
The attorney-client, doctor-patient, priest-penitent, interspousal privilege and the privilege against self-incrimination are commonly recognized privileges. In order to prove that a communication is privileged, the party claiming privilege must show that such communication:
(1) was made with an expectation of confidentiality;
(2) is essential to a socially approved relationship or purpose; and
(3) has not been waived by disclosure of the contents of the communications to persons outside the relationship.
Privileges are narrowly construed in order to minimize their effect on liberal disclosure. The proponent of a privilege has the burden of establishing its existence. [FRCP 26(b)(5)]
[1] General Rule
Work product, generally defined as information prepared or obtained in anticipation of litigation or preparation for trial by or for a party or his representative, enjoys a qualified immunity under FRCP 26(b)(3). The Rule authorizes discovery of work product in the form of documents and tangible things only upon a showing that the party seeking discovery:
(1) has substantial need of the materials in the preparation of his case, and
(2) is unable without due hardship to obtain the equivalent of such materials by other means.
The current version of FRCP 26(b)(3) essentially codifies the case of Hickman v. Taylor, 329 U.S. 495 (1947), in which the Supreme Court recognized a common law qualified immunity of work product from discovery. In Hickman, the Court stated that when the discoverer of work product shows that production is “essential to preparation” of his case and that denial of discovery would cause hardship because “witnesses are no longer available or can be reached only with difficulty,” production of “relevant and non-privileged facts . . . in an attorney’s file” should be allowed.
[2] Prepared in Anticipation of Litigation or for Trial
Immunity is limited by FRCP
26(b)(3) to materials “prepared in anticipation of litigation or for
trial.” Most courts add that the primary purpose of preparing the documents
must have been to assist in such litigation. Thus, documents prepared for ordinary business purposes (e.g., a routine accident report), public
regulatory requirements (e.g.,
statutorily-required report to police of automobile accidents involving
injuries), or other nonlitigation purposes (e.g.,
self-evaluation) fall outside the Rule.
[3] Documents and Tangible Things
The Court in Hickman emphasized that although the written witness statements and the attorney’s memoranda were not discoverable on a bare demand, the discoverer was free to obtain the facts gleaned by discovery. The qualified immunity for work product does not protect against discovery of facts – which may be construed as “intangible things” – contained in the work product, including the identity of fact witnesses or the existence of the protected documents and things. However, federal courts have ruled that the discoveree may not be compelled to reveal facts to the extent that he is essentially recreating the protected document for the discoverer.
Although witness statements qualify as work product, FRCP 26(b)(3) expressly provides that a party or witness may on demand obtain a copy of his own substantially verbatim statement concerning the subject matter of the action.
[4] Party’s “Representative”
As used in FRCP 26(b)(3), “representative” includes a party’s attorney, consultant, surety, indemnitor, insurer, or agent.
[5] Undue Hardship
Hickman demonstrates that the “undue hardship” requirement may be satisfied when important facts are exclusively in the control of the discoveree such that the party seeking discovery has no other reasonable access to the information. For example, undue hardship may exist where:
(1) a witnesses died, moved beyond the reach of compulsory process, lost his memory, deviated from his prior testimony or refused to cooperate; or
(2) evidence that has physically disappeared or been altered is reflected in work product, such as photographs of skid marks or conditions at the scene of an accident.
[6] Opinion Work Product
FRCP
26(b)(3) provides what appears to be an absolute immunity for opinion work
product, defined as “mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the
litigation.”
FRCP 26 differentiates between experts expected to testify at trial (testifying experts) and those merely retained or specially employed in anticipation of trial who are not, however, expected to testify (non-testifying experts). FRCP 26(a)(2) requires disclosure of the identity and expected testimony of the testifying experts and FRCP 26(b)(4)(A) permits their depositions. FRCP 26(b)(4) conditionally protects the non-testifying experts from discovery absent a special showing.
Excluded from the Rule’s protection is any expert who acquires his information directly as either a participant or observer about the transactions or occurrences underlying the lawsuit. In such circumstances, the “expert” is in fact an ordinary fact witness. E.g., a police officer who responds to the accident scene, a doctor who attends in the emergency room, a mechanic who services the car whose brakes failed.
[1] Mandatory Discovery Conference and Discovery Plans
FRCP
26(f) requires parties to a lawsuit to confer as soon as practicable to
discuss the case and possibilities for settlement, to arrange for required
disclosures, and to develop a discovery plan incorporating these and other
agreements for subsequent discovery. FRCP
26(d) precludes discovery prior to such conference.
[2] Required Disclosures
FRCP 26(a) mandates three types of discovery that must be automatically produced regardless of discovery request:
(1) initial disclosures of basic information;
(2) disclosures of expert testimony; and
(3) pretrial disclosures of trial evidence.
A party who without substantial justification fails to disclose material subject to required disclosure is precluded under FRCP 37(c)(1) from introducing the material at trial.
[a] Initial Disclosures
Basic information covered by FRCP 26(a)(1) includes:
(1) the identity of possible fact witnesses that may be called at trial;
(2) identification of documents and other tangible items in the possession, custody or control of a party, “that the disclosing party may use to support its claim or defenses,”
(3) computation of damages claimed, “making available for inspection and copying . . . evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered.”
(4) insurance policies that may be used to satisfy part or all of a judgment.
Excluded from FRCP
26(a)(1) are witnesses and documents that will either be used
solely for impeachment or will not be used at trial.
[b] Pretrial Disclosures
In addition to the required disclosure of expert witness testimony, the parties must exchange lists of trial witnesses and trial exhibits at least 30 days before trial.
[3] Supplementation of Discovery
Under FRCP 26(c) and (e), a party must ensure the continued accuracy of the following types of discovery throughout the lawsuit:
(1) automatic discovery required by FRCP 26(a);
(2) disclosures made by expert witnesses that are to testify at trial; and
(3) responses to an interrogatory, request for production, or request for admission.
If such discovery becomes incomplete or inaccurate, the
party or his/her attorney must provide additional or corrective information to
the opponent, if not already known by the opponent. A common sanction for breach of the duty to supplement is
exclusion at trial of evidence withheld by the discoveree. This sanction is inappropriate, however, if a continuance and
opportunity for mid-trial discovery can enable the discoverer to overcome
his/her surprise and prepare effective cross-examination and rebuttal.
Under FRCP 30(b)(6), a party may name as a deponent in his notice and subpoena a corporation, agency, partnership or other legal entity and describe the matters on which examination is requested. The entity must then designate one or more officers, directors, managing agents or other persons with relevant knowledge to testify on its behalf.
[2] Use of Depositions at Trial
Under FRCP 32(a) any or all of a deposition may be used at trial, as if the witness were then present and testifying against any party who had notice of the deposition and a reasonable opportunity to obtain counsel or to move for a protective order.
FRCP 32(a) permits the use of deposition testimony to impeach or contradict the deponent as a witness, or as an admission of a adverse party or officer, director, managing agent or designated deponent of an adverse party. In addition, FRCP 32(a) permits the use of deposition testimony at trial when the deponent is unavailable because of death, illness, age, imprisonment or is beyond the reach of process. However, FRCP 32 only overcomes the initial hearsay hurdle to the use of a deposition, which must otherwise be admissible under the rules of evidence.
Interrogatories are written questions directed to a party,
who must answer them in writing and under oath, or object with
particularity. Interrogatories target
not just what is known by the discoveree, but also what is reasonably
obtainable by the dicoveree — “the collective knowledge” of the recipient. “A party is charged with knowledge of
what his agents know, or what is in records available to him, or even, for
purposes of FRCP
33, what others have told him on which he intends to rely in his suit.”
FRCP 33(a) limits the number of questions (taking into account discrete subparts of questions) that can be posed to another party to 25, unless otherwise stipulated to by the parties or ordered by the court.
§ 9.09 Production and Entry Requests
FRCP 34(a) authorizes the discoverer to request that a party produce and permit:
(1) inspection and copying of documents;
(2) copying, testing or sampling of things; or
(3) entry upon land.
A FRCP 34 request must designate the documents, things or land with reasonable particularity and specify the time, place and manner of production or entry.
A FRCP
34 production request embraces not only that which is in the possession of
the discoveree but also documents and property within her custody or control.
§ 9.10 Physical and Mental Examinations
When the physical or mental condition of a party (or person in the custody or legal control of a party) is in controversy, a court may on motion and for good cause shown order the party or person to undergo a physical or mental examination under FRCP 35.
FRCP 35(b) establishes a rule of reciprocity for the exchange of examination reports. The examinee is entitled to the report of the examination upon request. In exchange, the examinee must produce any prior reports of examinations of the same condition, and waives any privilege he/she has regarding the testimony of anyone who has or will examine him/her concerning that condition.
§ 9.11 Requests for Admissions
Federal FRCP 36 provides a mechanism by which a party may request his adversary to admit the truth of any matters within the scope of discovery. An admission obtained under FRCP 36 conclusively establishes such matter and is binding at trial. Admissions may be withdrawn or amended with leave of court pursuant to FRCP 36(b) if it will subserve the presentation of the merits and the party who requested the admission is unable to show prejudice from the amendment.
If a party on whom a request for admissions is served cannot admit to the truth of the matter asserted therein, the party can alternatively:
(1) deny the truth of a requested admission;
(2) object on the ground that the request exceeds the permissible scope of discovery;
(3) seek a protective order for any of the reasons listed in FRCP 26(c);
(4) admit part and deny the balance;
(5) qualify his/her admissions and denials as necessary; or
(6) state that after reasonable
inquiry the information available to him/her is insufficient to enable him/her
to admit or deny.
§ 9.12 Preventing Abuse of Discovery
[1] Certification Requirements
FRCP 26(g) imposes two different kinds of certification requirements on discovery initiatives. It requires an attorney or unrepresented party to certify to knowledge, information or belief, formed after reasonable inquiry, that a disclosure under FRCP 26(a)(1) or (3) is “complete and correct as of the time it is made.”
In addition, FRCP 26(g) imposes a certification requirement for discovery requests, responses and objections paralleling that of FRCP 11. By signing such a request or response, the attorney certifies that the discovery request is not predicated on an improper motive such as harassment or delay, and is not disproportionate to the needs of the case.
[2] Protective Orders
A person served with a discovery request may seek a protective order against such request if it may cause “annoyance, embarrassment, oppression, or undue burden or expense.” Discovery may be found unduly burdensome based on the location or condition of the discoveree, and may be unduly invasive when it probes matter that, though unprivileged, is confidential.
In order to cure a burdensome discovery request without the court having to wholly deny it, FRCP 26(c) authorizes protective orders that accomplish the following goals:
(1) restrict the time, place, method or scope of discovery;
(2) require that discovery be sealed and only opened by court order;
(3) limit the disclosure of trade secrets and other business information.
§ 9.13 Sanctions for Discovery Abuses
Under FRCP 37, no party may move for an order compelling discovery or for sanctions without certifying that it has tried in good faith to resolve the discovery dispute with other parties without court action. FRCP 37(b) authorizes sanctions for a failure to comply with an order to compel discovery or equivalent discovery order. Rules 26(g), 37(c) and 37(d), however, permit the imposition of sanctions without an intervening discovery order in some circumstances.
The discoverer may move under FRCP 37(a) for an order compelling discovery either when the discoveree objects to discovery or responds evasively or incompletely. If the motion to compel is granted, FRCP 37(a)(4) requires the court to award the movant attorney’s fees and other expenses incurred in making the motion unless it finds that opposition to the motion was “substantially justified.” If the motion is denied, the discoveree has a similar opportunity for reimbursement and the court may issue a protective order in his favor.
If a party fails to disclose information required to be
disclosed by FRCP
26(a), FRCP
37(c) precludes that party from using the information as evidence at
trial. Furthermore, FRCP
26(g) requires sanctions against an attorney or party for violation of its
certification requirement. Because
most violations of the discovery rules can also be construed as violations of
the certification requirement, FRCP
26(g) may encourage federal courts to impose discovery sanctions more often
without an intervening order compelling discovery.
FRCP 37(b) sets forth a range of sanctions by authorizing the court to:
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Chapter
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