Discovery

MBEMax wiki article — paired with the Civil Procedure question set on mbemax.com.

One-line summary

Federal discovery (FRCP 26-37) is broad — parties may obtain any non-privileged matter relevant and proportional to the claim or defense — subject to privilege, work-product, and proportionality limits, and enforceable by motion to compel and sanctions.

Mnemonic

I-D-R-A-D-S — Initial disclosures, Discovery plan, Requests (interrogatories, RFPs, admissions), Assignments (depositions), Duty to supplement, Sanctions.

Six stages from opening kickoff through penalties.

Scope (Rule 26(b)(1))

Parties may obtain discovery regarding any non-privileged matter that is:

• Relevant to any party's claim or defense (admissibility at trial not required); and
• Proportional to the needs of the case, considering importance of issues, amount in controversy, parties' access to information, resources, importance of discovery to resolving issues, and burden vs. benefit.

2015 amendments tightened proportionality.

Limits

• Privileges — attorney-client, spousal, physician-patient, psychotherapist, clergy, Fifth Amendment (in criminal or related civil proceedings).
• Work-product (Rule 26(b)(3)) — materials prepared in anticipation of litigation discoverable only on substantial-need + undue-hardship showing. Opinion work product (mental impressions, strategy) protected almost absolutely.
• Experts:
  • Testifying experts — Rule 26(a)(2) reports + depositions.
  • Consulting experts — discoverable only in exceptional circumstances.
  • Drafts and communications — protected (Rule 26(b)(4)(B), (C)) with narrow exceptions.
• Clawback / Rule 26(b)(5)(B) — procedures for inadvertent disclosure of privileged materials.

Initial disclosures (Rule 26(a)(1))

Within 14 days of the Rule 26(f) conference, each party must disclose, without request:

• Names + contact info of individuals likely to have discoverable information.
• Copies or descriptions of documents the party may use to support claims/defenses.
• Computation of damages.
• Insurance agreements.

Discovery tools

• Depositions (Rule 30) — oral testimony under oath; 7-hour limit per deponent; 10 depositions per side default; may depose party or non-party (subpoena for non-party).
• Written deposition (Rule 31) — rare.
• Interrogatories (Rule 33) — written questions to parties; 25 per side default; 30 days to respond.
• Requests for Production (Rule 34) — documents, ESI, things, entry onto land; 30 days to respond.
• Requests for Admission (Rule 36) — admit or deny factual propositions; 30 days to respond; silence = admission.
• Physical / mental exams (Rule 35) — only when condition in controversy; good cause required.
• Subpoenas (Rule 45) — discovery from non-parties.
• ESI (electronically stored information) — Rule 34(b)(2)(E); format specified or reasonably usable; not required to produce from inaccessible sources absent showing of good cause.

Duty to supplement (Rule 26(e))

A party must supplement or correct a disclosure or response in a timely manner if the party learns it is incomplete or incorrect in a material respect, unless the other party is aware.

Discovery disputes and sanctions

• Meet and confer — Rule 37 requires good-faith attempt before motion to compel.
• Motion to compel — Rule 37(a); may include cost-shifting.
• Sanctions — Rule 37(b): contempt, payment of attorneys' fees, orders establishing facts, striking pleadings, dismissal, default.
• Rule 37(e) ESI sanctions — for failure to preserve ESI; degrees depending on prejudice + intent; sanctions include adverse inferences if intent to deprive.
• Spoliation doctrine — separate from Rule 37(e) for non-ESI evidence.

NCBE loves to test

• Scope — relevance + proportionality. Both required after 2015.
• Work-product distinction. Ordinary vs. opinion; opinion almost absolute.
• Experts — testifying vs. consulting. Reports + deposition vs. exceptional-circumstances protection.
• Rule 35 exams. Only when condition in controversy.
• Requests for Admission. Silence = admission; careful with scope.
• Rule 45 subpoena on non-party. Geographic limits (100 miles / within state) for depositions.
• Duty to supplement. Broader than you'd think — applies to disclosures, answers, and corrections.
• Rule 37(e) ESI sanctions. Graduated; intent to deprive triggers severe sanctions including default / adverse inference instruction.
• Privilege log. Rule 26(b)(5) — must describe nature of withheld materials without revealing privilege.

Fast hypos

Hypo 1. Plaintiff's lawyer interviews a witness and takes notes about the witness's observations. Defendant seeks the notes. Work product — absent substantial need + undue hardship, not discoverable. Witness statements themselves may be less protected.

Hypo 2. Plaintiff's testifying expert's draft reports. Defendant seeks them. Rule 26(b)(4)(B) — drafts protected from discovery; only final report disclosed.

Hypo 3. Party seeks to take 15 depositions in a routine auto case. Default 10 — need leave of court or stipulation.

Hypo 4. Defendant fails to preserve company emails after litigation hold should have been in place. Rule 37(e) analysis — if intent to deprive, severe sanctions including adverse inference. If mere negligence, lesser curative measures.

Hypo 5. Plaintiff in personal-injury case refuses physical examination requested by defendant. Rule 35 — defendant moves for order; condition is in controversy; plaintiff's medical condition subject to exam for good cause.

Case anchors

• Hickman v. Taylor, 329 U.S. 495 (1947) — work-product doctrine foundation.
• Upjohn Co. v. United States, 449 U.S. 383 (1981) — corporate attorney-client privilege.
• Schlagenhauf v. Holder, 379 U.S. 104 (1964) — Rule 35 standards.
• Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) — ESI preservation framework (pre-Rule 37(e) but influential).
• Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) — protective-order authority.

See also

• Summary Judgment
• Personal Jurisdiction
• Venue
• Privileges
• Preclusion — Claim

Sources

Fed. R. Civ. P. 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 45; Hickman v. Taylor, 329 U.S. 495 (1947); Upjohn Co. v. United States, 449 U.S. 383 (1981); Schlagenhauf v. Holder, 379 U.S. 104 (1964); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).