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DISCOVERY AND DISCOVERY TECHNIQUES
Rule 26(b)(1): Discovery – Parties can get discovery regarding any: non-privileged matters (allows litigants to
withhold privileged communications); matter that is relevant to any party’s claim or defense; proportional to the
needs of the case  the evidence does not have to be admissible to be discoverable.
LIMITS ON DISCOVERY
Rule 26(b)(2)(a): Number of Interrogatories, Requests for Admission, Depositions - Courts may alter or limit the
default number of interrogatories and requests for admission and may limit the number and duration of
depositions
Rule 26(b)(2)(b): Electronically Stored Information: discoverable unless “not reasonably accessible b/c of undue
burden or cost”; however, the court can order discovery w/ conditions
Rule 26(b)(2)(c): Burdensome or Cumulative Discovery – The court MUST limit the frequency or extent of
discovery otherwise allowed by the rules/ local rules if it determines (discretionary test) – unreasonably
cumulative or burdensome/ duplicative; info can be obtained from some other source that is more convenient,
less burdensome, or less expensive; party has had ample opportunity to obtain the info by discovery in the action;
or info is outside the scope permitted by Rule 26(b)(1).
Rule 26(b)(3) + (5): Trial Preparation and Privileged Materials: sometimes called “work product doctrine” –
documents and tangible things (not oral statements), prepared in anticipation for litigation (litigation MUST be the
purpose), by a party or its representative (not only lawyers). Materials prepared in the normal course of business
do not count, even if directly relevant to the litigation.
Hickman v. Taylor: created Rule 26(b)(3); 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 (not just
oral communications, the complaint need not have been filed – but litigation must have been reasonably
anticipated)
Obtaining Trial Prep Materials – if: the material is substantial need for the party to prepare its case, and
cannot, w/o undue hardship, obtain their substantial equivalent by other means (must not be able to get it
from any other means).
o Rule 26(b)(3)(b); Protection Against Disclosure: In this case the providing party can redact the mental
impressions, conclusions, opinions, or legal theories of the attorney or rep concerning litigation.
Exception: any party/ other person may obtain a copy of that person’s own prior statement about the action
or its subject matter. A statement is a signed or adopted written statement or any recording of the person’s
oral statement.
ATTORNEY-CLIENT PRIVILEGE AND OTHER PRIVILEGES
Elements:
1. A communication;
a. Not evidence provided to an attorney, such as underlying documents or things.
2. Between an attorney and client;
3. Designed to facilitate legal representation;
a. Seeking or providing legal advice, not business advice or non-legal services.
4. Made in confidence; and
a. Only if circumstances are consistent w/ an intent to keep the communication confidential.
5. Not waived.
a. Waiver can occur at the time of the communication or afterwards
Waiver – Privileges are waived by disclosure to anyone who is not legitimately part of the privileged
communication – you must treat the info as confidential (waiver to one communication will often be waiver for the
entire subject matter
Other Privileges Include – 5th Amendment privilege against self-incrimination; National Security Privilege; PriestPenitent Privilege; Marital Testimonial Privilege; Critical Self-Examination Privilege (where entities are assessing
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Civ Pro Spring Outline – PJF
what went wrong following an incident or conducting a critical examination of potential problems in their
processes); and Deliberative Process Privilege.
ASSERTING WORK PRIVILEGE
Rule 26(b)(5) – Any materials withheld on the basis of the privileged or the trial prep materials protection must be
described in sufficient detail (w/o revealing the info itself) so the court and other parties can assess the assertion
of the privilege.
Privilege and ESI – All the privilege and work-product rules apply w/ equal force to ESI. But the volume and
dissemination of ESI can lead to greater concerns and problems w/ waiver and privileges by inadvertent
production.
INADVERNTENT PRODUCTION (THE “CLAW BACK”)
Rule 26(b)(5)(B) Claw Back– Establishes a default procedure for inadvertent production of privileged or trial prep
materials:
1. Producing party must notify opps;
2. Opp must return, sequester, or destroy the documents;
3. If opps want the document, it may challenge in court. Producing party has the burden.
Claw Back does not cure waiver – the claw back provision means the producing party gets the document back but
the court decides if the privilege exists and/ or if it was waived; Usually, inadvertent production despite reasonable
due diligence will not constitute waiver – but this is state law specific.
Alternate Solutions: -“Quick peek” agreements allowing the opposing party to inspect the document production
before the privilege review is complete, with an agreement that such production does not constitute waiver
TRIAL PREPARATION: EXPERTS
Rule 26(b)(4): Controls discovery of experts
Retained Experts: engaged or specifically employed to testify:
o Allowed discovery: expert report (not drafts b/c they are trial prep)  disclose a full report
o Limited communications: compensation, facts or date provided by the attorney; assumptions provided
by the attorney
o Depositions
Non-retained experts: other testifying experts:
o Allowed discovery: no expert report (subject matter and summary of facts and opinions), all
communications  disclose a summary
o Depositions
Consulting Experts:
o Allowed discovery: none except “exceptional circumstances”  no disclosure necessary
 Exceptional circumstances: consulting expert was the only person to examine a scene of an
incident and the scene was not adequately preserved so the opposing counsel has no other
source of the information observed at the scene.
Fact witness who is an expert (not testifying at trial, just assisting w/ evaluating the case)
o No expert discovery – regular fact discovery
PROTECTIVE ORDERS
Rule 26(c): Protective Orders - A party/ person from whom discovery is sought may move for a protective order in
the court where the action is pending – or as an alternative on matters relating to deposition in the court where
deposition will be taken. Motion MUST include a certification that the movant has in good faith conferred or
attempted to confer w/ other affected parties in an effort the resolve the dispute. The court may for good cause
issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense.
Most often used to protect confidential information
Most discovery motions require that the parties first “meet and confer” and certify that they did so.
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INITIAL DISCLOSURES
Rule 26(a)(1): Initial Disclosures – requires 4 kinds of disclosures:
1) Name and address of witnesses (only witnesses you want to use);
2) Description of documents, ESI, and tangible things (a copy or description by category or location of all
documents that the party has in it’s possession, custody, or control that they want to use to support it’s claims or
defenses);
3) Computation of each category of damages that the disclosing party claims, together w/ documents supporting
the damages; and
4) Any insurance policy that may cover all or part of a judgment in the case.
Disclosure obligation is further limited to exclude witnesses or documents that the disclosing party may use
solely for impeachment purposes
Timing: Must be done less than 14 days after the party conference (deadline can be altered or skipped completely
by stipulation or court order)
PARTY CONFERENCE
Rule 26(f): Party Conference – A conference that must be at least 21 days before the court’s Rule 16 conference,
or if the court doesn’t schedule a R16 conference, at least 21 days before the court’s initial scheduling order is due
under R16
Party conference is the start of discovery. No discovery requests are allowed before a party conference.
Document requests may be served early and must be served so that the response is due by the deadline
(written discovery is served on all parties) – responses are generally due w/in 30 days
CASE MANAGEMENT
Rule 16(a): Case Management – establishes the authority of the court to convene pre-trial conference and
establish goals for managing litigation
Judges way to expedite cases, establish control over proceedings, and facilitate a settlement
Comprehensive Case Management Order (“CMO”) – for more complex cases a conference is held to address
constraints on the case
Rule 16(c): power to enter pretrial order; establish ground rules for litigation; only claims and defenses
should be asserted in pre-trial order.
INTERROGATORIES
Rule 33: Interrogatories – written questions that another party must answer
Time Limits: May not be served until after the parties’ Rule 26(f) discovery conference; the last day to serve
interrogatories will be established by the judge in the CMO; they must be served in time so that the response
is due on/ before the discovery deadline (typically 30 days to respond, therefore must be served >30 days
before discovery cutoff)
Served, Not Filed – you must give it to the other side, served properly under the rules to make sure the opps
got it
Topics: best for – identifying witnesses, testing contentions, discrete pieces of info (not great for broad
questions)  “All discrete subparts”
o A party cannot expand the number of interrogatories by saying “please state the following” and listing
separate questions as sub parts. However, if subparts are closely related to one topic, then they may
not be counted as separate interrogatories.
Rule 33(a)(2): Contention Interrogatories – an interrogatory is not objectionable merely b/c it asks for an
opinion or contention that relates to fact or the application of law to fact, but the court may order that the
interrogatory need not be answered until designated discovery is complete.
Rule 33(a)(1): Number of Interrogatories – each party may serve any other party no more than 25
interrogatories unless the parties agree, or the court orders otherwise:
o Three Defendants = 25 each; Ds can each send 25 to the P; if there are two Ps they can coordinate and
serve 50 interrogatories total on each D.
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Rule 33(b)(4): Failure to Respond Timely – Sanctions under Rule 37; and a waiver of objections
o Typical objections: Vague and ambiguous, burdensome, overly broad (not limited in scope or time),
seeking privileged matter, not relevant to claim or defense, not proportional to the needs of the case;
object to the extent the interrogatory suggests something you disagree w/
Rule 33(d): Option to Produce Documents – If the answer to an interrogatory may be determined by
examining, auditing, compiling, abstracting, or summarizing a party’s business recordings (including ESI), and
the burden of ascertaining the answer will substantially be the same for either party, the responding party
may answer by specifying the records that must be reviewed in sufficient detail to enable the interrogating
party to locate and identify them as readily as the responding party could (must specify in detail in which
documents the answer can be found)
DOCUMENT REQUESTS (AND TANGIBLE THINGS)
Rule 34: Document Requests – producing documents, ESI, and tangible things; or entering onto land for inspection
and other purposes
In general, a party may serve on any other party a request w/in the scope of R26(b)
o Non-privileged, relevant, and proportional
Any designated documents/ ESI stored in any medium from which info can be obtained directly or after
translation by the responding party into a reasonably usable form;
Any designated tangible thing; or physical object (inspection of defective product)
Stuff w/in the responding party’s possession, custody, or control
Rule 34(a): to permit entry onto designated land or other property possessed or controlled by the responding
party. So that the requesting party may inspect. Survey. Photograph. Test or sample the property or any
designated object or operation on it.
Can respond and say where the documents are contained if accessible; can give electronic copies typically,
but you don’t have to provide the copies for anything.
Timing: Document requests may be served 21 days after the complaint and summons are served but will be
considered served at the parties’ R26(f) discovery conference (clock starts ticking at the conference). Document
requests must be served in sufficient time for the response to be due before the end of discovery (>30 days?)
REQUESTS FOR ADMISSION
Rule 36(a)(1): Requests for Admission – a party must serve on any other party a written request to admit the
truths of any matters w/in the scope of R21(b)(6)(1) relating to:
Facts, the application of law to fact, or opinions about either (similar to contention inter.) and;
The genuineness of any describe documents  they are binding
Procedures: Generally, no limit on the number (use local rules or CMO rules) and it is R26(f) conference 30 days
before discovery deadline by CMO.
Typical Responses: admit; deny; state inability to admit/ deny after reasonable investigation; object; admit in part/
deny in part; combinations of above.
Rule 36(a)(3): A response is due w/in 30 days; any matter for which the responding party has not objected or
responded to is deemed admitted. Admissions are conclusively established and can be offered at trial and cannot
be contradicted or contested.
Rule 36(b): Changing RFA Admissions – the court may permit withdrawal or amendment if it would promote the
presentation of the merits of the action and the court is not persuaded that it would prejudice the requesting
party in maintaining or defending the action on the merits. (Standard: Avoiding Prejudice)
Rule 35: Medical examinations –
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DEPOSITIONS
Rule 30: Depositions – Rule 30 governs conduct of depositions and
Procedures: Limited to one 7-hour day, 10 depositions per side (not per party), one deposition per witness,
notice must be reasonable.
Location: the rules do not specify the location of depositions, generally the noticing party picks a location and
specifies it in the notice. If one party disagrees w/ the location it can (after trying to reach an agreement) file
a motion for a protective order, where judge would pick it.
o Generally, Ps have to be deposed where they filed the case, Ds get to be deposed where they lived/
worked, and corporate designee deposed where corp. is HQ’d.
o Remote depositions are allowed, telephone or video conference.
o Recording: stenographer or court recorder, videotape, specified in deposition notice.
Deposition Objections – if the objection can be cured by rephrasing (leading, compound question, lack of
foundation)  then the objection must be made or are waived.
Instructions Not to Answer – normally after an objection, the witness still answers the question
o Rule 30(c): you may only instruct your witness to not answer a question in 3 circumstances: 1) To
preserve a privilege; 2) to enforce a limitation in a court order; or 3) to suspend the deposition to seek
a protective order.
Who Can Be Deposed?
o Parties (individuals, high-level employees, designated representatives).
o Non-Parties (by subpoena) – interrogatories, doc requests, RFAs are only effective as to parties
 Rule 45: Compels non-parties to attend a deposition via subpoena.
Rule 32: Deposition Transcripts – Rule 32 governs use of deposition transcripts.
Using Deposition Transcripts: deposition testimony may be used if the following 3 criteria are met:
o 1) Representation at the deposition: A depo transcript may only be used against a party who was
either represented at the depo or had an opportunity to be represented; 2) Must be admissible under
the Rules of Evidence; 3) Must qualify under Rules 32(a)(2) through Rule 32(a)(8)
Depo transcripts can always be used for impeachment purposes
Rule 32(a)(4): If the witness is unavailable (dead, more than 100 miles away, cannot be found) the transcript
can be used for any purpose
Rule 32(a)(6): If a party offers part of a transcript, an adverse party can acquire the offeror to introduce other
parts that in fairness should be considered with the part introduced, and any party may introduce any other
parts
Rule 27: Allows the taking of depositions when a case has not yet been commenced, to perpetuate a witness’s
testimony.
Rule 31: ??
Rule 32: Deposition Transcripts – Rule 32 governs use of deposition transcripts.
SANCTIONS
Rule 37(b): Compliance w/ Discovery Rules – Sanctions for failure to comply w/ a Rule 37(a) order. Sanctions can
include: preventing the disobedient party from introducing certain evidence, deeming certain matters established,
striking claims or pleadings (rare), staying the matter, dismissing the matter (rare) contempt, attorney’s fees.
RFA  failure to respond  Deemed admitted (R36(a)(3)), Improper response  Motion to Compel (R37a)
 Improper denial  move for fees for costs of proving facts denied (R37(c))
Rule 37(e): ESI Spoliation Sanctions – Prerequisites for sanctions: duty to preserve ESI, ESI lost b/c party failed
to take reasonable steps to preserve; ESI cannot be restored or replaced through additional discovery.
o Two Levels of Sanctions:
 If the other party is prejudiced, the court may impose the minimum sanction necessary to
cure the prejudice;
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Only if the court finds that the party failed to preserve the ESI w/ the intent of depriving the
other party of its use in the litigation.
 Adverse interference instructions to the jury and dispositive sanctions.
Two sources of sanctioning authority: inherent power and contempt power w/ varying standards – broad
discretion.
DISCOVERY DISPUTES
Rule 37 Discovery Disputes:
1) File a motion to compel under Rule 37(a); (have to meet and confer before filing of motion to compel)
2) File a motion for sanctions under Rule 37(b) (no need to meet and confer)
For other disputes, immediate sanctions include: failure to disclose/ respond/ submit, requests for admission,
attendance at depositions.
Motions to Compel: Meet and Confer requirement – certification of this required, consider compromises,
document it in writing.
Attorneys fees for motion to compel – prevailing party gets fees (movant or non-movant) (fee award in
practice is uncommon)
After you meet and confer, next step if opp party fails to:
o
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o
o
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Make an initial disclosure?  Motion for Sanctions (cannot use R37(c))
Designate a R30(b)(6) representative?  Motion to compel R37(a)
Turn over requested documents?  Motion to compel R37(a)
Answer an interrogatory?  Motion to compel R37(a)
Answer a deposition question?  Motion to compel R37(a)
Answer a request for admission?  Deemed admitted R36(a)(3)
Disclose a witness?  Cannot call R37(c)
Supplement a prior response?  Cannot use R37(c)
Attend a deposition  Motion for sanctions R37(d)
Respond to recovery requests?  Motion for sanctions R37(d)
 For the motion to compel, you can then follow up with a motion for sanctions if
needed R37(b)
JURY TRIAL RIGHT
Two distinct considerations: legal or factual issue & common law or equity.
Seventh Amendment: “preserves” the right to a jury trial for those in suits at common law
o Generally, claims for money damages are legal claims triable to juries, and claims for injunctive relief
are equitable claims triable to a judge.
Rule 38: essentially codifies the Constitutions Seventh Amendment which provides that parties have a right
to trial by jury for all suits at common law w/ more than $20 in controversy (does NOT extend to state courts)
Rule 38(b): On any issue triable of right by a jury, a party (P or D) may demand a jury trial by:
o Serving the other parties w/ a written demand, which may be included in the pleading no later than 13
days after the last pleading directed to the issue is served; and filing the demand in accordance w/
Rule 5(d)  may pick and choose issues.
Teamsters v. Terry: Look at 18th century causes of action for the closest analogy; and consider whether the
relief sought is more akin to money damages or equitable relief
Rule 38(d): Waiver; Withdrawal – a party waives a jury trial unless its demand is properly served and filed. A
proper demand may be withdrawn only if the parties consent.
APPEALS
28 U.S.C. § 1291: Final Judgment Rule – Nearly universal rule in the US that a party is entitled to one -and only one
– appeal in any case. (exceptions: court leave to make an interlocutory appeal §1292b, appeal of an order that
grants, continues, modifies, or refuses an injunction.)
Effect of an appeal: Does NOT stay execution/ effectiveness of the final order or judgment
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Supersedeas: bond/ security usually posted by insurance company before appeal to show that a party
can satisfy the judgment rendered as well as costs of appeal if they don’t win.
Appellate Review Standards: Clearly Erroneous (finding of fact); Abuse of Discretion – discretionary rulings
(evidence, discovery, etc.); “De Novo” (as new) no deference to the trial court (legal rulings)
A party may only raise issues on appeal that the party first raised w/ the trial court
SUMMARY JUDGMENT
Entry of a judgment by the court in favor of P or D w/o a trial
Rule 56(a): Summary Judgment – A court shall grant SJ if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law
o May move for partial SJ as to part of the claim; Moving party has BOP
Rule 56(c)(1): Supporting Factual Positions – there must be evidence on both sides sufficient to prove
something
o (a): Citing to particular parts of the material in the record (things filed in the court, not just in
discovery)
o (b) Must show that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.
Celotex Corp. v. Catrett: If D moves for SJ, P’s BOP is to come forward w/ record evidence that could establish
each element of P’s claims (can also point to the lack of evidence in the record to support SJ)
Matsushita: P must submit evidence to establish each element; direct evidence not just the surrounding
circumstances
o Like Twombly, the plaintiff must come forward with sufficient evidence that a reasonable jury could
infer the requisite intent  DIRECT EVIDENCE
Liberty Lobby: A court deciding a SJ motion should consider Ps burden of proof at trial. (clear and convincing
only?)
Rule 56(b)(2): Objection that a Fact Is Not Supported by Admissible Evidence – A party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible in
evidence.
Standard for Considering Evidence – All facts properly supported (by record evidence, in favor of the nonmoving party will be deemed true; all reasonable inferences from those facts will be drawn in favor of the
non-moving party; summary judgment will be granted only if the moving party is still entitled to win as a
matter of law
o Needs enough evidence to make the jury’s acceptance of that fact reasonable.
Statement of Uncontested Facts – used in many (not all) courts, local rules or standing court orders, filed
along w/ the SJ motion and opposing breach
The Court still decides legal questions EVEN IF UNDISPUTED  interpreting contract language, statutes, and
case law.
Rule 56(b): Time to File a Motion – unless a different time is set by local rules or court orders (CMO), a party
may file a motion for SJ at any time until 30 days after the close of all discovery.
Rule 56(d): When Facts Are Unavailable to the Nonmovant – If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court
may: defer considering the motion or deny it; allow time to obtain affidavits or declarations or to take
discovery; or issue any other appropriate order
STANDARD SUMMARIZED: The court shall grant summary judgment if the movant shows that there is no
general dispute as to any material fact and the movant is entitled to judgment as a matter of law (must be
based on record evidence or lack of evidence) – MORE THAN A SCINTILLA
o Disputed facts are construed and inferences are drawn in favor of the non-moving party
o Does evidence need to be admissible? No, only needs to be capable of offer in admiss. form
Motions for Judgment as a Matter of Law
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Rule 50(a): If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may
(sufficiency of evidence standard)
o (A) Resolve the issue against the party; and
o (B) Grant a motion for JMOL against the party on a claim or defense that, under the controlling aw, can
be maintained or defeated only w/ a favorable finding on the issue.
Rule 50(b): If the court does not grant a motion for JMOL under R50(a), the court is considered to have
submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.
o No later than 28 days after the entry of judgment (you need to have filed a Rule 50 motion to renew),
the movant may file a renewed JMOL motion, and it may include an alternative or joint request for a
new trial under Rule 59.
 Renewed Rule 50 motion prerequisite for appeal (if not then Waived)
Trial
Pretrial statements: before pretrial conference (local court rules) – fact and expert witnesses, exhibits,
depositions, designations, pretrial narrative.
Final pretrial conference: trial date/ length, witnesses, motions in limine, deposition designations, jury
instructions, settlement
Final Pretrial Order: after a pretrial conference and controls the scope of the case
Jury Selection  between 6 and 12 jurors (venire/voir dire)
o Voir dire jurors may be struck for cause, with peremptory challenges
Jury strikes – for cause and peremptory challenges (May not strike a juror for race or gender)
Rule 51(a): Requests – At the close of the evidence or at any earlier reasonable time that the court orders, a party
may file written requests for the jury instructions it wants to give the court
Rule 51(b): The court must (1) inform the parties of its proposed instructions and proposed action on the
requests before instructing the jury and before final jury arguments; must give the parties an opportunity to
object on the record and out of the jury’s hearing before the instructions and arguments are delivered; and
may instruct the jury at any time before the jury is discharged  make a jury demand no later than 14 days
after the filing of the last pleading directed to the issue.
Verdicts –
o General: avoids the need for the jury to then decide damages. Does not require submitting written
form to the jury, can be based on written questions which in turn lead to the rendering of a general
verdict (plaintiff prefers) // GV with written questions
o Special: jury decides special elements on claim and the judge decides whether or not it shows liability
 the court then decides damages (defendant prefers)
Rule 48(b): Unanimous Verdicts – unless the parties stipulate otherwise, the verdict must be unanimous and
must be returned by a jury of at least six members
Rule 52(a): Findings and Conclusions – In an action tried on the facts WITHOUT A JURY, the court must find
the facts specially and state its conclusions of law separately (legal equitable claims)
Post Trial Motions
Rule 50(a):
Rule 50(b):
Rule 59:
Rule 60(a):
Rule 60(b):
Rule 54:
PRECLUSION
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PERSONAL JURISDICTION
NOTICE
OPPORTUNITY TO BE HEARD
ORIGINAL VENUE
TRANSFER OF VENUE, FORUM NON CONVENIENS
MULTIDISTRICT LITIGATION
ERIE DOCTRINE
CHOICE OF LAW
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