Discovery in Practice

(upbeat music) Welcome to the Civil Procedure Podcast. I am your host, Thomas Main. And this episode is about discovery in practice. Broad discovery was one of the major innovations of the Federal Rules of Civil Procedure. The drafters of the Federal Rules envisioned discovery as a stage of litigation, where the parties would become familiar with their adversaries' case and that that familiarity would then lead to settlements or a worst-case scenario. It would narrow the number of issues that needed to be tried. Prior to the Federal Rules in this regime of broad discovery, there was a perception that trial had become something of a sport where it was never quite clear what your adversary would offer by way of argument or proof. And trial by ambush or trial by surprise was a strategy that actually worked. And so the drafters wanted to change that. And that's why we have a procedural regime with lots of discovery mechanisms and also a very broad scope of discovery. Technological advances have tested that commitment to broad discovery because nearly everything about society has become more complicated, more advanced, more voluminous, more nested into other spheres. Obviously the copy machine didn't even exist in 1938 when the Federal Rules took effect. Much less personal computers, phones, email, text messages, Facebook, Reddit, Discord, et cetera. Ultimately, discovery is about gathering evidence in anticipation of trial. It's about plaintiffs gathering evidence to support the elements of their cause of action. It's about defendants gathering evidence to defeat one or more elements of the causes of action asserted against them. But discovery is not only about obtaining evidence that you are going to use, because in addition to gathering favorable evidence, you should also be using discovery to acquaint yourself with all of the unfavorable evidence. Because if you are unaware of that unfavorable evidence, you will be unprepared for and therefore undoubtedly blindsided by it at trial. By contrast, if at trial you know it's coming, well, you can have a challenge or a rebuttal or a counter evidence of some form ready. So remember to think of discovery through both of those lenses. We're trying to find favorable and also acquaint ourselves with the unfavorable evidence. I'm going to address each of the five most important techniques of discovery before we then tackle issues about the scope of discovery. Now, in addition to these five formal methods that I'm going to talk about, there's also another universe of non-formal or informal discovery. You can go on the web and see what your adversary says about themselves, or you can see what others might be saying about them. You can review filings that corporate defendants have made with the Securities and Exchange Commission. Or if the government may have something, you can submit a Freedom of Information Act request. Non-formal discovery could also just be your driving to some physical location and looking at it for yourself, or hiring a private investigator. In contrast to those methods, I'm focusing here on the traditional discovery methods. And I would encourage you to create a table or a matrix with five data rows and five data columns. And so I guess the total table then, if you have headers, would be a six by six grid. You can have more columns than this. Add them to your hearts content. But I think there are at least five things that you really need to know about each of these devices. And I'll spell these out very clearly as we tackle the first of our techniques, which is depositions. And more specifically, I'm referring to oral depositions under Rule 30. So that's our first row of data. And in our first column of data, the first of the five things that I want you to learn are the advantages or the utility of the technique relative to the other discovery mechanisms that are eventually going to be on this chart. A deposition is where you have the opportunity to ask questions in a live setting. And the answerer of those questions, and we call them the deponent, has to answer under oath. The significance of being under oath is that lying under oath, perjury, that's a crime. So although the deponents' lawyer is also there, and they undoubtedly have prepared their client for the deposition, the advantage of a deposition is that there's a real spontaneity that is unlike any other discovery technique. You can get evidence that has not been massaged or edited by a lawyer. Another advantage is that when you're deposing a witness, you have the opportunity to see whether they are likable and persuasive, those are different concepts. And that in turn helps you assess what their role at a trial would look like if they took the stand. I'm also always very eager to learn how smart and how rigorous a thinker a witness is. Again, those two are importantly different characteristics. But all of this is in service of helping us forecast what a trial would look like. And you care about this because while trials are, in fact, extremely rare, cases settle in the shadow of the trial. And what you're assessing is how each witness is affecting that shadow. Next column, the relative disadvantages of this device. The biggie with respect to depositions is cost. Preparing for depositions takes attorney time. And attorney time is expensive. When you start working in a firm, you're going to help more senior lawyers prepare for depositions and you'll spend hours preparing chronologies, exhibits, memos, questions, files. It's not just that. Parties taking a deposition also have to pay for the transcript to be transcribed. And then, of course, there's the time for the deposition itself. So depositions cost thousands of dollars. That's a disadvantage. The next column of our grid should include whether the device is limited to parties or can be utilized to gather evidence from non-parties as well. And if you look at Federal Rule 30A1, you'll see that depositions are not limited to parties. That is, you can depose a party, but you can also depose a non-party. Non-parties often have useful information. Think about eyewitnesses or experts or employees of somebody or neighbors of somebody. Often you'll be gathering evidence from non-parties and deposing them is one option. Next column of our grid, whether you need court permission Now, only one of the discovery devices in our chart requires court permission and it's not depositions. So you might imagine that we don't even really need a separate column for this, but emphasizing that depositions and most of these formal discovery devices do not require court permission is a point worth emphasizing because many students have the wrong intuition here. Appreciate that discovery is happening in conference rooms, in law firms, not in court houses. Discovery is happening not only without judicial permission or without judicial involvement. It's happening even without the judge's awareness. Generally speaking, discovery isn't even filed with the court. Look at Federal Rule 5D1A. If you're more curious about that. So again, in this column, remind yourself that depositions do not require judicial permission and that leaves just one more column in my matrix of the basics here. And the last column is for numerical limits. Some of the discovery techniques have been capped in some fashion to minimize their overuse. Judges can lift the caps at their discretion, but put the presumptive limits in this column of your grid. Depositions, for example, are limited to one day and not more than seven hours. Back in the day, depositions would occur for days at a time. And the attorneys wouldn't even terminate them. They would just take a recess so that if they wanted to depose the witness again in several weeks or months later, they still could. Not anymore, now one day and not more than seven hours. Also, another presumptive limit. Each side is limited to a total of 10 depositions. I always remember that fact because the word deposition has 10 letters in it. So let's tackle our next row and our next discovery device, Interrogatories under Rule 33. Interrogatories are written questions that you prepare and sent to your adversary. The responding party then has 30 days to answer these questions in writing and under oath. Now in my experience, interrogatories are uniquely useful. Here's their advantage. For getting empirical details, dates, names, titles, contact information, empirical details that will help you understand the case and help you better target other discovery requests. This advantage might become clearer if we move to the next column of the grid and discuss the disadvantages of interrogatories. The disadvantage is that while interrogatory answers are signed by the party and under oath, the problem is they are undoubtedly prepared with the benefit of the responding party's attorney. Accordingly, there is no spontaneity. No inadvertent statements of unvarnished truth. So interrogatory answers are scrubbed, edited, and precise. Next column, interrogatories are limited to parties. Take a look at Federal Rule 33A1. Even the whole rule itself is named interrogatories to parties. So limited here can't serve an interrogatory on a non-party. Next column, whether you need court permission, court permission is not required for interrogatories. Only one of our rows is going to require court permission and it is not this one. Final column, numerical limits. Here the limit is 25, including all discrete subparts, quoting from the rule there. Subparts refers to the fact that an interrogatory in a, let's say, a slip-and-fall case might ask a defendant's store something like identify the names of all persons who were employed by the store on September 1, 2021. And for each of those persons, provide their job title, their date of hire, their home address, telephone number, and whether they were working on the date of the accident that gave rise to the lawsuit. And if they were working on that day, describe their job responsibilities, their involvement with any of the conditions that gave rise to the accident, their involvement in any treatment of the plaintiff at the time of the accident, and their involvement in any subsequent remediation of the conditions that gave rise to the accident. The point of this example is to demonstrate that a question can splinter and require a voluminous response, and it can also stray from the original scope of the question. And so you can't avoid the numerical limitation by using subparts. In my example here, at some point, we strayed into a subpart that would be counted discreetly, meaning separately. And of course, you'd like that information because you're trawling for witnesses who will know something about the slip-and-fall that you're litigating, or they'll know something about the store policies that might have led to this particular slip-and-fall. Again, limit 25, including all discrete subparts. And I was remembered 25 because the fifth letter of the word interrogatory is repeated. On to the next row in the next discovery device, which is document request under Rule 34. This includes not just written documents, but electronic documents, and also for the production of things like paintings or vehicles or maybe source code. The principal advantage of this device is that it is a very inexpensive way to demand lots of evidence. And getting access to documents is like visiting somebody's house and rummaging through the places that they store their private belongings. Most cases are one and lost on documents. And this is how you get to see the emails, the text messages, the minutes of the meeting, the backup takes, the security camera footage, vacation photos, whatever else might help you prove your case. Now think of the difference between the cost of asking for these things. Literally seconds to just put one more item on a list, but the cost of responding to the request for these things can be significant. That asymmetry itself is a technical advantage of the document request. The principal disadvantage of document requests is that you might get what you asked for. You can get buried by the very things that you request. Think needle and haystack. Next column, document requests can be made to parties and non-parties. This is a little tricky because Rule 34A1 refers only to parties. But if you continue all the way down to Rule 34C, you'll appreciate that non-parties can also be the targets of requests for documents or things. So imagine in an auto accident case that the adversaries vehicle that caused an accident is at the junkyard. Well, you might need to serve a Rule 34 request on the junkyard so that you can inspect the car, but the junkyard wouldn't be a party. Or maybe a non-party in a case might be a bank or a neighbor or some online game on a server. Next column, whether you need court permission, you don't. This isn't the one. Next column, limits. There are not any limits, which is a bit strange, because notwithstanding all the efforts to address discovery, overuse, and discovery abuse, documents is where most of that use and abuse has taken place. But it's been hard for the drafters to think of a meaningful way of limiting the number of document requests. So no numerical constraints. Now let's go to our penultimate row, which is physical and mental examinations under Rule 35. The advantage of this device is that it's a way of getting a party's physical or mental condition examined by an independent examiner. This is the way that you can really find out how injured the plaintiffs back is, or how restricted their mobility is, or if they are claiming emotional distress, well, then this is your chance for an independent professional to interrogate that claim. Next column, there really isn't a disadvantage that I can think of. Maybe you can think of one. I suppose we could complete this cell in our table with the idea that you can use this device only when the person's physical or mental condition is in controversy. So you certainly can't use this just to embarrass or to harass somebody by subjecting them to a physical or mental examination by someone that they don't know and didn't choose. In order to trigger this device, the physical or mental condition of the person being examined needs to be in controversy. Next column, this is limited to parties. Next column, this is the one discovery mechanism of the five that we're covering that requires court permission. Unlike all of the others, which you just pursue without the court's blessing, this one requires advanced court approval. You go to court and you get the court to approve a Rule 35 examination. Final column of this row, no numerical limit. That leaves just one remaining row for requests for admission under Rule 36. The advantage or best use for this discovery device is to clarify, by securing an admission, things that you have reason to believe may be uncontested by your adversary. Now, much like the allegations of a complaint that a defendant must either admit or deny, the request for admission is an opportunity for you to lay out a bunch of details in an effort to clarify or narrow the issues that are in dispute. If you're going to try a case, it's useful to know that the defendant is not going to contest-- let's say they're not going to contest that this is, in fact, her signature on the document. It's useful to know that the plaintiff is not going to challenge that the defendant had her car regularly serviced by the dealer. Or maybe it's useful to have the defendant admit that it has more than 100 employees. Any admission that you can get from the other side is one less thing to worry about at trial, because the admission is binding. And the refusal to admit requires some explanation. So you'll see that at Federal Rule 36A4. The disadvantage of requests for admission is that, again, they're undoubtedly prepared by the responding party's attorney. Accordingly, just like interrogatories, these are going to be scrubbed and edited in precise, and they're not going to admit any more than they have to. Finishing out this last row, next column, requests for admissions are limited to parties. You cannot ask a non-party to admit something using Rule 36. Next column, these do not require court permission. And final column, there is no presumptive limit. That completes our matrix. Now, let's return to a big lesson so that you can avoid a common law student mistake. Generally speaking, you do not use these formal discovery techniques to obtain evidence from your client. You don't need to use formal discovery to talk to your client. You can talk to them anytime that you want, and you can ask them to show you any documents that they have. And if there is some really great document that you want your adversary to see, well, then you can send it to them. You don't need formal discovery to do that. And generally speaking, you have nothing to gain by using formal discovery of your client. But you do have something to lose, because now your adversary is in the mix for all the things that you might wish that they didn't see or hear because you raised it. So we don't take discovery of our own client. The one exception is if your client's going to die. That's a situation where you might depose your own client. But otherwise, we get information and documents from our client by talking with them, by picking up the phone, sending emails, visiting them, not through the techniques of formal discovery. One other big lesson before we tackle the scope of discovery. In addition to the formal discovery techniques, like the five that we just discussed, there are also mandatory initial disclosures. These disclosures occur before any of the formal discovery devices, like depositions or interrogatories, are used. The mandatory initial disclosures, like the presumptive numerical limits that I mentioned earlier, these two are a product of efforts to amend the federal rules to prevent discovery abuse. The basic idea of these mandatory initial disclosures is that at the outset of litigation, the parties are required to produce certain basic information to the other side. That basic information is the names and contact info for witnesses that you may use to support your case. Take a look at Rule 26A1 Capital A, Little I. Rather than this question being an interrogatory that shows up in the first set of interrogatories, plaintiffs and defendants need to produce this information right away. And diddo in the next paragraph of the rule for documents that you may use to support your case. Notice that these are not commands to produce the smoking gun, the unfavorable witnesses, the unfavorable documents, rather these are people and documents you may use to support your case if you're a plaintiff or to support your defense if you're a defendant. Under this mandatory initial disclosure obligation, plaintiffs are also required to provide calculations with respect to their damages claims, and defendants are required to provide information about their insurance coverage. All of this shows up in the first paragraphs of Rule 26. The timing for these initial disclosures is outlined in Rule 26, Peren A1 Capital C, but it's a bit of a puzzle. The timing is pegged to the Rule 26F conference, which in turn is pegged to the Rule 16B conference, which in turn is pegged to the date of service of the complaint and the defendant's response to that complaint. Well, if you chase it through, you're basically talking about the disclosures occurring around two or three months from the date of service of the complaint. Now, in many cases, parties opt out of these mandatory disclosure obligations. In fact, Rule 29 allows the parties to opt out of most of the discovery rules, but both parties have to agree to do so. Finally, let's turn to the scope of discovery. As we have already covered, the scope of discovery was deliberately broad. The seminal case from 1947, Hickman versus Taylor, that was about the scope of these rules, it said that fishing expeditions were allowed. You don't need to ask for specific documents, for example, you can, indeed, you should use discovery to figure out what your claim is, to find the right claim. And while the rule governing the scope of discovery is essentially unchanged in the many decades sense, in fact, courts are more restrictive now. For any and all of the formal methods of discovery, the scope of discovery in Federal Rule 26B has three components to it. First, the request must be relevant to the claim or defense of any party. Second, the request must not seek privileged information. And third, the request must be proportional. I'll address each of these separately and notice that it's a conjunctive test. All of these three must be satisfied. First, the way to determine whether a discovery request is relevant is to refer to the elements of the cause of action and all the affirmative defenses. It's the legal theories of the parties that makes something relevant. So if the document that you are requesting would help you prove or will help your adversary disprove one of those elements or defenses, well, then it's relevant to the case. The mistake that students tend to make here is talking about relevance abstractly, but the concept doesn't work that way. If you as defense counsel want to see the plaintiffs deleted Instagram posts, for example, well, they're not relevant or irrelevant necessarily until we consult the elements of the cause of action and the affirmative defenses. If you can argue that the deleted post might show that the plaintiff was partying on New Year's Eve and that if that detail would help you disprove their damages claim, well, shazam, relevant. You've tied the request to some element of a claim or a defense of one of the parties. If you're having trouble satisfying the relevant criterion, it's probably a lack of imagination. All that you have to do is hypothesize how the document that you're seeking or how the answer to the question that you're asking, how that document or answer could help prove or disprove something that is at issue in the case. Second, the discovery that you're seeking cannot be privileged. Privileges are an issue that you learn in evidence, not in civil procedure. We tend to do something of a drive-by in civil procedure. We mention the attorney client privilege, the doctor patient privilege, the work product doctrine, and maybe some of the others. But the idea here is that some relevant information is off limits. You can't demand that the plaintiff tell you about the content of conversations that she had with her lawyer. You can't require that the plaintiff's treating family physician repeat everything that the plaintiff told her. And you can't demand that the defense council produce the memos and the legal research that the law firm has prepared in conjunction with this case. It's privileged information. But the civil procedure course is not where we study privileges in depth. So this second part of the test regarding the scope of discovery is usually not the place for you to linger. Students tend to overuse privilege, treating it as though it were some all-purpose shield to prevent the disclosure of anything that they'd rather not produce or answer. But that's not how it works. In fact, usually you do have to produce the smoking gun document that really hurts your case. Nor is something privileged just because it's embarrassing, or it might be misunderstood and taken out of context. Discovery that is shielded from production by privilege is a very narrow protection. Extremely powerful when it applies, but seldom what's happening in a first-year civil procedure course or examination about discovery. The third part of the scope of discovery test is the B. This is where you spend your time, because in order to be within the scope of discovery, the requested document or information must be proportional to the needs of the case. The generality of that mandate means that lawyers who were good at this will win these fights, be they the requesting or the responding party, and the lesser lawyer will lose. So let's get good at this. Federal Rule of 26B lists six things to consider when determining proportionality. So that's your checklist. I'm going to give you some tips for each of the six to get you started. First, we are instructed to consider the importance of the issues at stake in the action. What I would encourage you to do here is to ask and answer, does this case have impact beyond the parties to this suit? The more that you can extend the consequences of the outcome of this case to other consumers or to society or to the public, the more important the issues might seem to be. You might also ask, with respect to this, first consideration, how severe are the plaintiffs' injuries? Is there a need for accountability here? The more important the issues at stake in this action as a whole, the more discovery you should be able to get, because if it is an important issue at stake, well, we're moving this marker, which affects the proportionality of the discovery request. Second, we are instructed to consider the amount in controversy. So ask and answer. What did the plaintiff demand in the complaint? That's usually the biggest number that you'll find. It's a good number if you're trying to escalate this component of the proportionality inquiry. If you're trying to minimize this number, well, think of other ways to assess the amount in controversy, rather than looking at the complaint, which might be a silly number, maybe we should instead look at the existing evidence of plaintiff's damages. Or maybe the amount in controversy is actually a much smaller number. If the defendant isn't really maybe even contesting a certain amount of the plaintiff's damages, if plaintiff is claiming a million dollar loss and a defendant is saying that it's really more like 400,000, well, then perhaps the amount in controversy is 600,000. Third, we are directed to consider the party's relative access to the relevant information. I would encourage you to ask, are there other sources for the sought information? To the extent that the requesting party could get this information from somebody else or maybe by simply doing some data crunching themselves, rather than asking us to produce particular information that they could produce? Well, then the idea is you are moving this marker in the direction that resists discovery. Or put the other way. If the only source of the requested information is the one to whom the request is directed, well, then that makes it look more proportional. Fourth, we are directed to consider the party's resources. Well, then I would ask, does the resisting party look like they're claiming some inability to pay? Look for a responding party to be crying poor mouth? And you could also ask a slightly different question. Does the responding party have more resources than the requesting party? Is the responding party defended by a big law firm and has insurance coverage? Well, then this marker moves in the direction of the request being proportional. Fifth, we assess the importance of the requested discovery in resolving the issues. Well, then I guess I would ask and answer, is this discovery at the heart of the litigation? Or is it instead about something more peripheral? If it's closer to the heart, well, then you're moving the needle toward proportionality. You might also ask, is this really something that's in dispute? Or is this only slightly contested? Well, that's you moving the marker. You might also ask, is the discovery generating something unique? Or is it instead, this is merely cumulative of the sort of evidence that the requesting party already has with respect to this element, to the extent that it's cumulative? Well, then you're moving the needle away from proportionality. And finally, sixth, we are to consider whether the burden or expense of the proposed discovery outweighs its likely benefit. This is just straight up cost-benefit analysis. Really, I suppose this factor is mostly a distillation of the other considerations. So you might use this as a sort of all things considered summary. The benefit is the extent to which the discovery might change the outcome of the case. Or more generously, the benefit is the extent to which it might make it easier to prove your case. Now, frankly, it's oftentimes hard to justify any particular discovery request on a cost-benefit analysis. Do we really need to dig into the backup tapes and the server when you already have so many other forms of communication between these parties? The idea that there is a diminishing return on additional discovery is a very seductive notion. If you're looking for a way to reframe this factor into something that might make the request look more proportional, use the sixth factor to ask or to talk about something like how much is the burden of this discovery request relative to the burden of discovery and of this case more generally? So in other words, what's another $50,000 spent on discovery if you've already spent $500,000? That alternative framing of the cost-benefit analysis might be more discovery-friendly. One way that courts can resolve close calls about discovery is with cost shifting. When the issue that the responding party is complaining about is their out-of-pocket cost. And they might be complaining about the cost of discovery as opposed to, say, privacy or some other fairness issue. But when it's about cost, for example, they might say, accessing these backup tapes that are on this legacy technology would require all this time and energy for us to filter through, well, if it's cost, then notice that the burden on the responding party can be lightened by requiring the requesting party to pay all or some of the costs associated with the response. The court can order it, and occasionally they do. A party that has a lot of resources who is requesting information might even offer to pay the costs associated with production if they think it worth a while. So that wraps up our discussion of the scope of discovery. Any request is within the scope of discovery if the requested information is, again, relevant, not privileged, and also the request is proportional to the needs of the case. Let's bring the episode to a close with the discussion of what you do when you are responding to an improper discovery request. A document request or an interrogatory is improper if, say, it's asking for something that's beyond the scope of discovery. Or maybe the request exceeds the numerical limits. When a discovery request is improper, you basically have three options. Option one, respond anyway. If the requesting party wants information to which they are not entitled, you can still give it to them. Sometimes it's easier and maybe even strategically beneficial just to produce it. But of course, sometimes that's not attractive, and so let's go to option two. Move for a protective order under Federal Rule 26C. Under this rule, you're obliged first to make a good faith effort to resolve the dispute directly with opposing counsel. But assuming that that didn't work, you then file a motion for a protective order with the court, and you're seeking protection against producing the document or answering the question that you think is improper. The court should then rule on the discovery dispute. They'll say the requesting party is or isn't entitled to this. That's option two, protective order. Option three, you object. You simply refuse to answer. Now, this is a very limited option with respect to depositions because of rule 30C2. But with respect to document requests or interrogatories, it's easier to object or refuse. Now, if you do object, the requesting party then has two options. The requesting party could abandon their request. Now, obviously this is what you hope when you're the objecting party. You hope this is what's going to happen. You hope they just say, oh, well, they wouldn't give it to me. Oh, well, I tried. But the requesting party might, instead of abandoning the request, they might instead file a motion to compel under rule 37. Here again, there is an obligation to confer with the other side before filing this motion, but assuming that doesn't work, the court will rule on the discovery dispute. And the danger here is that the party who objected may well be sanctioned if the court finds that the discovery request was proper, which is also to say that the objection or refusal to answer was improper. So from the perspective of the responding party, option three has a higher reward and a higher risk than option two. As I already said, depositions are a little bit different. In a deposition, you can object all you want, but federal rule 30C2 requires the deponent to answer the question nonetheless. You can instruct a party not to answer a question in a deposition only when it's necessary to preserve a privilege. You don't have to answer a question that would be protected by a privilege. But otherwise, you're supposed to answer the question, even if it is in a sense formally subject to the objection, which will also be on the transcript. The only recourse to protect a witness who's being deposed is that if the attorney who is taking the deposition is merely trying to annoy or embarrass, harass, a deponent, well, then you can move to terminate or limit the deposition. But that is a very, very narrow escape hatch. It's hard to fit into that. We are finished then with this lecture on the introduction to discovery in practice. My parting question for you to contemplate is this, should close calls bend toward allowing discovery or denying discovery? On one hand, parties need discovery to prove their case. That's how we prove the substance of wrong. But on the other hand, the asymmetry is real. It is cheaper and easier to request discovery than to respond to discovery. Discovery can be weaponized. Now in resolving disputes about whether discovery is proper, judges have broad discretion. Reviewable on appeal only for abuse of discretion. Therefore, your arguments on the ground will make a difference. So we want to get good at this. That concludes this episode. Please look at civilprocedure.com for more episodes that might be helpful to you and have a good day. [MUSIC PLAYING]