I. DISCOVERY UNDER THE FEDERAL RULES
Prior to the effective date of the Federal Rules of Civil Procedure in 1938, common law and code procedures generally assigned pleadings the tasks of giving notice of the nature of the case, narrowing issues for trial, weeding out groundless claims, and revealing the facts of the case. See Exercise Three, parts I.A-B. Beyond the pleadings, the attorney had few or no formal devices for investigation of the opponent’s case. Effective advocacy relied on keeping the opponent in the dark about the details of the case and items of evidence until the attorney could spring surprises at trial. This system was called the “sporting theory of justice” in Tiedman v. American Pigment Corp., 253 F.2d 803, 808 (4th Cir.1958).
The drafters of the Federal Rules intended to narrow the function of the pleadings to notice‑giving only, and to allow the discovery devices to handle the other work of shaping the case for trial. See Exercise Three, part I.C. Consequently, discovery today under the Federal Rules has three purposes:
(1) To narrow the issues, in order that at the trial it may be necessary to produce evidence only on a residue of matters that are found to be actually disputed and controverted.
(2) To obtain evidence for use at the trial.
(3) To secure information about the existence of evidence that may be used at the trial and to ascertain how and from whom it may be procured, as for instance, the existence, custody, and location of pertinent documents or the names and addresses of persons having knowledge of relevant facts.
8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 2001, at 18 (2010)
In order to promote the general goal of the Federal Rules of trial and decision of cases on the merits, the discovery devices are designed to reduce the ability to keep the opponent in the dark and to spring surprises at trial. Of course, discovery is self‑starting and self‑propelled, except for certain required initial disclosures. See I.C., infra. Some attorneys do not engage in extensive discovery in some cases, and some may not ask the correct discovery questions, so surprises still occur at trial, but the adoption of the discovery devices has given the careful, thorough attorney the ability to minimize or even eliminate such tactics by the opponent.
The philosophy of discovery of the Federal Rules has earned high praise:
The pre‑trial deposition‑discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre‑trial functions of notice‑giving, issue‑formulation and fact‑revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice‑giving and invest the deposition‑discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre‑trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.
Hickman v. Taylor, 329 U.S. 495, 500–501, 67 S. Ct. 385, 388–389, 91 L.Ed. 451, 457 (1947).
While the discovery system of the Federal Rules remains popular, some critics have always existed. In the past three decades, the critics have primarily pointed to the spiraling costs of litigation. The heavy costs of discovery can lead to the abuse of discovery to prevent the pursuit of meritorious claims,[i] to force nuisance settlements of nonmeritorious claims,[ii] or to delay the processing and termination of litigation through the courts.[iii] In general, say the critics, discovery as now practiced burdens society with unnecessary, nonproductive expense.
This perception of abuses resulted in substantive amendments to the discovery rules in 1970, 1980, 1983, 1993, 2000, and 2006. Some of these changes were designed to give federal judges additional control over discovery, especially in complex cases, through pretrial conferences and discovery orders. The 1993 amendments for the first time required initial disclosure of information without any discovery request. See I.C, infra. The 2000 amendments narrowed the scope of discovery. See I.B, infra. The 2006 amendments attempted to make discovery of electronically-stored information easier.
By and large, however, despite these criticisms and adjustments, the basic philosophy of discovery under the Federal Rules has not been substantially altered since 1938. The rules are intended to allow free and open discovery so that each side can become completely informed about the opponent’s case to the end of informed settlement or decision on the merits.
B. Scope of Discovery
The broad scope of discovery is set forth in Federal Rule 26(b)(1):
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense–including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Note the rule restricts the scope of discovery to matters that are relevant to any party’s claim or defense. Prior to amendment in 2000, the rule allowed discovery of matters relevant “to the subject matter involved in the pending action.” This broader scope of discovery is now allowed by the rule only on order of the court for good cause shown. This amendment too responded to concerns of overly broad discovery and possible abuse, specifically to disallow discovery to develop new claims or defenses not already pleaded.
On the one hand, the rule specifically eliminates some possible objections to discovery. The attorney may discover material either to explore the opponent’s case or to support the attorney’s own case. The names of persons having knowledge–typically, witnesses to the occurrence in question–must be revealed. An opponent cannot object that the material to be discovered would be inadmissible at trial, e.g., hearsay, if the information is itself relevant and will likely lead to admissible evidence.
On the other hand, the scope of discovery is not unlimited. Federal Rule 26 places several limits on discovery. Rule 26(b)(1) provides matters that are privileged or irrelevant are not discoverable. Rule 26(b)(2)(A) gives the court broad authority to alter the rules. Rule 26(b)(2)(C)(i) authorizes the court to limit discovery that is “unreasonably cumulative or duplicative,” or that “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Rule 26(b)(3) gives protection to “work product.” Rule 26(b)(4) governs discovery from experts. Rule 26(c), dealing with protective orders, also contains general limits designed to keep discovery from becoming burdensome or oppressive
Privileged matter is outside the scope of discovery. The law of evidence provides privileges, and the law of the state where the federal court sits must be consulted to determine privileges the state law recognizes, at least in federal court cases founded on diversity of citizenship. See Fed. R. Evid. 501. Commonly accepted privileges include attorney‑client, spousal, clergy‑penitent, doctor-patient, governmental secrets, and informers. Less common privileges include psychotherapist‑patient, accountant‑client, and journalist‑source. Some few states recognize other privileges, including dentist‑patient, chiropractor‑patient, nurse‑patient, social worker‑client, and others.
A common occurrence in a deposition is that an attorney will object to a question and then tell the witness to answer. Such an objection, perhaps to the form of the question or to material that will be inadmissible at trial, is then on the record. Should the deposition be utilized at trial, the judge can then rule on the objection. When a question calls for privileged material, the attorney may properly object and instruct the witness not to answer, for the material sought is beyond the scope of discovery.
Irrelevant material is outside the scope of discovery. Again the law of evidence supplies our guide:
‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Fed. R. Evid. 401. The definition of relevant evidence in the federal rule combines two common law evidence concepts: materiality and relevancy.
Materiality is the portion of the rule that says “any fact that is of consequence to the determination of the action.” In other words, the fact to be proved must be raised in the case by the pleadings. For example, assume in a tort case, plaintiff’s attorney by interrogatory asks defendant to reveal the location and amount of its bank accounts. Certainly, the answer sought has nothing to do with the issues of liability or compensatory damages. Whether a defendant may be able to pay a judgment is not “of consequence” to whether the defendant is liable for damages. Accordingly, the fact is “immaterial” under the common law, and therefore “irrelevant” under Federal Evidence Rule 401. The result depends on whether the pleadings have raised an issue of punitive damages. With no such issue, the question is irrelevant and outside the scope of discovery. With a demand for punitive damages made in the pleadings, the plaintiff will be entitled at trial to inform the jury members of the amount of defendant’s wealth so they will know how much money will be required to punish defendant adequately. The size of defendant’s bank account would be relevant and so within the scope of discovery.
Relevance is the portion of the rule that refers to “more probable or less probable than it would be without the evidence.” In other words, the evidence has a tendency in logic to prove what it is offered to prove. For example, in a fender-bender case, plaintiff attempts to prove that defendant was negligent in failure to keep a proper lookout by offering evidence that defendant three days prior to the accident had made a purchase from a pornographic book store. That evidence tends to prove defendant made the purchase but the purchase in no way relates to the accident; after hearing the evidence, the jury will not have its assessment of the probabilities of whether defendant kept proper lookout changed a whit. A similar result follows when a party attempts to prove the lessor caused damage to leased property by showing the lessor has a lot of money and previously obtained a lucrative government contract. See City of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749 (6th Cir.1980).
Such examples are rare, however. In general, consistent with the policy of a broad scope of discovery, the courts have interpreted relevance generously, “to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L.Ed. 253, 265 (1978). Of course, this statement was made prior to the 2000 amendment to Federal Rule 26(b) narrowing the scope of discovery by restricting it to matters relevant to the parties’ claims or defenses [see I.B., supra], but the amendment does not change the definition of relevance.
One other question of relevance is specifically answered by Rule 26(a)(1)(A)(iv): the existence and contents of any insurance agreement that may possibly cover damages awarded in the action must be revealed–as a required initial disclosure.
An immunity from discovery of litigation materials “prepared or formed by an adverse party’s counsel in the course of his legal duties” was created by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 510, 67 S. Ct. 385, 393, 91 L.Ed. 451, 462 (1947). This “work product” immunity is qualified, not absolute, and can be overcome by a showing by the adversary that “production of those facts is essential to the preparation of one’s case.” Hickman, 329 U.S. at 511, 67 S. Ct. at 394, 91 L.Ed. at 462. Oral statements are even more difficult to obtain, since they embody even more of the lawyer’s thought processes. The purposes of the work product doctrine, as envisioned by the Court, prevent a free ride on the opponent’s investigation and protect the adversary system.
Federal Rule 26(b)(3) now codifies the work product immunity:
(A)Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i)they are otherwise discoverable under Rule 26(b)(1); and
(ii)the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B)Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
(C)Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. * * *
Several points might be highlighted about the rule. First, protection is afforded only for material prepared in anticipation of litigation or for trial; materials created not in anticipation of litigation or for trial are not protected. Second, even though the immunity is sometimes called attorney work product, the materials need not be produced by an attorney; any representative of the party is covered so long as that person prepared the materials in anticipation of litigation or for trial. Third, this qualified immunity can be overcome by a showing of “substantial need” for the materials; the party seeking discovery and showing such need will be able to discover the materials. Fourth, the “mental impressions, conclusions, opinions, or legal theories” of the attorney or other representative are protected, and as a practical matter are absolutely immune. Fifth, a person who gave a statement in anticipation of litigation can obtain as of right a copy of that statement. Finally, the second sentence of the rule subordinates it to Rule 26(b)(4), which governs discovery of trial preparation materials involving experts; expert witnesses and their reports discoverable under Rule 26(b)(4) cannot be resisted as trial preparation materials under Rule 26(b)(3).
4. Trial Preparation: Experts
Properly stated, there is no additional limit on the scope of discovery for expert witnesses, but the Federal Rules do place special limits on the methods that may be used to discover expert testimony. Rule 26(b)(4) differentiates between experts who may be called to testify at trial and experts employed only for trial preparation. The latter type of expert’s opinion is discoverable only “upon showing exceptional circumstances under which it is impracticable for the party [seeking discovery] to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. P. 26(b)(4)(D)(ii).
The opinion of an expert who may testify is more readily available. Prior to 1993, the opinion of a trial expert could be obtained only by interrogatory to the opposing party, possibly supplemented by other discovery as agreed to by stipulation or as ordered by the court. After the 1993 amendments, the name and a detailed report of the expert, including the expert’s opinion, supporting information, exhibits, qualifications, and prior testimony, are part of the initial disclosures required to be made to the opponent without request. Fed. R. Civ. P. 26(a)(2)(B). See I.C., infra. Subsequent to receipt of the report, the opponent may take the expert’s deposition. Fed. R. Civ. P. 26(b)(4)(A).
Of course, as with other areas of discovery, the parties are allowed to stipulate to modify procedures governing or limiting discovery. See Fed. R. Civ. P. 29.
5. Protective Orders
The court has power to make a protective order to limit discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense * * *.” Fed. R. Civ. P. 26(c). The rule then suggests eight ways in which the court may limit discovery. Some of the protections ordered by courts under this rule include designating a time or place for discovery, requiring a certain method of discovery, prohibiting inquiry into certain matters, limiting the amount of discovery, and protecting the confidentiality of material discovered.[iv]
C. Required Disclosures
From adoption of the Federal Rules in 1938 until 1993, discovery was always self–starting. A party could do as much discovery as the Rules allowed, or little or nothing. No party was required to reveal anything except in response to a proper discovery request. This procedure changed with the adoption of “required disclosures” by amendment to Rule 26 in 1993.[v] Now, Federal Rule 26(a) requires parties to disclose certain categories of information without request and by a definite timetable. The idea is that this basic information will be subject to request anyway and requiring disclosure saves time and expense both to the parties and to the court. Additional discovery proceeds by request, as it always has.
Three categories of information must be disclosed. Each has its own timing provision.
First, within 14 days after a meeting of the parties to discuss claims and defenses, possible settlement, required disclosures, and discovery necessary in the litigation [Fed.R.Civ.P. 26(f)], each party must disclose
— name, address, and telephone number of persons who are “likely to have discoverable information” the disclosing party may use to support its claim or defense (except by impeachment);
— documents the disclosing party may use to support its claim or defense (except by impeachment);
— a computation of damages claimed; and
— insurance agreements.
Fed.R.Civ.P. 26(a)(1)(A)(i)-(iv). Nine categories of proceedings, such as habeas corpus petitions and student loan collections, are exempted from the required disclosures by Fed. R. Civ. P. 26(a)(1)(B).
Second, within the time specified by the court, each party must disclose the name and a report of each expert to be called to testify at trial. Fed. R. Civ. P. 26(a)(2). See I.B.4, supra.
Third, at least 30 days before trial, each party must disclose the name, address, and telephone number of each witness who may be called; the designation of any witness whose testimony is to be presented by deposition; and an identification of each document or other exhibit that it may offer. Fed. R. Civ. P. 26(a)(3).
D. Discovery Devices
Any or all of the discovery devices may be employed by the attorney in any litigation. The careful attorney will develop a discovery strategy early in the litigation; decisions must be made as to which devices are appropriate, what information is necessary, and what sequence of discovery should be used.
The most popular discovery device is the oral deposition. Fed. R. Civ. P. 27-28, 30. A witness is called before a court reporter, who administers an oath. The attorney noticing the deposition then takes the testimony of the witness; the attorney opposing the deposition may then also examine. The deposition allows discovery of new information and identifies controverted facts. The deposition of a party may narrow issues by obtaining admissions. A deposition may be taken from any person, and is not limited to parties.
The huge advantage of the deposition is flexibility. The attorney taking the testimony can follow up with questions about new information or areas where the witness seems hesitant. The deposition also allows the attorney to evaluate both the opponent’s witness and the opposing attorney before trial. Should the deponent become unavailable at the time of trial, the deposition may be read into the trial record as former testimony. Fed. R. Civ. P. 32; Fed. R. Evid. 804(b)(1). The primary disadvantage of the deposition is cost, which includes both the expense of the court reporter and the fees of the attorneys taking the deposition.
A little-used device is the deposition upon written questions. Fed. R. Civ. P. 31. Again, the deponent is called before a court reporter and sworn, but then the reporter reads a list of questions previously submitted by the attorney and records the answers. A great deal of expense is saved since the attorney does not attend the deposition, but the loss of flexibility in inability to ask follow‑up questions makes this discovery device unpopular.
Interrogatories are written questions submitted to the opposing party for answers under oath. Fed. R. Civ. P. 33. Interrogatories may be sent only to parties. While the attorney writes the interrogatories, they are still relatively inexpensive compared to the oral deposition. Some attorneys believe that an advantage of interrogatories is more complete answers are given, since research can be done and the answers can be given after proper consideration; other attorneys believe that this is a disadvantage, since the opposing attorney can sanitize the answers before they are given. Again, there is no flexibility of follow‑up questions.
A request for production of documents allows the attorney to inspect and copy documents and other tangible things (including computer data) in the “possession, custody or control” of another party. Fed. R. Civ. P. 34. Although a request for production of documents and things may be sent only to a party, documents in the possession of a nonparty may be obtained by use of a subpoena duces tecum under Fed. R. Civ. P. 45.
Requirement of a showing of good cause for production was eliminated by amendment in 1970, so use of this device—as all others save the physical or mental exam—proceeds without resort to the court, in the absence of objection to discovery. Usually, inspection of documents works by agreement of the parties rather than formal request for production; in a complex case, production of documents may involve thousands of hours in inspection of a party’s files.
When the mental or physical condition of a party is in controversy, the court may order a physical or mental examination “for good cause.” Fed. R. Civ. P. 35. While a party who claims personal injury clearly places physical condition in controversy, examinations of a party who “has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident * * *.” Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S. Ct. 234, 244, 13 L.Ed.2d 152, 165 (1964). Even so, little showing of good cause is ordinarily required, and in fact, such examinations are typically arranged by stipulation of the attorneys.
Requests for admission require the opposing party to admit the truth of
any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described documents.
Fed.R.Civ.P. 36(a)(1). This device is designed to verify information and narrow issues for trial, and to save expense of unnecessary proof at trial, not to discover new information. Requests for admissions may be thought of as a brush‑clearing device, not a method of obtaining truly important admissions. Admission of a disputed fact will simply be denied.
E. Sanctions for Failure to Make Discovery
A party or person from whom discovery is sought may seek a protective order from the court against inappropriate discovery. Fed. R. Civ. P. 26(c). See I.B.5, supra. Absent a protective order, the person refusing to submit to discovery will be subject to a court order compelling discovery [Federal Rule 37(a)], followed by sanctions should the person fail to obey the order [Federal Rule 37(b)]. In other words, sanctions for failure to make discovery almost always require a two step process.
The general scheme of the rule is that sanctions can be imposed only for failure to comply with an order of the court. Thus, when the discovery procedure itself requires a court order, as under Rule 35, or permits a court order, as when there has been a discovery conference under Rule 26(f) or a protective order has been denied under Rule 26(c), failure to obey the order can be punished immediately by any of the sanctions listed in Rule 37(b)(2). When the discovery procedure is one set in motion by the parties themselves without court order, the party seeking discovery must first obtain an order under Rule 37(a) requiring the recalcitrant party or witness to make the discovery sought; it is only violation of this order that is punishable under Rule 37(b).[vi]
Available sanctions under Rule 37(b) include treating the failure as contempt of court, striking all or parts of pleadings, preventing the admission of evidence, taking designated facts as established, and awarding expenses of attorney’s fees.
II. QUESTIONS ON DISCOVERY
Instructions. This section contains questions for you to answer to test and strengthen your knowledge of the law of discovery. Use your scrolling feature so that the screen shows only the question. Answer the question yes, no, or maybe, and formulate your reasoning, then scroll down to compare your answer to the authors’ answer. For all questions, assume you are in federal court.
A. Philosophy of Discovery Under the Federal Rules
Q–1. Plaintiff is swimming across a lake when she is struck by Defendant’s motorboat. Defendant sends an interrogatory to Plaintiff requesting the names of all of Plaintiff’s past swimming instructors. Plaintiff objects that Defendant is “just on a fishing expedition.” Upon Defendant’s motion, should the court compel the discovery?
Answer to Q–1.
Yes. As the Supreme Court said in Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 392, 91 L.Ed. 451, 460 (1947):
No longer can the time‑honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.
So long as the material sought is within the scope of discovery, it must be produced. On these facts, past swimming instructors could perhaps give admissible evidence on Plaintiff’s swimming ability, which may be relevant to the defense of contributory/comparative negligence.
Q–2. Plaintiff purchases a trailer home from Defendant manufacturer, and later discovers various defects in materials and construction. When Plaintiff sues Defendant for damages, Defendant answers and serves Plaintiff with 347 interrogatories. Is Plaintiff required to answer these interrogatories?
Answer to Q–2.
No. Even though the philosophy of the Federal Rules generally is to allow free and open discovery, and the mere fact that a party must respond to a large volume of discovery requests is not grounds for objection, Federal Rule 33(a)(1) allows a party to serve no more than 25 interrogatories without leave of court. This numerical limit was inserted in 1993 in response to perceived discovery abuse. In an appropriate case, the court can grant leave for additional interrogatories. Another option is the parties can stipulate under Rule 29 to modify the limitations placed on discovery.
Prior to 1993, the answer to this question would have been maybe. Federal Rule 26(c) allows a party to move for a protective order from discovery demands that amount to “oppression” or cause “undue burden or expense.” Should a party be able to convince the court any discovery is beyond another party’s legitimate discovery needs and is in bad faith and intended to annoy, embarrass, oppress, or burden, the protective order may issue. See I.B.5, supra.
Q–3. Part 1. During her oral deposition, Defendant reveals the existence of a letter relevant to her defense; the letter, she says, is in the possession of her customer. Defendant did not produce this letter as part of her initial disclosures under Federal Rule 26(a)(1)(A)(ii). Has Defendant violated the required disclosures requirement?
Part 2. Plaintiff later makes no effort to obtain the letter through discovery. At trial, when Defendant introduces the letter, will Plaintiff’s objection to the evidence be sustained because the contents are “a complete surprise”?
Answer to Q–3.
Part 1. No. Defendant has not violated her obligation to make initial disclosures because Rule 26(a)(1)(A)(ii) requires her to produce documents she may use to support her defense that are in her “possession, custody, or control.” This document is in the possession of a customer, not the Defendant.
Were the facts different, and Defendant had failed to make required disclosure of a document in her possession, custody, or control, Defendant would probably not be permitted to use the document at trial as a sanction for failure to disclose it. Fed. R. Civ. P. 37(c)(1).
Part 2. No. Discovery is self‑starting. A party may do no discovery, if he so chooses. On these facts, Defendant revealed the existence of the letter, but Plaintiff made no discovery attempt to obtain it. The only fault involved is Plaintiff’s. Surprise has not been totally eliminated from trials.
B. Scope of Discovery
Q–4. At his oral deposition, Defendant says he consulted with his personal attorney before sending a notice of termination of contract to Plaintiff. Defendant refuses to say what the attorney advised. Will Plaintiff be able to obtain an order compelling Defendant to reveal the information?
Answer to Q–4.
No. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense * * *.” Fed. R. Civ. P. 26(b)(1). The two specific limits on the scope of discovery are privilege and relevance. The facts clearly indicate that the advice came in a private consultation between Defendant and Defendant’s attorney. The attorney‑client privilege applies. The material sought is outside the scope of discovery.
Q–5. Defendant collides with Plaintiff at an intersection. Plaintiff sues for negligence and alleges excessive speed. Plaintiff schedules a deposition upon written questions of Witness, who has already been interviewed informally by both parties. The only information Witness has is that ten minutes before the accident, she saw Defendant speeding. Will an objection by Defendant to the deposition be sustained?
Answer to Q–5.
Maybe. As stated in the Answer to Q–4, irrelevant material is outside the scope of discovery. See I.B.2., supra. The question is whether the fact that Defendant was speeding ten minutes before the accident would be of any probative value to a jury attempting to decide whether Defendant was speeding at the time of the accident. In other words, when the jury hears Defendant was speeding earlier, would it have its assessment of the probability that Defendant was speeding at the time of the accident changed? Courts have divided on the relevance of such testimony. See generally Kenneth S. Broun (ed.), McCormick on Evidence § 185 (6th ed. 2006).
Q–6. Plaintiff refuses to produce a relevant, unprivileged document on the sole ground that it would be hearsay and inadmissible at trial. Will Defendant’s motion to compel discovery be granted?
Answer to Q–6.
Yes. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Discovery of a hearsay statement may lead to the author, whose personal testimony would be admissible.
Q–7. Defendant refuses to produce an insurance policy covering the occurrence since the ability to pay would be irrelevant to the issues of liability and damages. Will Plaintiff’s motion to compel discovery be granted?
Answer to Q–7.
Yes. Fed. R. Civ. P. 26(a)(1)(A)(iv) requires mandatory initial disclosure of any insurance agreement that may help satisfy a potential judgment in the suit. An amendment to Rule 26 in 1970 clarified that such agreements are discoverable, and insurance policies were made part of the Rule 26(a) required initial disclosures in 1993.
Q–8. Following threats of suit by Plaintiff, Defendant hires an outside accountant to analyze its books; the accountant makes a written report to Defendant. Later, Plaintiff commences suit and requests production of the accountant’s report. When asked why she wants the report, Plaintiff’s attorney responds “No special reason—just being thorough.” Must Defendant produce the report?
Answer to Q–8.
No. Since the report was made in response to threats of suit, the report was clearly “prepared in anticipation of litigation,” and is protected work product (trial preparation materials). Fed. R. Civ. P. 26(b)(3). Occasionally one will hear a statement that work product protection applies only to the work of an attorney or someone working for an attorney, i.e., attorney’s work product, but the doctrine is not so limited and covers a variety of party’s representatives: “attorney, consultant, surety, indemnitor, insurer, or agent.” Fed. R. Civ. P. 26(b)(3)(A). The question indicates no showing of substantial need to overcome the work product immunity.
Q–9. As part of its regular business recordkeeping, Defendant keeps a record of all checks it issues. When Plaintiff sues on an account, Defendant pleads the affirmative defense of payment. Plaintiff requests production of Defendant’s check record. Defendant objects that the material is work product, and that Plaintiff has shown no need to overcome the immunity. Will Plaintiff’s motion to compel discovery be granted?
Answer to Q–9.
Yes. The check record is regularly kept as part of the business. It was not prepared in anticipation of litigation or for trial. It is not work product. Need is irrelevant. In fact, this would be a required initial disclosure of a relevant document. Fed. R. Civ. P. 26(a)(1)(A)(ii).
Q–10. Plaintiff’s attorney takes the statement of Witness A, who says that Witness B was also present at the accident scene. Defendant sends an interrogatory asking for the names and addresses of “all persons known to Plaintiff who may have witnessed the accident.” May Plaintiff refuse to identify Witness B on the ground that discovery of B constitutes work product?
Answer to Q–10.
No. Work product does not protect facts learned. “There is no shield against discovery * * * of the facts that the opponent has acquired, or the persons from whom he obtained the facts * * * even though the documents themselves have a qualified immunity from discovery.” Charles A. Wright & Mary Kay Kane, The Law of Federal Courts § 82, at 597 (6th ed. 2002). Witness B should have been revealed as a required initial disclosure. Fed. R. Civ. P. 26(a)(1)(A)(i).
Even if Witness B were not found until after Plaintiff had made her required disclosures, Plaintiff would still be under a duty to supplement the disclosures. Fed. R. Civ. P. 26(e).
Q–11. Witness, an acquaintance of Defendant, gives an oral statement to the attorney for Plaintiff. Upon learning that Plaintiff’s attorney refuses to provide a copy of the statement to Defendant’s attorney because it is work product, Defendant induces Witness to demand a copy of the statement. Must Plaintiff’s attorney comply?
Answer to Q–11.
Yes. Even though the work product immunity would protect the oral statement against discovery by Defendant, Witness may demand her own statement. “Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter.” Fed. R. Civ. P. 26(b)(3)(C). See I.B.3, supra. Should Witness then hand the statement over to Defendant, that is his business.
Q–12. Defendant sends Plaintiff an interrogatory requesting the names and addresses of all witnesses Plaintiff intends to call at trial. May Plaintiff object on the grounds of work product?
Answer to Q–12.
Yes. A party is required to identify all witnesses to an occurrence, usually phrased as all persons who may have knowledge, but a list of trial witnesses is compiled only after the attorney has sifted through all potential witnesses and decided who will be asked to testify. This mental sifting makes the list work product. “If the court orders discovery of [work product], it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
This question assumes the interrogatory is sent during the discovery phase of the litigation. Later, Plaintiff is required to make mandatory disclosure of a witness list at least 30 days prior to trial. Fed. R. Civ. P. 26(a)(3)(A)(i).
Q–13. Prior to commencing suit, Plaintiff’s attorney asks Expert A and Expert B to evaluate the design of a machine. As part of his required disclosures under Rule 26(a)(2)(A), Plaintiff identifies Expert B. Defendant sends an interrogatory to Plaintiff requesting the identities of any other experts Plaintiff consulted. Is Plaintiff required to identify Expert A in answer to the interrogatory?
Answer to Q–13.
No. Experts who may testify at trial must be disclosed under Fed. R. Civ. P. 26(a)(2)(A). Plaintiff did so identify Expert B. Experts a party employs in anticipation of litigation who are not expected to be called as a witness at trial need not be identified absent exceptional circumstances. Fed. R. Civ. P. 26(b)(4)(D(ii). Defendant has shown no need at all here.
Q–14. Plaintiff sues Doctor for malpractice, and seeks to depose another Patient of Doctor who has undergone the same procedure. Patient does not want to testify because of personal privacy. When Plaintiff subpoenas Patient for a deposition, can Patient obtain any relief from the court?
Answer to Q–14.
Maybe. Patient can seek a protective order from the court “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Courts are solicitous of privacy concerns of nonparties. The court could decide to protect the party or person seeking a protective order in one or more of the ways mentioned in the rule–no one present except persons designated by the court, deposition sealed, and the like.
C. Discovery Devices
Q–15. Plaintiff sues Defendant for negligence. Plaintiff sends a set of interrogatories to Witness, asking for a complete description of the accident. Should Witness decline to answer, will Plaintiff be able to obtain an order from the court compelling discovery?
Answer to Q–15.
No. Interrogatories may be served only on parties. Fed. R. Civ. P. 33(a)(1). Witness is not a party. The only discovery devices that may be used against nonparties are oral depositions and depositions upon written questions.
Q–16. A letter relevant to the action of Plaintiff v. Defendant is in the possession of Third Party. Defendant serves a subpoena duces tecum on Third Party, instructing him to make the letter available to Defendant’s attorney for inspection and copying. Must Third Party comply with the subpoena [Hint: see Fed. R. Civ. P. 45(a)]?
Answer to Q-16.
Yes. Fed. R. Civ. P. 45(a)(1)(A) reads as follows:
Every subpoena must:
* * *
(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises * * *.
This rule allows use of a subpoena against Third Party to obtain the letter without the wasted effort of requiring Third Party to testify. Prior to 1991,Fed. R. Civ. P. 45(a) allowed use of a subpoena only to “command each person to whom it is directed to attend and give testimony,” i.e., at a deposition, hearing, or trial. Use of a subpoena to obtain documents from a nonparty in the absence of testimony was improper. Some states still consider use of a subpoena for documents only to be an abuse of process.
Were Third Party a party to the action, then this request to produce documents would be appropriate under Fed. R. Civ. P. 34. A subpoena would not be necessary.
Q–17. Plaintiff sues Defendant for personal injury damages arising from a car accident, alleging that Defendant ran a red light. Defendant, without any particular showing of good cause other than the need to verify plaintiff’s injuries, moves the court for an order compelling Plaintiff to submit to a physical examination. Will the court order the discovery?
Answer to Q–17. Yes. While a physical examination may be ordered under Fed. R. Civ. P. 35(a)(2)(A) only “for good cause,” Plaintiff has clearly placed his physical condition into issue by claiming personal injury damages, and that claim alone will furnish sufficient cause for the court to order the examination.
Q–18. In the same action described in Q–17, Plaintiff, without any particular showing of cause, moves the court for an order compelling Defendant to submit to an eye examination. Will the court order the discovery?
Answer to Q–18.
No. A physical examination may be ordered for a party, but only “for good cause.” Fed. R. Civ. P. 35(a)(2)(A). Plaintiff has made no showing at all of cause for an eye exam on these facts. The court will not order a physical examination of the parties in every accident case. See Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S. Ct. 234, 244, 13 L.Ed.2d 152, 165 (1964).
D. Sanctions for Failure to Make Discovery
Q–19. Defendant notices Plaintiff’s deposition. Plaintiff appears and testifies, but refuses to answer questions on one subject. Defendant immediately goes to court and moves for sanctions, specifically requesting the court to rule that any evidence on that subject will be foreclosed at trial. Will the court grant a sanction for failure to make discovery?
Answer to Q–19.
No. Sanctions for failure to make discovery is a two-step process. The party seeking discovery must first move the court for an order compelling discovery. Second, should the party resisting discovery not comply with that court order, then sanctions may be imposed. See I.E., supra. Since the first step of an order compelling discovery has not been taken, the second step of sanctions is not available.
III. COMPUTER EXERCISE
You are now ready for additional work on discovery. We have not written a computer-assisted exercise to accompany this written exercise on discovery, but the CALI library contains a discovery game in which students compete against each other. It is self contained, and the facts necessary to play the discovery game are proved to you as part of the exercise. The computer-assisted exercise CALI CIV 20 was written by Own Fiss, Sterling Professor of Law, Yale Law School.
This game is designed to introduce students to the fundamentals of the discovery process. It is based on the acclaimed book “A Civil Action,” by Jonathan Harr, and draws its problems from the litigation arising out of the contamination of the Aberjona aquifer in Woburn, Massachusetts. Woburn provides students with a unique opportunity to acquaint themselves with the Federal Rules of Civil Procedure regarding discovery in the context of a concrete, real-life case. Assuming the roles of plaintiffs’ and defendants’ attorneys, the players alternate making decisions about when and how to disclose or request discovery of certain pieces of information, as well as when to cooperate with and when to oppose their opponent’s discovery efforts. The simulation is highly interactive, with the computer taking the role of Judge Skinner, who occasionally intervenes to rule on discovery motions. The thirteen problem sets included with Woburn cover a wide variety of topics, including:
- mandatory initial and supplemental disclosure requirements;
- proper use of various methods of discovery (subpoenas, interrogatories, depositions, requests for document production, medical examinations, requests for admission);
- expert witness reports;
- work product and privilege defenses;
- cost-shifting for discovery activities;
- attorney’s fees awards; and
- sanctions for conduct in violation of the rules.
Woburn teaches students the details of the rules. It also illuminates the strategic dimensions of discovery. While pursuing their discovery efforts within the context of the rules, the players are forced to think strategically about the costs of various discovery activities, time constraints, and their reputation with the judge, jury, and the legal community at large. Frivolous motions are punished by a loss of reputation; time-consuming document requests may exhaust a player’s financial resources. The need to juggle these non-legal factors brings the rules to life, showing students how particular rules affect attorneys’ decision-making processes in concrete situations. The game is to be played out of class, on the students’ own schedule. At the end the students will have internalized the structure and dynamics of the discovery rules, and be ready to discuss the more conceptual or policy-oriented issues in class. On-screen reports let the players know at all times how their discovery efforts are progressing, and pictures of the actual persons involved in the trial as well as of the contamination site, court documents, and so forth, further heighten the impact of the game.
[i]”Delay and excessive expense now characterize a large percentage of all civil litigation. The problems arise in significant part, as every judge and litigator knows, from abuse of the discovery procedures available under the Rules.” Dissent from Order Amending Civil Rules, 446 U.S. 997, 999 (1980) (Powell, J., joined by Stewart, J., and Rehnquist, J.). (Return to text)
[ii]”But to the extent that [discovery] permits a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the process will reveal relevant evidence, it is a social cost rather than a benefit.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S. Ct. 1917, 1928, 44 L.Ed.2d 539, 552 (1975). (Return to text)
[iii]Several sources are collected in 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil § 2001 (2010). (Return to text)
[iv]See generally Charles A. Wright & Mary Kay Kane, The Law of Federal Courts § 83 (6th ed. 2002). (Return to text)
[v]The 1993 amendment to Fed. R. Civ. P. 26(a) introduced required disclosures to federal practice. The amendment was controversial, and in recognition of that controversy, the amended rule allowed individual districts to opt out of the initial disclosure requirements by local rule. Several districts did so. Following several years of experience, in 2000 the Supreme Court amended the rule again to eliminate the opt out possibility. The initial disclosures indeed became “required disclosures” in all federal districts. (Return to text)
[vi]Charles A. Wright & Mary Kay Kane, The Law of Federal Courts § 90, at 642 (6th ed. 2002). The authors note four exceptions to this two‑step process exist. An immediate sanction is allowed for a willful failure to appear at a deposition or answer interrogatories or respond to a request for inspection; for an unjustified refusal to make admissions; for failure to join in framing a discovery plan upon request by another party; or for failure to make a required disclosure. (Return to text)