LEXSTAT USCS FED RULES CIV PROC R 26
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FEDERAL RULES OF CIVIL PROCEDURE
V. DEPOSITIONS AND DISCOVERY
USCS Fed Rules Civ Proc R 26 (2004)
Review expert commentary from The National Institute for Trial Advocacy
Review Court Orders which may amend this Rule.
THE CASE NOTES SEGMENT OF THIS DOCUMENT HAS BEEN SPLIT INTO 2 DOCUMENTS.
THIS IS PART 1.
USE THE BROWSE FEATURE TO REVIEW THE OTHER PART(S).
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter.
(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise
stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:
(A) the name and, if known, the address and telephone number of each individual likely to have discoverable
information that the disclosing party may use to support its claims or defenses, unless solely for impeachment,
identifying the subjects of the information;
(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things
that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or
defenses, unless solely for impeachment;
(C) a computation of any category of damages claimed by the disclosing party, making available for inspection
and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure,
on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an
insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify
or reimburse for payments made to satisfy the judgment.
(E) The following categories of proceedings are exempt from initial disclosure under Rule 26(a)(1):
(i) an action for review on an administrative record;
(ii) a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence;
(iii) an action brought without counsel by a person in custody of the United States, a state, or a state
subdivision;
(iv) an action to enforce or quash an administrative summons or subpoena;
(v) an action by the United States to recover benefit payments;
(vi) an action by the United States to collect on a student loan guaranteed by the United States;
(vii) a proceeding ancillary to proceedings in other courts; and
(viii) an action to enforce an arbitration award.
These disclosures must be made at or within 14 days after the Rule 26(f) conference unless a different time is set by
stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in
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the circumstances of the action and states the objection in the Rule 26(f) discovery plan. In ruling on the objection, the
court must determine what disclosures--if any--are to be made, and set the time for disclosure. Any party first served or
otherwise joined after the Rule 26(f) conference must make these disclosures within 30 days after being served or joined
unless a different time is set by stipulation or court order. A party must make its initial disclosures based on the
information then reasonably available to it and is not excused from making its disclosures because it has not fully
completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because
another party has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of
any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is
retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party
regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The
report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or
other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support
for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the
preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which
the witness has testified as an expert at trial or by deposition within the preceding four years.
(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of
other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial
date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on
the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by
the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).
(3) Pretrial Disclosures. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to other
parties and promptly file with the court the following information regarding the evidence that it may present at trial
other than solely for impeachment:
(A) the name and, if not previously provided, the address and telephone number of each witness, separately
identifying those whom the party expects to present and those whom the party may call if the need arises;
(B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and,
if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and
(C) an appropriate identification of each document or other exhibit, including summaries of other evidence,
separately identifying those which the party expects to offer and those which the party may offer if the need arises.
Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial. Within 14 days
thereafter, unless a different time is specified by the court, a party may serve and promptly file a list disclosing (i) any
objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(B), and (ii) any
objection, together with the grounds therefor, that may be made to the admissibility of materials identified under Rule
26(a)(3)(C). Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of
Evidence, are waived unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rules 26(a)(1) through (3) must be
made in writing, signed, and served.
(5) Methods to Discover Additional Matter. Parties may obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written interrogatories; production of documents or things or
permission to enter upon land or other property under Rule 34 or 45(a)(1)(C), for inspection and other purposes;
physical and mental examinations; and requests for admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the
scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or
defense of any party, including the existence, description, nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and location of persons having knowledge 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)(i), (ii),
and (iii).
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USCS Fed Rules Civ Proc R 26
(2) Limitations. By order, the court may alter the limits in these rules on the number of depositions and
interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the number of
requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules
and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the
information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into
account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in
the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own
initiative after reasonable notice or pursuant to a motion under Rule 26(c).
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain
discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the
other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such
materials when the required showing has been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the
litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously
made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning
the action or its subject matter previously made by that person. If the request is refused, the person may move for a
court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For
purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or
approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously
recorded.
(4) Trial Preparation: Experts.
(A) A party may depose any person who has been identified as an expert whose opinions may be presented at
trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until
after the report is provided.
(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert
who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and
who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same
subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the
expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to
discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the
other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions
from the expert.
(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise
discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the
party shall make the claim expressly and shall describe the nature of the documents, communications, or things not
produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection.
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a
certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to
resolve the dispute without court action, and for good cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make
any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense, including one or more of the following:
(1) that the disclosure or discovery not be had;
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(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the
time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking
discovery;
(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain
matters;
(5) that discovery be conducted with no one present except persons designated by the court;
(6) that a deposition, after being sealed, be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial information not be revealed or be
revealed only in a designated way; and
(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened
as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just,
order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of
expenses incurred in relation to the motion.
(d) Timing and Sequence of Discovery. Except in categories of proceedings exempted from initial disclosure under
Rule 26(a)(1)(E), or when authorized under these rules or by order or agreement of the parties, a party may not seek
discovery from any source before the parties have conferred as required by Rule 26(f). Unless the court upon motion,
for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may
be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, does not
operate to delay any other party's discovery.
(e) Supplementation of Disclosures and Responses. A party who has made a disclosure under subdivision (a) or
responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the
disclosure or response to include information thereafter acquired if ordered by the court or in the following
circumstances:
(1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party
learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other parties during the discovery process or in
writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty
extends both to information contained in the report and to information provided through a deposition of the expert, and
any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule
26(a)(3) are due.
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or
request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the
additional or corrective information has not otherwise been made known to the other parties during the discovery
process or in writing.
(f) Conference of Parties; Planning for Discovery. Except in categories of proceedings exempted from initial
disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event
at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider
the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case,
to make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed discovery plan that
indicates the parties' views and proposals concerning:
(1) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a
statement as to when disclosures under Rule 26(a)(1) were made or will be made;
(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery
should be conducted in phases or be limited to or focused upon particular issues;
(3) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what
other limitations should be imposed; and
(4) any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c).
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The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging
the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court
within 14 days after the conference a written report outlining the plan. A court may order that the parties or attorneys
attend the conference in person. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court
may by local rule (i) require that the conference between the parties occur fewer than 21 days before the scheduling
conference is held or a scheduling order is due under Rule 16(b), and (ii) require that the written report outlining the
discovery plan be filed fewer than 14 days after the conference between the parties, or excuse the parties from
submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
(g) Signing of Disclosures, Discovery Requests, Responses, and Objections.
(1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney
of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the
disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best
of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and
correct as of the time it is made.
(2) Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at
least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party
shall sign the request, response, or objection and state the party's address. The signature of the attorney or party
constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable
inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law;
(B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation; and
(C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had
in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take
any action with respect to it until it is signed.
(3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon
its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure,
request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount
of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.
HISTORY: (Amended March 19, 1948; July 1, 1963; July 1, 1966; July 1, 1970; Aug. 1, 1980; Aug. 1, 1983; Aug.
1, 1987; Dec. 1, 1993.)
(As amended Dec. 1, 2000.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Other provisions:
Notes of Advisory Committee on Rules. Note to Subdivision (a). This rule freely authorizes the taking of depositions
under the same circumstances and by the same methods whether for the purpose of discovery or for the purpose of
obtaining evidence. Many states have adopted this practice on account of its simplicity and effectiveness, safeguarding
it by imposing such restrictions upon the subsequent use of the deposition at the trial or hearing as are deemed
advisable. See Ark Civ Code (Crawford, 1934) § § 606-607; Calif Code Civ Proc (Deering, 1937) § 2021; 1 Colo
Stat Ann (1935) Code Civ Proc § 376; Idaho Code Ann (1932) § 16-906; Ill Rules of Pract, Rule 19 (Ill Rev Stat
(1937) ch 110, § 259.19); Ill Rev Stat (1937) ch 51, § 24; 2 Ind Stat Ann (Burns, 1933) § § 2-1501, 2-1506; Ky
Codes (Carroll, 1932) Civ Pract § 557; 1 Mo Rev Stat (1929) § 1753; 4 Mont Rev Codes Ann (1935) § 10645; Neb
Comp Stat (1929) ch 20, § § 1246-7; 4 Nev Comp Laws (Hillyer, 1929) § 9001; 2 NH Pub Laws (1926) ch 337, § 1;
NC Code Ann (1935) § 1809; 2 ND Comp Laws Ann (1913) § § 7889-7897; 2 Ohio Gen Code Ann (Page, 1926) § §
11525-6; 1 Ore Code Ann (1930) Title 9, § 1503; 1 SD Comp Laws (1929) § § 2713-16; Tex Stat (Vernon, 1928)
arts 3738, 3752, 3769; Utah Rev Stat Ann (1933) § 104-51-7; Wash Rules of Practice adopted by the Supreme Ct.
Rule 8, 2 Wash Rev Stat Ann (Remington, 1932) § 308-8; W Va Code (1931) ch 57, art 4, § 1. Compare Equity
Rules 47 (Depositions--To be Taken in Exceptional Instances); 54 (Depositions Under Revised Statutes, Sections 863,
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USCS Fed Rules Civ Proc R 26
865, 866, 867--Cross-Examination); 58 (Discovery--Interrogatories--Inspection and Production of
Documents--Admission of Execution or Genuineness).
This and subsequent rules incorporate, modify, and broaden the provisions for depositions under USC, Title 28,
former § § 639 (Depositions de bene esse; when and where taken; notice), 640 (Same; mode of taking), 641 (Same;
transmission to court), 644 (Depositions under dedimus potestatem and in perpetuam), 646 (Deposition under dedimus
potestatem; how taken). These statutes are superseded insofar as they differ from this and subsequent rules. USC, Title
28, former § 643 (Depositions; taken in mode prescribed by State laws) is superseded by the third sentence of
Subdivision (a).
While a number of states permit discovery only from parties or their agents, others either make no distinction
between parties or agents of parties and ordinary witnesses, or authorize the taking of ordinary depositions, without
restriction, from any persons who have knowledge of relevant facts. See Ark Civ Code (Crawford, 1934) § § 606-607;
1 Idaho Code Ann (1932) § 16-906; Ill Rules of Pract, Rule 19 (Ill Rev Stat (1937) ch 110, § 259.19); Ill Rev Stat
(1937) ch 51, § 24; 2 Ind Stat Ann (Burns, 1933) § 2-1501; Ky Codes (Carroll, 1932) Civ Pract § § 554-558; 2 Md
Ann Code (Bagby, 1924) Art 35, § 21; 2 Minn Stat (Mason, 1927) § 9820; 1 Mo Rev Stat (1929) § § 1753, 1759;
Neb Comp Stat (1929) ch 20, § § 1246-7; 2 NH Pub Laws (1926) ch 337, § 1; 2 ND Comp Laws Ann (1913) §
7897; 2 Ohio Gen Code Ann (Page, 1926) § § 11525-6; 1 SD Comp Laws (1929) § § 2713-16; Tex Stat (Vernon,
1928) arts 3738, 3752, 3769; Utah Rev Stat Ann (1933) § 104-51-7; Wash Rules of Practice adopted by Supreme Ct,
Rule 8, 2 Wash Rev Stat Ann (Remington, 1932) § 308-8; W Va Code (1931) ch 57, art 4, § 1.
The more common practice in the United States is to take depositions on notice by the party desiring them, without
any order from the court, and this has been followed in these rules. See Calif Code Civ Proc (Deering, 1937) § 2031; 2
Fla Comp Gen Laws Ann (1927) § § 4405-7; 1 Idaho Code Ann (1932) § 16-902; Ill Rules of Pract, Rule 19 (Ill Rev
Stat (1937) ch 110, § 259.19); Ill Rev Stat (1937) ch 51, § 24; 2 Ind Stat Ann (Burns, 1933) § 2-1502; Kan Gen Stat
Ann (1935) § 60-2827; Ky Codes (Carroll, 1932) Civ Pract § 565; 2 Minn Stat (Mason, 1927) § 9820; 1 Mo Rev
Stat (1929) § 1761; 4 Mont Rev Codes Ann (1935) § 10651; Nev Comp Laws (Hillyer, 1929) § 9002; NC Code
Ann (1935) § 1809; 2 ND Comp Laws Ann (1913) § 7895; Utah Rev Stat Ann (1933) § 104-51-8.
Note to Subdivision (b). While the old chancery practice limited discovery to facts supporting the case of the party
seeking it, this limitation has been largely abandoned by modern legislation. See Ala Code Ann (Michie, 1928) § §
7764-7773; 2 Ind Stat Ann (Burns, 1933) § § 2-1028, 2-1506, 2-1728-2-1732; Iowa Code (1935) § 11185; Ky Codes
(Carroll, 1932) Civ Pract § § 557, 606(8); La Code Pract (Dart, 1932) arts 347-356; 2 Mass Gen Laws (Ter Ed, 1932)
ch 231, § § 61-67; 1 Mo Rev Stat (1929) § § 1753, 1759; Neb Comp Stat (1929) § § 20-1246, 20-1247; 2 NH Pub
Laws (1926) ch 337, § 1; 2 Ohio Gen Code Ann (Page, 1926) § § 11497, 11526; Tex Stat (Vernon, 1928) arts 3738,
3753, 3769; Wis Stat (1935) § 326.12; Ontario Consol Rules of Pract (1928) Rules 237-347; Quebec Code of Civ Proc
(Curran, 1922) § § 286-290.
Note to Subdivisions (d), (e), and (f). The restrictions here placed upon the use of depositions at the trial or hearing
are substantially the same as those provided in USC, Title 28, former § 641, for depositions taken, de bene esse, with
the additional provision that any deposition may be used when the court finds the existence of exceptional
circumstances. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O 37, r 18 (with
additional provision permitting use of deposition by consent of the parties). See also former Equity Rule 64 (Former
Depositions, Etc., May be Used Before Master); and 2 Minn Stat (Mason, 1927) § 9835 (Use in a subsequent action of
a deposition filed in a previously dismissed action between the same parties and involving the same subject matter).
Notes of Advisory Committee on 1946 amendments. Note. Subdivision (a). The amendment eliminates the
requirement of leave of court for the taking of a deposition except where a plaintiff seeks to take a deposition within 20
days after the commencement of the action. The retention of the requirement where a deposition is sought by a plaintiff
within 20 days of the commencement of the action protects a defendant who has not had an opportunity to retain
counsel and inform himself as to the nature of the suit; the plaintiff, of course, needs no such protection. The present
rule forbids the plaintiff to take a deposition, without leave of court, before the answer is served. Sometimes the
defendant delays the serving of an answer for more than 20 days, but as 20 days are sufficient time for him to obtain a
lawyer, there is no reason to forbid the plaintiff to take a deposition without leave merely because the answer has not
been served. In all cases, Rule 30(a) empowers the court, for cause shown, to alter the time of the taking of a deposition,
and Rule 30(b) contains provisions giving ample protection to persons who are unreasonably pressed. The modified
practice here adopted is along the line of that followed in various states. See, e. g., 8 Mo Rev Stat Ann, 1939, § 1917; 2
Burns' Ind Stat Ann, 1933, § 2-1506.
Subdivision (b). The amendments to subdivision (b) make clear the broad scope of examination and that it may cover
not only evidence for use at the trial but also inquiry into matters in themselves inadmissible as evidence but which will
lead to the discovery of such evidence. The purpose of discovery is to allow a broad search for facts, the names of
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witnesses, or any other matters which may aid a party in the preparation or presentation of his case. Engl v Aetna Life
Ins. Co. CCA2d, 1943, 139 F2d 469; Mahler v Pennsylvania R. Co. ED NY 1945, 8 Fed Rules Serv 33.351, Case 1. In
such a preliminary inquiry admissibility at trial should not be the test as to whether the information sought is within the
scope of proper examination. Such a standard unnecessarily curtails the utility of discovery practice. Of course, matters
entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the
extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if
it produces no testimony directly admissible. Lewis v United Air Lines Transportation Corp. D Conn, 1939, 27 F Supp
946; Engl v Aetna Life Ins. Co., supra; Mahler v Pennsylvania R. Co., supra; Bloomer v Sirian Lamp Co. D Del 1944, 8
Fed Rules Serv 26b.31, Case 3; Rosseau v Langley, SD NY 1945, 9 Fed Rules Serv 34.41, Case 1 (Rule 26 contemplates
"examinations not merely for the narrow purpose of adducing testimony which may be offered in evidence but also for
the broad discovery of information which may be useful in preparation for trial."); Olson Transportation Co. v
Socony-Vacuum Co. ED Wis 1944, 8 Fed Rules Serv 34.41, Case 2 (". . . the Rules . . . permit 'fishing' for evidence as
they should."); Note, 1945, 45 Col L Rev 482. Thus hearsay, while inadmissible itself, may suggest testimony which
properly may be proved. Under Rule 26(b) several cases, however, have erroneously limited discovery on the basis of
admissibility, holding that the word "relevant" in effect meant "material and competent under the rules of evidence".
Poppino v Jones Store Co. WD Mo 1940, 1 FRD 215, 3 Fed Rules Serv 26b.5, Case 1; Benevento v A. & P. Food Stores,
Inc., ED NY 1939, 26 F Supp 424. Thus it has been said that inquiry might not be made into statements or other matters
which, when disclosed, amounted only to hearsay. See Maryland for use of Montvila v Pan-American Bus Lines, Inc., D
Md 1940, 1 FRD 213, 3 Fed Rules Serv 26b.211, Case 3; Gitto v "Italia," Societa Anonima Di Navigazione, ED NY
1940, 31 F Supp 567; Rose Silk Mills, Inc. v Insurance Co. of North America, SD NY 1939, 29 F Supp 504; Colpak v
Hetterick, ED NY 1941, 40 F Supp 350; Matthies v Peter F. Connolly Co. ED NY 1941, 6 Fed Rules Serv 30a.22, Case
1, 2 FRD 277; Matter of Examination of Citizens Casualty Co. of New York, SD NY 1942, 3 FRD 171, 7 Fed Rules Serv
26b.211, Case 1; United States v Silliman, DC NJ 1944, 8 Fed Rules Serv 26b.52, Case 1. The contrary and better view,
however, has often been stated. See e.g., Engl v Aetna Life Ins. Co., supra; Stevenson v Melady, SD NY 1940, 3 Fed
Rules Serv 26b.31, Case 1, 1 FRD 329; Lewis v United Air Lines Transport Corp., supra; Application of Zenith Radio
Corp. ED Pa 1941, 4 Fed Rules Serv 30b.21, Case 1, 1 FRD 627; Steingut v Guaranty Trust Co. of New York, SD NY
1941, 1 FRD 723, 4 Fed Rules Serv 26b.5, Case 2; DeSeversky v Republic Aviation Corp. ED NY 1941, 2 FRD 183, 5
Fed Rules Serv 26b.31, Case 5; Moore v George A. Hormel & Co. SD NY 1942, 6 Fed Rules Serv 30b.41, Case 1, 2
FRD 340; Hercules Powder Co. v Rohm & Haas Co. D Del 1943, 7 Fed Rules Serv 45b.311, Case 2, 3 FRD 302;
Bloomer v Sirian Lamp Co., supra; Crosby Steam Gage & Valve Co. v Manning, Maxwell & Moore, Inc. D Mass 1944,
8 Fed Rules Serv 26b.31, Case 1; Patterson Oil Terminals, Inc. v Charles Kurz & Co., Inc. ED Pa 1945, 9 Fed Rules
Serv 33.321, Case 2; Pueblo Trading Co. v Reclamation Dist. No. 1500, ND Cal 1945, 9 Fed Rules Serv 33.321, Case 4,
4 FRD 471. See also discussion as to the broad scope of discovery in Hoffman v Palmer, CCA2d, 1942, 129 F2d 976,
995-997, affd on other grounds, 1942, 318 US 109, 87 L Ed 645, 63 S Ct 477; Note, 1945, 45 Col L Rev 482.
Notes of Advisory Committee on 1963 amendments. Subdivision (e). This amendment conforms to the amendment
of Rule 28(b). See the next-to-last paragraph of the Advisory Committee's Note to that amendment.
Notes of Advisory Committee on 1966 amendments. Subdivision (a). The requirement that the plaintiff obtain leave
of court in order to serve notice of taking of a deposition within 20 days after commencement of the action gives rise to
difficulties when the prospective deponent is about to become unavailable for examination. The problem is not confined
to admiralty, but has been of special concern in that context because of the mobility of vessels and their personnel.
When Rule 26 was adopted as Admiralty Rule 30A in 1961, the problem was alleviated by permitting depositions de
bene esse, for which leave of court is not required. See Advisory Committee's Note to Admiralty Rule 30A (1961).
A continuing study is being made in the effort to devise a modification of the 20-day rule appropriate to both the
civil and admiralty practice, to the end that Rule 26(a) shall state a uniform rule applicable alike to what are now civil
actions and suits in admiralty. Meanwhile, the exigencies of maritime litigation require preservation, for the time being
at least, of the traditional de bene esse procedure for the post-unification counterpart of the present suit in admiralty.
Accordingly, the amendment provides for continued availability of that procedure in admiralty and maritime claims
within the meaning of Rule 9(h).
Notes of Advisory Committee on 1970 amendments. A limited rearrangement of the discovery rules is made,
whereby certain rule provisions are transferred, as follows: Existing Rule 26(a) is transferred to Rules 30(a) and 31(a).
Existing Rule 26(c) is transferred to Rule 30(c). Existing subdivisions (d)(e), and (f) of Rule 26 are transferred to Rule
32. Revisions of the transferred provisions, if any, are discussed in the notes appended to Rules 30, 31, and 32. In
addition, Rule 30(b) is transferred to Rule 26(c). The purpose of this rearrangement is to establish Rule 26 as a rule
governing discovery in general. (The reasons are set out in the Advisory Committee's explanatory statement.)
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Subdivision (a)--Discovery devices. This is a new subdivision listing all of the discovery devices provided in the
discovery rules and establishing the relationship between the general provisions of Rule 26 and the specific rules for
particular discovery devices. The provision that the frequency of use of these methods is not limited confirms existing
law. It incorporates in general form a provision now found in Rule 33.
Subdivision (b)--Scope of discovery. This subdivision is recast to cover the scope of discovery generally. It regulates
the discovery obtainable through any of the discovery devices listed in Rule 26(a).
All provisions as to scope of discovery are subject to the initial qualification that the court may limit discovery in
accordance with these rules. Rule 26(c) (transferred from 30(b)) confers broad powers on the courts to regulate or
prevent discovery even though the materials sought are within the scope of 26(b), and these powers have always been
freely exercised. For example, a party's income tax return is generally held not privileged, 2A Barron & Holtzoff,
Federal Practice and Procedure § 651.2 (Wright ed. 1961), and yet courts have recognized that interests in privacy may
call for a measure of extra protection. E.g., Wiesenberger v W. E. Hutton & Co., 35 FRD 556 (SDNY 1964). Similarly,
the courts have in appropriate circumstances protected materials that are primarily of an impeaching character. These
two types of materials merely illustrate the many situations, not capable of governance by precise rule, in which courts
must exercise judgment. The new subsections in Rule 26(b) do not change existing law with respect to such situations.
Subdivision (b)(1)--In general. The language is changed to provide for the scope of discovery in general terms. The
existing subdivision, although in terms applicable only to depositions, is incorporated by reference in existing Rules 33
and 34. Since decisions as to relevance to the subject matter of the action are made for discovery purposes well in
advance of trial, a flexible treatment of relevance is required and the making of discovery, whether voluntary or under
court order, is not a concession or determination of relevance for purposes of trial. Cf. 4 Moore's Federal Practice P
26-16[1] (2d ed 1966).
Subdivision (b)(2)--Insurance policies. Both the cases and commentators are sharply in conflict on the question
whether defendant's liability insurance coverage is subject to discovery in the usual situation when the insurance
coverage is not itself admissible and does not bear on another issue in the case. Examples of Federal cases requiring
disclosure and supporting comments: Cook v Welty, 253 F Supp 875 (DDC 1966) (cases cited); Johanek v Aberle, 27
FRD 272 (D Mont 1961); Williams, Discovery of Dollar Limits in Liability Policies in Automobile Tort Cases, 10 Ala
L Rev 355 (1958); Thode, Some Reflections on the 1957 Amendments to the Texas Rules, 37 Tex L Rev 33, 40-42
(1958). Examples of Federal cases refusing disclosure and supporting comments: Bisserier v Manning, 207 F Supp 476
(D NJ 1962); Cooper v Stender, 30 FRD 389 (ED Tenn 1962); Frank, Discovery and Insurance Coverage, 1959 Ins LJ
281; Fournier, Pre-Trial Discovery of Insurance Coverage and Limits, 28 Ford L Rev 215 (1959).
The division in reported cases is close. State decisions based on provisions similar to the federal rules are similarly
divided. See cases collected in 2A Barron & Holtzoff, Federal Practice and Procedure § 647.1, nn. 45.5, 45.6 (Wright
ed. 1961). It appears to be difficult if not impossible to obtain appellate review of the issue. Resolution by rule
amendment is indicated. The question is essentially procedural in that it bears upon preparation for trial and settlement
before trial, and courts confronting the question, however they have decided it, have generally treated it as procedural
and governed by the rules.
The amendment resolves this issue in favor of disclosure. Most of the decisions denying discovery, some explicitly,
reason from the text of Rule 26(b) that it permits discovery only of matters which will be admissible in evidence or
appear reasonably calculated to lead to such evidence; they avoid considerations of policy, regarding them as
foreclosed. See Bisserier v Manning, supra. Some note also that facts about a defendant's financial status are not
discoverable as such, prior to judgment with execution unsatisfied, and fear that, if courts hold insurance coverage
discoverable, they must extend the principle to other aspects of the defendant's financial status. The cases favoring
disclosure rely heavily on the practical significance of insurance in the decisions lawyers make about settlement and
trial preparation. In Clauss v Danker, 264 F Supp 246 (SD NY 1967), the court held that the rules forbid disclosure but
called for an amendment to permit it.
Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case,
so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and
avoid protracted litigation in some cases, though in others it may have an opposite effect. The amendment is limited to
insurance coverage, which should be distinguished from any other facts concerning defendant's financial status (1)
because insurance is an asset created specifically to satisfy the claim; (2) because the insurance company ordinarily
controls the litigation; (3) because information about coverage is available only from defendant or his insurer; and (4)
because disclosure does not involve a significant invasion of privacy.
Disclosure is required when the insurer "may be liable" on part of all of the judgment. Thus, an insurance company
must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its
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claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse
another after he pays the judgment.
The provision applies only to persons "carrying on an insurance business" and thus covers insurance companies and
not the ordinary business concern that enters into a contract of indemnification. Cf. NY Ins. Law § 41. Thus, the
provision makes no change in existing law on discovery of indemnity agreements other than insurance agreements by
persons carrying on an insurance business. Similarly, the provision does not cover the business concern that creates a
reserve fund for purposes of self-insurance.
For some purposes other than discovery, an application for insurance is treated as a part of the insurance agreement.
The provision makes clear that, for discovery purposes, the application is not to be so treated. The insurance application
may contain personal and financial information concerning the insured, discovery of which is beyond the purpose of
this provision.
In no instance does disclosure make the facts concerning insurance coverage admissible in evidence.
Subdivision (b)(3)--Trial preparation: Materials. Some of the most controversial and vexing problems to emerge
from the discovery rules have arisen out of requests for the production of documents or things prepared in anticipation
of litigation or for trial. The existing rules make no explicit provision for such materials. Yet, two verbally distinct
doctrines have developed, each conferring a qualified immunity on these materials--the "good cause" requirement in
Rule 34 (now generally held applicable to discovery of documents via deposition under Rule 45 and interrogatories
under Rule 33) and the work-product doctrine of Hickman v Taylor, 329 US 495 (1947). Both demand a showing of
justification before production can be had, the one of "good cause" and the other variously described in the Hickman
case: "necessity or justification," "denial . . . would unduly prejudice the preparation of petitioner's case," or "cause
hardship or injustice" 329 US at 509-510.
In deciding the Hickman case, the Supreme Court appears to have expressed a preference in 1947 for an approach to
the problem of trial preparation materials by judicial decision rather than by rule. Sufficient experience has
accumulated, however, with lower court applications of the Hickman decision to warrant a reappraisal.
The major difficulties visible in the existing case law are (1) confusion and disagreement as to whether "good cause"
is made out by a showing of relevance and lack of privilege, or requires an additional showing of necessity, (2)
confusion and disagreement as to the scope of the Hickman work-product doctrine, particularly whether it extends
beyond work actually performed by lawyers, and (3) the resulting difficulty of relating the "good cause" required by
Rule 34 and the "necessity or justification" of the work-product doctrine, so that their respective roles and the
distinctions between them are understood.
Basic standard. Since Rule 34 in terms requires a showing of "good cause" for the production of all documents and
things, whether or not trial preparation is involved, courts have felt that a single formula is called for and have differed
over whether a showing of relevance and lack of privilege is enough or whether more must be shown. When the facts of
the cases are studied, however, a distinction emerges based upon the type of materials. With respect to documents not
obtained or prepared with an eye to litigation, the decisions, while not uniform, reflect a strong and increasing tendency
to relate "good cause" to a showing that the documents are relevant to the subject matter of the action. E.G., Connecticut
Mutual Life Ins. Co. v Shields, 17 FRD 273 (SD NY 1959), with cases cited; Houdry Process Corp. v Commonwealth
Oil Refining Co., 24 FRD 58 (SD NY 1955); see Bell v Commercial Ins. Co., 280 F2d 514, 517 (3d Cir 1960). When the
party whose documents are sought shows that the request for production is unduly burdensome or oppressive, courts
have denied discovery for lack of "good cause", although they might just as easily have based their decision on the
protective provisions of existing Rule 30(b) (new Rule 26(c)). E.g., Lauer v Tankrederi, 39 FRD 334 (ED Pa 1966).
As to trial-preparation materials, however, the courts are increasingly interpreting "good cause" as requiring more
than relevance. When lawyers have prepared or obtained the materials for trial, all courts require more than relevance;
so much is clearly commanded by Hickman. But even as to the preparatory work of non-lawyers, while some courts
ignore work-product and equate "good cause" with relevance, e.g., Brown v New York, N.H. & H. R.R., 17 FRD 324
(SD NY 1955), the more recent trend is to read "good cause" as requiring inquiry into the importance of and need for the
materials as well as into alternative sources for securing the same information. In Guilford Nat'l Bank v Southern Ry.,
297 F2d 921 (4th Cir 1962), statements of witnesses obtained by claim agents were held not discoverable because both
parties had had equal access to the witnesses at about the same time, shortly after the collision in question. The decision
was based solely on Rule 34 and "good cause"; the court declined to rule on whether the statements were work-product.
The court's treatment of "good cause" is quoted at length and with approval in Schlagenhauf v Holder, 379 US 104,
117-118 (1964). See also Mitchell v Bass, 252 F2d 513 (8th Cir 1958); Hawger v Chicago, R.I. & Pac. R.R., 216 F2d
501 (7th Cir 1954); Burke v United States, 32 FRD 213 (ED NY 1963). While the opinions dealing with "good cause"
do not often draw an explicit distinction between trial preparation materials and other materials, in fact an
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overwhelming proportion of the cases in which a special showing is required are cases involving trial preparation
materials.
The rules are amended by eliminating the general requirement of "good cause" from Rule 34 but retaining a
requirement of a special showing for trial preparation materials in this subdivision. The required showing is expressed,
not in terms of "good cause" whose generality has tended to encourage confusion and controversy, but in terms of the
elements of the special showing to be made; substantial need of the materials in the preparation of the case and inability
without undue hardship to obtain the substantial equivalent of the materials by other means.
These changes conform to the holdings of the cases, when viewed in light of their facts. Apart from trial preparation,
the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance
and absence of privilege. The protective provisions are of course available, and if the party from whom production is
sought raises a special issue of privacy (as with respect to income tax returns or grand jury minutes) or points to
evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to
decide whether to issue a protective order. On the other hand, the requirement of a special showing for discovery of trial
preparation materials reflects the view that each side's informal evaluation of its case should be protected, that each side
should be encouraged to prepare independently, and that one side should not automatically have the benefit of the
detailed preparatory work of the other side. See Field and McKusick, Maine Civil Practice 264 (1959).
Elimination of a "good cause" requirement from Rule 34 and the establishment of a requirement of a special showing
in this subdivision will eliminate the confusion caused by having two verbally distinct requirements of justification that
the courts have been unable to distinguish clearly. Moreover, the language of the subdivision suggests the factors which
the courts should consider in determining whether the requisite showing has been made. The importance of the
materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by
other means are factors noted in the Hickman case. The courts should also consider the likelihood that the party, even if
he obtains the information by independent means, will not have the substantial equivalent of the documents the
production of which he seeks.
Consideration of these factors may well lead the court to distinguish between witness statements taken by an
investigator, on the one hand, and other parts of the investigative file, on the other. The court in Southern Ry. v Lanham,
403 F2d 119 (5th Cir 1968), while it naturally addressed itself to the "good cause" requirements of Rule 34, set forth as
controlling considerations the factors contained in the language of this subdivision. The analysis of the court suggests
circumstances under which witness statements will be discoverable. The witness may have given a fresh and
contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial
time thereafter. Lanham, supra at 127-128; Guilford, supra at 926. Or he may be reluctant or hostile. Lanham, supra at
128-129; Brookshire v Pennsylvania R.R., 14 FRD 154 (ND Ohio 1953); Diamond v Mohawk Rubber Co., 33 FRD 264
(D Colo 1963). Or he may have a lapse of memory. Tannenbaum v Walker, 16 FRD 570 (ED Pa 1954). Or he may
probably be deviating from his prior statement. Cf. Hauger v Chicago, R. I. & Pac. R.R., 216 F2d 501 (7th Cir 1954).
On the other hand, a much stronger showing is needed to obtain evaluative materials in an investigator's reports.
Lanham, supra at 131-133; Pickett v L. R. Ryan, Inc., 237 F Supp 198 (ED SC 1965).
Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or
for other nonlitigation purposes are not under the qualified immunity provided by this subdivision. Goosman v A. Duie
Pyle, Inc., 320 F2d 45 (4th Cir 1963); cf. United States v New York Foreign Trade Zone Operators, Inc., 304 F2d 792
(2d Cir 1962). No change is made in the existing doctrine, noted in the Hickman case, that one party may discover
relevant facts known or available to the other party, even though such facts are contained in a document which is not
itself discoverable.
Treatment of lawyers; special protection of mental impressions, conclusions, opinions, and legal theories concerning
the litigation. The courts are divided as to whether the work-product doctrine extends to the preparatory work only of
lawyers. The Hickman case left this issue open since the statements in that case were taken by a lawyer. As to courts of
appeals, compare Alltmont v United States, 177 F2d 971, 976 (3d Cir 1949), cert denied, 339 US 967 (1950) (Hickman
applied to statements obtained by FBI agents on theory it should apply to "all statements of prospective witnesses which
a party has obtained for his trial counsel's use"), with Southern Ry. v Campbell, 309 F2d 569 (5th Cir 1962) (statements
taken by claim agents not work-product), and Guilford Nat'l Bank v Southern Ry., 297 F2d 921 (4th Cir 1962) (avoiding
issue of work-product as to claim agents, deciding case instead under Rule 34 "good cause"). Similarly, the district
courts are divided on statements obtained by claim agents, compare, e.g., Brown v New York, N. H. & H. R.R., 17 FRD
324 (SD NY 1955) with Hanke v Milwaukee Electric Ry. & Transp. Co., 7 FRD 540 (ED Wis 1947); investigators,
compare Burke v United States, 32 FRD 213 (ED NY 1963) with Snyder v United States, 20 FRD 7 (ED NY 1956); and
insurers, compare Gottlieb v Bresler, 24 FRD 371 (DDC 1959) with Burns v Mulder, 20 FRD 605 (ED Pa 1957). See 4
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Moore's Federal Practice P 26.23 [8.1] (2d ed 1966); 2A Barron & Holtzoff, Federal Practice and Procedure § 652.2
(Wright ed 1961).
A complication is introduced by the use made by courts of the "good cause" requirement of Rule 34, as described
above. A court may conclude that trial preparation materials are not work-product because not the result of lawyer's
work and yet hold that they are not producible because "good cause" has not been shown. Cf. Guilford Nat'l Bank v
Southern Ry., 297 F2d 921 (4th Cir 1962), cited and described above. When the decisions on "good cause" are taken
into account, the weight of authority affords protection of the preparatory work of both lawyers and nonlawyers (though
not necessarily to the same extent) by requiring more than a showing of relevance to secure production.
Subdivision (b)(3) reflects the trend of the cases by requiring a special showing, not merely as to materials prepared
by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or
any representative acting on his behalf. The subdivision then goes on to protect against disclosure the mental
impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a
party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of
memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of
lawyers' mental impressions and legal theories, as well as mental impressions and subjective evaluations of investigators
and claim-agents. In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order
disclosure of a document but with portions deleted.
Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions
relating not only to fact but also to the application of law to fact. Under those rules, a party and his attorney or other
representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions. But documents
or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party
may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential
documents containing such matters prepared for internal use.
Party's right to own statement. An exception to the requirement of this subdivision enables a party to secure
production of his own statement without any special showing. The cases are divided. Compare, e.g., Safeway Stores,
Inc. v Reynolds, 176 F2d 476 (DC Cir 1949); Shupe v Pennsylvania R.R., 19 FRD 144 (WD Pa 1956); with, e.g. New
York Central R.R. v Carr, 251 F2d 433 (4th Cir 1957); Belback v Wilson Freight Forwarding Co., 40 FRD 16 (WD Pa
1966).
Courts which treat a party's statement as though it were that of any witness overlook the fact that the party's
statement is, without more, admissible in evidence. Ordinarily, a party gives a statement without insisting on a copy
because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the
statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier
statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at
trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a
party to be deposed before his statement is produced. E.g., Smith v Central Linen Service Co., 39 FRD 15 (D Md 1966);
McCoy v General Motors Corp., 33 FRD 354 (WD Pa 1963).
Commentators strongly support the view that a party be able to secure his statement without a showing. 4 Moore's
Federal Practice P 26.23 [8.4] (2d ed 1966); 2A Barron & Holtzoff, Federal Practice and Procedure § 652.3 (Wright ed
1961); see also Note, Developments in the Law--Discovery, 74 Harv L Rev 940, 1039 (1961). The following states have
by statute or rule taken the same position: Statutes: Fla Stat Ann § 92.33; Ga Code Ann § 38-2109(b); La Stat Ann
RS 13:3732; Mass Gen Laws Ann c. 271, § 44; Minn Stat Ann § 602.01; NYCPLR § 3101(e). Rules: Mo RCP
56.01(a); N Dak RCP 34(b); Wyo RCP 34(b); cf. Mich GCR 306.2
In order to clarify and tighten the provision on statements by a party, the term "statement" is defined. The definition
is adapted from 18 USC § 3500(e) (Jencks Act). The statement of a party may of course be that of plaintiff or
defendant, and it may be that of an individual or of a corporation or other organization.
Witness' right to own statement. A second exception to the requirement of this subdivision permits a non-party
witness to obtain a copy of his own statement without any special showing. Many, though not all, of the considerations
supporting a party's right to obtain his statement apply also to the nonparty witness. Insurance companies are
increasingly recognizing that a witness is entitled to a copy of his statement and are modifying their regular practice
accordingly.
Subdivision (b)(4)--Trial preparation: Experts. This is a new provision dealing with the discovery of information
(including facts and opinions) obtained by a party from an expert retained by that party in relation to litigation or
obtained by the expert and not yet transmitted to the party. The subdivision deals separately with those experts whom
the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the
party but who are not expected to be witnesses. It should be noted that the subdivision does not address itself to the
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expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with
respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated
as an ordinary witness.
Subsection (b)(4)(A) deals with discovery of information obtained by or through experts who will be called as
witnesses at trial. The provision is responsive to problems suggested by a relatively recent line of authorities. Many of
these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent
among them are food and drug, patent, and condemnation cases. See, e.g., United States v Nysco Laboratories, Inc., 26
FRD 159, 162 (ED NY 1960) (food and drug); E. I. du Pont de Nemours & Co. v Phillips Petroleum Co., 24 FRD 416,
421 (D Del 1959) (patent); Cold Metal Process Co. v Aluminum Co. of America, 7 FRD 425 (ND Ohio 1947), affd,
Sachs v Aluminum Co. of America, 167 F2d 570 (6th Cir 1948) (same); United States v 50.34 Acres of Land, 13 FRD 19
(ED NY 1952) (condemnation).
In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute
form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires
advance preparation. The lawyer even with the help of his own experts frequently can not anticipate the particular
approach his adversary's expert will take or the data on which he will base his judgment on the stand. McGlothlin, Some
Practical Problems in Proof of Economic, Scientific, and Technical Facts, 23 FRD 467, 478 (1958). A California study
of discovery and pretrial in condemnation cases notes that the only substitute for discovery of experts' valuation
materials is "lengthy--and often fruitless--cross-examination during trial," and recommends pretrial exchange of such
material. Calif. Law Rev. Comm'n, Discovery in Eminent Domain Proceedings 707-710 (Jan. 1963). Similarly,
effective rebuttal requires advance knowledge of the line of testimony of the other side. If the latter is foreclosed by a
rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally produces are
frustrated.
These considerations appear to account for the broadening of discovery against experts in the cases cited where
expert testimony was central to the case. In some instances, the opinions are explicit in relating expanded discovery to
improved cross-examination and rebuttal at trial. Franks v National Dairy Products Corp., 41 FRD 234 (WD Tex 1966);
United States v 23.76 Acres, 32 FRD 593 (D Md 1963) see also an unpublished opinion of Judge Hincks, quoted in
United States v 48 Jars, etc., 23 FRD 192, 198 (D DC 1958). On the other hand, the need for a new provision is shown
by the many cases in which discovery of expert trial witnesses is needed for effective cross-examination and rebuttal,
and yet courts apply the traditional doctrine and refuse disclosure. E.g., United States v Certain Parcels of Land, 25
FRD 192 (ND Cal 1959); United States v Certain Acres, 18 FRD 98 (MD Ga 1955).
Although the trial problems flowing from lack of discovery of expert witnesses are most acute and noteworthy when
the case turns largely on experts, the same problems are encountered when a single expert testifies. Thus, subdivision
(b)(4)(A) draws no line between complex and simple cases, or between cases with many experts and those with but one.
It establishes by rule substantially the procedure adopted by decision of the court in Knighton v Villian & Fassio, 39
FRD 11 (D Md 1965). For a full analysis of the problem and strong recommendations to the same effect, see
Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan L Rev 455, 485-488 (1962). Long,
Discovery and Experts under the Federal Rules of Civil Procedure, 38 FRD 111 (1965).
Past judicial restrictions on discovery of an adversary's expert, particularly as to his opinions, reflect the fear that one
side will benefit unduly from the other's better preparation. The procedure established in subsection (b)(4)(A) holds the
risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know
who their expert witnesses will be. A party must as a practical matter prepare his own case in advance of that time, for
he can hardly hope to build his case out of his opponent's experts.
Subdivision (b)(4)(A) provides for discovery of an expert who is to testify at the trial. A party can require one who
intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order
further discovery, and it has ample power to regulate its timing and scope and to prevent abuse. Ordinarily, the order for
further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert
for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to
discourage abusive practices.
Subdivision (b)(4)(B) deals with an expert who has been retained or specially employed by the party in anticipation
of litigation or preparation for trial (thus excluding an expert who is simply a general employee of the party not
specially employed on the case), but who is not expected to be called as a witness. Under its provisions, a party may
discover facts known or opinions held by such an expert only by a showing of exceptional circumstances under which it
is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Subdivision (b)(4)(B) is concerned only with experts retained or specially consulted in relation to trial preparation.
Thus the subdivision precludes discovery against experts who were informally consulted in preparation for trial, but not
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retained or specially employed. As an ancillary procedure, a party may on a proper showing require the other party to
name experts retained or specially employed, but not those informally consulted.
These new provisions of subdivision (b)(4) repudiate the few decisions that have held an expert's information
privileged simply because of his status as an expert, e.g., American Oil Co. v Pennsylvania Petroleum Products Co., 23
FRD 680, 685-686 (D RI 1959). See Louisell, Modern California Discovery 315-316 (1963). They also reject as
ill-considered the decisions which have sought to bring expert information within the work-product doctrine. See United
States v McKay, 372 F2d 174, 176-177 (5th Cir 1967). The provisions adopt a form of the more recently developed
doctrine of "unfairness". See e.g., United States v 23.76 Acres of Land, 32 FRD 593, 597 (D Md 1963); Louisell, supra,
317-318; 4 Moore's Federal Practice P 26.24 (2d ed 1966).
Under subdivision (b)(4)(C), the court is directed or authorized to issue protective orders, including an order that the
expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made
subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from
the expert. The court may issue the latter order as a condition of discovery, or it may delay the order until after
discovery is completed. These provisions for fees and expenses meet the objection that it is unfair to permit one side to
obtain without cost the benefit of an expert's work for which the other side has paid, often a substantial sum. E.g., Lewis
v United Air Lines Transp. Corp., 32 F Supp 21 (WD Pa 1940); Walsh v Reynolds Metal Co., 15 FRD 376 (D NJ 1954).
On the other hand, a party may not obtain discovery simply by offering to pay fees and expenses. Cf. Boynton v R. J.
Reynolds Tobacco Co., 36 F Supp 593 (D Mass 1941).
In instances of discovery under subdivision (b)(4)(B), the court is directed to award fees and expenses to the other
party, since the information is of direct value to the discovering party's preparation of his case. In ordering discovery
under (b)(4)(A)(ii), the court has discretion whether to award fees and expenses to the other party; its decision should
depend upon whether the discovering party is simply learning about the other party's case or is going beyond this to
develop his own case. Even in cases where the court is directed to issue a protective order, it may decline to do so if it
finds that manifest injustice would result. Thus, the court can protect, when necessary and appropriate, the interests of
an indigent party.
Subdivision (c)--Protective orders. The provisions of existing Rule 30(b) are transferred to this subdivision (c), as
part of the rearrangement of Rule 26. The language has been changed to give its application to discovery generally. The
subdivision recognizes the power of the court in the district where a deposition is being taken to make protective orders.
Such power is needed when the deposition is being taken far from the court where the action is pending. The court in
the district where the deposition is being taken may, and frequently will, remit the deponent or party to the court where
the action is pending.
In addition, drafting changes are made to carry out and clarify the sense of the rule. Insertions are made to avoid any
possible implication that a protective order does not extend to "time" as well as to "place" or may not safeguard against
"undue burden or expense."
The new reference to trade secrets and other confidential commercial information reflects existing law. The courts
have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their
claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection. See, e.g.,
Covey Oil Co. v Continental Oil Co., 340 F2d 993 (10th Cir 1965); Julius M. Ames Co. v Bostitch, Inc., 235 F Supp 856
(SD NY 1964).
The subdivision contains new matter relating to sanctions. When a motion for a protective order is made and the
court is disposed to deny it, the court may go a step further and issue an order to provide or permit discovery. This will
bring the sanctions of Rule 37(b) directly into play. Since the court has heard the contentions of all interested persons,
an affirmative order is justified. See Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Col L Rev 480, 492-493
(1958). In addition, the court may require the payment of expenses incurred in relation to the motion.
Subdivision (d)--Sequence and priority. This new provision is concerned with the sequence in which parties may
proceed with discovery and with related problems of timing. The principal effects of the new provision are first, to
eliminate any fixed priority in the sequence of discovery, and second, to make clear and explicit the court's power to
establish priority by an order issued in a particular case.
A priority rule developed by some courts, which confers priority on the party who first serves notice of taking a
deposition, is unsatisfactory in several important respects:
First, this priority rule permits a party to establish a priority running to all depositions as to which he has given
earlier notice. Since he can on a given day serve notice of taking many depositions he is in a position to delay his
adversary's taking of depositions for an inordinate time. Some courts have ruled that deposition priority also permits a
party to delay his answers to interrogatories and production of documents. E.g., E. I. du Pont de Nemours & Co. v
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USCS Fed Rules Civ Proc R 26
Phillips Petroleum Co., 23 FRD 237 (D Del 1959); but cf. Sturdevant v Sears Roebuck & Co., 32 FRD 426 (WD Mo
1963).
Second, since notice is the key to priority, if both parties wish to take depositions first a race results. See
Caldwell-Clements, Inc. v McGraw-Hill Pub. Co., 11 FRD 156 (SD NY 1951) (description of tactics used by parties).
But the existing rules on notice of deposition create a race with runners starting from different positions. The plaintiff
may not give notice without leave of court until 20 days after commencement of the action, whereas the defendant may
serve notice at any time after commencement. Thus, a careful and prompt defendant can almost always secure priority.
This advantage of defendants is fortuitous, because the purpose of requiring plaintiff to wait 20 days is to afford
defendant an opportunity to obtain counsel, not to confer priority.
Third, although courts have ordered a change in the normal sequence of discovery on a number of occasions, e.g.,
Kaeppler v James H. Mathews & Co., 200 F Supp 229 (ED Pa 1961); Park & Tilford Distillers Corp. v Distillers Co.,
19 FRD 169 (SD NY 1956), and have at all times avowed discretion to vary the usual priority, most commentators are
agreed that courts in fact grant relief only for "the most obviously compelling reasons." 2A Barron & Holtzoff, Federal
Practice and Procedure 44-47 (Wright ed 1961); see also Younger, Priority of Pretrial Examination in the Federal
Courts--A Comment, 34 NYUL Rev 1271 (1959); Freund, The Pleading and Pretrial of an Antitrust Claim, 46 Corn LQ
555, 564 (1964). Discontent with the fairness of actual practice has been evinced by other observers. Comment, 59 Yale
LJ 117, 134-136 (1949); Yudkin, Some Refinements in Federal Discovery Procedure, 11 Fed BJ 289, 296-297 (1951);
Developments in the Law-Discovery, 74 Harv L Rev 940, 954-958 (1961).
Despite these difficulties, some courts have adhered to the priority rule, presumably because it provides a test which
is easily understood and applied by the parties without much court intervention. It thus permits deposition discovery to
function extrajudicially, which the rules provide for and the courts desire. For these same reasons, courts are reluctant to
make numerous exceptions to the rule.
The Columbia Survey makes clear that the problem of priority does not affect litigants generally. It found that most
litigants do not move quickly to obtain discovery. In over half of the cases, both parties waited at least 50 days. During
the first 20 days after commencement of the action--the period when defendant might assure his priority by noticing
depositions--16 percent of the defendants acted to obtain discovery. A race could not have occurred in more than 16
percent of the cases and it undoubtedly occurred in fewer. On the other hand, five times as many defendants as plaintiffs
served notice of deposition during the first 19 days. To the same effect, see Comment, Tactical Use and Abuse of
Depositions Under the Federal Rules, 59 Yale LJ 117, 134 (1949).
These findings do not mean, however, that the priority rule is satisfactory or that a problem of priority does not exist.
The court decisions show that parties do battle on this issue and carry their disputes to court. The statistics show that
these court cases are not typical. By the same token, they reveal that more extensive exercise of judicial discretion to
vary the priority will not bring a flood of litigation, and that a change in the priority rule will in fact affect only a small
fraction of the cases.
It is contended by some that there is no need to alter the existing priority practice. In support, it is urged that there is
no evidence that injustices in fact result from present practice and that, in any event, the courts can and do promulgate
local rules, as in New York, to deal with local situations and issue orders to avoid possible injustice in particular cases.
Subdivision (d) is based on the contrary view that the rule of priority based on notice is unsatisfactory and unfair in
its operation. Subdivision (d) follows an approach adapted from Civil Rule 4 of the District Court for the Southern
District of New York. That rule provides that starting 40 days after commencement of the action, unless otherwise
ordered by the court, the fact that one party is taking a deposition shall not prevent another party from doing so
"concurrently." In practice, the depositions are not usually taken simultaneously; rather, the parties work out
arrangements for alteration in the taking of depositions. One party may take a complete deposition and then the other,
or, if the depositions are extensive, one party deposes for a set time, and then the other. See Caldwell-Clements, Inc. v
McGraw-Hill Pub. Co., 11 FRD 156 (SD NY 1951).
In principle, one party's initiation of discovery should not wait upon the other's completion, unless delay is dictated
by special considerations. Clearly the principle is feasible with respect to all methods of discovery other than
depositions. And the experience of the Southern District of New York shows that the principle can be applied to
depositions as well. The courts have not had an increase in motion business on this matter. Once it is clear to lawyers
that they bargain on an equal footing, they are usually able to arrange for an orderly succession of depositions without
judicial intervention. Professor Moore has called attention to Civil Rule 4 and suggested that it may usefully be
extended to other areas. 4 Moore's Federal Practice 1154 (2d ed 1966).
The court may upon motion and by order grant priority in a particular case. But a local court rule purporting to
confer priority in certain classes of cases would be inconsistent with this subdivision and thus void.
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Subdivision (e)--Supplementation of responses. The rules do not now state whether interrogatories (and questions at
deposition as well as requests for inspection and admissions) impose a "continuing burden" on the responding party to
supplement his answers if he obtains new information. The issue is acute when new information renders substantially
incomplete or inaccurate an answer which was complete and accurate when made. It is essential that the rules provide
an answer to this question. The parties can adjust to a rule either way, once they know what it is. See 4 Moore's Federal
Practice P 33.25[4] (2d ed 1966).
Arguments can be made both ways. Imposition of a continuing burden reduces the proliferation of additional sets of
interrogatories. Some courts have adopted local rules establishing such a burden. E.g., ED Pa R 20(f), quoted in Taggart
v Vermont Transp. Co. 32 FRD 587 (ED Pa 1963); D Me R 15(c). Others have imposed the burden by decision. E.g.,
Chenault v Nebraska Farm Products, Inc. 9 FRD 529, 533 (D Neb 1949). On the other hand, there are serious
objections to the burden, especially in protracted cases. Although the party signs the answers, it is his lawyer who
understands their significance and bears the responsibility to bring answers up to date. In a complex case all sorts of
information reaches the party, who little understands its bearing on answers previously given to interrogatories. In
practice, therefore, the lawyer under a continuing burden must periodically recheck all interrogatories and canvass all
new information. But a full set of new answers may no longer be needed by the interrogating party. Some issues will
have been dropped from the case, some questions are now seen as unimportant, and other questions must in any event
be reformulated. See Novick v Pennsylvania R.R. 18 FRD 296, 298 (WD Pa 1955).
Subdivision (e) provides that a party is not under a continuing burden except as expressly provided. Cf. Note, 68
Harv L Rev 673, 677 (1955). An exception is made as to the identity of persons having knowledge of discoverable
matters, because of the obvious importance to each side of knowing all witnesses and because information about
witnesses routinely comes to each lawyer's attention. Many of the decisions on the issue of a continuing burden have in
fact concerned the identity of witnesses. An exception is also made as to expert trial witnesses in order to carry out the
provisions of Rule 26(b)(4). See Diversified Products Corp. v Sports Center Co. 42 FRD 3 (D Md 1967).
Another exception is made for the situation in which a party or more frequently his lawyer, obtains actual knowledge
that a prior response is incorrect. This exception does not impose a duty to check the accuracy of prior responses, but it
prevents knowing concealment by a party or attorney. Finally, a duty to supplement may be imposed by order of the
court in a particular case (including an order resulting from a pretrial conference) or by agreement of the parties. A party
may of course make a new discovery request which requires supplementation of prior responses.
The duty will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the
trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate.
Notes of Advisory Committee on 1980 amendments. Subdivision (f). This subdivision is new. There has been
widespread criticism of abuse of discovery. The Committee has considered a number of proposals to eliminate abuse,
including a change in Rule 26(b)(1) with respect to the scope of discovery and a change in Rule 33(a) to limit the
number of questions that can be asked by interrogatories to parties.
The Committee believes that abuse of discovery, while very serious in certain cases, is not so general as to require
such basic changes in the rules that govern discovery in all cases. A very recent study of discovery in selected
metropolitan districts tends to support its belief. P. Connoly, E. Holleman, & M. Kuhlman, Judicial Controls and the
Civil Litigative Process: Discovery (Federal Judicial Center, 1978). In the judgment of the Committee abuse can best be
prevented by intervention by the court as soon as abuse is threatened.
To this end this subdivision provides that counsel who has attempted without success to effect with opposing counsel
a reasonable program or plan for discovery is entitled to the assistance of the court.
It is not contemplated that requests for discovery conferences will be made routinely. A relatively narrow discovery
dispute should be resolved by resort to Rules 26(c) or 37(a), and if it appears that a request for a conference is in fact
grounded in such a dispute, the court may refer counsel to those rules. If the court is persuaded that a request is
frivolous or vexatious, it can strike it. See Rules 11 and 7(b)(2).
A number of courts routinely consider discovery matters in preliminary pretrial conferences held shortly after the
pleadings are closed. This subdivision does not interfere with such a practice. It authorizes the court to combine a
discovery conference with a pretrial conference under Rule 16 if a pretrial conference is held sufficiently early to
prevent or curb abuse.
Effective date of 1980 amendments to Rule 26. Section 2 of the Order of April 29, 1980, -- US --, 64 L Ed 2d No. 2,
v., -- S Ct --, which adopted the 1980 amendments to this Rule, provided "That the foregoing amendments to the
Federal Rules of Civil Procedure shall take effect on August 1, 1980, and shall govern all civil proceedings thereafter
commenced and, insofar as just and practicable, all proceedings then pending."
Notes of Advisory Committee on 1983 amendments. Excessive discovery and evasion or resistance to reasonable
discovery requests pose significant problems. Recent studies have made some attempt to determine the sources and
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USCS Fed Rules Civ Proc R 26
extent of the difficulties. See Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and
Abuses, American Bar Foundation (1980); Connolly, Holleman & Kuhlman, Judicial Controls and the Civil Litigative
Process: Discovery, Federal Judicial Center (1978); Ellington, A Study of Sanctions for Discovery Abuse, Department
of Justice (1979); Schroeder & Frank, The Proposed Changes in the Discovery Rules, 1978 Ariz. St. L.J. 475.
The purpose of discovery is to provide a mechanism for making relevant information available to the litigants.
"Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor,
329 U.S. 495, 507 (1947). Thus the spirit of the rules is violated when advocates attempt to use discovery tools as
tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of
defensive weapons or evasive responses. All of this results in excessively costly and time-consuming activities that are
disproportionate to the nature of the case, the amount involved, or the issues or values at stake.
Given our adversary tradition and the current discovery rules, it is not surprising that there are many opportunities, if
not incentives, for attorneys to engage in discovery that, although authorized by the broad, permissive terms of the rules,
nevertheless results in delay. See Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for
Change, 31 Vand.L.Rev. 1259 (1978). As a result, it has been said that the rules have "not infrequently [been] exploited
to the disadvantage of justice." Herbert v. Lando, 441 U.S. 153, 179 (1979) (Powell, J., concurring). These practices
impose costs on an already overburdened system and impede the fundamental goal of the "just, speedy, and inexpensive
determination of every action." Fed.R.Civ.P. 1.
Subdivision (a); Discovery Methods. The deletion of the last sentence of Rule 26(a)(1), which provided that unless
the court ordered otherwise under Rule 26(c) "the frequency of use" of the various discovery methods was not to be
limited, is an attempt to address the problem of duplicative, redundant, and excessive discovery and to reduce it. The
amendment, in conjunction with the changes in Rule 26(b)(1), is designed to encourage district judges to identify
instances of needless discovery and to limit the use of the various discovery devices accordingly. The question may be
raised by one of the parties, typically on a motion for a protective order, or by the court on its own initiative. It is
entirely appropriate to consider a limitation on the frequency of use of discovery at a discovery conference under Rule
26(f) or at any other pretrial conference authorized by these rules. In considering the discovery needs of a particular
case, the court should consider the factors described in Rule 26(b)(1).
Subdivision (b); Discovery Scope and Limits. Rule 26(b)(1) has been amended to add a sentence to deal with the
problem of over-discovery. The objective is to guard against redundant or disproportionate discovery by giving the
court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of
inquiry. The new sentence is intended to encourage judges to be more aggressive in identifying and discouraging
discovery overuse. The grounds mentioned in the amended rule for limiting discovery reflect the existing practice of
many courts in issuing protective orders under Rule 26(c). See e.g., Carlson Cos. v. Sperry & Hutchinson Co., 374
F.Supp. 1080 (D. Minn. 1974); Dolgow v. Anderson, 53 F.R.D. 661 (E.D.N.Y. 1971); Mitchell v. American Tobacco
Co., 33 F.R.D. 262 (M.D.Pa. 1963); Welty v. Clute, 1 F.R.D. 446 (W.D.N.Y. 1941). On the whole, however, district
judges have been reluctant to limit the use of the discovery devices. See, e.g., Apco Oil Co. v. Certified Transp., Inc., 46
F.R.D. 428 (W.D.Mo. 1969). See generally 8 Wright & Miller, Federal Practice and Procedure: Civil § § 2036, 2037,
2039, 2040 (1970).
The first element of the standard, Rule 26(b)(1)(i), is designed to minimize redundancy in discovery and encourage
attorneys to be sensitive to the comparative costs of different methods of securing information. Subdivision (b)(1)(ii)
also seeks to reduce repetitiveness and to oblige lawyers to think through their discovery activities in advance so that
full utilization is made of each deposition, document request, or set of interrogatories. The elements of Rule 26(b)(1)(iii)
address the problem of discovery that is disproportionate to the individual lawsuit as measured by such matters as its
nature and complexity, the importance of the issues at stake in a case seeking damages, the limitations on a financially
weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests, and the
significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes
that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have
importance far beyond the monetary amount involved. The court must apply the standards in an even-handed manner
that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or
affluent.
The rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it
cannot always operate on a self-regulating basis. See Connolly, Holleman & Kuhlman, Judicial Controls and the Civil
Litigative Process: Discovery 77, Federal Judicial Center (1978). In an appropriate case the court could restrict the
number of depositions, interrogatories, or the scope of a production request. But the court must be careful not to deprive
a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case.
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USCS Fed Rules Civ Proc R 26
The court may act on motion, or its own initiative. It is entirely appropriate to resort to the amended rule in
conjunction with a discovery conference under Rule 26(f) or one of the other pretrial conferences authorized by the
rules.
Subdivision (g); Signing of Discovery Requests, Responses, and Objections. Rule 26(g) imposes an affirmative duty
to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26
through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of
sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification
requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto,
or an objection. The term "response" includes answers to interrogatories and to requests to admit as well as responses to
production requests.
If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act
responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels the amendments to Rule 11, requires an
attorney or unrepresented party to sign each discovery request, response, or objection. Motions relating to discovery are
governed by Rule 11. However, since a discovery request, response, or objection usually deals with more specific
subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out
more completely. The signature is a certification of the elements set forth in Rule 26(g).
Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response,
or objection, it is not meant to discourage or restrict necessary and legitimate discovery. The rule simply requires that
the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.
The duty to make a "reasonable inquiry" is satisfied if the investigation undertaken by the attorney and the
conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one
imposed by Rule 11. See the Advisory Committee Note to Rule 11. See also Kinee v. Abraham Lincoln Fed. Sav. &
Loan Ass'n, 365 F.Supp. 975 (E.D. Pa. 1973). In making the inquiry, the attorney may rely on assertions by the client
and on communications with other counsel in the case as long as that reliance is appropriate under the circumstances.
Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.
Rule 26(g) does not require the signing attorney to certify the truthfulness of the client's factual responses to a
discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has
provided all the information and documents available to him that are responsive to the discovery demand. Thus, the
lawyer's certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as
those in Rules 30(e) and 33.
Nor does the rule require a party or an attorney to disclose privileged communications or work product in order to
show that a discovery request, response, or objection is substantially justified. The provisions of Rule 26(c), including
appropriate orders after in camera inspection by the court, remain available to protect a party claiming privilege or work
product protection.
The signing requirement means that every discovery request, response, or objection should be grounded on a theory
that is reasonable under the precedents or a good faith belief as to what should be the law. This standard is heavily
dependent on the circumstances of each case. The certification speaks as of the time it is made. The duty to supplement
discovery responses continues to be governed by Rule 26(e).
Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial
control and supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied) (Powell, J., dissenting).
Sanctions to deter discovery abuse would be more effective if they were diligently applied "not merely to penalize those
whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in
the absence of such a deterrent." National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). See
also Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033
(1978). Thus the premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule's standards will
significantly reduce abuse by imposing disadvantages therefor.
Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil
Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980);
Ellington, A Study of Sanctions for Discovery Abuse, Department of Justice (1979), Rule 26(g) makes explicit the
authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule
37, 28 U.S.C. § 1927, and the court's inherent power. See Roadway Express, Inc., v. Piper, 447 U.S. 752 (1980);
Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62 (D. Col. 1980); Note, Sanctions Imposed by Courts on Attorneys
Who Abuse the Judicial Process, 44 U.Chi.L.Rev. 619 (1977). The new rule mandates that sanctions be imposed on
attorneys who fail to meet the standards established in the first portion of Rule 26(g). The nature of the sanction is a
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USCS Fed Rules Civ Proc R 26
matter of judicial discretion to be exercised in light of the particular circumstances. The court may take into account any
failure by the party seeking sanctions to invoke protection under Rule 26(c) at an early stage in the litigation.
The sanctioning process must comport with due process requirements. The kind of notice and hearing required will
depend on the facts of the case and the severity of the sanction being considered. To prevent the proliferation of the
sanction procedure and to avoid multiple hearings, discovery in any sanction proceeding normally should be permitted
only when it is clearly required by the interests of justice. In most cases the court will be aware of the circumstances and
only a brief hearing should be necessary.
Notes of Advisory Committee on 1987 amendments. The amendments are technical. No substantive change is
intended.
Notes of Advisory Committee on 1993 amendments. Subdivision (a). Through the addition of paragraphs (1)-(4),
this subdivision imposes on parties a duty to disclose, without awaiting formal discovery requests, certain basic
information that is needed in most cases to prepare for trial or make an informed decision about settlement. The rule
requires all parties (1) early in the case to exchange information regarding potential witnesses, documentary evidence,
damages, and insurance, (2) at an appropriate time during the discovery period to identify expert witnesses and provide
a detailed written statement of the testimony that may be offered at trial through specially retained experts, and (3), as
the trial date approaches, to identify the particular evidence that may be offered at trial. The enumeration in Rule 26(a)
of items to be disclosed does not prevent a court from requiring by order or local rule that the parties disclose additional
information without a discovery request. Nor are parties precluded from using traditional discovery methods to obtain
further information regarding these matters, as for example asking an expert during a deposition about testimony given
in other litigation beyond the four-year period specified in Rule 26(a)(2)(B).
A major purpose of the revision is to accelerate the exchange of basic information about the case and to eliminate the
paper work involved in requesting such information, and the rule should be applied in a manner to achieve those
objectives. The concepts of imposing a duty of disclosure were set forth in Brazil, The Adversary Character of Civil
Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1348 (1978), and Schwarzer, The Federal Rules, the
Adversary Process, and Discovery Reform, 50 U. Pitt. L. Rev. 703, 721-23 (1989).
The rule is based upon the experience of district courts that have required disclosure of some of this information
through local rules, court-approved standard interrogatories, and standing orders. Most have required pretrial
disclosure of the kind of information described in Rule 26(a)(3). Many have required written reports from experts
containing information like that specified in Rule 26(a)(2)(B). While far more limited, the experience of the few state
and federal courts that have required pre-discovery exchange of core information such as is contemplated in Rule
26(a)(1) indicates that savings in time and expense can be achieved, particularly if the litigants meet and discuss the
issues in the case as a predicate for this exchange and if a judge supports the process, as by using the results to guide
further proceedings in the case. Courts in Canada and the United Kingdom have for many years required disclosure of
certain information without awaiting a request from an adversary.
Paragraph (1). As the functional equivalent of court-ordered interrogatories, this paragraph requires early disclosure,
without need for any request, of four types of information that have been customarily secured early in litigation through
formal discovery. The introductory clause permits the court, by local rule, to exempt all or particular types of cases
from these disclosure requirement or to modify the nature of the information to be disclosed. It is expected that courts
would, for example, exempt cases like Social Security reviews and government collection cases in which discovery
would not be appropriate or would be unlikely. By order the court may eliminate or modify the disclosure
requirements in a particular case, and similarly the parties, unless precluded by order or local rule, can stipulate to
elimination or modification of the requirements for that case. The disclosure obligations specified in paragraph (1) will
not be appropriate for all cases, and it is expected that changes in these obligations will be made by the court or parties
when the circumstances warrant.
Authorization of these local variations is, in large measure, included in order to accommodate to the Civil Justice
Reform Act of 1990, which implicitly directs districts to experiment during the study period with differing procedures
to reduce the time and expense of civil litigation. The civil justice delay and expense reduction plans adopted by the
courts under the Act differ as to the type, form, and timing of disclosures required. Section 105(c)(1) of the Act calls
for a report by the Judicial Conference to Congress by December 31, 1995, comparing experience in twenty of these
courts; and section 105(c)(2)(B) contemplates that some changes in the Rules may then be needed. While these studies
may indicate the desirability of further changes in Rule 26(a)(1), these changes probably could not become effective
before December 1998 at the earliest. In the meantime, the present revision puts in place a series of disclosure
obligations that, unless a court acts affirmatively to impose other requirements or indeed to reject all such requirements
for the present, are designed to eliminate certain discovery, help focus the discovery that is needed, and facilitate
preparation for trial or settlement.
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Subparagraph (A) requires identification of all persons who, based on the investigation conducted thus far, are likely
to have discoverable information relevant to the factual disputes between the parties. All persons with such
information should be disclosed, whether or not their testimony will be supportive of the position of the disclosing
party. As officers of the court, counsel are expected to disclose the identity of those persons who may be used by them
as witnesses or who, if their potential testimony were known, might reasonably be expected to be deposed or called as a
witness by any of the other parties. Indicating briefly the general topics on which such persons have information
should not be burdensome, and will assist other parties in deciding which depositions will actually be needed.
Subparagraph (B) is included as a substitute for the inquiries routinely made about the existence and location of
documents and other tangible things in the possession, custody, or control of the disclosing party. Although, unlike
subdivision (a)(3)(C), an itemized listing of each exhibit is not required, the disclosure should describe and categorize,
to the extent identified during the initial investigation, the nature and location of potentially relevant documents and
records, including computerized data and other electronically-recorded information, sufficiently to enable opposing
parties (1) to make an informed decision concerning which documents might need to be examined, at least initially, and
(2) to frame their document requests in a manner likely to avoid squabbles resulting from the wording of the requests.
As with potential witnesses, the requirement for disclosure of documents applies to all potentially relevant items then
known to the party, whether or not supportive of its contentions in the case.
Unlike subparagraphs (C) and (D), subparagraph (B) does not require production of any documents. Of course, in
cases involving few documents a disclosing party may prefer to provide copies of the documents rather than prescribe
them, and the rule is written to afford this option to the disclosing party. If, as will be more typical, only the
description is provided, the other parties are expected to obtain the documents desired by proceeding under Rule 34 or
through informal requests. The disclosing party does not, by describing documents under subparagraph (B), waive its
right to object to production on the basis of privilege or work product protection, or to assert that the documents are not
sufficiently relevant to justify the burden or expense of production.
The initial disclosure requirements of subparagraphs (A) and (B) are limited to identification of potential evidence
"relevant to disputed facts alleged with particularity in the pleadings." There is no need for a party to identify potential
evidence with respect to allegations that are admitted. Broad, vague, and conclusory allegations sometimes tolerated in
notice pleading--for example, the assertion that a product with many component parts is defective in some unspecified
manner--should not impose upon responding parties the obligation at that point to search for and identify all persons
possibly involved in, or all documents affecting, the design, manufacture, and assembly of the product. The greater the
specificity and clarity of the allegations in the pleadings, the more complete should be the listing of potential witnesses
and types of documentary evidence. Although paragraphs (1)(A) and (1)(B) by their terms refer to the factual disputes
defined in the pleadings, the rule contemplates that these issues would be informally refined and clarified during the
meeting of the parties under subdivision (f) and that the disclosure obligations would be adjusted in the light of these
discussions. The disclosure requirements should, in short, be applied with common sense in light of the principles of
Rule 1, keeping in mind the salutary purposes that the rule is intended to accomplish. The litigants should not indulge
in gamesmanship with respect to the disclosure obligations.
Subparagraph (C) imposes a burden of disclosure that includes the functional equivalent of a standing Request for
Production under Rule 34. A party claiming damages or other monetary relief must, in addition to disclosing the
calculation of such damages, make available the supporting documents for inspection and copying as if a request for
such materials had been made under rule 34. This obligation applies only with respect to documents then reasonably
available to it and not privileged or protected as work product. Likewise, a party would not be expected to provide a
calculation of damages which, as in many patent infringement actions, depends on information in the possession of
another party or person.
Subparagraph (D) replaces subdivision (b)(2) of Rule 26, and provides that liability insurance policies be made
available for inspection and copying. The last two sentences of that subdivision have been omitted as unnecessary, not
to signify any change of law. The disclosure of insurance information does not thereby render such information
admissible in evidence. See Rule 411, Federal Rules of Evidence. Nor does subparagraph (D) require disclosure of
applications for insurance, though in particular cases such information may be discoverable in accordance with revised
subdivision (a)(5).
Unless the court directs a different time, the disclosures required by subdivision (a)(1) are to be made at or within 10
days after the meeting of the parties under subdivision (f). One of the purposes of this meeting is to refine the factual
disputes with respect to which disclosures should be made under paragraphs (1)(A) and (1)(B), particularly if an answer
has not been filed by a defendant, or, indeed, to afford the parties an opportunity to modify by stipulation the timing or
scope of these obligations. The time of this meeting is generally left to the parties provided it is held at least 14 days
before a scheduling conference is held or before a scheduling order is due under Rule 16(b). In cases in which no
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scheduling conference is held, this will mean that the meeting must ordinarily be held within 75 days after a defendant
has first appeared in the case and hence that the initial disclosures would be due no later than 85 days after the first
appearance of a defendant.
Before making its disclosures, a party has the obligation under subdivision (g)(1) to make a reasonable inquiry into
the facts of the case. The rule does not demand an exhaustive investigation at this stage of the case, but one that is
reasonable under the circumstances, focusing on the facts that are alleged with particularity in the pleadings. The type
of investigation that can be expected at this point will vary based upon such factors as the number and complexity of the
issues; the location, nature, number, and availability of potentially relevant witnesses and documents; the extent of past
working relationships between the attorney and the client, particularly in handling related or similar litigation; and of
course how long the party has to conduct an investigation, either before or after filing of the case. As provided in the
last sentence of subdivision (a)(1), a party is not excused from the duty of disclosure merely because its investigation is
incomplete. The party should make its initial disclosures based on the pleadings and the information then reasonably
available to it. As its investigation continues and as the issues in the pleadings are clarified, it should supplement its
disclosures as required by subdivision (e)(1). A party is not relieved from its obligation of disclosure merely because
another party has not made its disclosures or has made an inadequate disclosure.
It will often be desirable, particularly if the claims made in the complaint are broadly stated, for the parties to have
their Rule 26(f) meeting early in the case, perhaps before a defendant has answered the complaint or had time to
conduct other than a cursory investigation. In such circumstances, in order to facilitate more meaningful and useful
initial disclosures, they can and should stipulate to a period of more than 10 days after the meeting in which to make
these disclosures, at least for defendants who had no advance notice of the potential litigation. A stipulation at an early
meeting affording such a defendant at least 60 days after receiving the complaint in which to make its disclosures under
subdivision (a)(1)--a period that is two weeks longer than the time formerly specified for responding to interrogatories
served with a complaint--should be adequate and appropriate in most cases.
Paragraph (2). This paragraph imposes an additional duty to disclose information regarding expert testimony
sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other witnesses. Normally the court should prescribe a
time for these disclosures in a scheduling order under Rule 16(b), and in most cases the party with the burden of proof
on an issue should disclose its expert testimony on that issue before other parties are required to make their disclosures
with respect to that issue. In the absence of such a direction, the disclosures are to be made by all parties at least 90
days before the trial date or the date by which the case is to be ready for trial, except that an additional 30 days is
allowed (unless the court specifies another time) for disclosure of expert testimony to be used solely to contradict or
rebut the testimony that may be presented by another party's expert. For a discussion of procedures that have been used
to enhance the reliability of expert testimony, see M. Graham, Expert Witness Testimony and the Federal Rules of
Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U. Ill. L. Rev. 90.
Paragraph (2)(B) requires that persons retained or specially employed to provide expert testimony, or whose duties as
an employee of the party regularly involve the giving of expert testimony, must prepare a detailed and complete written
report, stating the testimony the witness is expected to present during direct examination, together with the reasons
therefor. The information disclosed under the former rule in answering interrogatories about the "substance" of expert
testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was
even of little help in preparing for a deposition of the witness. Revised Rule 37(c)(1) and revised Rule 702 of the
Federal Rules of Evidence provide an incentive for full disclosure; namely, that a party will not ordinarily be permitted
to use on direct examination any expert testimony not so disclosed. Rule 26(a)(2)(B) does not preclude counsel from
providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this
assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct
examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed
by the witness.
The report is to disclose the data and other information considered by the expert and any exhibits or charts and
summarize or support the expert's opinions. Given this obligation of disclosure, litigants should no longer be able to
argue that materials furnished to their experts to be used in forming their opinions--whether or not ultimately relied
upon by the expert--are privileged or otherwise protected from disclosure when such persons are testifying or being
deposed.
Revised subdivision (b)(3)(A) authorizes the deposition of expert witnesses. Since depositions of experts required
to prepare a written report may be taken only after the report has been served, the length of the deposition of such
experts should be reduced, and in many cases the report may eliminate the need for a deposition. Revised subdivision
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(e)(1) requires disclosure of any material changes made in the opinions of an expert from whom a report is required,
whether the changes are in the written report or in testimony given at a deposition.
For convenience, this rule and revised Rule 30 continue to use the term "expert" to refer to those persons who will
testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized
matters. The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are
retained or specially employed to provide such testimony in the case or whose duties as an employee of a party
regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at
trial without any requirement for a written report. By local rule, order, or written stipulation, the requirement of a
written report may be waived for particular experts or imposed upon additional persons who will provide opinions under
Rule 702.
Paragraph (3). This paragraph imposes an additional duty to disclose, without any request, information customarily
needed in final preparation for trial. These disclosures are to be made in accordance with schedules adopted by the
court under Rule 16(b) or by special order. If no such schedule is directed by the court, the disclosures are to be made
at least 30 days before commencement of the trial. By its terms, rule 26(a)(3) does not require disclosure of evidence
to be used solely for impeachment purposes; however, disclosure of such evidence--as well as other items relating to
conduct of trial--may be required by local rule or a pretrial order.
Subparagraph (A) requires the parties to designate the persons whose testimony they may present as substantive
evidence at trial, whether in person or by deposition. Those who will probably be called as witnesses should be listed
separately from those who are not likely to be called but who are being listed in order to preserve the right to do so if
needed because of developments during trial. Revised Rule 37(c)(1) provides that only persons so listed may be used
at trial to present substantive evidence. This restriction does not apply unless the omission was "without substantial
justification" and hence would not bar an unlisted witness if the need for such testimony is based upon developments
during trial that could not reasonably have been anticipated--e.g., a change of testimony.
Listing a witness does not obligate the party to secure the attendance of the person at trial, but should preclude the
party from objecting if the person is called to testify by another party who did not list the person as a witness.
Subparagraph (B) requires the party to indicate which of these potential witnesses will be presented by deposition at
trial. A party expecting to use at trial a deposition not recorded by stenographic means is required by revised Rule 32
to provide the court with a transcript of the pertinent portions of such depositions. This rule requires that copies of the
transcript of a nonstenographic deposition be provided to other parties in advance of trial for verification, an obvious
concern since counsel often utilize their own personnel to prepare transcripts from audio or video tapes. By order or
local rule, the court may require that parties designate the particular portions of stenographic depositions to be used at
trial.
Subparagraph (C) requires disclosure of exhibits, including summaries (whether to be offered in lieu of other
documentary evidence or to be used as an aid in understanding such evidence), that may be offered as substantive
evidence. The rule requires a separate listing of each such exhibit, though it should permit voluminous items of a
similar or standardized character to be described by meaningful categories. For example, unless the court has
otherwise directed, a series of vouchers might be shown collectively as a single exhibit with their starting and ending
dates. As with witnesses, the exhibits that will probably be offered are to be listed separately from those which are
unlikely to be offered but which are listed in order to preserve the right to do so if needed because of developments
during trial. Under revised Rule 37(c)(1) the court can permit use of unlisted documents the need for which could not
reasonably have been anticipated in advance of trial.
Upon receipt of these final pretrial disclosures, other parties have 14 days (unless a different time is specified by the
court) to disclose any objections they wish to preserve to the usability of the deposition testimony or to the admissibility
of the documentary evidence (other than under rules 402 and 403 of the Federal Rules of Evidence). Similar
provisions have become commonplace either in pretrial orders or by local rules, and significantly expedite the
presentation of evidence at trial, as well as eliminate the need to have available witnesses to provide "foundation"
testimony for most items of documentary evidence. The listing of a potential objection does not constitute the making
of that objection or require the court to rule on the objection; rather, it preserves the right of the party to make the
objection when and as appropriate during trial. The court may, however, elect to treat the listing as a motion "in
limine" and rule upon the objections in advance of trial to the extent appropriate.
The time specified in the rule for the final pretrial disclosures is relatively close to the trial date. The objective is to
eliminate the time and expense in making these disclosures of evidence and objections in those cases that settle shortly
before trial, while affording a reasonable time for final preparation for trial in those cases that do not settle. In many
cases, it will be desirable for the court in a scheduling or pretrial order to set an earlier time for disclosures of evidence
and provide more time for disclosing potential objections.
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Paragraph (4). This paragraph prescribes the form of disclosures. A signed written statement is required, reminding
the parties and counsel of the solemnity of the obligations imposed; and the signature on the initial or pretrial disclosure
is a certification under subdivision (g)(1) that it is complete and correct as of the time when made. Consistent with Rule
5(d), these disclosures are to be filed with the court unless otherwise directed. It is anticipated that many courts will
direct that expert reports required under paragraph (2)(B) not be filed until needed in connection with a motion or for
trial.
Paragraph (5). This paragraph is revised to take note of the availability of revised Rule 45 for inspection for
non-parties of documents and premises without the need for a deposition.
Subdivision (b). This subdivision is revised in several respects. First, former paragraph (1) is subdivided into two
paragraphs for ease of reference and to avoid renumbering of paragraphs (3) and (4). Textual changes are then made in
new paragraph (2) to enable the court to keep tighter rein on the extent of discovery. The information explosion of
recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to
be used as an instrument for delay or oppression. Amendments to Rules 30, 31, and 33 place presumptive limits on the
number of depositions and interrogatories, subject to leave of court to pursue additional discovery. The revisions in
Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope
and extent of discovery and to authorize courts that develop case tracking systems based on the complexity of cases to
increase or decrease by local rule the presumptive number of depositions and interrogatories allowed in particular types
or classifications of cases. The revision also dispels any doubt as to the power of the court to impose limitations on the
length of depositions under Rule 30 or on the number of requests for admission under Rule 36.
Second, former paragraph (2), relating to insurance, has been relocated as part of the required initial disclosures
under subdivision (a)(1)(D), and revised to provide for disclosure of the policy itself.
Third, paragraph (4)(A) is revised to provide that experts who are expected to be witnesses will be subject to
deposition prior to trial, conforming the norm stated in the rule to the actual practice followed in most courts, in which
depositions of experts have become standard. Concerns regarding the expense of such depositions should be mitigated
by the fact that the expert's fees for the deposition will ordinarily be borne by the party taking the deposition. The
requirement under subdivision (a)(2)(B) of a complete and detailed report of the expected testimony of certain forensic
experts may, moreover, eliminate the need for some such depositions or at least reduce the length of the depositions.
Accordingly, the deposition of an expert required by subdivision (a)(2)(B) to provide a written report may be taken only
after the report has been served.
Paragraph (4)(C), bearing on compensation of experts, is revised to take account of the changes in paragraph (4)(A).
Paragraph (5) is a new provision. A party must notify other parties if it is withholding materials otherwise subject to
disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product
production. To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under
Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.
The party must also provide sufficient information to enable other parties to evaluate the applicability of the claimed
privilege or protection. Although the person from whom the discovery is sought decides whether to claim a privilege
or protection, the court ultimately decides whether, if this claim is challenged, the privilege or protection applies.
Providing information pertinent to the applicability of the privilege or protection should reduce the need for in camera
examination of the documents.
The rule does not attempt to define for each case what information must be provided when a party asserts a claim of
privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate
if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be
privileged or protected, particularly if the items can be described by categories. A party can seek relief through a
protective order under subdivision (c) if compliance with the requirement for providing this information would be an
unreasonable burden. In rare circumstances some of the pertinent information affecting applicability of the claim, such
as the identity of the client, may itself be privileged; the rule provides that such information need not be disclosed.
The obligation to provide pertinent information concerning withheld privileged materials applies only to items
"otherwise discoverable." If a broad discovery request is made--for example, for all documents of a particular type
during a twenty year period--and the responding party believes in good faith that production of documents for more than
the past three years would be unduly burdensome, it should make its objection to the breadth of the request and, with
respect to the documents generated in that three year period, produce the unprivileged documents and describe those
withheld under the claim of privilege. If the court later rules that documents for a seven year period are properly
discoverable, the documents for the additional four years should then be either produced (if not privileged) or described
(if claimed to be privileged).
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Subdivision (c). The revision requires that before filing a motion for a protective order the movant must
confer--either in person or by telephone--with the other affected parties in a good faith effort to resolve the discovery
dispute without the need for court intervention. If the movant is unable to get opposing parties even to discuss the
matter, the efforts in attempting to arrange such a conference should be indicated in the certificate.
Subdivision (d). This subdivision is revised to provide that formal discovery--as distinguished from interviews of
potential witnesses and other informal discovery--not commence until the parties have met and conferred as required by
subdivision (f). Discovery can begin earlier if authorized under Rule 30(a)(2)(C) (deposition of person about to leave
the country) or by local rule, order, or stipulation. This will be appropriate in some cases, such as those involving
requests for a preliminary injunction or motions challenging personal jurisdiction. If a local rule exempts any types of
cases in which discovery may be needed from the requirement of a meeting under Rule 26(f), it should specify when
discovery may commence in those cases.
The meeting of counsel is to take place as soon as practicable and in any event at least 14 days before the date of the
scheduling conference under Rule 16(b) or the date a scheduling order is due under Rule 16(b). The court can assure
that discovery is not unduly delayed either by entering a special order or by setting the case for a scheduling conference.
Subdivision (e). This subdivision is revised to provide that the requirement for supplementation applies to all
disclosures required by subdivisions (a)(1)-(3). Like the former rule, the duty, while imposed on a "party," applies
whether the corrective information is learned by the client or by the attorney. Supplementations need not be made as
each new item of information is learned but should be made at appropriate intervals during the discovery period, and
with special promptness as the trial date approaches. It may be useful for the scheduling order to specify the time or
times when supplementations should be made.
The revision also clarifies that the obligation to supplement responses to formal discovery requests applies to
interrogatories, requests for production, and requests for admissions, but not ordinarily to deposition testimony.
However, with respect to experts from whom a written report is required under subdivision (a)(2)(B), changes in the
opinions expressed by the expert whether in the report or at a subsequent deposition are subject to a duty of
supplemental disclosure under subdivision (e)(1).
The obligation to supplement disclosures and discovery responses applies whenever a party learns that its prior
disclosures or responses are in some material respect incomplete or incorrect. There is, however, no obligation to
provide supplemental or corrective information that has been otherwise made known to the parties in writing or during
the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition or when
an expert during a deposition corrects information contained in an earlier report.
Subdivision (f). This subdivision was added in 1980 to provide a party threatened with abusive discovery with a
special means for obtaining judicial intervention other than through discrete motions under Rules 26(c) and 37(a). The
amendment envisioned a two-step process: first, the parties would attempt to frame a mutually agreeable plan; second,
the court would hold a "discovery conference" and then enter an order establishing a schedule and limitations for the
conduct of discovery. It was contemplated that the procedure, an elective one triggered on request of a party, would be
used in special cases rather than as a routine matter. As expected, the device has been used only sparingly in most
courts, and judicial controls over the discovery process have ordinarily been imposed through scheduling orders under
Rule 16(b) or through rulings on discovery motions.
The provisions relating to a conference with the court are removed from subdivision (f). This change does not
signal any lessening of the importance of judicial supervision. Indeed, there is a greater need for early judicial
involvement to consider the scope and timing of the disclosure requirements of Rule 26(a) and the presumptive limits
on discovery imposed under these rules or by local rules. Rather, the change is made because the provisions addressing
the use of conferences with the court to control discovery are more properly included in Rule 16, which is being revised
to highlight the court's powers regarding the discovery process.
The desirability of some judicial control of discovery can hardly be doubted. Rule 16, as revised, requires that the
court set a time for completion of discovery and authorizes various other orders affecting the scope, timing, and extent
of discovery and disclosures. Before entering such orders, the court should consider the views of the parties, preferably
by means of a conference, but at the least through written submissions. Moreover, it is desirable that the parties'
proposals regarding discovery be developed through a process where they meet in person, informally explore the nature
and basis of the issues, and discuss how discovery can be conducted most efficiently and economically.
As noted above, former subdivision (f) envisioned the development of proposed discovery plans as an optional
procedure to be used in relatively few cases. The revised rule directs that in all cases not exempted by local rule or
special order the litigants must meet in person and plan for discovery. Following this meeting, the parties submit to the
court their proposals for a discovery plan and can begin formal discovery. Their report will assist the court in seeing
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USCS Fed Rules Civ Proc R 26
that the timing and scope of disclosures under revised Rule 26(a) and the limitations on the extent of discovery under
these rules and local rules are tailored to the circumstances of the particular case.
To assure that the court has the litigants' proposals before deciding on a scheduling order and that the
commencement of discovery is not delayed unduly, the rule provides that the meeting of the parties take place as soon
as practicable and in any event at least 14 days before a scheduling conference is held or before a scheduling order is
due under Rule 16(b). (Rule 16(b) requires that a scheduling order be entered within 90 days after the first appearance
of a defendant or, if earlier, within 120 days after the complaint has been served on any defendant.) The obligation to
participate in the planning process is imposed on all parties that have appeared in the case, including defendants who,
because of a pending Rule 12 motion, may not have yet filed an answer in the case. Each such party should attend the
meeting, either through one of its attorneys or in person if unrepresented. If more parties are joined or appear after the
initial meeting, an additional meeting may be desirable.
Subdivision (f) describes certain matters that should be accomplished at the meeting and included in the proposed
discovery plan. This listing does not exclude consideration of other subjects, such as the time when any dispositive
motions should be filed and when the case should be ready for trial.
The parties are directed under subdivision (a)(1) to make the disclosures required by that subdivision at or within 10
days after this meeting. In many cases the parties should use the meeting to exchange, discuss, and clarify their
respective disclosures. In other cases, it may be more useful if the disclosures are delayed until after the parties have
discussed at the meeting the claims and defenses in order to define the issues with respect to which the initial
disclosures should be made. As discussed in the Notes to subdivision (a)(1), the parties may also need to consider
whether a stipulation extending this 10-day period would be appropriate, as when a defendant would otherwise have
less than 60 days after being served in which to make its initial disclosure. The parties should also discuss at the
meeting what additional information, although not subject to the disclosure requirements, can be made available
informally without the necessity for formal discovery requests.
The report is to be submitted to the court within 10 days after the meeting and should not be difficult to prepare. In
most cases counsel should be able to agree that one of them will be responsible for its preparation and submission to the
court. Form 35 has been added in the Appendix to the Rules, both to illustrate the type of report that is contemplated
and to serve as a checklist for the meeting.
The litigants are expected to attempt in good faith to agree on the contents of the proposed discovery plan. If they
cannot agree on all aspects of the plan, their report to the court should indicate the competing proposals of the parties on
those items, as well as the matters on which they agree. Unfortunately, there may be cases in which, because of
disagreements about time or place or for other reasons, the meeting is not attended by all parties or, indeed, no meeting
takes place. In such situations, the report--or reports--should describe the circumstances and the court may need to
consider sanctions under Rule 37(g).
By local rule or special order, the court can exempt particular cases or types of cases from the meet-and-confer
requirement of subdivision (f). In general this should include any types of cases which are exempted by local rule from
the requirement for a scheduling order under Rule 16(b), such as cases in which there will be no discovery (e.g.,
bankruptcy appeals and reviews of social security determinations). In addition, the court may want to exempt cases in
which discovery is rarely needed (e.g., government collection cases and proceedings to enforce administrative
summonses) or in which a meeting of the parties might be impracticable (e.g,. actions by unrepresented prisoners).
Note that if a court exempts from the requirements for a meeting any types of cases in which discovery may be needed,
it should indicate when discovery may commence in those cases.
Subdivision (g). Paragraph (1) is added to require signatures on disclosures, a requirement that parallels the
provisions of paragraph (2) with respect to discovery requests, responses, and objections. The provisions of paragraph
(3) have been modified to be consistent with Rules 37(a)(4) and 37(c)(1); in combination, these rules establish sanctions
for violation of the rules regarding disclosures and discovery matters. Amended Rule 11 no longer applies to such
violations.
Notes of Advisory Committee on 2000 amendments. Purposes of amendments. The Rule 26(a)(1) initial disclosure
provisions are amended to establish a nationally uniform practice. The scope of the disclosure obligation is narrowed to
cover only information that the disclosing party may use to support its position. In addition, the rule exempts specified
categories of proceedings from initial disclosure, and permits a party who contends that disclosure is not appropriate in
the circumstances of the case to present its objections to the court, which must then determine whether disclosure should
be made. Related changes are made in Rides 26(d) and (f).
The initial disclosure requirements added by the 1993 amendments permitted local rules directing that disclosure
would not be required or altering its operation. The inclusion of the "opt out" provision reflected the strong opposition
to initial disclosure felt in some districts, and permitted experimentation with differing disclosure rules in those districts
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USCS Fed Rules Civ Proc R 26
that were favorable to disclosure. The local option also recognized that--partly in response to the first publication in
1991 of a proposed disclosure rule--many districts had adopted a variety of disclosure programs under the aegis of the
Civil Justice Reform Act. It was hoped that developing experience under a variety of disclosure systems would support
eventual refinement of a uniform national disclosure practice. In addition, there was hope that local experience could
identify categories of actions in which disclosure is not useful.
A striking array of local regimes in fact emerged for disclosure and related features introduced in 1993. See D.
Stienstra, Implementation of Disclosure in United States District Courts, With Specific Attention to Courts' Responses
to Selected Amendments to Federal Rule of Civil Procedure 26 (Federal Judicial Center, March 30, 1998) (describing
and categorizing local regimes). In its final report to Congress on the CJRA experience, the Judicial Conference
recommended reexamination of the need for national uniformity, particularly in regard to initial disclosure. Judicial
Conference, Alternative Proposals for Reduction of Cost and Delay: Assessment of Principles, Guidelines and
Techniques 175 F.R.D. 62, 98 (1997).
At the Committee's request, the Federal Judicial Center undertook a survey in 1997 to develop information on
current disclosure and discovery practices. See T. Willging, J. Shapard, D. Stienstra & D. Miletich, Discovery and
Disclosure Practice, Problems, and Proposals for Change (Federal Judicial Center, 1997). In addition, the Committee
convened two conferences on discovery involving lawyers from around the country and received reports and
recommendations on possible discovery amendments from a number of bar groups. Papers arid other proceedings from
the second conference are published in 39 Boston Col. L. Rev. 517-840 (1998).
The Committee has discerned widespread support for national uniformity. Many lawyers have experienced difficulty
in coping with divergent disclosure and other practices as they move from one district to another. Lawyers surveyed by
the Federal Judicial Center ranked adoption of a uniform national disclosure rule second among proposed rule changes
(behind increased availability of judges to resolve discovery disputes) as a means to reduce litigation expenses without
interfering with fair outcomes. Discovery and Disclosure Practice, supra, at 44-45. National uniformity is also a central
purpose of the Rules Enabling Act of 1934, as amended, 28 U.S.C. § § 2072-2077.
These amendments restore national uniformity to disclosure practice. Uniformity is also restored to other aspects of
discovery by deleting most of the provisions authorizing local rules that vary the number of permitted discovery events
or the length of depositions. Local rule options are also deleted from Rules 26(d) and (f).
Subdivision (a)(1). The amendments remove the authority to alter or opt out of the national disclosure requirements
by local rule, invalidating not only formal local rules but also informal "standing" orders of an individual judge or court
that purport to create exemptions from--or limit or expand--the disclosure provided under the national rule. See Rule 83.
Case-specific orders remain proper, however, and are expressly required if a party objects that initial disclosure is not
appropriate in the circumstances of the action. Specified categories of proceedings are excluded from initial disclosure
under subdivision (a)(1)(E). In addition, the parties can stipulate to forgo disclosure, as was true before. But even in a
case excluded by subdivision (a)(1)(E) or in which the parties stipulate to bypass disclosure, the court can order
exchange of similar information in managing the action under Rule 16.
The initial disclosure obligation of subdivisions (a)(1)(A) and (B) has been narrowed to identification of witnesses
and documents that the disclosing party may use to support its claims or defenses. "Use" includes any use at a pretrial
conference, to support a motion, or at trial. The disclosure obligation is also triggered by intended use in discovery,
apart from use to respond to a discovery request; use of a document to question a witness during a deposition is a
common example. The disclosure obligation attaches both to witnesses and documents a party intends to use and also to
witnesses and to documents the party intends to use if--in the language of Rule 26(a)(3)--"the need arises."
A party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not
intend to use. The obligation to disclose information the party may use connects directly to the exclusion sanction of
Rule 37(c)(1). Because the disclosure obligation is limited to material that the party may use, it is no longer tied to
particularized allegations in the pleadings. Subdivision (e)(1), which is unchanged. requires supplementation if
information later acquired would have been subject to the disclosure requirement. As case preparation continues, a party
must supplement its disclosures when it determines that it may use a witness or document that it did not previously
intend to use.
The disclosure obligation applies to "claims and defenses," and therefore requires a party to disclose information it
may use to support its denial or rebuttal of the allegations, claim, or defense of another party. It thereby bolsters the
requirements of Rule 11(b)(4), which authorizes denials "warranted on the evidence," and disclosure should include the
identity of any witness or document that the disclosing party may use to support such denials.
Subdivision (a)(3) presently excuses pretrial disclosure of information solely for impeachment. Impeachment
information is similarly excluded from the initial disclosure requirement.
Page 26
USCS Fed Rules Civ Proc R 26
Subdivisions (a)(1)(C) and (D) are not changed. Should a case be exempted from initial disclosure by Rule
26(a)(1)(E) or by agreement or order, the insurance information described by subparagraph (D) should be subject to
discovery, as it would have been under the principles of former Rule 26(b)(2), which was added in 1970 and deleted in
1993 as redundant in light of the new initial disclosure obligation.
New subdivision (a)(1)(E) excludes eight specified categories of proceedings from initial disclosure. The objective of
this listing is to identify cases in which there is likely to be little or no discovery, or in which initial disclosure appears
unlikely to contribute to the effective development of the case. The list was developed after a review of the categories
excluded by local rules in various districts from the operation of Rule 16(b) and the conference requirements of
subdivision (f). Subdivision (a)(1)(E) refers to categories of "proceedings" rather than categories of "actions" because
some might not properly be labeled "actions." Case designations made by the parties or the clerk's office at the time of
filing do not control application of the exemptions. The descriptions in the rule are generic and are intended to be
administered by the parties--and, when needed, the courts--with the flexibility needed to adapt to gradual evolution in
the types of proceedings that fall within these general categories. The exclusion of an action for review on an
administrative record, for example, is intended to reach a proceeding that is framed as an "appeal" based solely on an
administrative record. The exclusion should not apply to a proceeding in a form that commonly permits admission of
new evidence to supplement the record. Item (vii), excluding a proceeding ancillary to proceedings in other courts, does
not refer to bankruptcy proceedings; application of the Civil Rules to bankruptcy proceedings is determined by the
Bankruptcy Rules.
Subdivision (a)(1)(E) is likely to exempt a substantial proportion of the cases in most districts from the initial
disclosure requirement. Based on 1996 and 1997 case filing statistics, Federal Judicial Center staff estimate that,
nationwide, these categories total approximately one-third of all civil filings.
The categories of proceedings listed in subdivision (a)(1)(E) are also exempted from the subdivision (f) conference
requirement and from the subdivision (d) moratorium on discovery. Although there is no restriction on commencement
of discovery in these cases, it is not expected that this opportunity will often lead to abuse since there is likely to be little
or no discovery in most such cases. Should a defendant need more time to respond to discovery requests filed at the
beginning of an exempted action, it can seek relief by motion under Rule 26(c) if the plaintiff is unwilling to defer the
due date by agreement.
Subdivision (a)(1)(E)'s enumeration of exempt categories is exclusive. Although a case-specific order can alter or
excuse initial disclosure, local rules or "standing" orders that purport to create general exemptions are invalid. See Rule
83.
The time for initial disclosure is extended to 14 days after the subdivision (f) conference unless the court orders
otherwise. This change is integrated with corresponding changes requiring that the subdivision (f) conference be held 21
days before the Rule 16(b) scheduling conference or scheduling order, and that the report on the subdivision (f)
conference be submitted to the court 14 days after the meeting. These changes provide a more orderly opportunity for
the parties to review the disclosures, and for the court to consider the report. In many instances, the subdivision (f)
conference and the effective preparation of the case would benefit from disclosure before the conference, and earlier
disclosure is encouraged.
The presumptive disclosure date does not apply if a party objects to initial disclosure during the subdivision (f)
conference and states its objection in the subdivision (f) discovery plan. The right to object to initial disclosure is not
intended to afford parties an opportunity to "opt out" of disclosure unilaterally. It does provide an opportunity for an
objecting party to present to the court its position that disclosure would be "inappropriate in the circumstances of the
action." Making the objection permits the objecting party to present the question to the judge before any party is
required to make disclosure. The court must then rule on the objection and determine what disclosures--if any--should
be made. Ordinarily, this determination would be included in the Rule 16(b) scheduling order, but the court could
handle the matter in a different fashion. Even when circumstances warrant suspending some disclosure obligations,
others--such as the damages and insurance information called for by subdivisions (a)(1)(C) and (D)--may continue to be
appropriate.
The presumptive disclosure date is also inapplicable to a party who is "first served or otherwise joined" after the
subdivision (f) conference. This phrase refers to the date of service of a claim on a party in a defensive posture (such as
a defendant or third-party defendant), and the date of joinder of a party added as a claimant or an intervenor. Absent
court order or stipulation, a new party has 30 days in which to make its initial disclosures. But it is expected that
later-added parties will ordinarily be treated the same as the original parties when the original parties have stipulated to
forgo initial disclosure, or the court has ordered disclosure in a modified form.
Subdivision (a)(3). The amendment to Rule 5(d) forbids filing disclosures under subdivisions (a)(1) and (a)(2) until
they are used in the proceeding, and this change is reflected in an amendment to subdivision (a)(4). Disclosures under
Page 27
USCS Fed Rules Civ Proc R 26
subdivision (a)(3), however, may be important to the court in connection with the final pretrial conference or otherwise
in preparing for trial. The requirement that objections to certain matters be filed points up the court's need to be
provided with these materials. Accordingly, the requirement that subdivision (a)(3) materials be filed has been moved
from subdivision (a)(4) to subdivision (a)(3), and it has also been made clear that they--and any objections--should be
filed "promptly."
Subdivision (a)(4). The filing requirement has been removed from this subdivision. Rule 5(d) has been amended to
provide that disclosures under subdivisions (a)(1) and (a)(2) must not be filed until used in the proceeding. Subdivision
(a)(3) has been amended to require that the disclosures it directs, and objections to them, be filed promptly. Subdivision
(a)(4) continues to require that all disclosures under subdivisions (a)(1), (a)(2), and (a)(3) be in writing, signed, and
served.
"Shall" is replaced by "must" under the program to conform amended rules to current style conventions when there is
no ambiguity.
Subdivision (b)(1). In 1978, the Committee published for comment a proposed amendment, suggested by the Section
of Litigation of the American Bar Association, to refine the scope of discovery by deleting the "subject matter"
language. This proposal was withdrawn, and the Committee has since then made other changes in the discovery rules to
address concerns about overbroad discovery. Concerns about costs and delay of discovery have persisted nonetheless,
and other bar groups have repeatedly renewed similar proposals for amendment to this subdivision to delete the "subject
matter" language. Nearly one-third of the lawyers surveyed in 1997 by the Federal Judicial Center endorsed narrowing
the scope of discovery as a means of reducing litigation expense without interfering with fair case resolutions.
Discovery and Disclosure Practice, supra, at 44-45 (1997). The Committee has heard that in some instances, particularly
cases involving large quantities of discovery, parties seek to justify discovery requests that sweep far beyond the claims
and defenses of the parties on the ground that they nevertheless have a bearing on the "subject matter" involved in the
action.
The amendments proposed for subdivision (b)(1) include one element of these earlier proposals but also differ from
these proposals in significant ways. The similarity is that the amendments describe the scope of party-controlled
discovery in terms of matter relevant to the claim or defense of any party. The court, however, retains authority to order
discovery of any matter relevant to the subject matter involved in the action for good cause. The amendment is designed
to involve the court more actively in regulating the breadth of sweeping or contentious discovery. The Committee has
been informed repeatedly by lawyers that involvement of the court in managing discovery is an important method of
controlling problems of inappropriately broad discovery. Increasing the availability of judicial officers to resolve
discovery disputes and increasing court management of discovery were both strongly endorsed by the attorneys
surveyed by the Federal Judicial Center. See Discovery and Disclosure Practice, supra, at 44. Under the amended
provisions, if there is an objection that discovery goes beyond material relevant to the parties' claims or defenses, the
court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not,
whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause
standard warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action.
The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of
the action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in
suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type,
or involving the same product, could be properly discoverable under the revised standard. Information about
organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery
of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise
relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such
information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending
action.
The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted
in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses
that are not already identified in the pleadings. In general, it is hoped that reasonable lawyers can cooperate to manage
discovery without the need for judicial intervention. When judicial intervention is invoked, the actual scope of
discovery should be determined according to the reasonable needs of the action. The court may permit broader
discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the
scope of the discovery requested.
The amendments also modify the provision regarding discovery of information not admissible in evidence. As added
in 1946, this sentence was designed to make clear that otherwise relevant material could not be withheld because it was
Page 28
USCS Fed Rules Civ Proc R 26
hearsay or otherwise inadmissible. The Committee was concerned that the "reasonably calculated to lead to the
discovery of admissible evidence" standard set forth in this sentence might swallow any other limitation on the scope of
discovery. Accordingly, this sentence has been amended to clarify that information must be relevant to be discoverable,
even though inadmissible, and that discovery of such material is permitted if reasonably calculated to lead to the
discovery of admissible evidence. As used here, "relevant" means within the scope of discovery as defined in this
subdivision, and it would include information relevant to the subject matter involved in the action if the court has
ordered discovery to that limit based on a showing of good cause.
Finally, a sentence has been added calling attention to the limitations of subdivision (b)(2)(i), (ii), and (iii). These
limitations apply to discovery that is otherwise within the scope of subdivision (b)(1). The Committee has been told
repeatedly that courts have not implemented these limitations with the vigor that was contemplated. See 8 Federal
Practice & Procedure § 2008.1 at 121. This otherwise redundant cross-reference has been added to emphasize the need
for active judicial use of subdivision (b)(2) to control excessive discovery. Cf. Crawford-El v. Britton, 118 S. Ct. 1584,
1597 (1998) (quoting Rule 26(b)(2)(iii) and stating that "Rule 26 vests the trial judge with broad discretion to tailor
discovery narrowly").
Subdivision (b)(2). Rules 30, 31, and 33 establish presumptive national limits on the numbers of depositions and
interrogatories. New Rule 30(d)(2) establishes a presumptive limit on the length of depositions. Subdivision (b)(2) is
amended to remove the previous permission for local rules that establish different presumptive limits on these discovery
activities. There is no reason to believe that unique circumstances justify varying these nationally-0applicable
presumptive limits in certain districts. The limits can be modified by court order or agreement in an individual action,
but "standing" orders imposing different presumptive limits are not authorized. Because there is no national rule
limiting the number of Rule 36 requests for admissions, the rule continues to authorize local rules that impose numerical
limits on them. This change is not intended to interfere with differentiated case management in districts that use this
technique by case-specific order as part of their Rule 16 process.
Subdivision (d). The amendments remove the prior authority to exempt cases by local rule from the moratorium on
discovery before the subdivision (f) conference, but the categories of proceedings exempted from initial disclosure
under subdivision (a)(1)(E) are excluded from subdivision (d). The parties may agree to disregard the moratorium where
it applies, and the court may so order in a case, but "standing" orders altering the moratorium are not authorized.
Subdivision (f). As in subdivision (d), the amendments remove the prior authority to exempt cases by local rule from
the conference requirement. The Committee has been informed that the addition of the conference was one of the most
successful changes made in the 1993 amendments, and it therefore has determined to apply the conference requirement
nationwide. The categories of proceedings exempted from initial disclosure under subdivision (a)(1)(E) are exempted
from the conference requirement for the reasons that warrant exclusion from initial disclosure. The court may order that
the conference need not occur in a case where otherwise required, or that it occur in a case otherwise exempted by
subdivision (a)(1)(E). "Standing" orders altering the conference requirement for categories of cases are not authorized.
The rule is amended to require only a "conference" of the parties, rather than a "meeting." There are important
benefits to face-to-face discussion of the topics to be covered in the conference, and those benefits may be lost if other
means of conferring were routinely used when face-to-face meetings would not impose burdens. Nevertheless,
geographic conditions in some districts may exact costs far out of proportion to these benefits. The amendment allows
the court by case-specific order to require a face-to-face meeting, but "standing" orders so requiring are not authorized.
As noted concerning the amendments to subdivision (a)(1), the time for the conference has been changed to at least
21 days before the Rule 16 scheduling conference, and the time for the report is changed to no more than 14 days after
the Rule 26(f) conference. This should ensure that the court will have the report well in advance of the scheduling
conference or the entry of the scheduling order.
Since Rule 16 was amended in 1983 to mandate some case management activities in all courts, it has included
deadlines for completing these tasks to ensure that all courts do so within a reasonable time. Rule 26(f) was fit into this
scheme when it was adopted in 1993. It was never intended, however, that the national requirements that certain
activities be completed by a certain time should delay case management in districts that move much faster than the
national rules direct, and the rule is therefore amended to permit such a court to adopt a local rule that shortens the
period specified for the completion of these tasks.
"Shall" is replaced by "must," "does," or an active verb under the program to conform amended rules to current style
conventions when there is no ambiguity.
NOTES:
CROSS REFERENCES
Depositions before action or pending appeal, USCS Rules of Civil Procedure, Rule 27.
Page 29
USCS Fed Rules Civ Proc R 26
Persons before whom depositions may be taken, USCS Rules of Civil Procedure, Rule 28.
Stipulations regarding taking depositions, USCS Rules of Civil Procedure, Rule 29.
Certification and filing of depositions, USCS Rules of Civil Procedure, Rule 30.
Failure to attend or serve subpoena, expenses, USCS Rules of Civil Procedure, Rule 30.
Motion to terminate or limit examination, USCS Rules of Civil Procedure, Rule 30.
Notice for taking deposition, USCS Rules of Civil Procedure, Rule 30.
Orders for protection of parties and deponents, USCS Rules of Civil Procedure, Rule 30.
Record of examination, USCS Rules of Civil Procedure, Rule 30.
Time and place for depositions, USCS Rules of Civil Procedure, Rules 30, 45.
Depositions of witnesses upon written interrogatories, USCS Rules of Civil Procedure, Rule 31.
Effect of errors and irregularities in depositions, USCS Rules of Civil Procedure, Rule 32.
Objections to admissibility of depositions, USCS Rules of Civil Procedure, Rule 32.
Written interrogatories of party, USCS Rules of Civil Procedure, Rule 33.
Consequences of refusal to appear for deposition, USCS Rules of Civil Procedure, Rule 37.
Order compelling answer to question propounded upon oral examination, USCS Rules of Civil Procedure, Rule 37.
Examination and cross-examination of deponents, USCS Rules of Civil Procedure, Rule 43.
Subpoena for taking depositions, USCS Rules of Civil Procedure, Rule 45.
Depositions opposing motion for summary judgment, USCS Rules of Civil Procedure, Rule 56.
Continuance to procure depositions opposing motion for summary judgment, USCS Rules of Civil Procedure, Rule
56.
RESEARCH GUIDE
Federal Procedure:
MFEDPR1.06USCSTREAT.
MFEDPR3.04USCSTREAT.
MFEDPR5.33USCSTREAT.
MFEDPR7.03USCSTREAT, MFEDPR7.04USCSTREAT.
MFEDPR8.02USCSTREAT, MFEDPR8.04USCSTREAT.
MFEDPR16.11USCSTREAT-,MFEDPR16.13USCSTREAT, MFEDPR16.32USCSTREAT,
MFEDPR16.33USCSTREAT, MFEDPR16.35USCSTREAT, MFEDPR16.36USCSTREAT,
MFEDPR16.72USCSTREAT-,MFEDPR16.74USCSTREAT, MFEDPR16.77USCSTREAT, MFEDPR16.78USCSTREAT,
MFEDPR16.90USCSTREAT, MFEDPR16.92USCSTREAT, MFEDPR16.94USCSTREAT.
MFEDPR23.61USCSTREAT.
MFEDPR26.02USCSTREAT, MFEDPR26.05USCSTREAT-,MFEDPR26.07USCSTREAT,
MFEDPR26.21USCSTREAT-,MFEDPR26.28USCSTREAT,
MFEDPR26.41USCSTREAT-,MFEDPR26.47USCSTREAT, MFEDPR26.52USCSTREAT, MFEDPR26.60USCSTREAT,
MFEDPR26.70USCSTREAT, MFEDPR26.71USCSTREAT, MFEDPR26.80USCSTREAT, MFEDPR26.90USCSTREAT,
MFEDPR26.101USCSTREAT-,MFEDPR26.105USCSTREAT,
MFEDPR26.121USCSTREAT-,MFEDPR26.123USCSTREAT, MFEDPR26.131USCSTREAT,
MFEDPR26.132USCSTREAT, MFEDPR26.141USCSTREAT-,MFEDPR26.146USCSTREAT,
MFEDPR26.151USCSTREAT-,MFEDPR26.154USCSTREAT.
MFEDPR27.03USCSTREAT, MFEDPR27.13USCSTREAT, MFEDPR27.16USCSTREAT.
MFEDPR28.12USCSTREAT.
MFEDPR29.04USCSTREAT.
MFEDPR30.02USCSTREAT, MFEDPR30.04USCSTREAT-,MFEDPR30.06USCSTREAT,
MFEDPR30.23USCSTREAT, MFEDPR30.25USCSTREAT, MFEDPR30.42USCSTREAT, MFEDPR30.43USCSTREAT,
MFEDPR30.50USCSTREAT, MFEDPR30.51USCSTREAT.
MFEDPR31.02USCSTREAT-,MFEDPR31.04USCSTREAT, MFEDPR31.16USCSTREAT,
MFEDPR31.17USCSTREAT.
MFEDPR32.02USCSTREAT, MFEDPR32.43USCSTREAT, MFEDPR32.45USCSTREAT,
MFEDPR32.64USCSTREAT, MFEDPR32.65USCSTREAT.
MFEDPR33.01USCSTREAT-,MFEDPR33.04USCSTREAT, MFEDPR33.06USCSTREAT,
MFEDPR33.30USCSTREAT, MFEDPR33.31USCSTREAT, MFEDPR33.40USCSTREAT, MFEDPR33.41USCSTREAT,
MFEDPR33.60USCSTREAT-,MFEDPR33.62USCSTREAT,
MFEDPR33.70USCSTREAT-,MFEDPR33.72USCSTREAT, MFEDPR33.76USCSTREAT, MFEDPR33.77USCSTREAT,
Page 30
USCS Fed Rules Civ Proc R 26
MFEDPR33.79USCSTREAT, MFEDPR33.100USCSTREAT, MFEDPR33.102USCSTREAT,
MFEDPR33.104USCSTREAT, MFEDPR33.106USCSTREAT, MFEDPR33.124USCSTREAT,
MFEDPR33.143USCSTREAT, MFEDPR33.171USCSTREAT, MFEDPR33.173USCSTREAT,
MFEDPR33.175USCSTREAT.
MFEDPR34.02USCSTREAT, MFEDPR34.03USCSTREAT,
MFEDPR34.10USCSTREAT-,MFEDPR34.15USCSTREAT.
MFEDPR35.02USCSTREAT, MFEDPR35.04USCSTREAT, MFEDPR35.05USCSTREAT,
MFEDPR35.12USCSTREAT.
MFEDPR36.03USCSTREAT, MFEDPR36.10USCSTREAT-,MFEDPR36.12USCSTREAT.
MFEDPR37.02USCSTREAT, MFEDPR37.04USCSTREAT, MFEDPR37.05USCSTREAT,
MFEDPR37.21USCSTREAT-,MFEDPR37.23USCSTREAT, MFEDPR37.42USCSTREAT, MFEDPR37.51USCSTREAT,
MFEDPR37.60USCSTREAT, MFEDPR37.62USCSTREAT, MFEDPR37.70USCSTREAT, MFEDPR37.74USCSTREAT,
MFEDPR37.91USCSTREAT, MFEDPR37.110USCSTREAT, MFEDPR37.111USCSTREAT.
MFEDPR37A.10USCSTREAT-,MFEDPR37A.12USCSTREAT, MFEDPR37A.20USCSTREAT,
MFEDPR37A.21USCSTREAT, MFEDPR37A.30USCSTREAT-,MFEDPR37A.33USCSTREAT.
MFEDPR45.04USCSTREAT.
MFEDPR53.02USCSTREAT, MFEDPR53.62USCSTREAT.
MFEDPR54.171USCSTREAT.
MFEDPR56.11USCSTREAT, MFEDPR56.30USCSTREAT.
MFEDPR69.04USCSTREAT.
MFEDPR71A.04USCSTREAT.
MFEDPR81.07USCSTREAT.
CIPES615.11USCSTREAT.
WEUSR201.32USCSTREAT.
WEUSR411.06USCSTREAT.
WEUSR412.05USCSTREAT.
WEUSR501.05USCSTREAT.
WEUSR503.12USCSTREAT, WEUSR503.14USCSTREAT, WEUSR503.23USCSTREAT,
WEUSR503.41USCSTREAT.
WEUSR508.07USCSTREAT.
WEUSR509.24USCSTREAT, WEUSR509.64USCSTREAT.
WEUSR514.04USCSTREAT.
WEUSR612.04USCSTREAT, WEUSR612.05USCSTREAT, WEUSR612.07USCSTREAT.
WEUSR613.03USCSTREAT, WEUSR613.05USCSTREAT.
WEUSR615.02USCSTREAT.
WEUSR701.03USCSTREAT, WEUSR701.06USCSTREAT.
WEUSR702.02USCSTREAT.
WEUSR703.05USCSTREAT.
WEUSR705.06USCSTREAT.
WEUSR900.03USCSTREAT-WEUSR900.07USCSTREAT.
WEUSR1004.21USCSTREAT.
WEUSR1101.03USCSTREAT.
3 Fed Proc L Ed, Armed Forces, Civil Disturbances, and National Defense § 5:595.
4 Fed Proc L Ed, Aviation and Space § 7:490.
5 Fed Proc L Ed, Bankruptcy § § 9:45, 524, 595, 661, 672, 715, 719, 722.
5A Fed Proc L Ed, Bankruptcy § 9:1115.
6A Fed Proc L Ed, Class Actions § § 12:277, 333.
7 Fed Proc L Ed, Condemnation of Property § § 14:35, 36.
7A Fed Proc L Ed, Court of Claims § § 19:181, 183, 190, 191.
9 Fed Proc L Ed, Criminal Procedure § 22:1088.
10 Fed Proc L Ed, Discovery and Depositions § § 26:1-435.
10A Fed Proc L Ed, Discovery and Depositions § § 26:436-802.
11 Fed Proc L Ed, Employers' Liability Acts § 30:116.
12 Fed Proc L Ed, Evidence § § 33:236, 298, 302.
15 Fed Proc L Ed, Freedom of Information § § 38:106, 131, 162, 292, 513.
Page 31
USCS Fed Rules Civ Proc R 26
16 Fed Proc L Ed, Habeas Corpus § 41:99.
17 Fed Proc L Ed, Health, Education, and Welfare § § 42:549, 630, 1105, 1220.
18 Fed Proc L Ed, Housing and Urban Development § 44:65.
20 Fed Proc L Ed, Internal Revenue § § 48:358, 978, 981.
20A Fed Proc L Ed, Internal Revenue § 48:1110.
21 Fed Proc L Ed, Job Discrimination § § 50:932, 942, 944, 946, 956.
22A Fed Proc L Ed, Labor and Labor Relations, § 52:1750.
23A Fed Proc L Ed, Monopolies and Restraints of Trade § § 54:302, 399.
26 Fed Proc L Ed, Patents § 60:119, 1022.
27 Fed Proc L Ed, Pleadings and Motions § § 62:52, 55, 115.
27A Fed Proc L Ed, Pleadings and Motions § § 62:409, 417, 700, 870.
28 Fed Proc L Ed, Pretrial Procedure § § 64:1, 5, 6, 10, 11, 16, 48, 50, 54.
28 Fed Proc L Ed, Process § § 65:251, 253, 264, 266, 267, 271, 276, 278-281, 285, 293, 295.
32 Fed Proc L Ed, Trademarks § 74:271.
33A Fed Proc L Ed, Witnesses § § 80:51, 139, 199, 259, 331, 392.
Am Jur:
Bankruptcy777, Bankruptcy927, Bankruptcy970, Bankruptcy972, Bankruptcy975, Bankruptcy979, Bankruptcy982.
DEPO_DISC2, DEPO_DISC7-DEPO_DISC11, DEPO_DISC13-DEPO_DISC15, DEPO_DISC21, DEPO_DISC22,
DEPO_DISC27, DEPO_DISC28, DEPO_DISC34, DEPO_DISC35, DEPO_DISC39, DEPO_DISC40,
DEPO_DISC45-DEPO_DISC48, DEPO_DISC50-DEPO_DISC52, DEPO_DISC61-DEPO_DISC64, DEPO_DISC66,
DEPO_DISC67, DEPO_DISC71-DEPO_DISC78, DEPO_DISC81, DEPO_DISC87, DEPO_DISC90, DEPO_DISC93,
DEPO_DISC101, DEPO_DISC104, DEPO_DISC116, DEPO_DISC119, DEPO_DISC122, DEPO_DISC124,
DEPO_DISC125, DEPO_DISC152, DEPO_DISC164, DEPO_DISC173, DEPO_DISC181, DEPO_DISC182,
DEPO_DISC200, DEPO_DISC202, DEPO_DISC203, DEPO_DISC204, DEPO_DISC206, DEPO_DISC219,
DEPO_DISC227.
Eminent_Domain546-Eminent_Domain549.
Evidence22, Evidence40, Evidence483.
Evidence771.
EXECUTIONS_ENFORCEMENT714 et seq.
Federal_Courts2049.
35 Am Jur 2d, Federal Tax Enforcement § § 86, 98, 741.
FREE_INFO_ACT125, FREE_INFO_ACT204, FREE_INFO_ACT518-FREE_INFO_ACT521.
Job_Discrimination2318.
Labor_Labor_Relations3675, Labor_Labor_Relations4596, Labor_Labor_Relations4597.
MONOPOLIES542, MONOPOLIES544.
Patents844.
Pleading191, Pleading475, Pleading479, Pleading648.
Pleading881.
Pollution_Control1417.
PRETRIAL20, PRETRIAL27, PRETRIAL112, PRETRIAL115.
PRIV_FRANCH847-PRIV_FRANCH860.
Products_Liability1768.
Am Jur Trials:
4 Am Jur Trials, Discovery--Written Interrogatories, p. 1.
4 Am Jur Trials, Discovery--Oral Depositions, p. 119.
12 Am Jur Trials, Wrongful Death Actions, p. 317.
20 Am Jur Trials, Damages for Wrongful Death of, or Injury to, Child, p. 513.
21 Am Jur Trials, Employment Discrimination Action Under Federal Civil Rights Acts, p. 1.
21 Am Jur Trials, Franchise Litigation, p. 453.
21 Am Jur Trials, Preparation and Trial of Federal Class Actions, p. 625.
40 Am Jur Trials, Using the Human Factors Expert in Civil Litigation, p. 629.
41 Am Jur Trials, Computer Technology in Civil Litigation, p. 445.
56 Am Jur Trials, A Guide to the Federal Rules of Civil Procedure, p. 293.
Page 32
USCS Fed Rules Civ Proc R 26
65 Am Jur Trials, Taking the Deposition of the Sexual Harassment Plaintiff, p. 65.
73 Am Jur Trials, Sexual Harassment Damages and Remedies, p. 1.
74 Am Jur Trials, Handling a Grade Crossing Collision for Locomotive Cab Occupants, p. 1.
74 Am Jur Trials, Disability Discrimination Based on Dyslexia in Employment Actions Under the Americans with
Disabilities Act, p. 255.
75 Am Jur Trials, Diagnostic Radiology Malpractice Litigation, p. 55.
77 Am Jur Trials, Copyright Infringement Litigation, p. 449.
78 Am Jur Trials, Chiropractic Malpractice Litigation, p. 1.
78 Am Jur Trials, Pharmacist Malpractice: Trial and Litigation Strategy, p. 407.
82 Am Jur Trials, Defending Against Claim of Ineffective Assistance of Counsel, p. 1.
82 Am Jur Trials, Snowmobile Litigation: Practice And Strategy, p. 123.
82 Am Jur Trials, Handling Aviation Disaster Cases, p. 243.
83 Am Jur Trials, Automobile Airbag Malfunction Litigation: Practice and Strategy, p. 1.
83 Am Jur Trials, Compensation on Dissolution of Marriage for Spousal Contributions to Education, p. 197.
84 Am Jur Trials, Litigating Against the Firearm Industry, p. 109.
85 Am Jur Trials, Residential Mold As a Toxic Tort Under Homeowners Policy, p. 1.
85 Am Jur Trials, Podiatry Malpractice Litigation, p. 192.
86 Am Jur Trials, Arbitration Highways to the Courthouse--A Litigator's Roadmap, p. 111.
87 Am Jur Trials, Defense of a Domain Name Dispute, p. 75.
88 Am Jur Trials, Tort Liability for Sexually Transmitted Disease, p. 153.
89 Am Jur Trials, Fitness Club and Health Spa Injuries, p. 405.
90 Am Jur Trials, Hair Transplantation Malpractice Litigation, p. 99.
92 Am Jur Trials, Litigating Toxic Mold Cases, p. 113.
Am Jur Proof of Facts:
33 Am Jur Proof of Facts 3d, Civil Discovery Sanctions in the Federal Courts, p. 459.
39 Am Jur Proof of Facts 3d, Proof of Basis for, and Grounds for Lifting, Work Product Protection Against
Discovery, p. 1.
59 Am Jur Proof of Facts 3d, Proof of Personal Jurisdiction in the Internet Age, p. 1.
59 Am Jur Proof of Facts 3d, Proof of Automobile Design Defect, p. 73.
60 Am Jur Proof of Facts 3d, Proof of Identification of Hit-and-Run Vehicle and Driver, p. 91.
60 Am Jur Proof of Facts 3d, Liability for a Corporation's Failure to File as a Corporation Doing Business in a
Foreign Jurisdiction, p. 363.
61 Am Jur Proof of Facts 3d, Liability of a Physician for Improper Referral of Patients to a Medical Care-Facility in
which the Physician has a Financial Interest, p. 245.
63 Am Jur Proof of Facts 3d, Proof of Copyright Infringement by File Sharing, p. 1.
64 Am Jur Proof of Facts 3d, Topic: Proof of Objections to Discharge of Individual Debtor Under 11 U.S.C.A. §
727(A) [11 USCS § 727(A)] and Fed. R. Bankr. P. 7001 in a Liquidation Bankruptcy Case Under Chapter 7 of the
Bankruptcy Code [11 USCS § § 701 et seq.], p. 113.
65 Am Jur Proof of Facts 3d, Proof of Seatbelt Defense, p. 1.
66 Am Jur Proof of Facts 3d, Liability of Health Maintenance Organizations, p. 1.
66 Am Jur Proof of Facts 3d, Proof That A Teacher's License Was Improperly Revoked: Teacher's Damages and
Emotional Distress Award, p. 541.
70 Am Jur Proof of Facts 3d, Proof That a Government Agency Was Liable For Improperly Granting a Bid Award to
a Bid Applicant, p. 97.
14 Am Jur Proof of Facts 2d, Admissibility of Computerized Business Records, p.173.
Forms:
5 Fed Procedural Forms L Ed, Civil Rights (1996) § 10:158.
5 Fed Procedural Forms L Ed, Class Actions (1996) § 11:94.
5A Fed Procedural Forms L Ed, Condemnation of Property (2000) § § 13:63, 64.
6A Fed Procedural Forms L Ed, Copyright (2003) § 17:161.
8 Fed Procedural Forms L Ed, Discovery and Depositions (2001) § § 23:38, 23:39, 23:43-23:55, 23:147,
23:171-23:181, 23:184-23:196, 23:358-23:362.
Page 33
USCS Fed Rules Civ Proc R 26
8A Fed Procedural Forms L Ed, Discovery and Depositions (2001) § § 23:387, 396, 403-410, 457, 462, 463, 468,
472, 526, 542-544.
9 Fed Procedural Forms L Ed, Enforcement of Judgments (1999) § § 28:110, 111.
12A Fed Procedural Forms L Ed, Labor and Labor Relations (1998) § 46:333.
12B Fed Procedural Forms L Ed, Monopolies and Restraints of Trade (2000) § § 48:42, 193.
14A Fed Procedural Forms L Ed, Securities Regulation (2004) § 59:418.
16 Fed Procedural Forms L Ed, Trade Regulation and Unfair Trade Practices (2001) § 65:145.
7A Am Jur Pl & Pr Forms (2002), Copyright and Literary Property, § 72.
8A Am Jur Pl & Pr Forms (2004), Deposition and Discovery, § § 5, 8, 18-20, 54, 55, 79, 198, 304-308, 310-313,
318, 319, 321, 323, 325-328, 330, 331, 333, 335-346, 356, 373, 402, 431, 520, 525, 558.
11A Am Jur Pl & Pr Forms (1998), Federal Practice and Procedure, § § 752, 812-814, 817, 824-826, 830, 832, 907,
933.
11B Am Jur Pl & Pr Forms (1998), Federal Practice and Procedure, § § 1471, 1520.
23B Am Jur Pl & Pr Forms (2002), Trial, § § 11, 12.
Immigration:
IMMLAW111.07USCSTREAT.
Annotations:
Amenability of National Labor Relations Board or its personnel to discovery. 4 ALR Fed 493.
Application, in federal civil action, of governmental privilege of nondisclosure of identity of informer. 8 ALR Fed
6.
Construction and application of Federal Rule of Civil Procedure Rule 26(c) providing for filing of secret or
confidential documents or information inclosed in sealed envelopes to be opened only as directed by the court. 19 ALR
Fed 970.
Determination of materiality of allegedly perjurious testimony in prosecution under 18 USCS § § 1621, 1622. 22
ALR Fed 379.
Discovery, under Federal Rules of Civil Procedure, in actions brought by private plaintiffs under equal employment
opportunity provisions of Civil Rights Act of 1964, as amended (42 USCS § § 2000e et seq.). 31 ALR Fed 657.
Pretrial discovery of facts known and opinions held by opponent's experts under Rule 26(b)(4) of Federal Rules of
Civil Procedure. 33 ALR Fed 403.
Attorney's work product privilege, under Rule 26(b)(3) of the Federal Rules of Civil Procedure, as applicable to
documents prepared in anticipation of terminated litigation. 41 ALR Fed 123.
Use of Freedom of Information Act (5 USCS § 552) as substitute for, or as means of, supplementing discovery
procedures available to litigants in federal civil, criminal, or administrative proceedings. 57 ALR Fed 903.
Discoverability and admissibility of plaintiff's past sexual behavior in Title VII sexual harassment action. 73 ALR
Fed 748.
Restriction on dissemination of information obtained through pretrial discovery proceedings as violating Federal
Constitution's First Amendment. 81 ALR Fed 471.
Protection from discovery of attorney's opinion work product under Rule 26(b)(3), Federal Rules of Civil Procedure.
84 ALR Fed 779.
Modification of protective order entered pursuant to Rule 26(c), Federal Rules of Civil Procedure. 85 ALR Fed 538.
Academic peer review privilege in federal court. 85 ALR Fed 691.
Propriety and Scope of Protective Order Against Disclosure of Material Already Entered into Evidence in Federal
Court Trial. 138 ALR Fed 153.
Admissibility of Expert or Opinion Evidence--Supreme Court Cases. 177 ALR Fed 77.
Crime-Fraud Exception to Work Product Privilege in Federal Courts. 178 ALR Fed 87.
State statutes or regulations expressly governing disclosure of fact that person has tested positive for human
immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS). 12 ALR5th 149.
Waiver of evidentiary privilege by inadvertent disclosure--state law. 51 ALR5th 603.
Liability insurance: misstatement by insured, later withdrawn or corrected, as breach of co-operation clause. 13
ALR4th 837.
Discovery of defendant's sales, earnings, or profits on issue of punitive damages in tort action. 54 ALR4th 998.
Discovery of trade secret in state court action. 75 ALR4th 1009.
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USCS Fed Rules Civ Proc R 26
Propriety and extent of state court protective order restricting party's right to disclose discovered information to
others engaged in similar litigation. 83 ALR4th 987.
Discoverability of traffic accident reports and derivative information. 84 ALR4th 15.
Scope of defendant's duty of pretrial discovery in medical malpractice action. 15 ALR3d 1446.
Discovery, in civil case, of material which is or may be designed for use in impeachment. 18 ALR3d 922.
Identity of witnesses whom adverse party plans to call to testify at civil trial, as subject of pretrial discovery. 19
ALR3d 1115.
Discovery and inspection: compelling party to disclose information in hands of affiliated or subsidiary corporation,
or independent contractor, not made party to suit. 19 ALR3d 1134.
Discovery, in products liability case, of defendant's knowledge as to injury to or complaints by others than plaintiff,
related to product. 20 ALR3d 1430.
Commencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege as to
discovery proceedings. 21 ALR3d 912.
Development, since Hickman v Taylor, of attorney's "work product" doctrine. 35 ALR3d 412.
Discovery of hospital's internal records or communications as to qualifications or evaluations of individual physician.
81 ALR3d 944.
Discovery or inspection of trade secret, formula, or the like. 17 ALR2d 383.
Names and addresses of witnesses to accident or incident as subject of pretrial discovery under Federal Rules of
Civil Procedure. 37 ALR2d 1160.
Discovery and inspection of income tax returns in actions between private individuals. 70 ALR2d 240.
Construction and effect of Federal Rules of Civil Procedure relating to preventing, limiting, or terminating the taking
of depositions. 70 ALR2d 685.
Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection. 73 ALR2d 12.
Pretrial deposition-discovery of opinions of opponent's expert witnesses. 86 ALR2d 138.
Right to elicit expert opinion from adverse party at pretrial discovery proceedings. 88 ALR2d 1190.
Pretrial discovery of opponent's engineering reports. 97 ALR2d 770.
Texts:
Danner, Pattern Discovery: Securities.
Schweitzer, Cyclopedia of Trial Practice (2d ed).
Tennenhouse, Attorney's Medical Deskbook, Chapter 7, Sources of Medical Records.
Law Review Articles:
Belazis. The Government's Commercial Information Privilege: Technical Information and the FOIA's Exemption 5.
33 Administrative L Rev 415, Fall 1981.
Fox. Planning and Conducting a Discovery Program. 7 Am Bar Lit 13, Summer 1981.
Devine. Discovery in Product Liability Cases. 6 Am J Tr Ad 241, Fall 1982.
Interaction Between 26(b)(3) and 26(b)(4) of the Federal Rules of Civil Procedure: Conflict and Confusion in the
Federal Courts. 9 Am J Trial Advocacy 319, Fall 1985.
Blumenkopf. Deposition Strategy and Tactics. 5 Am Journal of Trial Advocacy 231, Fall 1981.
Diekemper. Making Discovery a Civil Procedure? Proposed Amendments to Rule 26 of the Federal Rules of Civil
Procedure. 3 Ariz St L J 725, 1982.
Dombroff. Effective discovery techniques and tactics under the Federal Rules of Civil Procedure. 9 Barrister 31-36,
Winter 1982.
Giuliani. Determining the Reasonableness of Attorneys' Fees--the Discoverability of Billing Records. 64 BU L Rev
241, January 1984.
Rosenberg; King. Curbing Discovery Abuse in Civil Litigation: Enough is Enough. 1981 BYU L Rev 579, 1981.
Flegal; Umin. Curbing Discovery Abuse in Civil Litigation: We're Not There Yet. 1981 BYU L Rev 597, 1981.
Friedenthal. A Divided Supreme Court Adopts Discovery Amendments To The Federal Rules of Civil Procedure, 69
Calif L Rev 806, May 1981.
Harding. Waiver: a comprehensive analysis of a consequence of inadvertently producing documents protected by the
attorney-client privilege. 42 Cath U L Rev 465, Spring 1993.
Weinstein. Reform of Federal Court Rulemaking Procedures. 76 Colum L Rev 905.
Federal Discovery Rules: Effects of the 1970 Amendments. 8 Columbia Journal of Law & Social Problems 623.
Page 35
USCS Fed Rules Civ Proc R 26
McKenney. The Attorney-Client Privilege and Work Product Immunity: An In-Depth Analysis of the Doctrines and
Their Application to Corporate Affairs. 88 Comm L J 10, January 1983.
Lewis. The Availability of the Attorney-Client and Work-Product Privileges in Shareholder Litigation. 32 CM 189,
1983-84.
Witt. Grafting disclosure onto discovery. 59 Def Couns J 155, April 1992.
Harkins. Sanctions for failure to disclose. 59 Def Couns J 161, April 1992.
Edwards. Proposed limitations on discovery. 59 Def Couns J 169, April 1992.
Blair. Guide to the New Federal Discovery Practice. 21 Drake L Rev 58.
Civil procedure: Absentee Class Members Subjected to Discovery and Claims Dismissed for Failure to Respond.
1971 Duke LJ 1007.
Panzer. New Federal Discovery Rules in Civil Cases. 37 DC Bar J 49.
Day. Discovery standards for the testimonial expert under Federal Rule of Civil Procedure 26(b)(4): a twentieth
anniversary assessment. 133 F.R.D. 209, March 1991.
Henkel; Reed. Work Product Privilege and Discovery of Expert Testimony: Resolving the Conflict Between Federal
Rules of Civil Procedure 26(b)(3) and 26(b)(4). 16 Fla St U L Rev 313, Summer 1988.
Imwinkelried. The Worst Surprise of All: No Right to Pretrial Discovery of the Prosecution's Uncharged Misconduct
Evidence. 56 Fordham L Rev 247, December 1987.
Mengler. Eliminating abusive discovery through disclosure: is it again time for reform? 138 FRD 155, November
1991.
Born; Vollmer. The effect of the revised Federal Rules of Civil Procedure on personal jurisdiction, service, and
discovery in international cases. 150 FRD 221, October 1993.
Joseph. Emerging expert issues under the 1993 disclosure amendments to the Federal Rules of Civil Procedure. 164
FRD 97, February 1996.
Frost. The sound and the fury or the sound of silence? Evaluating the pre-amendment predictions and
post-amendment effects of the discovery scope-narrowing language in the 2000 amendments to Federal Rule of Civil
Procedure 26(b)(1). 37 Ga L Rev 1039, Spring 2003.
Williams. Authority of Federal Agencies to Impose Discovery Sanctions: The FTC-A Case in Point. 65 Geo L Rev
739.
Toran. Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules.
49 Geo Wash L Rev 843, August 1981.
Evidence: Discovery Rule Application in Child Abuse Actions Tyson v. Tyson, 107 Wn. 2d 72, 727 P.2d 226 (1986).
23 Gonz L Rev 223, 1987-1988.
Blumenson. Constitutional Limitations on Prosecutorial Discovery. 18 Harv Civil Rights L Rev 123, Winter 1983.
Miller. Confidentiality, protective orders, and public access to the courts. 105 Harv L Rev 427, December 1991.
Emerick. Discovery of the Nontestifying Expert Witness' Identity Under the Federal Rules of Civil Procedure: You
Can't Tell the Players Without a Program. 37 Hastings L J 201, September 1985.
Kroll; Maciszewski. Pre-trial Discovery: Change in the Federal Rules. 7 Hawaii BJ 48.
Pielemeier. Discovery of Non-Testifying "In-House" Experts Under Federal Rule of Civil Procedure 26. 58 Ind L J
597, 1982-1983.
Summer. First Amendment Interests in Trade Secrets, Private Materials, and Confidential Information: The Use of
Protective Orders in Defamation Litigation. 69 Iowa L Rev 1011, May 1984.
Hoornstra; Liethen. Academic Freedom of Civil Discovery. 10 J Coll & U L 113, Fall, 1983-84.
Day; Dixon. A Judicial Perspective on Expert Discovery Under Federal Rule 26(b)(4): An Empirical Study of Trial
Court Judges and a Proposed Amendment. 20 J Mar L Rev 377, Spring 1987.
Johnston. Discovery in Illinois and Federal Courts. 15 John Marshall L Rev 1, Winter 1982.
Sales. Discovery Problems in Aviation Litigation. 38 Journal of Air L & Commerce 101.
Thomas; Goheen; Vasos. Changes in Federal Rules of Civil Procedure Relating to Depositions, Interrogatory
Practice, and Request. 40 Journal of Bar Association of State of Kansas 127.
Chapper. Limiting Discovery. 20 Judges' Journal 20, Spring 1981.
Humphreys. Whether Disclosure of Work Product to a Witness in Preparation for Testifying Waives the Protection
of Federal Rule of Civil Procedure 26(b)(3). 76 Ky L J 479, 1987-1988.
Brushwood. Is There a Pharmacist-Patient Privilege? 12 Law Med & Health Care 63, April 1984.
Dombroff. Effective discovery techniques and tactics under the Federal Rules of Civil Procedure. 18 Law Notes
25-30, Winter 1982.
Sagor. Victory is in the documents, 23 Litig 36, Winter 1997.
Page 36
USCS Fed Rules Civ Proc R 26
Blaner; Cortese; Green. Federal discovery: crown jewel or curse? 24 Litig 8, Summer 1998.
Rosenberg. Discovery Abuse. 7 Litigation 8, Spring 1981.
McGanney; Seidel. Rule 26(b)(3): Protecting Work Product. 7 Litigation 24, Spring 1981.
Moot. Consider Doing No Discovery. 15 Litigation 36, Fall 1988.
Sugarman. Coordinating Complex Discovery. 15 Litigation 41, Fall 1988.
Swartz. New Federal Rules on Discovery. 55 Mass LQ 345.
Tomlinson. Use of the Freedom of Information Act For Discovery Purposes. 43 Md L Rev 119, 1984.
Pretrial Discovery in Antitrust Cases. 8 Memphis State University L Rev 615, Spring 1978.
Rivkin; Silberfeld. Discovery and the First Amendment: Principled Limits on the Release of Business Information to
the Press and the Public. 16 Nat Resources Law 529, 1983.
Welling. Discovery of Nonparties' Tangible Things Under the Federal Rules of Civil Procedure. 59 Notre Dame L
Rev 110, 1983.
von Mehren. Discovery Abroad: The Perspective of the U S Private Practitioner. 16 NYU J Int'l L & Pol 985,
Summer 1984.
April; Fried. Compelling Discovery and Disclosure in Transnational Litigation: A Canadian View. 16 NYUJ Int'l L
& Pol 961, Summer 1984.
Harfield. The Implication of U.S. Entraterritorial Discovery Proceedings Against Multinational Corporations for the
Judiciary. 16 NYUJ Int'l L & Pol 973, Summer 1984.
Mehren. Discovery Abroad: The Perspective of the U.S. Private Practitioner. 16 NYUJ Int'l L & Pol 985, Summer
1984.
Wolfson. Civil Discovery and the Privilege Against Self-Incrimination. 15 Pac L J 785, April 1984.
Francis. What you need to know to resolve discovery disputes. 8 Prac Litig 75, March 1997.
Cohen. Expert witness discovery versus the work product doctrine: choosing a winner in government contracts
litigation. 27 Pub Cont L J 719, Summer 1998.
Gerth; Wheeler. Trial Rule 26(B): the shroud unravels. 34 Res Gestae 260, December 1990.
Mayer. Prescribing cooperation: the mandatory pretrial disclosure requirement of proposed Rules 26 and 37 of the
Federal Rules of Civil Procedure. 12 Rev Litig 77, Fall 1992.
Cochran. Evaluating Federal Rule of Civil Procedure 26(b)(5) as a response to silent and functionally silent privilege
claims. 13 Rev Litig 219, Spring 1994.
In re Shell Oil Refinery [132 F.R.D. 437]: great expense alone is not enough to satisfy the exceptional circumstances
standard of Federal Rule of Civil Procedure 26(b)(4)(B). 36 S D L Rev 721, 1991.
Snelling, Adult survivors of childhood sexual abuse: should Texas courts apply the discovery rule? 33 S Tex L Rev
377, July 1992.
Sofaer. Sanctioning Attorneys for Discovery Abuse Under the New Federal Rules: On the Limited Utility of
Punishment. 57 St John L Rev 680, Summer 1983.
Fishbein. New Federal Rule 26: A Litigator's Perspective. 57 St John L Rev 739, Summer 1983.
Attorney's Work-Product Privilege in the Federal Courts. 42 St. John's L Rev 560, 1968.
Civil procedure--Rule 26(c) protective orders and the fifth amendment-Andover Data Services, Inc. v. Statistical
Tabulating Corp., 876 F.2d 1080. 63 Temp L Rev 637, Fall 1990.
Campbell; Green. Guidelines for preserving error or, how not to drop the ball. 54 Tex B J 1178, December 1991.
Wachs. Is Ordeal by Discovery Over? Discovery by Telephone and Conference: New Pretrial Techniques
Considered for the District Courts Adopted by the United States Customs Court. 13 The John Marshall L Rev 225,
Winter 1980.
A symposium on the 1993 amendments to the Federal Rules of Civil Procedure. 29 Tort & Ins LJ 467, Spring 1994.
Wagner. Too much, too costly, too soon? The automatic disclosure amendments to Federal Rule of Civil Procedure
26. 29 Tort & Ins LJ 468, Spring 1994.
Groves. Depositions and interrogatories under the Federal Rules of Civil Procedure: before and after the 1993
amendments. 29 Tort & Ins LJ 483, Spring 1994 .
Wilson. Rules Pertaining to Discoverability of Expert Opinion Evidence in Federal Court. 27 Tr Law Guide 411,
Fall 1983.
McLaughlin. Discovery and admissibility of expert testimony. 33 Trial Law Guide 533.
Feldman. The Work Product Rule in Criminal Practice and Procedure. 50 U of Cincinnati L Rev 495, 1981.
McDonald. Gimme Shelter? Not If Your Are a Non-Witness Expert Under Rule 26(b)(4)(B). 56 U Cin L Rev 1027,
1988.
Page 37
USCS Fed Rules Civ Proc R 26
Robinson. Duet or duel: Federal Rule of Evidence 612 and the work product doctrine codified in Civil Procedure
Rule 26(b)(3). 69 U Cin L Rev 197, Fall 2000.
Hayes; Ryder. Rule 26(b)(4) of the Federal Rules of Civil Procedure: Discovery of Expert Information. 42 U Miami
L Rev 1101, March-May 1988.
Symposium: civil litigation in the 1990s. 26 U SF L Rev 175, Winter 1992.
Graham. Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: An Analytical Study.
1976 Univ of Illinois Law Forum 895.
Graham. Discovery of Experts under Rule 26(b)(4) of the Federal Rules of Civil Procedure. 1977 Univ of Illinois L
Forum 169.
A Proposed Amendment to Rule 26(b)(4)(B): The Expert Twice Retained. 12 Univ of Michigan Journal of Law
Reform 533, Spring 1979.
Ferguson. Ethical considerations under the amended Federal Rules of Civil Procedure. 9 Utah BJ 10, February
1996.
Vian. Discovery in Bankruptcy Cases. 17 UCC L J 22, Summer 1984.
Sterchi; Sheppard. Defendant's Right to Secure Medical Information and Records Concerning Plaintiff. 53 UMKC
L Rev 46, Fall 1984.
Ehrhardt. The conflict concerning expert witnesses and legal conclusions. 92 W Va L Rev 645.
Smith. News-source privilege in libel cases: a critical analysis. 57 Wash L Rev 349-371, Spring 1982.
Treating Experts Like Ordinary Witnesses: Recent Trends in Discovery of Testifying Experts Under Federal Rule of
Civil Procedure 26(b)(4). 66 Wash U L Q 787, 1988.
Discovery Abuse Under the Federal Rules: Causes and Cures. 92 Yale L J 352, December 1982.
Marcus. Discovery containment redux. 39 3 B C L Rev 747, May 1998.
Willging; Stienstra; Shapard; Miletich. An empirical study of discovery and disclosure practice under the 1993
federal rule amendments, 39 3 B C L Rev 525, May 1998.
Subrin. Fishing expeditions allowed: the historical background of the 1938 federal discovery rules. 39 3 B C L Rev
691, May 1998.
Niemeyer. Here we go again: are the federal discovery rules really in need of amendment? 39 3 B C L Rev 517,
May 1998.
Mullenix. The pervasive myth of pervasive discovery abuse: the seuel. 39 3 B C L Rev 683, May 1998.
Kakalik. Analyzing discovery management policies: RAND sheds new light on the Civil Justice Reform Act
evaluation data. 37 2 Judges' J 22, Spring 1998.
Levi; Marcus. Once more into the breach: more reforms for the federal discovery rules? 37 2 Judges' J 8, Spring
1998.
INTERPRETIVE NOTES AND DECISIONS
I. IN GENERAL
1. Generally
2. Construction, generally
3. --Liberality
4. Purpose and effect of procedures
5. --Relationship to pleadings
6. ----Relationship of discovery rules to other rules
7. Applicability of rule
8. Judicial intervention into discovery procedures
9. Form of response to discovery
II. REQUIRED DISCLOSURES [RULE 26(a)(1)-(4)]
A. Initial Disclosures
10. Stay of requirement
11. Insurance agreements
12. --Discovery between insurers
13. Other particular matters
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USCS Fed Rules Civ Proc R 26
B. Disclosure of Expert Testimony
14. Generally
15. Relation to work product protection rule
16. Objection to adequacy of compliance
17. Particular matters which must be disclosed
18. --Application to treating physicians
C. Pretrial Disclosures
19. Exclusion of impeachment materials
III. METHODS TO DISCOVER ADDITIONAL MATTER [RULE 26(a)(5)]
20. Generally
21. Choice of method
22. Miscellaneous
IV. SCOPE AND LIMITS OF DISCOVERY, IN GENERAL [RULE 26(b)(1),(2)]
A. In General
23. Generally
24. Construction
25. Discretion of court
26. Good faith as factor
27. Cost of providing information as factor
28. Information within discoverer's own knowledge
29. Information concerning inquirer's own case
30. Information for use in cross-examination
31. Information concerning adversary's case
32. Information otherwise discoverable or obtainable
33. Discovery for use in actions other than pending action
34. Admissibility in evidence not a prerequisite
35. Geographical reach of discovery
36. --Foreign country
37. Objection to scope of discovery
38. Miscellaneous
B. Relevancy
1. In General
39. Generally
40. Establishment of relevancy
41. --Discovery of information calculated to lead to relevant information
42. Determination by court, generally
43. Trial standards distinguished
44. Appellate review of relevancy decisions
45. Miscellaneous
2. Relevancy in Particular Cases
46. Antitrust
47. Assault and battery
48. Attorneys' fees
49. Bankruptcy
50. Conspiracy
51. Contracts
52. Copyrights
53. Corporate mergers
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USCS Fed Rules Civ Proc R 26
54. Customs
55. Employment
56. --Age discrimination
57. --Race discrimination
58. Franchises
59. Fraud
60. Freedom of Information Act
61. Insurance
62. Immigration
63. Labor relations
64. Libel and slander
65. Malpractice
66. Patents
67. Personal injury and wrongful death
68. Prisons and jails
69. Products liability
70. Punitive damages
71. RICO
72. Securities
73. Taxation
74. Trade secrets
75. Miscellaneous
C. Privileged Matters
1. In General
76. Generally
77. Controlling law
78. --Diversity cases
79. Claim and establishment of privilege
80. Discretion of court
81. Appellate review
82. Miscellaneous
2. Attorney-Client Privilege
a. In General
83. Generally
84. Requisites
85. Who may assert privilege
86. Joint privilege
87. Effect of client's death
88. Law governing
89. Burden of proof
90. Miscellaneous
b. Matters Privileged
91. Generally
92. Circumstances surrounding attorney's employment
93. Statements made to attorney's agent or representative
94. Communications with non-legal personnel performing legal services
95. Initial interview with attorney
96. Correspondence based on public information
97. Non-legal considerations in legal advice
98. Transcripts of prior proceedings
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USCS Fed Rules Civ Proc R 26
99. Matters learned from third parties
100. Identity and address of client
101. Billing information and cost of services
102. Insurance investigations
103. Corporate communications
104. --Communications to and among in-house counsel
105. --Documents
106. --Interviews with employees
107. Patent information
108. Miscellaneous
c. Waiver or Loss of Privilege
109. Generally
110. Who may waive privilege
111. Implied waiver
112. Disclosure to third parties
113. Inadvertent disclosure
114. Partial disclosure
115. Use of communications at prior proceedings
116. Documents containing legal and nonlegal information
117. Communications used to prepare criminal activities
118. Use of communications as defense
119. Miscellaneous
3. Government and Official Documents and Information
a. In General
120. Generally
121. Executive privilege
122. Interagency or intra-agency communications
123. State secrets
124. Congressional reports
125. Documents and communications of nonfederal entities
126. Foreign government documents and communications
127. Exemption under Freedom of Information Act
128. Miscellaneous
b. Particular Departments and Agencies
129. Air Force, Army and Navy
130. Comptroller of Currency
131. Defense Department
132. Environmental Protection Agency
133. Equal Employment Opportunity Commission
134. Federal Aviation Administration
135. FDIC and FSLIC
136. Federal Trade Commission
137. Health and Human Services Department
138. International Trade Commission
139. Interstate Commerce Commission
140. Justice Department
141. Labor department and NLRB
142. Police and FBI investigative files
143. Securities Exchange Commission
144. Taxation
145. Veterans Administration
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USCS Fed Rules Civ Proc R 26
146. Others
4. Statements or Identity of Informers
a. In General
147. Generally
148. Limitations on, and loss of, privilege
b. Availability of Privilege in Particular Cases
149. Antitrust
150. Labor
151. Miscellaneous
5. Privilege Against Self-Incrimination
152. Generally
153. Corporations and corporate personnel
154. Waiver or loss of privilege
155. Miscellaneous
6. Other Particular Privileges
156. Academic freedom privilege
157. Accident reports and statements
158. Accountant-client communications
159. Bank-customer privilege
160. First Amendment privilege
161. --Membership lists
162. Grand jury minutes and proceedings
163. Hospital peer review privilege
164. Insurer-insured privilege
165. Marital privilege
166. Newsmedia privilege
167. Patents and trade secrets
168. Physician-patient privilege; hospital reports
169. --Particular circumstances
170. Psychiatrist-patient privilege
171. Self-critical analysis privilege
172. Settlement privilege
173. Privilege as to other particular matters
D. Particular Matters Discoverable
1. Identity and Location of Witnesses
174. Generally
175. Witnesses whom adverse party plans to call
176. Identity of expert witnesses
177. Witnesses to accident
178. Identity of complaining witness in government action
179. Miscellaneous
2. Content and Information Contained In Documents
180. Generally
181. Accident reports
182. Bank records
183. Computer printouts
184. Corporate documents
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USCS Fed Rules Civ Proc R 26
185. --Antitrust
186. --Employment discrimination
187. --Securities litigation
188. Financial records
189. --Punitive damages issue
190. Government documents
191. Insurance records
192. Medical records
193. Police reports
194. Tax records
195. Wills
196. Miscellaneous
3. Statements of Witnesses
197. Generally
198. Availability of information from other sources
199. Statements procured by party's insurer
200. Miscellaneous
4. Similar Acts, Injuries or Complaints
201. Antitrust
202. Civil rights
203. --Sexual harassment
204. Libel and slander
205. Malpractice
206. Products liability
207. Other personal injury or death actions
208. Miscellaneous
5. Trade Secrets
a. In General
209. Generally
b. Particular Circumstances
210. Patents
211. --Documents
212. --Secret processes
213. Trademark infringement and unfair competition
214. Miscellaneous
6. Other Particular Matters Discoverable
215. Acts subsequent to date of claim or complaint
216. Applicable law
217. Attorney's fees and fee agreements
218. Class action information
219. Damages
220. Design and testing of product
221. Economic feasibility; cost
222. Employees and employment practices
223. Existence, location, etc., of documents or tangible things
224. Finances
225. Grounds for impeachment
226. Identity and location of stockholders or customers
227. Jurisdiction
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228. Nature and details of claim or defense
229. Ownership of property
230. Pleadings from other actions
231. Precautionary measures
232. Preparations for trial
233. Private, recorded conversations
234. Records of administrative proceedings
235. Records to be used for comparison
236. Results of physical examination
237. Sexual behavior in work environment
238. Statements of government personnel
239. Statements of parties
240. Statistical information
241. Surveillance films
242. True value of stock
243. Veracity of newsmedia sources
244. Other particular matters
V. TRIAL PREPARATION MATERIALS; WORK PRODUCT [RULE 26(b)(3),(5)]
A. In General
245. Generally
246. Purpose
247. Applicability
248. Construction
249. Standing to assert privilege
250. Nature of protection
251. --Attorney-client privilege distinguished
252. Content as distinguished from existence, etc., of material
253. Attorneys within purview of work-product doctrine
254. Materials prepared on behalf of attorney
255. Materials prepared in anticipation of litigation, generally
256. --Likelihood of future litigation
257. Protection against disclosure of mental impressions, etc.
258. --Particular circumstances
259. Governing law
260. Standard and burden of proof
261. Miscellaneous
B. Particular Materials Protected
1. Witnesses' Statements
262. Taken by attorney
263. --Not protected
264. Taken by attorney's agent or investigator
265. Taken by party
266. Taken by party's claim or investigative agent
267. Prepared by witness alone
2. Corporate Documents
268. Generally
269. Accident report
270. Equal employment policy
271. Risk management
272. Miscellaneous
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3. Government Files and Documents
273. FBI
274. Federal Trade Commission
275. Internal Revenue Service
276. NLRB
277. Secretary of Labor
278. Securities and Exchange Commission
279. State government
280. Miscellaneous
4. Insurance Reports and Documents
281. Generally
282. Disability insurance
283. Fire insurance
284. Motor vehicle insurance
285. Worker's compensation
286. Miscellaneous
5. Investigator's Statement or Report
287. Generally
288. Criminal proceedings
289. Employment discrimination
290. Fires
291. Product safety
292. Miscellaneous
6. Other Particular Materials
293. Accountant's files, records and correspondence
294. Adverse party's statement
295. Audit letter, document or report
296. Class action information
297. Computer data
298. Communications between attorneys
299. Communications between insurers
300. Consulting agreement
301. Correspondence between law firm and labor union
302. Correspondence with liability insurers
303. Disciplinary proceedings
304. Discussion of settlement; documents
305. Documents prepared by nonparty
306. Documents prepared for dealing with IRS
307. Document prepared in normal course of business
308. Employee statements
309. Exhibits or demonstrative evidence
310. Existence, names and location of witnesses
311. Identity and opinion of expert
312. Materials prepared by nonparty's attorney
313. Material prepared for prior or other litigation
314. --Settlement or consent decree
315. --Other particular circumstances
316. Medical and psychological reports
317. Papers utilized in preparing tax return
318. Party's contentions or facts underlying contentions
319. Party's own statement
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320. Patent, trademark and copyright documents
321. Photographs and films
322. Preparations for deposition
323. Preparations for ex parte proceedings
324. Statement to insurance adjuster
325. Surveys and studies
326. --Personnel practices
327. Miscellaneous
C. Substantial Need for Discovery
328. Generally
329. Unavailability of other sources
330. --Antitrust cases
331. --Other particular circumstances
332. Substantial need under particular circumstances
333. Burden of proof
334. Miscellaneous
D. Waiver or Loss of Protection
335. Generally
336. Disclosure to third parties
337. --Auditor or accountant
338. --Employee
339. --Expert
340. --Government agency or official
341. Inadvertent disclosure
342. Illegal or fraudulent acts; by attorney
343. --By client
344. Termination of suit
345. Partial waiver
346. Miscellaneous
VI. TRIAL PREPARATION: EXPERTS [RULE 26(b)(4)]
A. In General
347. Generally
348. Relationship to FRCP 26(a)(2)
349. "Specially employed"
350. Identification of expert witnesses
351. Expert not expected to be called at trial
352. --Showing required
353. Factual observations of adverse party's expert
354. Discovery from adverse party who is an expert
355. --Malpractice cases
356. Available means of discovery
357. Conditions to disclosure
358. Expenses
359. --Particular circumstances
360. Sanctions for abuse of expert discovery process
361. --Denied
362. Miscellaneous
B. Opinion of Adverse Party's Expert
363. Generally
364. Opinions contained in written reports, generally
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365. Opinions of persons acting within ordinary scope of employment
366. Appraisers' opinions and reports
367. Treating physician's opinion or report
368. Other particular expert opinions
369. Miscellaneous
VII. PROTECTIVE ORDERS [RULE 26(c)]
A. In General
370. Generally
371. Constitutional standard
372. Applicability
373. Persons protected
374. Timeliness of application; effect of delay
375. Discretion of court
376. In camera examination
377. Modification of protective order
378. Violation of protective order
379. Appellate review
380. Miscellaneous
B. Showing Required
381. Generally
382. Basis for order
383. "Good cause"
384. --Burden of proof
385. --Particular circumstances
C. Particular Protective Orders
1. Order That Discovery Not be Had [Rule 26(c)(1)]
a. In General
386. Generally
387. Relevancy and admissibility
388. Privilege
389. --Assertion by government
390. Miscellaneous
b. Showing Required and Reason for Order
(1). In General
391. Generally
392. Effect of delayed notice
393. Discovery not sought in good faith
394. Likelihood of annoyance or embarrassment
395. Likelihood of harassment, oppression or undue hardship
396. Repetitive nature of discovery
397. Miscellaneous
(2). Particular Circumstances
398. Accord and satisfaction
399. Antitrust
400. Attorneys' fees
401. Criminal investigation
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USCS Fed Rules Civ Proc R 26
402. Contracts
403. Copyright
404. Damages issue
405. Freedom of Information Act
406. Immunity issue
407. Insurance
408. Labor and employment
409. --Age discrimination
410. --Race discrimination
411. Patents
412. Products liability
413. Securities
414. Other personal injury and death
415. Miscellaneous
2. Discovery on Condition; Place and Time [Rule 26(c)(2)]
a. In General
416. Discovery on specified conditions, generally
417. Manner of recordation
418. Miscellaneous
b. Place of Examination
419. Generally
420. Location of corporate personnel
421. Consideration that plaintiff has chosen forum
422. --Special or unusual circumstances
423. Conditioning change of place on payment of expenses
424. Place upheld on condition of payment of expenses
425. Miscellaneous
c. Time of Discovery
426. State court action also pending
427. Criminal prosecution also pending
428. Other particular circumstances
3. Substitution of Another Type of Discovery [Rule 26(c)(3)]
429. Generally
430. Substitution of written interrogatories
431. --Oral examination upheld
432. Substitution of oral examination
433. Substitution of written deposition
434. Miscellaneous
4. Excluding Certain Matters or Limiting Discovery [Rule 26(c)(4)]
a. In General
435. Generally
436. Matters pertaining to jurisdiction
437. Privileged matters
438. --Attorney-client privilege
439. Matters previously covered; other proceedings
440. Time of occurrence or date of document
441. Persons to whom discovery is directed
442. Damages
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USCS Fed Rules Civ Proc R 26
443. Miscellaneous
b. Particular Exclusions and Limitations
444. Accidents and personal injury
445. Antitrust
446. Banking
447. Child abuse
448. Commodities
449. Copyrights
450. Defamation
451. Energy and mining
452. Fraud
453. Gender discrimination
454. --Sexual harassment
455. Health care
456. Insurance
457. Labor and employment
458. Military
459. Patents
460. Prisons and jails
461. Securities
462. Taxation
463. Miscellaneous
5. Limiting Persons Present During Discovery [Rule 26(c)(5)]
464. Generally
465. Exclusion of party
466. --Corporate representatives
467. Exclusion of witness
468. Exclusion of newsmedia
469. Miscellaneous
6. Disclosure of Secrets; Sealing of Papers [Rule 26(c)(6)-(8)]
a. In General
470. Disclosure, generally
471. Relevancy of materials sought; need for disclosure
472. Need for protective order
473. --Public access to deposition materials
474. Methods of protection
475. --In camera inspection
476. Simultaneous filing of documents or information
477. Restriction on use of material
478. Miscellaneous
b. Sealing of Confidential or Privileged Matter
479. Generally
480. Trade or business secrets
481. --Antitrust suit
482. --Copyright and trademark infringement
483. --Patent infringement
484. --Products liability
485. Other particular circumstances
7. Other Protective Orders
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USCS Fed Rules Civ Proc R 26
486. Generally
487. Costs, fees and expenses
488. --Attorneys' fees or expenses
489. --Deposition expenses
490. --Expert witness fee or expense
491. Miscellaneous
VIII. SEQUENCE AND TIMING OF DISCOVERY [RULE 26(d)]
492. Generally
493. Sequence and timing of discovery under particular circumstances
IX. SUPPLEMENTATION OF RESPONSES [RULE 26(e)]
494. Generally
495. Party's duty to supplement response
496. --Seasonable supplement
497. Party's duty to amend prior response for correction
498. --Seasonable amendment
499. --Knowing concealment
500. Sanctions for failure to supplement or amend
501. --Exclusion of evidence
502. ----Expert witness
503. Miscellaneous
X. DISCOVERY CONFERENCE [RULE 26(f)]
504. Generally
505. Effect of motion for conference
506. Duty to hold requested conference
507. Miscellaneous
XI. REQUIREMENT OF SIGNATURE [RULE 26(g)]
508. Generally
509. Liability for sanctions
510. Miscellaneous
I. IN GENERAL
1. Generally
Federal discovery rules, being rules of procedure rather than of substantive law, prevail in federal court over contrary
state rules. Bethel v Thornbrough (1962, CA10 Colo) 311 F2d 201, 6 FR Serv 2d 746.
Rule 26 is procedural, not substantive in nature; it is not an abridgement of the defendant's constitutional rights.
Helms v Richmond-Petersburg Turnpike Authority (1971, DC Va) 52 FRD 530, 15 FR Serv 2d 591.
The major change in the 1970 amendment to the rules was the elimination of the requirement of a court order before
documents could be examined, and the elimination of the necessity of showing good cause. Abel Inv. Co. v United
States (1971, DC Neb) 53 FRD 485, 72-1 USTC P 9284, 15 FR Serv 2d 1111, 29 AFTR 2d 72-894.
Rule 26 on general aspects of discovery speaks only to situations involving parties and to tangible evidence, and
motion to compel non-parties to civil rights action to speak into tape recorder to produce voice exemplar for defendants'
use is not contemplated by Federal Rules of Civil Procedure. Haaf v Grams (1973, DC Minn) 355 F Supp 542, 17 FR
Serv 2d 716.
Amendments of 1970 eliminated "good cause" requirement under Rule 34, and clear intent of eliminating
amendment was to liberalize permissible discovery under that rule; Rule 26(b) as amended in 1970 should not be
interpreted as engrafting good cause requirement back into Rule 34. Galambus v Consolidated Freightways Corp.
(1974, DC Ind) 64 FRD 468.
Non-parties have no independent right to access to materials produced and discovered and not made part of public
record; thus, in action by Vietnam war veterans and their families seeking recovery for injuries allegedly suffered as
result of veterans' exposure to various herbicides, special master's protective order precluding dissemination to news
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USCS Fed Rules Civ Proc R 26
media of nonconfidential and classified documents produced during discovery will be approved despite contentions of
news media that order violates First Amendment right of privacy and right of media to access to materials and that order
violates parties' First Amendment right to disseminate those materials freely. In re "Agent Orange" Product Liability
Litigation (1983, ED NY) 96 FRD 582, 9 Media L R 1083.
Although further proceedings in District Court are stayed pending agency's resolution of referred issue, District
Court properly declines to stay proceedings related to depositions and discovery where it believes that allowing
discovery will aid in resolution of dispute. Post v Perry Gas Transmission, Inc. (1983, ND Tex) 616 F Supp 1, 89 OGR
374.
Although evidentiary hearing may be required when court imposes sanctions under its inherent powers alone,
hearing is not required for sanctions imposed under FRCP 26(g), 33(b), 34(b) and 37(a)(4), and 28 USCS § 1927.
Medical Billing v Medical Mgmt. Sciences (1996, ND Ohio) 169 FRD 325.
Since special master is vested with full and complete powers under FRCP 53(c) and (d), special master's decision is
functional equivalent of magistrate judge's adjudication of nondispositive motion; thus, decision of special master in
discovery dispute is entitled to great deference. Katz v AT&T Corp. (2000, ED Pa) 191 FRD 433.
Although FRCP 26 gives trial court wide discretion to manage discovery process, expedited discovery is not norm;
party seeking expedited discovery must make some prima facie showing of need therefor. Merrill Lynch, Pierce, Fenner
& Smith v O'Connor (2000, ND Ill) 194 FRD 618.
2. Construction, generally
Federal discovery rules may not be expanded by disregarding plainly expressed limitations. Schlagenhauf v Holder
(1964) 379 US 104, 13 L Ed 2d 152, 85 S Ct 234, 9 FR Serv 2d 35A.1, Case 1; Guilford Nat'l Bank v Southern R. Co.
(1962, CA4 NC) 297 F2d 921, 5 FR Serv 2d 575.
Scope of USCS Rule of Civil Procedure 35 is not coextensive with that of Rule 26; therefore, while petition for
discovery is proper under Rule 26, it is erroneous in light of USCS Rule of Civil Procedure 35. In re Mitchell (1977,
CA5 La) 563 F2d 143.
Rule 26 does not require party to provide name of any person who may be used at trial to present opinion evidence
under evidence Rule 701, and district court therefore lacked power to sanction injured seaman solely because he failed
to disclose that he and barge captain would be testifying regarding their opinions as to fact in issue. Wilburn v Maritrans
GP (1998, CA3 Pa) 139 F3d 350, 1998 AMC 1217.
While FRCP 37(c)(1) did not authorize sanctions for FRCP 26(e)(2) violations at time of trial, district court erred in
not considering its inherent authority to sanction, but, there was no showing of substantial prejudice, as earlier
disclosure of railcar repair records would not have assisted plaintiff conductor in his personal injury action against
defendant railroad for injuries caused by defective railcar lever because records refuted existence of defective operating
lever. Toth v Grand Trunk R.R. (2002, CA6 Mich) 306 F3d 335, 2002 FED App 321P.
Rule 26 and Rule 45(b) should be construed in pari materia. Connecticut Importing Co. v Continental Distilling
Corp. (1940, DC Conn) 1 FRD 190.
The federal rules relating to discovery must be read in pari materia, and these rules should be interpreted and applied
in light of their well-known purposes. Enger-Kress Co. v Amity Leather Products Co. (1955, DC Wis) 18 FRD 347,
107 USPQ 323; Thompson v Hoitsma (1956, DC NJ) 19 FRD 112; Crowe v Chesapeake & O. R. Co. (1961, ED Mich)
29 FRD 148, 5 FR Serv 2d 586.
Rule 26 overrides and limits more general provisions of remaining discovery machinery described in Rules 27
through 37. Seiffer v Topsy's International, Inc. (1975, DC Kan) 69 FRD 69, 21 FR Serv 2d 779.
The phrase "except as required by law" in 47 USCS § 222(c)(1) allows courts to compel, under FRCivP 26,
defendant to answer plaintiff's interrogatories and produce documents requested. ICG Communs., Inc. v Allegiance
Telecom (2002, ND Cal) 211 FRD 610.
3. --Liberality
Deposition-discovery rules are to be accorded broad and liberal treatment, to end that either party may obtain in
advance of trial knowledge of all relevant facts in possession of the other. Hickman v Taylor (1947) 329 US 495, 91 L
Ed 451, 67 S Ct 385, 34 Ohio Ops 395 (superseded by statute on other grounds as stated in Hawkins v District Court of
Fourth Judicial Dist. (1982, Colo) 638 P2d 1372) and (superseded by statute on other grounds as stated in Graham v
Gielchinsky (1991) 126 NJ 361, 599 A2d 149).
The deposition-discovery rules of the Federal Rules of Civil Procedure (Rules 26 et seq.) are to be accorded a broad
and liberal treatment to effect their purpose of adequately informing the litigants in civil trials. Herbert v Lando (1979)
441 US 153, 60 L Ed 2d 115, 99 S Ct 1635, 4 Media L R 2575, 3 Fed Rules Evid Serv 822, 27 FR Serv 2d 1.
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USCS Fed Rules Civ Proc R 26
Depositions of witnesses before trial ordinarily may be taken for discovery, and such procedure should be liberally
construed, in the discretion of the court. National Bondholders Corp. v McClintic (1938, CA4 W Va) 99 F2d 595.
While trial court is vested with reasonable discretion in determining whether discovery is to be allowed, it is no
longer open to debate that the discovery rules should be given a broad, liberal interpretation. Edgar v Finley (1963,
CA8 Mo) 312 F2d 533, 6 FR Serv 2d 591.
One of the purposes of the promulgation of these rules being to attain simplicity and flexibility of procedure, they
should be interpreted broadly and liberally. Laverett v Continental Briar Pipe Co. (1938, DC NY) 25 F Supp 80;
Stankewicz v Pillsbury Flour Mills Co. (1939, DC NY) 26 F Supp 1003; Lewis v United Air Lines Transport Corp.
(1939, DC Conn) 27 F Supp 946.
These rules are intended to be interpreted liberally in favor of permitting the securing of pre-trial discovery; and
depositions should be permitted to go forward unless the information sought upon the examination is clearly privileged
or irrelevant. Bloomer v Sirian Lamp Co. (1944, DC Del) 4 FRD 167.
Rule 26 and Rule 33 should be liberally construed, and Rule 33 should be construed as broadly as Rule 26. Roth v
Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302.
The utmost liberality should prevail in allowing a wide scope to the legitimate use of interrogatories; this course is in
the interest of a fair trial, eliminating surprise and achieving substantial justice; on the other hand, interrogatories are not
to be used as a device or a stratagem to maneuver the adverse party into an unfavorable tactical position. Aktiebolaget
Vargos v Clark (1949, DC Dist Col) 8 FRD 635.
The rules for depositions and discovery and production of documents are to be liberally construed in order that each
party be permitted to inform himself thoroughly as to the claims and defenses of his opponent and so far as possible to
eliminate the element of surprise at the trial. Harnischfeger Corp. v Miller Electric Mfg. Co. (1955, DC Wis) 18 FRD
3, 107 USPQ 212.
Federal rules on deposition and discovery must be liberally construed but there are occasions when liberality must be
tempered with restraint. De Long Corp. v Lucas (1956, DC NY) 138 F Supp 805.
Discovery rules are to be construed liberally in favor of party seeking discovery, and pleadings do not rigidly fix
permissible range of inquiry. Marshall v Electric Hose & Rubber Co. (1975, DC Del) 68 FRD 287, 11 BNA FEP Cas
753, 10 CCH EPD P 10394, 22 FR Serv 2d 57.
Discovery provisions of Federal Rules of Civil Procedure are to be liberally construed particularly in complex civil
rights cases. Laufman v Oakley Bldg. & Loan Co. (1976, SD Ohio) 72 FRD 116, 23 FR Serv 2d 849.
Rule 26, which limits scope of permissible discovery to relevant matters, is to be liberally construed. National
Organization for Women, Inc. (NOW), St. NOW, Inc., St. Paul Chapter etc. v Minnesota Mining & Mfg. Co. (1977,
DC Minn) 73 FRD 467, 14 BNA FEP Cas 1052, 14 CCH EPD P 7712, 24 FR Serv 2d 796.
As general rule, scope of discovery as provided for in Federal Rules of Civil Procedure, Rules 26-37, is to be
liberally construed so as to provide litigants with information essential to expeditious and proper litigation of each fact
in dispute; moreover, various methods of discovery are clearly intended to be cumulative, as opposed to alternative or
mutually exclusive. Richlin v Sigma Design West, Ltd. (1980, ED Cal) 88 FRD 634, 31 FR Serv 2d 698.
FRCP 26(b) is liberally interpreted to permit wide-ranging discovery of all information reasonably calculated to lead
to discovery of admissible evidence; however, discoverable information need not be admissible at trial. United States v
City of Torrance (1995, CD Cal) 164 FRD 493.
Purpose of discovery is to remove surprise from trial preparation so parties obtain evidence necessary to evaluate and
resolve their dispute; toward this end, FRCP 26(b) is liberally interpreted to permit wide-ranging discovery of all
information reasonably calculated to lead to discovery of admissible evidence, even though discoverable information
need not be admissible at trial. Ragge v MCA/Universal (1995, CD Cal) 165 FRD 601, 68 CCH EPD P 44126.
Rules of discovery are to be accorded broad and liberal construction. Connecticut Indem. Co. v Carrier Haulers, Inc.
(2000, WD NC) 197 FRD 564.
4. Purpose and effect of procedures
Deposition-discovery procedure simply advances state at which disclosure can be compelled from the time of trial to
the period preceding it, thus reducing possibility of surprise. Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S
Ct 385, 34 Ohio Ops 395 (superseded by statute on other grounds as stated in Hawkins v District Court of Fourth
Judicial Dist. (1982, Colo) 638 P2d 1372) and (superseded by statute on other grounds as stated in Graham v
Gielchinsky (1991) 126 NJ 361, 599 A2d 149).
Only strong public policies weigh against disclosure, modern instruments of discovery serving a useful purpose and,
together with pretrial procedures, making a trial less a game of blindman's buff and more a fair contest with the basic
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USCS Fed Rules Civ Proc R 26
issues and facts disclosed to fullest practicable extent. United States v Procter & Gamble Co. (1958) 356 US 677, 2 L
Ed 2d 1077, 78 S Ct 983.
A trial is not a sporting event, and discovery is founded upon policy that the search for truth should be aided.
Tiedman v American Pigment Corp. (1958, CA4 Va) 253 F2d 803.
The various instruments of discovery under the federal rules serve as a device to narrow and clarify the basic issues
between the parties and also as a device for ascertaining the facts, or information as to existence or whereabouts of
facts, relative to those issues. Mitchell v Roma (1959, CA3 Pa) 265 F2d 633, 36 CCH LC P 65361, 2 FR Serv 2d 513;
Fidelis Fisheries, Ltd. v Thorden (1952, DC NY) 12 FRD 179.
One important purpose of discovery is to disclose all relevant and material evidence in order that the trial may be an
effective method for arriving at the truth and not "a battle of wits between counsel." Guilford Nat'l Bank v Southern R.
Co. (1962, CA4 NC) 297 F2d 921, 5 FR Serv 2d 575.
Function of a plaintiff's discovery is to secure evidence in support of his claims. Rutledge v Electric Hose & Rubber
Co. (1975, CA9 Cal) 511 F2d 668, 1975-1 CCH Trade Cases P 60151, 19 FR Serv 2d 1059.
Although employer technically violated Fed. R. Civ. P. 26(a)(3) in sex discrimination failure to promote action by
filing its pretrial disclosures 28 days rather than 30 days prior to trial, district court did not abuse its discretion in
permitting employer to offer its witnesses and exhibits at trial where employee had ample opportunity to prepare for
witnesses and exhibits; Fed. R. Civ. P. 37(c)(1) does not require witness preclusion for untimely disclosure if missing
deadline is harmless. Rowland v Am. Gen. Fin., Inc. (2003, CA4 Va) 340 F3d 187, 92 BNA FEP Cas 734, 61 Fed Rules
Evid Serv 1596.
Rules 26-37 were formulated with intention of granting widest latitude in ascertaining before trial facts concerning
real issues in dispute and permitting interrogatories to parties on any relevant matter. Nichols v Sanborn Co. (1938, DC
Mass) 24 F Supp 908; Dixon v Sunshine Bus Lines, Inc. (1939, DC La) 27 F Supp 797.
Purpose of rules relating to discovery by deposition before trial and interrogatories is to simplify the issues for trial.
Gaumond v Spector Motor Service, Inc. (1940, DC Mass) 1 FRD 364.
The rules concerning depositions and discovery were formulated with the intention of granting wide latitude in
ascertaining before trial material facts concerning the real issues in dispute, so that valuable time may be saved at the
actual trial. G. F. Heublein & Bro. v Bushmill Wine & Products Co. (1941, DC Pa) 2 FRD 190, 52 USPQ 583.
The purpose of rules as to discovery and depositions is to require parties to produce all material and relevant
evidence in their possession before the trial, providing that appropriate action is taken, under the rules, therefor. Roth v
Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302.
One of the purposes of the rules as to discovery is to adopt the best of the modern English and state practices for
discovery. Canuso v Niagara Falls (1945, DC NY) 4 FRD 362.
In the Federal courts interrogatories serve two distinct purposes: First, to ascertain facts and to procure evidence, or
secure information as to where pertinent evidence exists and can be obtained; second, to narrow the issues.
Aktiebolaget Vargos v Clark (1949, DC Dist Col) 8 FRD 635.
Discovery procedures are designed solely for purpose of obtaining information for use in action or suit in which they
are employed. Beard v New York C. R. Co. (1957, DC Ohio) 20 FRD 607.
One of purposes of discovery is to obtain information for use on cross-examination and for impeachment of
witnesses. United States v International Business Machines Corp. (1974, SD NY) 66 FRD 215, 1974-2 CCH Trade
Cases P 75381, 19 FR Serv 2d 550.
Purpose of discovery is to explore everything available and narrow fact issues in controversy so that trial process
may be efficient and economical. Tabatchnick v G. D. Searle & Co. (1975, DC NJ) 67 FRD 49, 1 Fed Rules Evid Serv
113, 20 FR Serv 2d 980.
Finding out who does have information so that such individual may be called to stand is what pre-trial discovery is
designed to accomplish, and another vital objective of pre-trial discovery is prevention of unnecessary delays during
course of trial. United States v International Business Machines Corp. (1975, SD NY) 68 FRD 315, 20 FR Serv 2d
1097.
Rules of discovery under Federal Rules of Civil Procedure are designed to provide party with access to fullest
possible knowledge of issues and facts prior to trial. Pierson v United States (1977, DC Del) 428 F Supp 384, 77-1
USTC P 9245, 39 AFTR 2d 77-1015.
Fundamental purpose of discovery rules is to enable parties to obtain from adversaries information useful in conduct
of litigation; ordinarily it is to be expected that interrogatories and requests for production of documents will be framed
in light of circumstances of particular law suit. Cheers v Chester Upland School District (1979, DC Pa) 28 Fed Rules
Serv 2d 535.
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USCS Fed Rules Civ Proc R 26
Attorney cannot evade his FRCP 26(g)(2) duty by claiming to sign objections only, or by not signing discovery
responses at all. Gonsalves v City of New Bedford (1996, DC Mass) 168 FRD 102, 36 FR Serv 3d 850.
Primary purpose of liberalized civil discovery rules is to prevent surprise to litigant's opponent. Bishop v City of
Macon (1999, MD Ga) 189 FRD 494.
Failure to follow procedural requirements of FRCP 26(b)(5) may result in waiver of privilege. Ritacca v Abbott
Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
When party objects to discovery on ground of privilege, but fails to follow procedural requirements of FRCP
26(b)(5), minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances
militate against finding waiver of privilege. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
5. --Relationship to pleadings
Deposition and discovery procedures are designed, not to conform to pleadings, but rather to supplement, clarify, and
elaborate them. Hanover Fire Ins. Co. v Argo (1957, CA5 Ga) 251 F2d 80.
When defendant moves to dismiss for lack of jurisdiction, either party should be allowed discovery on factual issues
raised by that motion. Budde v Ling-Temco-Vought, Inc. (1975, CA10 NM) 511 F2d 1033.
Motion for more definite statement or for a bill of particulars should be denied and defendant should proceed by
discovery if the complaint is not vague or ambiguous and the information is not needed to enable defendant to plead.
Brinley v Lewis (1939, DC Pa) 27 F Supp 313.
Evidence and proof may not be secured through a bill of particulars; such information should be obtained by
interrogatories or depositions. Massachusetts Bonding & Ins. Co. v Harrisburg Trust Co. (1939, DC Pa) 27 F Supp
987; Samuel Goldwyn, Inc. v United Artists Corp. (1940, DC NY) 35 F Supp 633.
One important object of the discovery rules was to require simplicity and brevity in the pleadings, but with most
ample provision for facilities of discovery of facts before trial, so that surprise at the trial and possible miscarriage of
justice thereby could be avoided. Coca Cola Co. v Dixi-Cola Laboratories, Inc. (1939, DC Md) 30 F Supp 275, 43
USPQ 484.
A party may not require his adversary to resort to pre-trial procedure or the taking of depositions to supply
deficiencies in the former's pleading. Sweeney v Buffalo Courier Express, Inc. (1940, DC NY) 35 F Supp 446.
Certain desired information which was not necessary to enable a party to prepare his responsive pleading could be
obtained by interrogatories or depositions. Forstmann v Wenner-Gren (1941, DC NY) 1 FRD 775; Martz v Abbott
(1941, DC Pa) 2 FRD 17; Rosenblum v Dingfelder (1941, DC NY) 2 FRD 309; Mitchell v Brown (1942, DC Neb) 2
FRD 325.
The rules relating to depositions and discovery should not supplant the requirement of sufficient pleadings. Fleming
v Dierks Lumber & Coal Co. (1941, DC Ark) 39 F Supp 237, 4 CCH LC P 60687; Mebco Realty Holding Co. v Warner
Bros. Pictures, Inc. (1942, DC NJ) 44 F Supp 591.
Fact that plaintiff has furnished a bill of particulars does not preclude defendant from examining him upon the
subject matter thereof. Hillside Amusement Co. v Warner Bros. Pictures, Inc. (1942, DC NY) 2 FRD 275.
In an action under the Fair Labor Standards Act [29 USCS § § 201 et seq.], a motion for a bill of particulars to
enable defendant to prepare for trial should not be granted if the complaint is sufficient without further detail, in view of
the fact that defendant may obtain the necessary information under the discovery rules; information as to employees
involved, their occupations and alleged inadequacy of records may be obtained by pre-trial procedure or discovery.
Walling v Alabama Pipe Co. (1942, DC Mo) 3 FRD 159; Walling v Bay State Dredging & Contracting Co. (1942, DC
Mass) 3 FRD 241, 7 CCH LC P 61696.
Information not necessary for defendant to put in his answer should be obtained by discovery. Cole v Allen (1942,
DC NY) 3 FRD 236, 58 USPQ 56.
Provisions for pre-trial procedure, depositions and discovery, and summary judgment proceedings are designed to
supplement pleadings and thereby afford more expeditious methods for narrowing litigation to the genuine issues which
are material to the case to the end that the just, speedy, and inexpensive determination of every action may be secured.
Perry v Creech Coal Co. (1944, DC Ky) 55 F Supp 998, 8 CCH LC P 62280.
Traditionally, interrogatories have been held to have two purposes: (1) to amplify the pleadings of the party
interrogated, and (2) to procure evidence in support of the claim or defense of the party interrogating. The P. R. R. No.
487 (1945, DC NY) 63 F Supp 116.
The former function of the complaint to state fully in detail the claims upon which plaintiff will rely has been
abrogated, and details such as those sought by a motion for more definite statement are to be obtained by the
deposition-discovery processes. Redfern v Collins (1953, DC Tex) 113 F Supp 892.
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USCS Fed Rules Civ Proc R 26
Pretrial examination of a party is intended to take the place of the old precise pleadings and bills of particulars.
Romero v International Terminal Operating Co. (1955, DC NY) 18 FRD 317.
Under the federal rules the only real office which pleadings continue to serve is that of giving notice, and the
deposition-discovery processes necessarily are invested with the essential function of formulating the issues and the
burden of advising adverse party of facts involved. McElroy v United Air Lines, Inc. (1957, DC Mo) 21 FRD 100.
When motion to dismiss is filed asserting lack of personal jurisdiction, discovery may be limited to matters relevant
to jurisdictional issues; if affidavits appear sufficient and it is clear that further discovery would not demonstrate facts
sufficient to constitute basis for jurisdiction, discovery on jurisdictional issues may be denied altogether, but if issue is
not so clear or readily determined from motion papers, it may be abuse of discretion to deny plaintiff opportunity for
discovery to establish his jurisdictional allegations. Fishel v BASF Group (1997, SD Iowa) 175 FRD 525.
6. ----Relationship of discovery rules to other rules
In action between citizen of United States and French corporation, where initial discovery was conducted pursuant to
Federal Rules of Civil Procedure but defendant corporations later sought to have discovery continue pursuant to
international treaty known as Hague Convention, Supreme Court held that Convention did not deprive District Court of
jurisdiction it otherwise possessed to order foreign national party before it to produce evidence physically located within
signatory nation, and Court refused to announce new rule of law that would require first resort to Convention
procedures whenever discovery is sought from foreign litigant. Societe Nationale Industrielle Aerospatiale v United
States Dist. Court for Southern Dist. (1987) 482 US 522, 96 L Ed 2d 461, 107 S Ct 2542, 7 FR Serv 3d 1105.
State was not entitled to order permitting it to depose more than two dozen scientists regarding their technical reports
and studies undertaken in response to earlier scientific hypothesis that called into question geological and hydrological
suitability of Yucca Mountain as site for nuclear waste disposal, for use in future agency and judicial proceedings in
which state anticipated challenging various decisions approving site, since it could not set forth substance of testimony
or show that it would be admissible in any later litigation; Rule 27 does not permit inquiry as broad as discovery
provisions of Rule 26. Nevada v O'Leary (1995, CA9 Nev) 63 F3d 932, 95 CDOS 6741, 95 Daily Journal DAR 11587,
33 FR Serv 3d 86, 25 ELR 21485.
Privacy Act (5 USCS 552 a (b)(ii)(1982)) does not create qualified discovery privilege nor does Act create any other
kind of privilege or bar which requires party to show actual need as prerequisite to invoking discovery under Rule 26;
rather, plain language of Privacy Act permits disclosure "pursuant to the order of a court of competent jurisdiction"
without specifying standard for issuance of such court order, and no basis exists for inferring that Act replaces usual
relevancy discovery standards of Federal Rules of Civil Procedure, Rule 26 and 45(b) with different and higher
standard. Laxalt v McClatchy (1987, App DC) 258 US App DC 44, 809 F2d 885, 6 FR Serv 3d 1229.
Except where the pleadings are so vague or ambiguous as to preclude a fair understanding of the nature of the claims
asserted or the relief sought, parties should resort to the methods provided by Rules 26-37 for securing detailed or
particular information in regard to claims asserted against them, rather than the more cumbersome procedure under Rule
12(e); otherwise, the end sought to be accomplished by these rules may be largely defeated. Slusher v Jones (1943, DC
Ky) 3 FRD 168.
Rule 12(e) was not intended to and should not be invoked as a means of exploring and discovering evidence, in view
of the procedure set up under Rules 26-37. Montgomery Ward & Co. v Schumacher (1944, DC Cal) 3 FRD 368.
Those particulars which can be effectively sought under Rules 26-37, and by so doing give greater effect to Rule 1,
should not be sought through Rule 12(e), unless they are necessary to prepare a responsive pleading. The court should
likewise consider whether the particulars requested can be effectively furnished at a pre-trial conference under Rule 16.
Canuso v Niagara Falls (1944, DC NY) 3 FRD 374.
Where complaint complied with the requirements of Rule 8, motion for bill of particulars would be denied although
it might well be that it would facilitate the preparation of the defense if the defendants were furnished some of the
information which their motion requests; however, the better practice is to obtain this information by timely use of
discovery procedure. Bowles v Brookside Distilling Products Corp. (1945, DC Pa) 4 FRD 294.
The discovery procedure [Rules 26-37] was not intended to negate the use of bills of particulars under Rule 12(e).
Bowles v Flotill Products, Inc. (1945, DC Cal) 4 FRD 499.
Motion for more definite statement under Rule 12(e) should not be granted to require evidentiary detail which is
normally the subject of discovery under Rules 26-36. Flood v Margis (1973, DC Wis) 60 FRD 474; Wishnick v One
Stop Food & Liquor Store, Inc. (1973, ND Ill) 60 FRD 496, 84 BNA LRRM 2137, 17 FR Serv 2d 1080.
Court has authority under Rule 23 distinct from that under rules of discovery. Klein v Henry S. Miller Residential
Services, Inc. (1978, DC Tex) 27 Fed Rules Serv 2d 398.
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USCS Fed Rules Civ Proc R 26
United States District Court local rule limiting discovery is not inconsistent with Rule 26; local rule encourages
discretion in use of discovery devices to prevent extravagant expense which would price lawsuit out of reach of all but
rich and it deters use of discovery to browbeat impecunious litigant into settlement by limiting time and expense of
responding to discovery demands. Lykins v Attorney Gen. of United States (1980, ED Va) 86 FRD 318, 29 FR Serv 2d
1172, 29 FR Serv 2d 1232.
Regardless of whether discovery sought from debtor corporation in reorganization is automatically stayed under 11
USCS § 362, bankruptcy judge is entitled, by means of independent stay order issued pursuant to 11 USCS § 105, to
determine that discovery proceedings against debtor will frustrate bankruptcy proceedings and should therefore be
stayed for reasonable period. In re Johns-Manville Corp. (1984, SD NY) 40 BR 219, 10 CBC2d 643, CCH Bankr L
Rptr P 69600, 39 FR Serv 2d 556.
Broad rules of civil discovery cannot be used to circumvent the more restrictive rules of criminal discovery.
LaRouche Campaign v FBI (1985, DC Mass) 106 FRD 500.
Rationale behind civil forfeiture statute providing for stay when indictment relating to that proceeding has been filed
and good cause shown does not apply in district which has adopted mandatory discovery rules. United States v All
Funds, Held in Fidelity Invs. Account Numbers (1995, DC Mass) 162 FRD 4, affd without op (1996, CA1 Mass) 81 F3d
147, reported in full (1996, CA1 Mass) 1996 US App LEXIS 5822 and cert den (1996, US) 136 L Ed 2d 199, 117 S Ct
276.
Where defendant has moved to dismiss for lack of personal jurisdiction, plaintiff need not establish prima facie case
of personal jurisdiction prior to conducting discovery related to jurisdictional issues. Orchid Biosciences, Inc. v St.
Louis Univ. (2001, SD Cal) 198 FRD 670.
Although FRCP 45(c)(3) clearly directs district court that issued subpoena to rule on motions to quash or modify it,
such does not alter broader concept that district court in which action is pending has right and responsibility to control
broad outline of discovery; thus, district court in which action is pending may entertain party's motion for FRCP 26(c)
protective order to limit or prohibit discovery despite fact that dispute involves subpoena issued in different district.
Static Control Components, Inc. v Darkprint Imaging, Inc. (2001, MD NC) 201 FRD 431.
Defendant has standing to move for protective order where issued subpoena is in violation of case management
orders issued under FRCP 16 and 26. Thomas v Marina Assocs. (2001, ED Pa) 202 FRD 433.
Disclosure requirements of FRCP 26(a)(1)(B) and (e) do not require party who has disclosed potential witness to
also reveal declaration signed by witness for use in impending summary judgment motion. Intel Corp. v VIA Tech., Inc.
(2001, ND Cal) 204 FRD 450.
7. Applicability of rule
The government as a litigant is subject to the rules of discovery. United States v Procter & Gamble Co. (1958) 356
US 677, 2 L Ed 2d 1077, 78 S Ct 983.
The discovery provisions of these rules may be invoked in an original proceeding in the court of appeals. Bethlehem
Shipbuilding Corp. v NLRB (1941, CA1) 120 F2d 126, 8 BNA LRRM 500, 4 CCH LC P 60519.
Rule 26 does not apply to grand jury subpoenas. In re Grand Jury Subpoena (1979, CA2 NY) 599 F2d 504, CCH
Fed Secur L Rep P 96917, 79-1 USTC P 9405, 43 AFTR 2d 79-1221.
Multilateral Convention on Taking of Evidence Abroad in Civil and Commercial Matters, done 18 March 1970
[1972], 23 U.S.T. 2555, T.I.A.S. No. 7444 (Hague Convention) does not supplant application of discovery provisions of
Federal Rules over foreign Hague Convention State Nationals subject to in personam jurisdiction in United States court,
but Hague Convention is to be employed with involuntary deposition of party conducted in foreign country, and with
production of documents or other evidence gathered from persons or entities in foreign country who are not subject to
court's in personam jurisdiction. In re Anschuetz & Co., GmbH (1985, CA5 La) 754 F2d 602, 1985 AMC 2705, 1 FR
Serv 3d 645, vacated without opinion, remanded (1987) 483 US 1002, 97 L Ed 2d 730, 107 S Ct 3223.
District courts should apply federal discovery rules when deciding discovery requests made against government
agencies, whether or not U.S. is party to underlying action; under balancing test authorized by rules, courts can ensure
that unique interests of government are adequately considered. Exxon Shipping Co. v United States Dep't of Interior
(1994, CA9 Alaska) 34 F3d 774, 94 Daily Journal DAR 12090, 39 Envt Rep Cas 1852, 1995 AMC 754, 29 FR Serv 3d
971, 24 ELR 21380.
Initial disclosure requirements of Rule 26 and accompanying local rules constitute "discovery" or "other
proceedings" for purposes of stay provision of Private Securities Litigation Reform Act (15 USCS § § 77a et seq.),
requiring that all discovery and other proceedings must be stayed pending disposition of motion to dismiss securities
action covered by Act. Medhekar v United States Dist. Court (1996, CA9 Cal) 99 F3d 325, 96 CDOS 7966, 96 Daily
Journal DAR 13219, CCH Fed Secur L Rep P 99337, 36 FR Serv 3d 321.
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USCS Fed Rules Civ Proc R 26
Three-day grace period for mailing is inapplicable for extending 30 days allowed for notices for appeal; it is further
well established that notice of appeal is effective on date it is actually filed, and is filed as of date it is actually received
by court, not as of date it is mailed. Ludgood v Apex Marine Corp. Ship Mgmt. (2002, CA5 Tex) 311 F3d 364, 90 BNA
FEP Cas 243.
Disclosing true name of party would undoubtedly be required by both FRCP 26(a)(1)(A) and (e)(1). Dotson v Bravo
(2003, CA7 Ill) 321 F3d 663.
The fact that a bill of particulars has been served does not bar an examination before trial. Orange County Theatres,
Inc. v Levy (1938, DC NY) 26 F Supp 416.
Although under Rule 81(a)(1) the rules are not applicable to proceedings in copyright until made so by the Supreme
Court, if a claim for copyright infringement is joined with a claim for accounting under a contract, the rules, including
those relating to discovery, are applicable to the latter claim. Bergmann v Joe Morris Music Co. (1939, DC NY) 27 F
Supp 985, 41 USPQ 730.
Government has right to take depositions of defendants in actions to revoke citizenship for concealment of material
facts and wilful misrepresentation; statute governing cancellation of naturalization is not self-contained exclusive
procedure and consequently Federal Rules of Civil Procedure are applicable; suit to revoke citizenship is civil action in
equity and government as litigant has same rights as any other civil litigant except where the law expressly provides
otherwise. United States v Jerome (1954, DC NY) 16 FRD 137.
The discovery provisions of Rule 26 are applicable to National Labor Relations Act proceedings under 29 USCS §
160 (l). Samoff on behalf of NLRB v Williamsport Bldg. & Constr. Trades Council (1970, MD Pa) 313 F Supp 1105,
74 BNA LRRM 2346, 63 CCH LC P 11005, 14 FR Serv 2d 238, affd (1971, CA3 Pa) 451 F2d 272, 78 BNA LRRM 2572,
66 CCH LC P 12130.
Rule 26 applies to Federal Government just as to any other civil litigant. Kinoy v Mitchell (1975, SD NY) 67 FRD 1,
20 FR Serv 2d 1413.
Civil discovery devices mandated under Federal Rules of Civil Procedure do not apply to action in nature of writ of
error coram nobis brought by criminal defendant to overturn jury verdict and subsequent judgment of conviction.
United States v Balistrieri (1976, SD Ill) 423 F Supp 793, 23 FR Serv 2d 235, affd (1979, CA7 Ill) 606 F2d 216, 80-1
USTC P 9228, 28 FR Serv 2d 1223, 45 AFTR 2d 80-670, 53 ALR Fed 752, cert den (1980) 446 US 917, 64 L Ed 2d 271,
100 S Ct 1850.
Hague Convention did not in anyway supersede discovery provisions of Federal Rules of Civil Procedure. Lasky v
Continental Products Corp. (1983, ED Pa) 569 F Supp 1227, 38 FR Serv 2d 1524.
Absent direct conflict, duty of Federal District Court is to enforce both Hague Convention and Federal Rules of Civil
Procedure pertaining to discovery; Hague Convention does not constitute exclusive means by which antitrust plaintiff
may secure discovery from airline owned by German government, where, inter alia, airline's United States operating
permit specifies that it waives any right to assert defense of sovereign immunity from suit in any action against it arising
out of its operations. Laker Airways, Ltd. v Pan American World Airways (1984, DC Dist Col) 103 FRD 42, 39 FR
Serv 2d 1043.
Consistent with summary nature of proceedings to enforce administrative subpoena, discovery is usually not
permitted, but decision whether to allow such discovery is within trial judge's discretion. EEOC v Roadway Express,
Inc. (1984, WD Tenn) 580 F Supp 1063, 35 BNA FEP Cas 842, 33 CCH EPD P 34178, affd (1984, CA6 Tenn) 750 F2d
40, 36 BNA FEP Cas 867, 35 CCH EPD P 34856.
Defendant who defaulted in auto accident case by failing to file timely answer is entitled to discovery regarding
unliquidated damages. Clague v Bednarski (1985, ED NY) 105 FRD 552, 2 FR Serv 3d 332.
Federal court which has in personam jurisdiction over foreign corporation or foreign national individual can
disregard Hague Convention and require discovery under normal procedures of Federal Rules of Civil Procedure where
discovery is not to occur within borders of foreign nation which is party to Convention. Work v Bier (1985, DC Dist
Col) 106 FRD 45, 226 USPQ 657, 2 FR Serv 3d 679.
Defendant's motion to dismiss case pursuant to FRCP 41(b) for plaintiffs' failure to comply with FRCP 1 and 26(b)
is denied, even though one plaintiff found, read, and copied "work product" papers which had apparently fallen out of
defendant's counsel's briefcase during lunch break, because more appropriate analytical framework lies in inherent
power of court to punish perpetration of fraud. Perna v Electronic Data Sys., Corp. (1995, DC NJ) 916 F Supp 388, 34
FR Serv 3d 1099.
Ordinary discovery provisions of Federal Rules of Civil Procedure, rather than more complicated procedures of
Hague Convention, generally apply to discovery of information in custody or control of party's foreign affiliate. Alcan
Int'l v S.A. Day Mfg. Co. (1996, WD NY) 176 FRD 75.
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USCS Fed Rules Civ Proc R 26
Party who seeks application of discovery procedures of Hague Convention on Taking of Evidence Abroad in Civil or
Commercial Matters rather than Federal Rules of Civil Procedure bears burden of persuading trial court. Valois of Am.,
Inc. v Risdon Corp. (1997, DC Conn) 183 FRD 344.
Federal procedural law governs discovery disputes in diversity actions. Broussard v Lemons (1999, WD La) 186
FRD 396.
Standards set forth in Federal Rules of Civil Procedure must be followed in context of party seeking Privacy Act (5
USCS § 552a) protective order; thus, party seeking protective order must make adequate showing of good cause for
entry of order. Lohrenz v Donnelly (1999, DC Dist Col) 187 FRD 1.
Federal Rules of Civil Procedure cannot be trumped by regulations of federal departments that place arbitrary limits
on court's discovery powers. United States ex rel. Roby v Boeing Co. (1999, SD Ohio) 189 FRD 512.
Since government, as litigant, is bound by rules of discovery to same extent as any other litigant, fundamental
fairness dictates that "Touhy" regulations (those regulations which regulate use and disclosure of federal agencies'
records and information) should not apply where government is party to litigation. United States ex rel. Roby v Boeing
Co. (1999, SD Ohio) 189 FRD 512.
Party seeking application of Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
procedures to discovery, rather than Federal Rules of Civil Procedure, bears burden of persuasion. Bodner v Banque
Paribas (2000, ED NY) 202 FRD 370.
Based on facts of each particular case, courts must determine whether it is more appropriate to take discovery abroad
under Federal Rules of Civil Procedure or under Hague Convention on Taking of Evidence Abroad in Civil or
Commercial Matters. Madanes v Madanes (2001, SD NY) 199 FRD 135.
FRCP 34, when read in conjunction with FRCP 26(b), must be broadly construed to require production of relevant
physical evidence, including handwriting exemplars. Harris v Athol-Royalston Regional School Dist. (2001, DC Mass)
200 FRD 18.
Although FRCP 45(c)(3) clearly directs district court that issued subpoena to rule on motions to quash or modify it,
such does not alter broader concept that district court in which action is pending has right and responsibility to control
broad outline of discovery; thus, district court in which action is pending may entertain party's motion for FRCP 26(c)
protective order to limit or prohibit discovery despite fact that dispute involves subpoena issued in different district.
Static Control Components, Inc. v Darkprint Imaging, Inc. (2001, MD NC) 201 FRD 431.
Disclosure requirements of FRCP 26(a)(1)(B) and (e) do not require party who has disclosed potential witness to
also reveal declaration signed by witness for use in impending summary judgment motion. Intel Corp. v VIA Tech., Inc.
(2001, ND Cal) 204 FRD 450.
Electronic documents are no less subject to disclosure than paper records. Rowe Entm't, Inc. v William Morris
Agency, Inc. (2002, SD NY) 205 FRD 421, 2002-1 CCH Trade Cases P 73567, 51 FR Serv 3d 1106 (criticized in
Murphy Oil USA, Inc. v Fluor Daniel, Inc. (2002, ED La) 2002 US Dist LEXIS 3196).
Plaintiff computer systems company's submission, with its response to defendant competitor's summary judgment
motion, of expert witness affidavit that was inconsistent with its corresponding Fed. R. Civ. P. 26 reports such that
submission was, in essence, new and untimely expert report, was harmless and did not warrant excluding consideration
of experts' evidence under Fed. R. Civ. P. 37 sanction provisions. Commercial Data Servers, Inc. v IBM (2003, SD NY)
262 F Supp 2d 50, 2003-1 CCH Trade Cases P 74022.
8. Judicial intervention into discovery procedures
Rulings on the propriety or impropriety of incidents of deposition taking under Rule 26 in a pending suit are not final
decisions within the general right of appeal provided by 28 USCS § 1291 and cannot be made the subject of review
under that statute except after and in relation to the terminating order or judgment in the case. Cimijotti v Paulsen
(1963, CA8 Iowa) 323 F2d 716, 7 FR Serv 2d 619.
Although discovery rules provide for judicial intervention to settle disputes about scope of discovery and to enforce
legitimate request by one party for information or documents from other party, they do not give district judges authority
to compel litigant to engage in discovery in first place. Identiseal Corp. of Wisconsin v Positive Identification Systems,
Inc. (1977, CA7 Wis) 560 F2d 298, 23 FR Serv 2d 1466.
Taking of deposition by attorney for defendants in bankruptcy proceeding is not violation of specific and
unequivocal order of bankruptcy court and does not amount to contempt where order of court vacating notice of
deposition on grounds that time given parties by notice was insufficient to satisfy reasonable notice requirements of
Federal Rules of Civil Procedure was not addressed specifically to attorney and contained no explicit direction that
deposition was not to take place. In re Baum (1979, CA5 La) 606 F2d 592, 5 BCD 1062, 21 CBC 747, 28 FR Serv 2d
1228.
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USCS Fed Rules Civ Proc R 26
Where court finds that its interference in discovery process is unlikely to significantly expedite litigation, and may
actually slow it down, it will decline to interfere. Builders Ass'n v City of Chicago (1997, ND Ill) 170 FRD 435.
District court has wide discretion in its regulation of pretrial matters, including whether to reopen discovery. Harding
v Goodyear Tire & Rubber Co. (1997, DC Kan) 170 FRD 477.
Defendant has standing to move for protective order where issued subpoena is in violation of case management
orders issued under FRCP 16 and 26. Thomas v Marina Assocs. (2001, ED Pa) 202 FRD 433.
9. Form of response to discovery
Rule 26 does not preclude requiring computer personnel to reprogram computer to provide information requested by
discovery in forms readable by other computers rather than in printed readouts; party requesting information in such
form is responsible for reprogramming costs. National Union Elec. Corp. v Matsushita Elec. Indus. Co. (1980, ED Pa)
494 F Supp 1257, 31 FR Serv 2d 414.
Parties asserting objection to discovery on ground of privilege must present that objection in timely and proper
manner. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
Objection is response, but it is not answer; therefore, city's objections to its employees' requests for written discovery
were not in compliance with court's order requiring city to answer. Minch v City of Chi. (2003, ND Ill) 213 FRD 526.
Where plaintiff responded to discovery requests to state plaintiff's positions with regard to issues involved in case by
merely making general references to record in underlying administrative proceedings, plaintiff was required to either
respond to each request in detail or refer to specifically identified potions of record. Nat'l Semiconductor Corp. v
Ramtron Int'l Corp. (2003, DC Dist Col) 265 F Supp 2d 71.
Where plaintiff responded to discovery request to state level for ordinary skill in art for certain patent interferences
by providing expert reports, no additional response was required, because reports were deemed to be adopted by
plaintiff as plaintiff's position. Nat'l Semiconductor Corp. v Ramtron Int'l Corp. (2003, DC Dist Col) 265 F Supp 2d 71.
II. REQUIRED DISCLOSURES [RULE 26(a)(1)-(4)]
A. Initial Disclosures
10. Stay of requirement
Defendants in securities fraud class action are not entitled to stay of automatic disclosure required by Rule 26(a)(1),
where defendants claimed complaint should be dismissed under Rule 9(b) for lack of requisite specificity, because
factual contentions are sufficient to support inference of misrepresentation and complaint is not so clearly deficient as to
justify stay of automatic disclosure and, in due course, discovery. In re Lotus Dev. Corp. Sec. Litig. (1995, DC Mass)
875 F Supp 48, CCH Fed Secur L Rep P 98713, 31 FR Serv 3d 688.
Two delay buttons are built into FRCP 26(a)(1) initial disclosure requirements; these are stipulation by parties if they
agree, and order by district court if they do not. Flores v Southern Peru Copper Corp. (2001, SD NY) 203 FRD 92.
Where defendant appeared to have substantial arguments for dismissal of many, if not all, of the claims asserted
against it in breach of contract action, stay of discovery pending the resolution of dismissal motion would not prejudice
the plaintiff. Spencer Trask Software & Info. Servs. v Rpost Int'l (2002, SD NY) 206 FRD 367.
In civil insider trading action brought by Securities Exchange Commission, U.S., as intervenor, was not entitled
under FRCP 26(a)(1)(A) to blanket stay of all disclosure pending trial of parallel criminal case, but stay would be
granted until earlier of guilty plea, completion of trial, or specified date of discovery of identity of persons likely to have
discoverable information, transcripts of SEC testimony, and notes of interviews of any person whom U.S. Attorney's
office certified might be called as witness in criminal case, as well as depositions of such persons. SEC v Doody (2002,
SD NY) 186 F Supp 2d 379.
11. Insurance agreements
Rule 26(b)(2) [Now Rule 26(a)(1)(D)] does not limit discovery on insurance information beyond insurance
agreement itself, and discovery of insurance documents that are relevant to subject matter of case or reasonably
calculated to lead to admissible evidence are still discoverable. Simon v G.D. Searle & Co. (1987, CA8 Minn) 816 F2d
397, 22 Fed Rules Evid Serv 1754, 7 FR Serv 3d 410, cert den (1987) 484 US 917, 98 L Ed 2d 225, 108 S Ct 268.
In action seeking damages for personal injuries, defendant was required to answer interrogatories concerning liability
insurance. Schwentner v White (1961, DC Mont) 199 F Supp 710, 5 FR Serv 2d 538; Novak v Good Will Grange, etc.
(1961, DC Conn) 28 FRD 394, 4 FR Serv 2d 523; Vetter v Lovett (1968, WD Tex) 44 FRD 465, 12 FR Serv 2d 695, 12
FR Serv 2d 854.
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USCS Fed Rules Civ Proc R 26
Both name of insurance carrier and amount of policy limits are proper subjects of pretrial inquiry. Slomberg v
Pennabaker (1967, MD Pa) 42 FRD 8, 10 FR Serv 2d 794.
In diversity action for legal malpractice brought by a former client against her lawyer claiming negligence and
breach of contract, plaintiff was entitled to discovery as to name of defendant's professional liability insurance carrier,
the policy limits, and whether there was coverage for punitive damages. Goldenberg v Wolfe (1967, DC Conn) 44
FRD 17, 11 FR Serv 2d 762.
Discovery by plaintiff of defendant's liability insurance coverage is to be allowed. Vollmer v Szabo (1968, ND
Ohio) 46 FRD 472, 17 Ohio Misc 143, 46 Ohio Ops 2d 216, 12 FR Serv 2d 708; Tighe v Shandel (1968, WD Pa) 46
FRD 622, 13 FR Serv 2d 759.
Interrogatories as to existence of insurance, identity of insurer and insured, and amount of coverage are discoverable
under federal rules. Ballard v Allegheny Airlines, Inc. (1972, ED Pa) 54 FRD 67, 15 FR Serv 2d 1107.
Interlocutory appeal of District Court order to Circuit Court would be inappropriate under 28 USCS § 1292(b),
where court ruled insurance company must indemnify driver for full amount of any judgment rendered against her in
this case based on state court decree that there exists company policy covering driver and company's failure to produce
that policy, or any limitation thereon, in response to discovery requests, because "intellectually intriguing" issue here
will not control this case nor contribute to determination of wide spectrum of cases, nor enable court and parties to
avoid lengthy trial since driver's liability for accident must be determined in any event. Herold v Braun (1987, ED NY)
671 F Supp 936.
12. --Discovery between insurers
In a case involving dispute between two defendant-insurers as to coverage afforded to plaintiff company, arising out
of its liability to another, court allowed interrogatories by one of the insurers against its codefendant-insurer concerning
latter's coverage of the plaintiff and charges made against plaintiff's policy for settlement of claims other than the one
involved in instant suit, since interrogatories were reasonably calculated to lead to discoverable admissible evidence.
Union Carbide Corp. v Travelers Indem. Co. (1973, DC Pa) 61 FRD 411.
13. Other particular matters
Although third party defendants argued that invoices submitted with affidavit, which described in detail various
expenses plaintiff purportedly incurred in connection with defendant's and third party defendants' failure to timely
deliver cargo, were inadmissible under FRCP 37(c)(1) on account of failure to disclose documents pursuant to FRCP
26(a), district court did not abuse its discretion in admitting documentary evidence supporting affidavit because any
prejudice to adverse parties was negligible or was cured. Tex. A&M Research Found. v Magna Transp., Inc. (2003, CA5
Tex) 338 F3d 394.
District court did not abuse its discretion in prohibiting debtor from introducing evidence of attorneys' fees she had
incurred since she failed to produce documentary evidence in support of her claim during discovery. Chedick v Nash
(1998, App DC) 151 F3d 1077.
Declaration of lender's investment manager need not be stricken for violating FRCP 26(a)(1) and (e), where
declaration relies on formula which lender has maintained from outset of suit to be proper interpretation of master lease
provision at issue, and formula utilizes data produced to borrowers months ago, because borrowers cannot show unfair
surprise or prejudice resulting from declaration. RIV VIL, Inc. v Tucker (1997, ND Ill) 979 F Supp 645.
Requirements of FRCP 26(a)(1)(A) are mandatory and can only be satisfied by production of each individual's
address and phone number, not attorney's address and phone number. Viveros v Nationwide Janitorial Ass'n (2000, ND
Ga) 200 FRD 681, 143 CCH LC P 34285.
Order compelling plaintiff to disclose "each and every participating underwriter" in syndicate and "each and every
person" who had some role in handling and adjusting coverage is vacated upon reconsideration, where he now states
that participating members of syndicate have no first-hand knowledge of handling of and decisions made regarding
claim, nor do they have any knowledge of allegations in pleadings, including claim of bad faith, because it is now clear
that members fall outside scope of disclosures required by version of FRCP 26(a)(1) in effect in August 2000. Youell v
Grimes (2001, DC Kan) 168 F Supp 2d 1233.
Purpose of disclosure requirement of FRCP 26(a)(1)(A) is to give opposing party information as to identification and
location of persons with knowledge so that they can be contacted in connection with litigation, either for purposes of
serving proposed amended complaint, or for being interviewed, or for being deposed, or for doing background
investigation. Biltrite Corp. v World Rd. Markings, Inc. (2001, DC Mass) 202 FRD 359.
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USCS Fed Rules Civ Proc R 26
Disclosure requirements of FRCP 26(a)(1)(B) and (e) do not require party who has disclosed potential witness to
also reveal declaration signed by witness for use in impending summary judgment motion. Intel Corp. v VIA Tech., Inc.
(2001, ND Cal) 204 FRD 450.
Disclosure requirement of FRCP 26(a)(1)(B) respecting computerized data and other electronically recorded
information only goes to data already in electronic form at time mandatory disclosure is to be made; party is not
required to disclose to adversary, absent express request by party or order of court, any intention to prepare for trial by
scanning documents into electronic form. In re Bristol-Myers Squibb (2002, DC NJ) 205 FRD 437.
Defendants could only recover cheaper blow back, 8 cents per page, rate for paper copies produced under parties'
cost agreement providing for 10 cents per page where defendants did not disclose fact that some of documents were in
electronic form as required under Fed. R. Civ. P. 26(a)(1)(B), but defendants were not required to disclose
transformation of electronic data for trial preparation purposes. In re Bristol-Myers Squibb Sec. Litig. (2002, DC NJ)
205 FRD 437.
Pursuant to Fed. R. Civ. P. 26(a)(1)(C), contractors' motion to compel city and county to further supplement their
disclosures regarding damages which allegedly arose from fraud and breach of six construction contracts related to
airport, was granted; lump sum statement of alleged damages did not take into account information currently available
to city and county, aggregation of compensatory damages for all claims, all contracts, and all contractors did not allow
each contractor to know extent of its liability since second amended complaint alleged breaches and fraud with respect
to six different contracts, each of which involved some contractors but not others, and specific dollar amount requested
for compensatory and other damages indicated that city and county had already engaged in detailed calculation of
damages. City & County of San Francisco v Tutor-Saliba Corp. (2003, ND Cal) 218 FRD 219.
In trademark infringement action, testimony of two of alleged infringer's proposed witness was stricken under Fed.
R. Civ. P. 12(f) because alleged infringer failed to disclose witnesses pursuant to Fed. R. Civ. P. 26(a) and (e) and
alleged infringer failed to explain its undue delay in identifying two witnesses. Emmpresa Cubana Del Tabaco v Culbro
Corp. (2003, SD NY) 213 FRD 151.
B. Disclosure of Expert Testimony
14. Generally
District court did not abuse its discretion in denying plaintiffs' motion to file supplemental Fed. R. Civ. P. 26
disclosure of expert witness where failure to disclose witness in timely manner was not result of honest mistake and
defendants did not have sufficient knowledge of expert or his opinions. Sommer v Davis (2003, CA6 Tenn) 317 F3d
686, 2003 FED App 34P.
Jury verdict in favor of terminated municipal employees was reversed where trial court erred in disallowing
testimony of fact witness as discovery sanction for failing to present expert witness report and in admitting hearsay
testimony of putative agent without sufficient foundation. Gomez v Rivera Rodriguez (2003, CA1 Puerto Rico) 344 F3d
103, 62 Fed Rules Evid Serv 879, 56 FR Serv 3d 767.
Failure to timely file "addendum" to expert witness's report alone was sufficient basis for district court to reject its
admission. Williamson Oil Co. v Philip Morris USA (2003, CA11 Ga) 346 F3d 1287, 2003-2 CCH Trade Cases P
74158, 62 Fed Rules Evid Serv 1241, 16 FLW Fed C 1147.
Amendments in 1993 to FRCP 26(a)(2) may be applied retroactively to pending cases as long as their application is
just. Acosta v Hospital Bella Vista (1995, DC Puerto Rico) 164 FRD 140.
Compliance with FRCP 26(a)(2) regarding identification of expert and submission of expert's report is condition
precedent to use of expert testimony at trial. ABB Air Preheater v Regenerative Envtl. Equip. Co. (1996, DC NJ) 167
FRD 668, 39 USPQ2d 1202.
When FRCP 34(c) is read with FRCP 26(a)(2), it is clear that all documents provided to party's expert witness must
be produced on request. Furniture World v D.A.V. Thrift Stores (1996, DC NM) 168 FRD 61, 40 USPQ2d 1315, 36 FR
Serv 3d 1020.
For purposes of FRCP 26(a)(2), word "considered," which simply means to take into account, invokes broader
spectrum of thought than phrase "relied upon," which requires dependence on information; thus, experts' lack of
reliance on documents in forming their opinions does not entitle plaintiffs to refuse disclosure. Karn v Ingersoll Rand
(1996, ND Ind) 168 FRD 633, 36 FR Serv 3d 919.
FRCP 26(a)(2)(B) makes no exception for opinions about other experts' analyses. In re Complaint of Kreta Shipping,
S.A. (1998, SD NY) 181 FRD 273.
Testimony of defendant employer's investigator may be admitted but only to explain that he relied on state police
handwriting expert's report in recommending plaintiff deputy's termination, where report itself and expert's testimony
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were previously barred due to failure to comply with disclosure requirements of FRCP 26(a)(2), because employer must
not be allowed to "back door" expert evidence through investigator. Noble v Sheahan (2000, ND Ill) 116 F Supp 2d 966.
Any type of privileged material, including materials or documents prepared by nontestifying expert, lose their
privileged status when disclosed to, and considered by, testifying expert. Johnson v Gmeinder (2000, DC Kan) 191
FRD 638.
Purpose of FRCP 26(a)(2), which requires parties to disclose identity of persons who may be used as expert
witnesses, and FRCP 37(c)(1), which provides sanction of exclusion for failure to make disclosure or to supplement
responses as required by FRCP 26(a), is to encourage timely disclosure of expert witnesses and to curb dilatory
litigation tactics. Continental Lab. Prods., Inc. v Medax Int'l, Inc. (2000, SD Cal) 195 FRD 675.
If party fails to disclose expert witness report required by FRCP 26(a)(2)(B), proper method to obtain production of
such report is by motion under FRCP 37(a)(2), rather than by motion under FRCP 34. Smith v Transducer Tech., Inc.
(2000, DC VI) 197 FRD 260.
FRCP 26(a) requires disclosures from every witness who testifies under FRE 702 regardless of whether expert is
employee of defendant corporation. Kw Plastics v United States Can Co. (2000, MD Ala) 199 FRD 687.
Defendant's expert is barred from testifying in ERISA (29 USCS § § 1001 et seq.) employment case, even though
defendant asserts expert was going to rebut opinions offered by plaintiff's expert and could not supply written report
since plaintiff's expert never made it to deposition, where plaintiff's expert has been barred from testifying, because
defendant's excuse is no longer valid, and its failure to provide signed, written report by expert, as required by FRCP
26(a)(2)(B), is dispositive. Anglin v Sears, Roebuck & Co. (2001, ND Ill) 179 F Supp 2d 836.
Since magistrate judge had not issued any directions as to deadlines applicable to filings of specific expert discovery
reports, parties were bound by Fed. R. Civ. P. 26(a)(2)(C), and rental company's filing of its expert's reply report
approximately one month after Rule 26(a)(2)(C) deadline made report untimely. Equant Integrations Servs. V United
Rentals (N. Am.), Inc. (2002, DC Conn) 2002 US Dist LEXIS 26657, motion to strike gr, in part (2003, DC Conn) 217
FRD 113.
Even though software company was prejudiced by untimely filing of rental company's expert's reply report, court did
not preclude report; since discovery deadline had been extended again, court ordered that software company would be
permitted to re-depose its expert and rental company's expert at rental company's expense. Equant Integrations Servs. V
United Rentals (N. Am.), Inc. (2002, DC Conn) 2002 US Dist LEXIS 26657, motion to strike gr, in part (2003, DC
Conn) 217 FRD 113.
In absence of direction by court regarding expert witness discovery, parties are bound by deadline in Fed. R. Civ. P.
26(a)(2)(C). Equant Integrations Servs. V United Rentals (N. Am.), Inc. (2002, DC Conn) 2002 US Dist LEXIS 26657,
motion to strike gr, in part (2003, DC Conn) 217 FRD 113.
When there is discovery plan covering expert disclosures, plan controls and not explicit provisions of FRCivP
26(a)(2)(C). Akeva L.L.C. v Mizuno Corp. (2002, MD NC) 212 FRD 306.
Motion to strike expert's testimony was not to be granted for pilot's failure to comply with terms of Fed. R. Civ. P. 26
(a)(2)(B) where organization did not aver that any prejudice resulted from pilot's failure to make required disclosures.
Lohrenz v Donnelly (2002, DC Dist Col) 223 F Supp 2d 25.
Although it was unlikely that defendant drug manufacturer was prejudiced, plaintiff consumer's failure to comply
with requirements of Fed. R. Civ. P. 26 to give notice of intent to use particular expert witness was sufficient grounds to
exclude expert's opinion testimony. Jack v Glaxo Wellcome, Inc. (2002, ND Ga) 239 F Supp 2d 1308.
In battery action brought by seaman whose eye was allegedly injured by laser on merchant vessel, witness's rebuttal
testimony relating to his laser experiment was properly excluded pursuant to FRCP 26(a)(2), because experiment did
not address any particular opinion in merchant vessel owner's expert's report and witness did not finish his experiment
before deadline set by FRCP 26. Daly v Far E. Shipping Co. Plc (2003, WD Wash) 238 F Supp 2d 1231.
Where employer moved to strike child's expert disclosures due to child's failure to fulfill disclosure requirements
under Fed. R. Civ. P. 26(a)(2)(B), court found that child had failed to fulfill disclosure requirements under Rule
26(a)(2)(B) and Scheduling and Trial Order; court previously granted child extension of 45 days to fulfill disclosure
requirements; due to child's difficulties in obtaining required documents for his disclosures and in interest of justice,
court granted child another extension of time in order to meet requirements of Rule 26(a)(2)(B); but court warned that
should child once again fail to disclose necessary information to employer by extended deadline, court would very
likely strike child's experts. Riordan v Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints (2003,
WD Mo) 242 F Supp 2d 635.
Motion for summary judgment was not premature merely because plaintiff parents' experts had not had opportunity
to fully develop their opinions in deposition, since court was provided with full explanation of experts' position through
detailed report as required under Fed. R. Civ. P. 26(a)(2)(B); moreover, defendant medical provider was not required to
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USCS Fed Rules Civ Proc R 26
depose experts to show lack of competent expert testimony - burden of showing competency remained with parents and
did not shift to medical provider upon filing of motion for summary judgment. Bonesmo v Nemours Found. (2003, DC
Del) 253 F Supp 2d 801.
Plaintiff computer systems company's submission, with its response to defendant competitor's summary judgment
motion, of expert witness affidavit that was inconsistent with its corresponding Fed. R. Civ. P. 26 reports such that
submission was, in essence, new and untimely expert report, was harmless and did not warrant excluding consideration
of experts' evidence under Fed. R. Civ. P. 37 sanction provisions. Commercial Data Servers, Inc. v IBM (2003, SD NY)
262 F Supp 2d 50, 2003-1 CCH Trade Cases P 74022.
In 42 USCS § 1983 false arrest and excessive force case, police officers' motion in limine to bar from admission
into evidence arrestees' testimony regarding any medical conditions, causation, diagnosis, or prognoses resulting from
incident was granted in part and denied in part; any testimony concerning medical conditions that required medical
expertise was barred by Fed. R. Evid. 702 and Fed. R. Civ. P. 26(a)(2) because arrestees failed to disclose any expert
witnesses; however, any testimony by arrestees regarding subjective symptoms including, but not limited to, pain from
or existence of bruises, cuts, and abrasions resulting from beating was admissible because it did not require knowledge
of expert witness. Townsend v Benya (2003, ND Ill) 287 F Supp 2d 868.
In 42 USCS § 1983 false arrest and excessive force case, police officers' motion in limine to bar from admission
into evidence arrestees' testimony regarding any medical conditions, causation, diagnosis, or prognoses resulting from
incident was granted in part and denied in part; any testimony concerning medical conditions that required medical
expertise was barred by Fed. R. Evid. 702 and Fed. R. Civ. P. 26(a)(2) because arrestees failed to disclose any expert
witnesses; however, any testimony by arrestees regarding subjective symptoms including, but not limited to, pain from
or existence of bruises, cuts, and abrasions resulting from beating was admissible because it did not require knowledge
of expert witness. Townsend v Benya (2003, ND Ill) 287 F Supp 2d 868.
Pre-trial report requirement of Fed. R. Civ. P. 26(a)(2)(B) does not apply to fact witnesses who also qualify to give
expert opinions that are offered in limited context of their direct, personal knowledge, as actors or viewers of facts of
particular case. Connolly v NEC Am., Inc. (In re Tess Communs., Inc.) (2003, BC DC Colo) 291 BR 535.
To extent foundation for witnesses' expert testimony was both their scientific, technical, or other specialized
knowledge and their personal involvement in facts of case as such facts occurred, their Fed. R. Evid. 702 testimony was
allowed because pre-trial report requirement of Fed. R. Civ. P. 26(a)(2)(B) did not apply; to extent foundation of
witnesses' expert testimony was merely their specialized knowledge, independent of their involvement in facts of case,
then such testimony was precluded for failure to comply with disclosure requirements of Rule 26(a)(2)(B). Connolly v
NEC Am., Inc. (In re Tess Communs., Inc.) (2003, BC DC Colo) 291 BR 535.
15. Relation to work product protection rule
Work product protection (FRCP 26(b)(3)) does not apply to documents provided by counsel to testifying experts
related to subject matter of litigation (FRCP 26(a)(2)). Karn v Ingersoll Rand (1996, ND Ind) 168 FRD 633, 36 FR Serv
3d 919.
Required disclosure under FRCP 26(a)(2)(B) and (b)(4)(A) does not include core attorney work product considered
by expert. Nexxus Prods. Co. v CVS New York, Inc. (1999, DC Mass) 188 FRD 7.
FRCP 26(a)(2)(B), which requires disclosure of material "considered" by testifying expert, allows discovery of all
communications between counsel and retained testifying expert, even if those communications contain attorney's mental
impressions or trial strategy or are otherwise protected by work product privilege. TV-3, Inc. v Royal Ins. Co. of Am.
(2000, SD Miss) 193 FRD 490, affd (2000, SD Miss) 194 FRD 585.
Intentional disclosure of opinion work product to testifying expert witness effectively waives work product privilege.
Simon Prop. Group L.P. v mySimon, Inc. (2000, SD Ind) 194 FRD 644.
When opinion work product is shared with expert witness in preparation for testifying at trial, such work product has
nearly absolute immunity from discovery; to overcome this immunity, party seeking discovery bears heavy burden of
establishing rare and extraordinary circumstance entitling him to obtain work product materials. Estate of Moore v R. J.
Reynolds Tobacco Co. (2000, SD Iowa) 194 FRD 659.
Even when opinion work product is shared with expert witness in preparation for testifying at trial, such opinion
work product has nearly absolute immunity from discovery. Estate of Chopper v R. J. Reynolds Tobacco Co. (2000, ND
Iowa) 195 FRD 648.
Disclosure requirement set forth in FRCP 26(a)(2) does not overcome protection against discovery of attorney's
mental impressions, conclusions, opinions or legal theories afforded by FRCP 26(b)(3) when such core work product
has been disclosed to expert witness. Krisa v Equitable Life Assur. Soc'y (2000, MD Pa) 196 FRD 254.
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USCS Fed Rules Civ Proc R 26
Where documents considered by defendant's experts contain both facts and legal theories of attorney, plaintiff is
entitled only to discovery of facts; where such combinations exist, it will be necessary to redact document so that full
disclosure is made of facts presented to expert and considered in formulating his opinion, while protection is accorded
legal theories and attorney-expert dialectic. Smith v Transducer Tech., Inc. (2000, DC VI) 197 FRD 260.
FRCP 26(a)(2)(B) does not exempt core work product from disclosure requirement, and does not limit disclosure to
factual material as opposed to mental impressions or opinions of counsel. Weil v Long Island Sav. Bank FSB (2001, ED
NY) 206 FRD 38, settled (2002, ED NY) 188 F Supp 2d 258.
Rule 26(a)(2)(B) requires a party to disclose core work product, or other privileged or protected material, supplied by
party to its testifying expert. Herman v Marine Midland Bank (2002, WD NY) 207 FRD 26, 27 EBC 2767.
Secretary of Labor was required to produce unredacted version of memorandum that was prepared as result of
investigation relating to the establishment of an employee stock ownership plan because, although it was considered to
be the Department of Labor's work product, it had been supplied to its testifying expert; therefore, the memorandum
was to be used for all purposes of the litigation between the secretary and the trustee of the stock ownership plan.
Herman v Marine Midland Bank (2002, WD NY) 207 FRD 26, 27 EBC 2767.
Text of FRCP 26 mandates disclosure of work product given to testifying expert. Mfg. Admin. & Mgmt. Sys. v ICT
Group, Inc. (2002, ED NY) 212 FRD 110.
Relevant information provided to both plaintiff husband and wife's expert and attorney, and which was deleted from
expert's computer, was not protected by work-product doctrine; avoiding production under such circumstances would
easily thwart Fed. R. Civ. P. 26(a)(2)(B). Vitalo v Cabot Corp. (2002, ED Pa) 212 FRD 478, summary judgment gr,
judgment entered (2003, ED Pa) 2003 US Dist LEXIS 3181.
Court need not compel disclosure of materials expert considered in consultative capacity (i.e., before expert was
designated as testifying expert) that have no relation to expert's role as expert; when, however, subject matter of those
materials relates to facts and opinions expert expressed in report, court should order disclosure when there is at least
ambiguity as to whether materials informed expert's opinion and in most instances, if subject matter directly relates to
opinion in expert report, there will be at least ambiguity as to whether materials informed expert's opinion. Monsanto
Co. v Cropscience (2002, ED Mo) 214 FRD 545.
Regarding whether work-product doctrine of Fed. R. Civ. P. 26(b)(3) protects from disclosure pursuant to Fed. R.
Civ. P. 26(a)(2)(B) attorney information supplied to expert, R. 26(a)(2)(B)'s expert disclosure requirement is paramount;
history of R. 26 and cases interpreting it, and policy reasons underlying discovery in general, support bright-line rule of
disclosure. Baum v Village of Chittenango (2003, ND NY) 218 FRD 36.
Court granted defendant's Fed. R. Civ. P. 37 motion to compel plaintiff to produce, under Fed. R. Civ. P. 34, letters
prepared by her attorney for, and relied upon by, plaintiff's expert witness; court acknowledged tension between expert
witness disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B) and work-product doctrine codified in Fed. R. Civ. P.
26(b)(3), but history of R. 26 and cases interpreting it, and policy reasons underlying discovery in general supported
bright-line rule of disclosure, yet, even if court accepted rule that "core work-product" was not discoverable, attorney's
letters, which simply described facts, did not contain core attorney work-product. Baum v Village of Chittenango (2003,
ND NY) 218 FRD 36.
As to potential conflict between work-product doctrine and expert disclosure, provisions of amended Fed. R. Civ. P.
26(b) reject as ill-considered decisions which have sought to bring expert information within work-product doctrine.
Baum v Village of Chittenango (2003, ND NY) 218 FRD 36.
Fed. R. Civ. P. 26(a)(2)(A)(B) specifically requires disclosure of trial experts and their reports, including, inter alia,
complete statement of all opinions to be expressed and basis and reasons therefore, data or other information considered
by witness in forming opinions, and any exhibits to be used as summary of or support for opinions; report is to disclose
data and other information considered by expert and any exhibits or charts that summarize or support expert's opinions,
and, therefore, litigants may not argue that materials furnished to their experts to be used in forming their opinions,
whether or not ultimately relied upon by experts, are privileged or otherwise protected from disclosure when such
persons are testifying or being deposed. Baum v Village of Chittenango (2003, ND NY) 218 FRD 36.
Despite its specific expert report disclosure requirement, Fed. R. Civ. P. 26(b)(3) retains Hickman attorney
work-product limitation; furthermore, rule also authorizes attorney to withhold trial preparation materials subject to
claim of privilege or "subject to protection as trial preparation material," Fed. R. Civ. P. 26(b)(5), and trial preparation
material includes those encompassed by work-product protection. Baum v Village of Chittenango (2003, ND NY) 218
FRD 36.
Witness's testimony concerning seaman's surveillance mission was properly excluded from seaman's battery action
because witness was not identified in pretrial order as required by FRCP 16(e) and FRCP 26(a)(2) and therefore his
testimony had to be based on personal knowledge; his testimony was not based on personal knowledge under FRE 602
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USCS Fed Rules Civ Proc R 26
because witness obtained his knowledge of Russian intelligence operations from briefings and other second-hand
reports, not personal experience. Daly v Far E. Shipping Co. Plc (2003, WD Wash) 238 F Supp 2d 1231.
Bankruptcy court found that once materials were furnished to experts to be considered in formation of their opinions,
regardless of whether or not ultimately relied upon by expert, privilege or protection from disclosure was waived
because plain meaning of Fed. R. Civ. P. 26(a)(2)(B) trumped protections afforded by attorney-client privilege and
work product doctrine. Venn v McRae (In re McRae) (2003, BC ND Fla) 295 BR 676, 16 FLW Fed B 166.
16. Objection to adequacy of compliance
District court did not err in permitting witness to testify over plaintiff's objection that witness was unnamed during
discovery period and had her identity been timely disclosed, he might have deposed her instead of another witness in
conformity with court's allotment of five depositions, since rule does not require disclosure of prospective witness's
identity during discovery period, rather provides that disclosures be made at least 30 days before trial, which occurred in
this case. Hernandez-Torres v Intercontinental Trading (1998, CA1 Puerto Rico) 158 F3d 43, 78 BNA FEP Cas 90, 41
FR Serv 3d 1171.
Exclusion of expert witnesses as sanction for prisoner's failure to disclose their reports to defendants by date
scheduled for close of all discovery was abuse of discretion where plaintiff had disclosed names of both retained experts
and their initial reports well before deadline, thus preventing chance that unfair surprise would hamper defendants'
preparation of case, defendants had plenty of time to prepare their examinations of plaintiff's experts, both sides were at
fault for difficulties in scheduling depositions, which pushed discovery up to deadline so that delay in finishing experts'
reports was partially justified, and district court did not indicate that defendants had been harmed by discovery
violation. Sherrod v Lingle (2000, CA7 Ill) 223 F3d 605, 47 FR Serv 3d 156.
District court was justified in disregarding expert's affidavit in ruling on summary judgment motion since it was not
disclosed until more than three months after close of discovery and fewer than three weeks before final pretrial
conference; appellant totally failed to comply with Rule 26's disclosure provisions and disclosure after opponent had
moved for summary judgment deprived opposing party of opportunity to depose proposed expert, challenge his
credentials, solicit expert opinions of its own, or conduct expert-related discovery. Lohnes v Level 3 Communs., Inc.
(2001, CA1 Mass) 272 F3d 49.
District court did not err in allowing school board to supplement administrative record with affidavit and expert
testimony of expert since Board disclosed its desire and intent to use expert within deadline for expert witness
disclosure. Sch. Bd. v K.C. (2002, CA11 Fla) 285 F3d 977, 15 FLW Fed C 376.
District court did not abuse its discretion when it denied plaintiff's motion to hold defendant in contempt and for
sanctions based upon defendant's alleged failure to adequately disclose prior cases in which its expert had testified
because plaintiff allowed dispute to continue well beyond point of good faith efforts to resolve issue without court
intervention, and never moved for order requiring any more detailed response under Fed. R. Civ. P. 26. Griffith v GMC
(2002, CA11 Ga) 303 F3d 1276, CCH Prod Liab Rep P 16403, 15 FLW Fed C 962.
District court did not abuse its discretion in permitting witness to testify at trial despite failure to disclose witness
where employer knew of witness for 18 months, interviewed witness, and rebutted testimony at trial. David v
Caterpillar, Inc. (2003, CA7 Ill) 324 F3d 851, 91 BNA FEP Cas 528.
Plaintiff's expert's testimony will not be stricken, even though expert report was woefully inadequate under FRCP
26(a)(2)(B), because defendants offer no explanation for waiting until day before discovery cutoff to raise inadequacy
of report served on them month earlier. Harvey v District of Columbia (1996, DC Dist Col) 949 F Supp 874, 72 BNA
FEP Cas 1074.
In discrimination action, court denied university's motion to preclude plaintiff's expert's testimony for failure to
provide complete report by deadline where plaintiff served university with expert report, albeit missing expert's
compensation and list of cases in which expert had appeared required by Fed. R. Civ. P. 26(a)(2)(B), two weeks before
discover deadline such that university could not claim that it was unaware of substance of expert's testimony after report
was received. Croom v W. Conn. State Univ. (2002, DC Conn) 218 FRD 15.
In action by injured party against auto manufacturer and component manufacturer, alleging, inter alia, negligent
manufacture, breach of express and implied warranties of fitness, and strict product liability regarding automobile
accident in which spare tire retention system in injured party's auto failed, component manufacturer's motion to strike
testimony of auto manufacturer's mechanical engineering and accident reconstruction expert was granted where
testimony of auto manufacturer's expert was to be excluded from summary judgment record under Fed. R. Civ. P.
37(c)(1) because expert's opinion concerning existence of injurious imperfection exceeded his designation and was
neither timely nor properly disclosed under Fed. R. Civ. P. 26(a)(2)(B). Thorndike v DaimlerChrysler Corp. (2003, DC
Me) 2003 US Dist LEXIS 8626, motions ruled upon (2003, DC Me) 266 F Supp 2d 172.
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USCS Fed Rules Civ Proc R 26
Debtors' motion to exclude expert testimony from bank's mortgage broker was denied because although, under third
Daubert factor, broker's testimony bolstered by his report would be unfairly prejudicial to debtors, who had no
opportunity to take his deposition or retain their own expert, exclusion was too drastic remedy, and discovery was
reopened to cure prejudice. Crisomia v Parkway Mortg., Inc. (In re Crisomia) (2002, BC ED Pa) 286 BR 604, 40 BCD
163.
17. Particular matters which must be disclosed
District did not violate Rule 26 or 37 in permitting fire captain's testimony that fire was typical "fraud fire" and "set
for fraudulent purposes" although opinion was not disclosed in captain's report, since captain conducted his
investigation and prepared his report in his official capacity, his identity was disclosed and his official report was
provided; he was not retained as expert by defendant. Brandt Distrib. Co. v Fed. Ins. Co. (2001, CA8 Mo) 247 F3d 822.
Exclusion of expert testimony as sanction for plaintiffs' withholding information regarding cases in which their
expert witness had previously testified was not abuse of discretion in suit brought for violation of Emergency Medical
Treatment and Active Labor Act, since disclosure was mandatory and prejudiced defendants in that plaintiffs intended
to rely exclusively on expert to support their claim so that expert's credibility and persuasiveness, supported by his
qualifications and experience, would be directly at issue. Ortiz-Lopez v Sociedad Espanola de Auxilio Mutuo y
Benefiencia de P.R. (2001, CA1 Puerto Rico) 248 F3d 29.
Employee of automobile transport trailer manufacturer did not testify as expert so that his disclosure as expert was
required under Rule 26, even though he had testified in numerous other product liability cases as expert, since his
testimony was based on his personal knowledge and was factual in nature, not in form of expert opinion. Long v
Cottrell, Inc. (2001, CA8 Mo) 265 F3d 663, CCH Prod Liab Rep P 16171, reh, en banc, den, reh den (2001, CA8) 2001
US App LEXIS 24957.
Where printing press manufacturer was sued for deficiency, neglect or breach in design, manufacture, and
installation of printing press that more than 20 years after installation exploded and injured workers using press, the
nature of defect or breach of warranty and its causal relation to accident were complex and thus appropriately subject of
expert testimony; however, the plaintiffs' expert's testimony was excluded for failure to designate expert testimony
under Fed. R. Civ. P. 26(a)(2). Hochen v Bobst Group, Inc. (2002, CA1 Mass) 290 F3d 446, CCH Prod Liab Rep P
16339.
In firefighters' race discrimination case against city, district court was well within its discretion in excluding expert
damages testimony as discovery sanction for failing to timely disclose notes that expert took while re-interviewing each
firefighter. Mems v City of St. Paul, Dep't of Fire & Safety Servs. (2003, CA8 Minn) 327 F3d 771, 91 BNA FEP Cas
1176, 61 Fed Rules Evid Serv 240, reh den, reh, en banc, den (2003, CA8) 2003 US App LEXIS 14673.
District court did not abuse its discretion, by sanctioning plaintiff in antitrust action for its discovery violations,
because opportunity to submit briefs was "opportunity to be heard" within meaning of Fed. R. Civ. P. 37(c)(1), and
district court plainly stated that plaintiff was being sanctioned for failing to properly disclose its experts' opinions.
Paladin Assocs. v Montana Power Co. (2003, CA9 Wash) 328 F3d 1145, 2003 Daily Journal DAR 5104, 2003-1 CCH
Trade Cases P 74029.
Reason for requiring expert reports (FRCP 26(a)(2)(B)) is elimination of unfair surprise to opposing party and
conservation of resources; test of report is whether it was sufficiently complete, detailed and in compliance with rules so
that surprise is eliminated, unnecessary depositions are avoided, and costs are reduced. Reed v Binder (1996, DC NJ)
165 FRD 424, 34 FR Serv 3d 1511.
Neither purpose of FRCP 26(a)(2)(C), nor its explicit language, requires interpretation that reports of rebuttal experts
must be provided within thirty days of original disclosure, even though trial is more than ninety days away. Dixon v
Certainteed Corp. (1996, DC Kan) 168 FRD 51.
FRCP 26(a)(2)(B) does not require expert to produce any reports, conclusions or opinions from unrelated litigation,
since such would unnecessarily burden litigation with pretrial inquiry into facts and issues wholly irrelevant to case at
hand. Trunk v Midwest Rubber & Supply Co. (circa 1997, DC Colo) 175 FRD 664.
Required disclosure under FRCP 26(a)(2)(B) and (b)(4)(A) does not include core attorney work product considered
by expert. Nexxus Prods. Co. v CVS New York, Inc. (1999, DC Mass) 188 FRD 7.
List of cases in which witness has testified (FRCP 26(a)(2)(B)) should at minimum include name of court or
administrative agency where testimony occurred, names of parties, case number, and whether testimony was given at
deposition or trial. Coleman v Dydula (1999, WD NY) 190 FRD 316.
FRCP 26(a)(2)(B), which requires disclosure of material "considered" by testifying expert, allows discovery of all
communications between counsel and retained testifying expert, even if those communications contain attorney's mental
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impressions or trial strategy or are otherwise protected by work product privilege. TV-3, Inc. v Royal Ins. Co. of Am.
(2000, SD Miss) 193 FRD 490, affd (2000, SD Miss) 194 FRD 585.
Expert witness's certification and memorandum failed to satisfy requirements of FRCP 26(a)(2)(B), where
documents did not set forth basis and reasons for opinions, but relied on observations made by others, and documents
failed to list all publications authored by expert over past 10 years, did not indicate his compensation for his study
and/or testimony, did not list any other cases in which expert testified within past 4 years, were not supported by any
treatises or authoritative documents, contained no exhibits, and lacked expert's signature. Dunkin' Donuts, Inc. v Patel
(2001, DC NJ) 174 F Supp 2d 202.
Documents reviewed by expert witness are to be disclosed, and not just those upon which expert relied; thus, any
information reviewed by expert will be subject to disclosure, including drafts of reports sent from and to testifying
experts. Trigon Ins. Co. v United States (2001, ED Va) 204 FRD 277, 51 FR Serv 3d 378, 88 AFTR 2d 6883.
In order to grant request to examine expert witness's compensation records under Fed. R. Civ. P. 26(a)(2)(B), moving
party is required to present sufficient demonstration that, over period of time, expert's opinion has materially changed in
such way as to raise reasonable suspicion that compensation paid to such expert may have affected subsequent opinion.
Cary Oil Co. v MG Ref. & Mktg. (2003, SD NY) 257 F Supp 2d 751.
In suit against pipeline co-owner alleging property contamination from oil and other products, where plaintiffs
included expert's opinion in expert verification but failed to include in expert report particular opinion regarding floating
layer of waste petroleum products on surface of creek, plaintiffs failed to disclose expert's opinion as required by Fed.
R. Civ. P. 26(a), and court granted pipeline co-owner's motion to strike late-filed disclosures. Norfolk S. Corp. v
Chevron U.S.A., Inc. (2003, MD Fla) 279 F Supp 2d 1250, 57 Envt Rep Cas 1203.
18. --Application to treating physicians
If treating physicians acquired their opinions as to cause of plaintiff's injuries directly through their treatment of
plaintiff, they must be treated as treating physicians, who can be deposed under FRCP 26, but who cannot be forced to
file written report required by FRCP 26(a)(2)(B). Salas v United States (1995, WD NY) 165 FRD 31.
Treating physician who has formulated opinions going beyond what was necessary to provide appropriate care for
injured party steps into shoes of retained expert for purposes of FRCP 26(a)(2). Thomas v CONRAIL (1996, DC Mass)
169 FRD 1.
If plaintiff's treating physician acquired opinions that are subject of testimony directly through treatment of plaintiff,
treating physician cannot be forced to file written report required by FRCP 26(a)(2)(B); however, when physician's
opinion extends beyond facts disclosed during care and treatment of patient, and physician is specially retained to
develop opinion testimony, physician is subject to provisions of FRCP 26(a)(2)(B). Brown v Best Foods (1996, ND Ala)
169 FRD 385.
If plaintiff's treating physician acquired opinions that are subject of testimony directly through treatment of plaintiff,
treating physician cannot be forced to file written report required by FRCP 26(a)(2)(B); however, when physician's
opinion extends beyond facts disclosed during care and treatment of patient, and physician is specially retained to
develop opinion testimony, physician is subject to provisions of FRCP 26(a)(2)(B). Brown v Best Foods (1996, ND Ala)
169 FRD 385.
So long as treating physician acquired opinions that are subject of testimony directly through treatment of plaintiff,
treating physician cannot be forced to file written report required by FRCP 26(a)(2)(B). Riddick v Washington Hosp.
Ctr. (1998, DC Dist Col) 183 FRD 327.
Prognosis of patient and what tasks patient will be able to perform are legitimate opinions which come within
parameters of opinions required to be made by treating physicians, without subjecting them to requirements of FRCP
26(a)(2)(B). Kirkland v Union Pac. R.R. (1999, DC Nev) 189 FRD 604.
Treating physicians are not subject to reporting requirements when presented to provide opinion testimony on
prognosis, causation or standard of care, so long as opinions stem from treatment; however, if treating physician offers
expert testimony concerning matters which are not based on his observations during course of treating party designating
him, expert report which complies with requirements of FRCP 26(a)(2)(B) is required. Washington v Arapahoe County
Dep't of Soc. Servs. (2000, DC Colo) 197 FRD 439.
Patient's treating physician could not provide expert testimony in patient's medical malpractice suit, but was limited
to lay testimony, where physician was not named as expert witness in suit, as required by FRCP 26(a)(2), so physician
could provide testimony based solely on her personal knowledge, but would not be allowed to testify beyond scope of
her treatment of patient. Parker v Cent. Kan. Med. Ctr. (2001, DC Kan) 178 F Supp 2d 1205, reconsideration den,
summary judgment gr, dismd, in part (2001, DC Kan) 178 F Supp 2d 1205, summary judgment gr, dismd (2002, DC
Kan) 2002 US Dist LEXIS 2849.
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Fact that treating doctor proposes to give opinion regarding causation and permanency of his patient's injury does
not, by itself, make him retained expert for purposes of FRCP 26(a)(2)(B). Zurba v United States (2001, ND Ill) 202
FRD 590.
Police officer's motion in limine, seeking to exclude testimony of doctors who treated citizen for injuries caused by
officer, was denied as treating physicians were not subject to expert disclosure requirements of Federal Rules of Civil
Procedure. McCloughan v City of Springfield (2002, CD Ill) 208 FRD 236.
Jury verdict in favor of couple against abortion clinic and doctors was affirmed because testimony by couple's doctor
regarding tests abortion clinic could have performed to discover wife's ectopic pregnancy did not affect substantial
rights of parties even though doctor was only listed as fact witness and not as expert witness; furthermore, defendants
adopted doctor as expert witness in their cross-examination of him. Gaydar v Sociedad Instituto Gineco-Quirurgico y
Planificacion Familiar (2003, CA1 Puerto Rico) 345 F3d 15, 62 Fed Rules Evid Serv 722.
C. Pretrial Disclosures
19. Exclusion of impeachment materials
Rationale for excluding impeachment materials from discovery (FRCP 26(a)(3)) is that their disclosure would
substantially impair their impeachment value. Denty v CSX Transp. (1996, ED NC) 168 FRD 549.
FRCP 26(a)(3) does not describe scope of discovery or exclude impeachment evidence therefrom; rather, it describes
scope of automatic initial disclosure requirements. Gutshall v New Prime, Inc. (2000, WD Va) 196 FRD 43, 47 FR Serv
3d 752.
Surveillance evidence conducted by defendant in personal injury case is discoverable even though defendant only
intends to use evidence for impeachment purposes, since evidence, which bears directly on plaintiff's physical
condition, is relevant to subject matter of case. Gutshall v New Prime, Inc. (2000, WD Va) 196 FRD 43, 47 FR Serv 3d
752.
In negligence suit against testing laboratory that mistyped pregnant patient as RH positive, laboratory's operations
manager, who was not specifically identified as expert witness as required by FRCP 26(a)(2), was precluded from
offering opinion on industry or general standards of care, but could offer opinions as lay witness based on what he
observed firsthand based on his experience, such as standards of care used by laboratory. Harms v Lab. Corp. of Am.
(2001, ND Ill) 155 F Supp 2d 891.
Co-employee defendant was not required under FRCP 26(a)(1)(B) to produce blanket allegedly containing employee
plaintiff's and co-employee's DNA profiles in employee's sexual harassment action where DNA evidence was to be
solely used for impeachment purposes. McGrath v Nassau Health Care Corp. (2002, ED NY) 209 FRD 55.
Where plaintiff failed to produce documents as part of mandatory disclosure on ground that documents were solely
for impeachment purposes within meaning of Fed. R. Civ. P. 26(a)(1)(B), but documents also had value as substantive
proof of plaintiff's employment discrimination claim, plaintiff's failure to produce documents precluded their use at trial
for purposes other than impeachment. Lomascolo v Otto Oldsmobile-Cadillac, Inc. (2003, ND NY) 253 F Supp 2d 354,
91 BNA FEP Cas 780.
III. METHODS TO DISCOVER ADDITIONAL MATTER [RULE 26(a)(5)]
20. Generally
Interrogatories as to the contents of a communication should not be allowed since adequate means exist for the
production of the communication and opportunity to copy it. O'Rourke v RKO Radio Pictures, Inc. (1939, DC Mass)
27 F Supp 996, 41 USPQ 725.
One of the purposes of the examination of a party or witness by deposition pending action is to ascertain the
existence of specific documents which may be later secured by a motion to produce. Clark v Chase Nat'l Bank (1941,
DC NY) 2 FRD 94.
While a motion pursuant to Rule 34 may be made at any time, it does not follow that the order granting such a
motion should vary previously established schedules for depositions pending action. Trans World Airlines, Inc. v
Hughes (1961, SD NY) 29 FRD 523, 5 FR Serv 2d 494.
Suit brought solely for purpose of discovery must be dismissed where no appropriate circumstances justifying such
action under Rule 34(b) is alleged. Folsom v Western Electric Co. (1980, WD Okla) 85 FRD 651, 30 FR Serv 2d 228.
Inclusion of references to FRCP 45 within FRCP 26 and 34 is clear indication that procuring documents from
nonparties can constitute discovery. Rice v United States (1995, ND Okla) 164 FRD 556, subsequent app (1997, CA10
Okla) 1997 US App LEXIS 15385.
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USCS Fed Rules Civ Proc R 26
Various methods for discovery as provided for in FRCP 26(a)(5) are clearly intended to be cumulative, as opposed to
alternative or mutually exclusive. Pulsecard, Inc. v Discover Card Servs. (1996, DC Kan) 168 FRD 295.
FRCP 45 subpoenas, which are intended to secure pretrial production of documents and things, are encompassed
within definition of discovery, as enunciated in FRCP 26(a)(5), and therefore, are subject to same time constraints that
apply to all other methods of formal discovery. Marvin Lumber & Cedar Co. v PPG Indus. (1997, DC Minn) 177 FRD
443.
21. Choice of method
Interrogatories and requests for admissions are not interchangeable procedures designed for the same purpose since
request for admissions are designed to eliminate from the case issues which are not really in dispute between the parties
and to limit the case to vital and disputed issues while interrogatories are designed to elicit relevant information which,
although itself inadmissible, appears reasonably calculated to lead to the discovery of admissible evidence. California
v The Jules Fribourg (1955, DC Cal) 19 FRD 432.
The methods of discovery are complementary, rather than alternative or exclusive; party may take both depositions
and interrogatories, as long as he is not attempting to circumvent a ruling of the court or to harass or oppress the adverse
party. Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv 2d 517.
Defendant could not be required to answer questions on oral deposition furnishing information to plaintiff as to
factual basis for conclusionary allegations in answer and counterclaim where such answers would require defendant to
know the legal consequences of facts, but since plaintiff was entitled to such information, answers could be more
expeditiously and more intelligently obtained by written interrogatories. Lance, Inc. v Ginsburg (1962, ED Pa) 32
FRD 51, 6 FR Serv 2d 529.
Interrogatories are not improper simply because same information can be obtained by use of different discovery
procedure. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 256, 28 FR Serv 2d 109.
Plaintiff is not precluded from noticing oral depositions of same parties defendant seeks to depose by interrogatories;
fact that defendant chose one method of discovery does not usurp plaintiff's right to choose alternative method and
plaintiff's delay in seeking to depose witnesses cannot be used to deny defendant right to seek discovery through its
method of choice. Purofied Down Products Corp. v Royal Down Products, Inc. (1980, WD Mich) 87 FRD 685, 29
UCCRS 1523.
Various methods of discovery are clearly intended to be cumulative, as opposed to alternative or mutually exclusive.
Richlin v Sigma Design West, Ltd. (1980, ED Cal) 88 FRD 634, 31 FR Serv 2d 698.
Fact that Rule 26(a) permits litigant to engage in successive sets of interrogatories does not license him to engage in
repetitious, redundant and tautological inquiries; unnecessary inquiries should not be sanctioned merely because litigant
has chosen to employ differing methods of discovery; litigant is not precluded from undertaking additional discovery in
order to compel opponents set forth or elucidate basis for allegations. Richlin v Sigma Design West, Ltd. (1980, ED
Cal) 88 FRD 634, 31 FR Serv 2d 698.
22. Miscellaneous
Fact that plaintiff inaccurately referred to the mode of securing desired testimony of persons not parties as
"interrogatories," which can be had only from parties, rather than as depositions upon written interrogatories, available
from any witness, was not fatal. Globe Indem. Co. v Capital Ins. & Surety Co. (1965, CA9 Guam) 352 F2d 236, 9 FR
Serv 2d 16.33, Case 2.
A petition for compliance order to enforce an administrative subpoena issued after the commencement of an action
for treble damages was denied since nothing could be obtained thereby that could not be obtained by deposition.
Bowles v Bronson (1945, DC Or) 63 F Supp 189.
In context of employment discrimination action, magistrate's order permitting informal communication between
plaintiff employee's counsel and those employees of defendant who are not officers, directors, or managing agents is not
clearly erroneous or contrary to law. Shealy v Laidlaw Bros., Inc. (1984, DC SC) 34 BNA FEP Cas 1223.
Although movant contends that meeting between adverse party's counsel and persons connected with movant
constituted improper discovery in violation of Rule 26 because movant's counsel of record in instant action was not
informed of meeting in advance, did not consent to it, and was not in attendance, no violation of discovery rules
occurred where, assuming that confidential information was imparted during meeting, it was imparted voluntarily
during discussion in which movant was represented by attorneys who were familiar with instant litigation, although they
were not counsel of record. In re Complaint of Korea Shipping Corp. (1985, DC Alaska) 621 F Supp 164.
Inclusion of references to FRCP 45 within FRCP 26(a)(5) and FRCP 34(c) is clear indication that procuring
documents from nonparties can constitute discovery, and although neither FRCP 45 nor FRCP 34 contains any time
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USCS Fed Rules Civ Proc R 26
limit within which to procure documents from third parties, this does not mean that party should be allowed to employ
subpoena after discovery deadline to obtain materials from third parties that could have been produced during
discovery. Alper v United States (2000, DC Mass) 190 FRD 281.
Subpoena seeking documents from third party under FRCP 45(a)(1)(C) constitutes "discovery" within meaning of
FRCP 26 and 34, and therefore, is subject to scheduling order's general discovery deadlines. Dreyer v GACS Inc. (2001,
ND Ind) 204 FRD 120.
Since FRCP 26(a)(5) explicitly lists requests for admissions as means of obtaining discovery, and drafters of Federal
Rules of Civil Procedure included FRCP 36 in chapter of rules governing depositions and discovery, it is fair to
conclude that framers of rules intended that requests for admissions be subject to rules applicable to other discovery
tools, including FRCP 16(b)(3), under which discovery deadlines are fixed in scheduling orders. Gluck v Ansett Austl.
Ltd. (2001, DC Dist Col) 204 FRD 217.
IV. SCOPE AND LIMITS OF DISCOVERY, IN GENERAL [RULE 26(b)(1),(2)]
A. In General
23. Generally
Discovery under Federal Rules of Civil Procedure (Rules 26-37) is not limited to issues raised by pleadings, for
discovery itself is designed to help define and clarify issues; nor is discovery limited to merits of case, for variety of
fact-oriented issues may arise during litigation that are not related to merits. Oppenheimer Fund, Inc. v Sanders (1978)
437 US 340, 57 L Ed 2d 253, 98 S Ct 2380, CCH Fed Secur L Rep P 96470, 25 FR Serv 2d 541.
Although recipient of properly propounded document request must produce all responsive, nonprivileged documents
without regard to recipient's view of how that information may be used at trial, so that party may not under any
circumstances hold back responsive materials because it prefers to use evidence as surprise impeachment evidence at
trial, party waived right to object to admission of improperly withheld documents by failing to object when they were
offered at trial. Varga v Rockwell Int'l Corp. (2001, CA6 Mich) 242 F3d 693, 85 BNA FEP Cas 559, 2001 FED App
60P.
Examinations before trial should not be limited to the precise issues presented by the pleadings. Stevenson v Melady
(1940, DC NY) 1 FRD 329.
At an examination before trial, it is not a ground for refusal to answer that the testimony sought might be used in
some other action or proceeding. De Seversky v Republic Aviation Corp. (1941, DC NY) 2 FRD 183.
A party may not answer solely on basis of his own knowledge and refuse to answer as to information which he has
under his control. Olmert v Nelson (1973, DC Dist Col) 60 FRD 369, 17 FR Serv 2d 1041.
Generally, if information sought is relevant to the subject matter of the litigation, it is discoverable unless privileged.
Re Penn Cent. In re Penn Cent. Commercial Paper Litigation (1973, SD NY) 61 FRD 453, CCH Fed Secur L Rep P
94311, 18 FR Serv 2d 1252.
If documents are relevant and not prepared in anticipation of litigation, they are discoverable without a showing of
undue hardship and substantial need. Holliman v Redman Dev. Corp. (1973, DC SC) 61 FRD 488, 18 FR Serv 2d
1048.
Principle relevant to determination whether material is discoverable which necessitates that discovery process must
not be abused is implicit in Rule 26. Oliver v Committee for Re-Election of President (1975, DC Dist Col) 66 FRD
553, 19 FR Serv 2d 1517.
In reviewing administrative decisions, usual broad scope of discovery is subject to restriction in order that such
review may be had promptly. Smith v Federal Trade Com. (1975, DC Del) 403 F Supp 1000, 20 FR Serv 2d 1382.
Though scope of discovery is broad, it is not unlimited. Barnett v Sears, Roebuck & Co. v Westinghouse Electric
Corp. (1978, DC Okla) 27 Fed Rules Serv 2d 170.
Broad scope of discovery set forth in FRCP 26(b)(1) is not limited by rules of evidence. Massachusetts Mut. Life Ins.
Co. v Cerf (1998, ND Cal) 177 FRD 472.
In government antitrust action arising from efforts to unite orthopedic surgeons practicing in Delaware, government
is granted fairly broad discovery requests directed to labor organization and Connecticut physician who was key
organizer, although these parties may be heard on short notice if government discovery becomes harassing or unduly
burdensome, because it does not seem unreasonable to seek information concerning how organization and organizer
characterize their recruitment and bargaining efforts in Delaware in order to develop evidence of antitrust conspiracy.
United States v Federation of Physicians & Dentists, Inc. (1999, DC Del) 63 F Supp 2d 475, 45 FR Serv 3d 668.
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USCS Fed Rules Civ Proc R 26
Motion to compel discovery was granted, where defendant company directed plaintiff husband and wife to find
information themselves in massive repository; company did not show inability to collect responsive records from own
business files instead of directing couple to repository. Wagner v Dryvit Sys. (2001, DC Neb) 208 FRD 606, magistrate's
recommendation, accepted (2001, DC Neb) 2001 US Dist LEXIS 24230.
24. Construction
Rule 26(b) is broad in scope and should be liberally construed. Heiner v North American Coal Corp. (1942, DC Pa)
3 FRD 63.
The scope of proof is quite broad in cases involving conspiracy in violation of the Antitrust Statutes [15 USCS § § 1
et seq.] and under federal rules wide latitude is permitted in the deposition-discovery proceedings. Trans World
Airlines, Inc. v Hughes (1961, SD NY) 29 FRD 523, 5 FR Serv 2d 494.
Scope of discovery under rules is to be liberally construed so as to provide both parties with information essential to
proper litigation on all facts. Mallinckrodt Chemical Works v Goldman, Sachs & Co. (1973, SD NY) 58 FRD 348,
CCH Fed Secur L Rep P 93793, 16 FR Serv 2d 1517.
Due to the public importance of the decision and the fact that one side may have all the facts and the ability to
conceal those facts from its adversary, courts are liberal in allowing discovery in antitrust cases. Goldinger v Boron
Oil Co. (1973, WD Pa) 60 FRD 562, 1974-1 CCH Trade Cases P 74975.
Though scope of discovery has narrowed somewhat under Fed. R. Civ. P. 26 (b)(1) (amended 2000), change, while
meaningful, is not dramatic, and broad discovery remains norm; revised rule simply provides one additional justification
for court to put brakes on discovery that strays from claims or defenses being asserted, and principles of Fed. R. Civ. P.
26(b)(2) may be utilized to limit discovery if discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome, or less expensive. Sanyo Laser Prods. v
Arista Records, Inc. (2003, SD Ind) 214 FRD 496.
25. Discretion of court
In deciding whether request for discovery comes within discovery Rules of Federal Rules of Civil Procedure (Rules
26-37), court is not required to blind itself to purpose for which party seeks information; thus, when purpose of
discovery request is to gather information for use in proceedings other than pending suit, discovery properly is denied,
and, likewise, discovery should be denied when party's aim is to delay bringing case to trial, or to embarrass or harass
person from whom he seeks discovery. Oppenheimer Fund, Inc. v Sanders (1978) 437 US 340, 57 L Ed 2d 253, 98 S
Ct 2380, CCH Fed Secur L Rep P 96470, 25 FR Serv 2d 541.
Under the federal rules, the extent of discovery and the use of protective orders is clearly within discretion of trial
judge. Chemical & Industrial Corp. v Druffel (1962, CA6 Ohio) 301 F2d 126, 133 USPQ 133, 5 FR Serv 2d 505.
Trial court did not abuse its discretion in condemnation case by denying to defendants discovery or appraisals
rendered by government's appraiser on behalf of private individuals owning property in the vicinity of the project area
who were not parties to the litigation since disclosure could be prejudicial to such persons in subsequent proceedings.
United States v 25.02 Acres of Land (1974, CA10 Colo) 495 F2d 1398, 18 FR Serv 2d 1043.
Upon interlocutory appeal from order denying items of discovery in railway reorganization proceeding where
District Court had sustained objections to interrogatories requesting information regarding operation projects on ground
that they sought premature answers based upon speculation and opinion, discretionary action of lower court would not
be disturbed even though it appeared from record before court that rejected interrogatories might well have presented
matters appropriate for discovery under Rule 26(b)(1) and 33(b), since appellants would be entitled to seek same
information at time of hearing upon petition for order of sale or lease of secured assets. In re Erie L. R. Co. (1974, CA6
Ohio) 496 F2d 1189, 19 FR Serv 2d 132.
In action alleging employment discrimination where determination of liability to class was to precede determination
of relief due individual members of class, trial court's refusal to grant defendant company, prior to liability stage of trial,
any discovery of plaintiff's assertions as to nature of company's discrimination against individual members of class was
clearly in excess of its powers under Federal Rules of Civil Procedure. Western Electric Co. v Stern (1976, CA3 NJ)
544 F2d 1196, 13 BNA FEP Cas 1352, 12 CCH EPD P 11232, 22 FR Serv 2d 489, reh den (1976, CA3 NJ) 551 F2d 1,
14 BNA FEP Cas 74, 14 CCH EPD P 7523, 22 FR Serv 2d 938.
Court does not abuse its discretion in denying time for discovery where petitioners had previously agreed to deadline
some 2 1/2 years since convening of court and where petitioners had never complained of obstacles to discovery. In re
Knight (1980, CA8) 614 F2d 1162, 29 FR Serv 2d 152, cert den (1980) 449 US 823, 66 L Ed 2d 26, 101 S Ct 83.
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USCS Fed Rules Civ Proc R 26
District Courts have broad discretion in handling pretrial discovery matters and they are not reviewable in mandamus
action. Cleveland v Krupansky (1980, CA6 Ohio) 619 F2d 572, 1980-1 CCH Trade Cases P 63273, 32 FR Serv 2d
1135 (ovrld in part on other grounds by In re Aetna Casualty & Surety Co. (1990, CA6) 919 F2d 1136).
In supervising discovery, District Judge exercises broad discretion. Bowman v General Motors Corp. (1974, ED
Pa) 64 FRD 62, 18 FR Serv 2d 1510.
It is within discretion of court to deny use of discovery as fishing expedition based on unsupported and nebulous
allegation of criminal conspiracy. Wu v Keeney (1974, DC Dist Col) 384 F Supp 1161, 19 FR Serv 2d 1151.
District Courts are granted broad discretion in supervising extent of discovery before trial, and in exercising such
authority, court must consider possible necessity for information and costs of providing it. Apicella v McNeil
Laboratories, Inc. (1975, ED NY) 66 FRD 78, 19 FR Serv 2d 1360.
Court has discretion whether or not to order discovery, and discovery related to insubstantial claim may be refused.
Apel v Murphy (1976, DC RI) 70 FRD 651.
Court may deny discovery requests if underlying purpose is delay or harassment, or if information is sought for use
in different proceeding or context, or if information is privileged. Midland-Ross Corp. v United Steelworkers of
America (1979, WD Pa) 83 FRD 426, 88 CCH LC P 11897, 28 FR Serv 2d 342.
Court has discretion to limit scope of discovery or to order that discovery be conducted in particular sequence; such
limitations can be appropriate when one of parties raises potentially dispositive threshold issue such as challenge to
plaintiff's standing. Builders Ass'n v City of Chicago (1997, ND Ill) 170 FRD 435.
District court has wide discretion in its regulation of pretrial matters, including whether to reopen discovery. Harding
v Goodyear Tire & Rubber Co. (1997, DC Kan) 170 FRD 477.
When motion to dismiss is filed asserting lack of personal jurisdiction, discovery may be limited to matters relevant
to jurisdictional issues; if affidavits appear sufficient and it is clear that further discovery would not demonstrate facts
sufficient to constitute basis for jurisdiction, discovery on jurisdictional issues may be denied altogether, but if issue is
not so clear or readily determined from motion papers, it may be abuse of discretion to deny plaintiff opportunity for
discovery to establish his jurisdictional allegations. Fishel v BASF Group (1997, SD Iowa) 175 FRD 525.
District court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining
relevance of discovery requests, assessing their oppressiveness, and weighing these factors in deciding whether
discovery should be compelled. Yancey v Hooten (1998, DC Conn) 180 FRD 203.
Trial courts enjoy broad measure of discretion in managing pretrial affairs, including conduct of discovery; decisions
regarding scope of discovery are ordinarily left to informed judgment of district judge. Thornton v Mercantile Stores
Co. (1998, MD Ala) 180 FRD 437.
Generally, discovery proceedings take place only after defendant has been served; however, in rare cases, courts
have made exceptions, permitting limited discovery to ensue after filing of complaint to permit plaintiff to learn
identifying facts necessary to permit service on defendant. Columbia Ins. Co. v Seescandy.com (1999, ND Cal) 185
FRD 573, 51 USPQ2d 1130.
Scope of discovery is within sound discretion of trial court. Miller v Federal Express Corp. (1999, WD Tenn) 186
FRD 376.
Although FRCP 26 gives trial court wide discretion to manage discovery process, expedited discovery is not norm;
party seeking expedited discovery must make some prima facie showing of need therefor. Merrill Lynch, Pierce, Fenner
& Smith v O'Connor (2000, ND Ill) 194 FRD 618.
Court has discretion to delay requested discovery, or order that facts sought by one discovery device be obtained by
another. Marens v Carrabba's Italian Grill, Inc. (2000, DC Md) 196 FRD 35.
Whether to permit discovery in violation of Privacy Act (5 USCS § 552a) case resides in court's discretion. Krieger
v Fadely (2001, DC Dist Col) 199 FRD 10, 143 CCH LC P 59202.
Entry of order staying discovery pending determination of dispositive motions is appropriate exercise of court's
discretion. Chavous v D.C. Fin. Responsibility & Mgmt. Assistance Auth. (2001, DC Dist Col) 201 FRD 1.
Class members who object to class action settlement do not have absolute right to discovery; court may, in its
discretion, allow discovery if it will help court determine whether settlement is fair, reasonable and adequate. United
Wisc. Servs. v Mylan Labs., Inc. (In re Lorazepam & Clorazepate Antitrust Litig.) (2001, DC Dist Col) 205 FRD 24.
26. Good faith as factor
Limitations on the right of discovery inevitably arise when it can be shown that the examination is being conducted
in bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry, and further
limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domain
of privilege. Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395 (superseded by statute
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USCS Fed Rules Civ Proc R 26
on other grounds as stated in Hawkins v District Court of Fourth Judicial Dist. (1982, Colo) 638 P2d 1372) and
(superseded by statute on other grounds as stated in Graham v Gielchinsky (1991) 126 NJ 361, 599 A2d 149).
In deciding whether request for discovery comes within discovery Rules of Federal Rules of Civil Procedure (Rules
26-37), court is not required to blind itself to purpose for which party seeks information; thus, when purpose of
discovery request is to gather information for use in proceedings other than pending suit, discovery properly is denied,
and, likewise, discovery should be denied when party's aim is to delay bringing case to trial, or to embarrass or harass
person from whom he seeks discovery. Oppenheimer Fund, Inc. v Sanders (1978) 437 US 340, 57 L Ed 2d 253, 98 S
Ct 2380, CCH Fed Secur L Rep P 96470, 25 FR Serv 2d 541.
A party may be examined as to any matter, not privileged, which is relevant to the subject matter of the action, and
unless there is a showing of lack of good faith, a party may not upon deposition refuse to reveal matters within the scope
of the examination permitted by the rules. Smith, Kline & French Laboratories v Lannett Co. (1942, DC Pa) 2 FRD
561, 56 USPQ 369, mod on other grounds (1943, DC Pa) 3 FRD 51, 57 USPQ 110.
Court may deny discovery requests if underlying purpose is delay or harassment, or if information is sought for use
in different proceeding or context, or if information is privileged. Midland-Ross Corp. v United Steelworkers of
America (1979, WD Pa) 83 FRD 426, 88 CCH LC P 11897, 28 FR Serv 2d 342.
In wrongful death action stemming from death of employee of welding contractor while he was working on premises
owned by defendant corporation, plaintiff is entitled to discovery pertaining to corporation's asserted immunity, as well
as existence of claim against building architect or employee of corporation, notwithstanding corporation's contentions
that (1) it enjoys complete immunity from tort liability as owner of premises on which employee of contractor was
injured, and (2) it should not be required to respond to discovery requests until threshold issue of tort immunity is
disposed of; thus, plaintiff may make good faith examination of copy of corporation's contract with welding contractor
and accident reports prepared by corporation's regional safety manager, and upon plaintiff's good faith determination
that such materials do not enable her to sufficiently exhaust alternative avenues to cause of action, plaintiff may depose
corporation's regional safety manager. Owens v American Cyanamid Co. (1983, SD Ga) 38 FR Serv 2d 1142.
As long as parties request information or documents relevant to claims at issue in case, and such requests are
tendered in good faith and are not unduly burdensome, discovery must proceed. St. Paul Reinsurance Co. v Commer.
Fin. Corp. (2000, ND Iowa) 198 FRD 508, 48 FR Serv 3d 1232.
27. Cost of providing information as factor
In antitrust litigation discovery is broadly permitted, and burden or cost of providing the information sought is less
weighty a consideration than in other cases; this flexible standard permits plaintiff to discover any documents which are
relevant to any issue raised by the pleadings, and the burden this places on defendants can be reduced by giving plaintiff
access to the documents and requiring it to select. Maritime Cinema Service Corp. v Movies En Route, Inc. (1973, SD
NY) 60 FRD 587, 1973-2 CCH Trade Cases P 74782, 18 FR Serv 2d 569.
While Rule 26(b)(1) carries less force when applied to extensive discovery sought from nonparty, use of unwieldily
record-keeping system which requires heavy expenditures in time and money to produce relevant records is not
sufficient to frustrate discovery. Pollitt v Mobay Chemical Corp. (1982, SD Ohio) 95 FRD 101, 34 FR Serv 2d 1272.
Where insured requested every report created by expert for insurance company and every report created by expert's
company for insurance company in attempt to show bias on part of expert and expert's company, court denied motion to
compel pursuant to Fed. R. Civ. P. 26(b)(2)(iii) because burden and expense of requiring insurance company to respond
to insured's two document production requests far outweighed likely benefit. Ricotta v Allstate Ins. Co. (2002, SD Cal)
211 FRD 622.
Where dishwasher repairer argued that production of service records would be unduly burdensome because cost
would be $ 10,400, court rejected repairer's argument taking judicial notice of fact that for year repairer had net income
of $ 735 million; therefore, court granted plaintiffs' motion to compel production of those records in consolidated
product liability case. McCoy v Whirlpool Corp. (2003, DC Kan) 214 FRD 642, motions ruled upon (2003, DC Kan)
214 FRD 646, 55 FR Serv 3d 740, motions ruled upon (2003, DC Kan) 2003 US Dist LEXIS 6909.
Suit alleging that investment bank breached its underwriting contract with issuers of initial public offerings (IPOs)
by requiring extra payments in order for investors to participate in IPOs, court refused to require putative class
representative to share in cost of producing documents requested from bank, even though retrieving information from
disassembled computer systems operated by bank's predecessor would be costly; because discovery request was
specifically and adequately tailored, information could not have been obtained from other sources, and cost of
production was small relative to amount in controversy and to bank's financial resources. Xpedior Credit Trust v Credit
Suisse First Boston (USA), Inc. (2003, SD NY) 309 F Supp 2d 459.
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28. Information within discoverer's own knowledge
It is no objection to interrogatories that information sought is within knowledge of interrogating party, and
distinction should not be drawn between facts with or without knowledge of examining party. Weiss v Chrysler Motors
Corp. (1975, CA2 NY) 515 F2d 449, 20 FR Serv 2d 208.
A party is not entitled to examination before trial on matters within his own knowledge or admitted in adversary's
pleadings. Norton v Cooper Jarrett, Inc. (1938, DC NY) 1 FRD 92.
In a suit for patent infringement in which a specifically designated composition is charged with infringing, plaintiff
was not required to answer interrogatories asking for an analysis of the composition on the ground that the defendant
himself either knew or was in a position to obtain such analysis. B. B. Chemical Co. v Cataract Chemical Co. (1938,
DC NY) 25 F Supp 472.
On an examination before trial defendant should be required to give any testimony which would be admissible upon
the trial of the action, notwithstanding the fact that the information sought is within the knowledge of the plaintiff.
Benevento v A. & P. Food Stores, Inc. (1939, DC NY) 26 F Supp 424.
The fact that the moving party may have knowledge of the information sought will not prevent the taking of
depositions. Samuel Goldwyn, Inc. v United Artists Corp. (1940, DC NY) 35 F Supp 633.
Interrogatories may be directed to matters within the questioner's knowledge and to relevant matters upon which the
party interrogated has the burden of proof as well as matters which form part of the inquirer's case. The Raphael
Semmes (1942, DC NY) 3 FRD 71; Roth v Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302; Bowles v
Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
Mere fact that matters are within knowledge of examining party or are matters of public record will not be valid
ground for objection to interrogatories where answers may be valuable as admissions on issues in the case, although
where the defendants have already furnished the information to the plaintiffs it would be unreasonable to require them
to undertake to do so again. Erone Corp. v Skouras Theatres Corp. (1958, SD NY) 22 FRD 494, 1 FR Serv 2d 517.
Fact that information sought under federal discovery rules is within knowledge of inquiring party is not valid ground
for objecting to interrogatories. Novak v Good Will Grange, etc. (1961, DC Conn) 28 FRD 394, 4 FR Serv 2d 523.
In using interrogatories for purposes of narrowing issues and enabling interrogating party to determine what he will
have to meet at trial, it is permissible to inquire into matters already within interrogating party's own knowledge.
Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv 2d 517.
In a tax refund case, the taxpayer was not entitled to production for inspection of Internal Revenue Service
documents which included a transmittal letter prepared by the agent who examined the plaintiff's tax return, an action
memorandum and supporting statement of the appellate division of the Internal Revenue Service, and a report prepared
by the Internal Revenue Service concerning the disallowance of plaintiff's interest deductions, where the plaintiff had
exclusive control of the information which was the basis of the Internal Revenue Service's decision to disallow the
interest deductions. Talbott Constr. Co. v United States (1969, ED Ky) 49 FRD 68, 14 FR Serv 2d 132.
In a tax refund case, the taxpayer was not entitled to production and inspection of various internal memoranda and
reports of the Internal Revenue Service where the taxpayer had the information which formed the basis of its
contentions. Detroit Screwmatic Co. v United States (1970, SD NY) 49 FRD 77, 13 FR Serv 2d 954.
29. Information concerning inquirer's own case
Fact that information sought by interrogatories relates to the case of the party seeking it rather than to that of the
party to whom the interrogatories are directed is not the basis for a valid objection. RCA Mfg. Co. v Decca Records,
Inc. (1940, DC NY) 1 FRD 433, 47 USPQ 99.
Interrogatories may be directed to matters within the questioner's knowledge and to relevant matters upon which the
party interrogated has the burden of proof as well as matters which form part of the inquirer's case. The Raphael
Semmes (1942, DC NY) 3 FRD 71; Roth v Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302; Bowles v
Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
Plaintiff is entitled to interrogate defendants both as to plaintiff's case and as to the defendant's case; plaintiff is
entitled not only to seek answers with reference to detailed facts, but also as to ultimate facts, and to seek admissions for
the purpose of the trial. Nelson v Reid (1944, DC Fla) 4 FRD 199.
Ultimate burden of proof is not a limitation upon the boundaries of discoverable material, and party may be entitled
to discovery although movant has the burden of establishing the issue as to which the discovery relates. Scovill Mfg.
Co. v Sunbeam Corp. (1973, DC Del) 61 FRD 598, 181 USPQ 53, 18 FR Serv 2d 1241.
30. Information for use in cross-examination
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USCS Fed Rules Civ Proc R 26
In addition to discovering information pertaining to party's case in chief, it is proper to obtain information for other
purposes such as cross-examination of adverse witnesses. Kerr v United States Dist. Court for Northern Dist. (1975,
CA9) 511 F2d 192, 20 FR Serv 2d 474, affd (1976) 426 US 394, 48 L Ed 2d 725, 96 S Ct 2119, 21 FR Serv 2d 1021.
Court refused to compel author of research report to serve as witness in lawsuit, or to provide deposition testimony
and documentary evidence, when author was stranger to events underlying lawsuit and to parties involved in suit, even
though there was no general academic privilege protecting author, since request by defendant for documents and
deposition testimony was overly burdensome, to order author to appear would have chilling effect on research in
general, report itself contained large amount of self-impeaching material, and validity of opinions formed in context of
other disciplines should be tested by relevant discipline's requirements for validity and not by adversarial process. In re
Snyder (1987, DC Ariz) 115 FRD 211.
FRCP 26 permits discovery of information which may simply relate to credibility of witness or other evidence in
case. Oakes v Halvorsen Marine Ltd. (1998, CD Cal) 179 FRD 281.
31. Information concerning adversary's case
Under these rules discovery may be had to ascertain facts relating not only to party's own case but his adversary's
also, and scope of examination allowed under Rule 33 is coextensive with scope of examination permitted under Rule
26. Nichols v Sanborn Co. (1938, DC Mass) 24 F Supp 908.
Interrogatories may be directed to matters within the questioner's knowledge and to relevant matters upon which the
party interrogated has the burden of proof as well as matters which form part of the inquirer's case. The Raphael
Semmes (1942, DC NY) 3 FRD 71; Roth v Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302; Bowles v
Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
Plaintiff is entitled to interrogate defendants both as to plaintiff's case and as to the defendant's case; plaintiff is
entitled not only to seek answers with reference to detailed facts, but also as to ultimate facts, and to seek admissions for
the purpose of the trial. Nelson v Reid (1944, DC Fla) 4 FRD 199.
Defendants in antitrust action are properly required to supply names of persons who received any document or were
present at any communications as to which defendants may assert attorney-client privilege, since plaintiffs are entitled
to ascertain whether claim of privilege is justified and should not be denied information critical to doing so. Board of
Education v Admiral Heating & Ventilating, Inc. (1984, ND Ill) 104 FRD 23, 1985-1 CCH Trade Cases P 66420, 40 FR
Serv 2d 638.
Extraordinary circumstances permitting discovery in aid of arbitration were not presented by plaintiff's alleged need
for information regarding defendant's foreign assets, where plaintiff admitted it was not seeking evidence for
presentation to arbiters but to evaluate likelihood of being able to collect award if it should be granted. Oriental
Commercial & Shipping Co. v Rosseel, N.V. (1989, SD NY) 125 FRD 398.
32. Information otherwise discoverable or obtainable
Although District Courts have power to prescribe time limits for conducting discovery, District Court cannot
properly exclude evidence discovered in separate action after discovery cutoff date in case at bar, since such cutoff date
does not affect admissibility of evidence obtained outside of discovery process; if party believes that opponent's conduct
regarding discovery in separate action is in any way improper, it should seek protective order in that other action.
Whittaker Corp. v Execuair Corp. (1984, CA9 Cal) 736 F2d 1341, 222 USPQ 961, 15 Fed Rules Evid Serv 2065, 39 FR
Serv 2d 619.
District court did not err in refusing to order deposition of corporate vice president and controller in gender
discrimination suit since officer worked more than 1,000 miles from facility where plaintiff was employed so that
requested depositions would have been quite costly and burdensome and plaintiff failed to use inexpensive, convenient
method of interrogatories to determine whether official possess information that was more than marginally relevant to
her claim. Patterson v Avery Dennison Corp. (2002, CA7 Ind) 281 F3d 676, 88 BNA FEP Cas 413.
In a suit for patent infringement in which a specifically designated composition is charged with infringing, plaintiff
was not required to answer interrogatories asking for an analysis of the composition on the ground that the defendant
himself either knew or was in a position to obtain such analysis. B. B. Chemical Co. v Cataract Chemical Co. (1938,
DC NY) 25 F Supp 472.
Defendant would not be required to answer interrogatory as to weather conditions at time and place of accident in
question where that information was available from sources equally accessible to plaintiff. Needles v F. W. Woolworth
Co. (1952, DC Pa) 13 FRD 460.
Test to be used in ruling on motion for production of documents is based principally on considerations of practicality
which can be broken down into two alternative requirements: (a) lack of independent means of discovery, and (b) need
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USCS Fed Rules Civ Proc R 26
for documents in their original form. Uncle Ben's, Inc. v Uncle Ben's Pancake Houses, Inc. (1962, SD Tex) 30 FRD
506, 6 FR Serv 2d 657.
In consolidated action against seller of railroad's commercial paper for violations of antifraud provisions of Securities
Acts (15 USCS § § 77 l, 77q, 78j(b) and regulations thereunder), discovery was sought of press release, or draft press
release; court held that if document was publicly available, demand for production would be denied, but would be
granted if document was never released. Re Penn Cent. In re Penn Cent. Commercial Paper Litigation (1973, SD NY)
61 FRD 453, CCH Fed Secur L Rep P 94311, 18 FR Serv 2d 1252.
Discovery is not to be required of documents of public record which are equally accessible to all parties; transcript of
hearing before administrative judge could be purchased by any party and hence SEC would not be ordered to produce it.
Securities & Exchange Com. v Samuel H. Sloan & Co. (1973, SD NY) 369 F Supp 994, 17 FR Serv 2d 882.
Necessity for production is reduced where available alternative for obtaining desired information has not been
explored, and where such alternative offers less intrusive and less expansive approach than inquiry into confidential and
privileged information. United States v O. K. Tire & Rubber Co. (1976, DC Idaho) 71 FRD 465, 1976-2 CCH Trade
Cases P 60984.
In seeking information "reasonably calculated to lead to the discovery of admissible evidence" under Rule 26(b)(1)
party is not limited by possible existence of other avenues of inquiry, thus court would not issue protective order against
taking of depositions on ground that information sought was discoverable from other sources. Wright v Patrolmen's
Benevolent Asso. (1976, SD NY) 72 FRD 161, 22 FR Serv 2d 310.
Before defendant would be permitted to depose plaintiff's president, it would be required to first depose other
employees whom plaintiff asserted had more personal knowledge of underlying facts of dispute. Rolscreen Co. v Pella
Prods. of St. Louis, Inc. (1992, SD Iowa) 145 FRD 92, 25 FR Serv 3d 203.
Subpoena seeking to depose representatives of construction company in Illinois is quashed, where underlying case is
patent infringement action in Texas to which company is not party, because plaintiffs should not, under FRCP 26(b), be
permitted to seek from company information that they can obtain or have obtained from defendants or that is not
relevant to issue of damages in underlying patent case. Insituform Technologies v Cat Contracting (1996, ND Ill) 914 F
Supp 286.
Objection, based on ground that discovery request seeks information and documents equally available to
propounding parties from their own records or from records which are equally available to propounding parties, is
insufficient to resist discovery request. St. Paul Reinsurance Co. v Commer. Fin. Corp. (2000, ND Iowa) 198 FRD 508,
48 FR Serv 3d 1232.
In Fair Credit Reporting Act lawsuit, court declined to reconsider its decision not to quash subpoena seeking
documents in possession of state agency, which were relevant, FRCP 26(b)(1), to fact dispute about reason or reasons
for recent increase in homeowners insurance policy premiums; however, court reconsidered its prior decision and
quashed subpoena to 14 insurance agents because subpoena imposed on them undue burden, and insured could get same
information from insurer. Braxton v Farmer's Ins. Group (2002, ND Ala) 209 FRD 651.
33. Discovery for use in actions other than pending action
In deciding whether request for discovery comes within discovery Rules of Federal Rules of Civil Procedure (Rules
26-37), court is not required to blind itself to purpose for which party seeks information; thus, when purpose of
discovery request is to gather information for use in proceedings other than pending suit, discovery properly is denied,
and, likewise, discovery should be denied when party's aim is to delay bringing case to trial, or to embarrass or harass
person from whom he seeks discovery. Oppenheimer Fund, Inc. v Sanders (1978) 437 US 340, 57 L Ed 2d 253, 98 S
Ct 2380, CCH Fed Secur L Rep P 96470, 25 FR Serv 2d 541.
Although District Courts have power to prescribe time limits for conducting discovery, District Court cannot
properly exclude evidence discovered in separate action after discovery cutoff date in case at bar, since such cutoff date
does not affect admissibility of evidence obtained outside of discovery process; if party believes that opponent's conduct
regarding discovery in separate action is in any way improper, it should seek protective order in that other action.
Whittaker Corp. v Execuair Corp. (1984, CA9 Cal) 736 F2d 1341, 222 USPQ 961, 15 Fed Rules Evid Serv 2065, 39 FR
Serv 2d 619.
District court did not abuse its discretion in denying German corporation's request for unredacted documents for use
in impeaching credibility of witness in litigation pending in Spain, since it concluded that unredacted versions would be
cumulative of information already in German corporation's possession. Bayer AG v Betachem, Inc. (1999, CA3 NJ) 173
F3d 188, 50 USPQ2d 1380.
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USCS Fed Rules Civ Proc R 26
Court may deny discovery requests if underlying purpose is delay or harassment, or if information is sought for use
in different proceeding or context, or if information is privileged. Midland-Ross Corp. v United Steelworkers of
America (1979, WD Pa) 83 FRD 426, 88 CCH LC P 11897, 28 FR Serv 2d 342.
34. Admissibility in evidence not a prerequisite
Keynote of federal discovery rules is open disclosure of all potentially relevant information, and test for relevancy of
material to be discovered is not ultimate admissibility. Burns v Thiokol Chemical Corp. (1973, CA5 Ala) 483 F2d 300,
6 BNA FEP Cas 269, 6 CCH EPD P 8737, 17 FR Serv 2d 884, 31 ALR Fed 646, reh den (1973, CA5 Ala) 485 F2d 687,
6 CCH EPD P 8737.
Test of relevancy for purposes of discovery under Rule 26(b)(1) is broader than test for admissibility at trial, so that
party may discover information which is not admissible at trial if such information will have some probable effect on
organization and presentation of moving party's case. United States v Wright Motor Co. (1976, CA5 Ala) 536 F2d
1090, 76-2 USTC P 9605, 22 FR Serv 2d 23, 38 AFTR 2d 76-5597, reh den (1976, CA5 Ala) 542 F2d 576 and
(superseded by statute on other grounds as stated in In re EEOC (1983, CA5) 709 F2d 392, 32 BNA FEP Cas 361, 32
CCH EPD P 33716, 37 FR Serv 2d 1060); Smith v Schlesinger (1975) 168 US App DC 204, 513 F2d 462, 20 FR Serv
2d 473.
At an examination before trial, the examining party is not restricted to securing testimony that would be admissible
in evidence at the trial but may go further and obtain information that may be useful in securing such evidence. De
Seversky v Republic Aviation Corp. (1941, DC NY) 2 FRD 183.
The court will not refuse an examination of records and reports of investigators of the wage and hour administrator
merely because they will be regarded as hearsay. Walling v Richmond Screw Anchor Co. (1943, DC NY) 4 FRD 265.
Answers to interrogatories are not considered evidence until offered as such at trial, and if it appears at trial that the
answers are not material or relevant, they can be excluded upon proper objections. Bowles v Keller Glove Mfg. Co.
(1945, DC Pa) 4 FRD 450.
Interrogatories under Rule 33 may relate to any matter which can be inquired into under Rule 26(b); hence, in
determining whether answers should be ordered to interrogatories the court is not called upon to adjudicate their
admissibility but only to determine the relevancy of the information sought to the subject matter involved in the pending
action. Bowles v Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
If the information and matters sought by subpoena duces tecum in connection with deposition is not privileged and is
relevant, it is not ground for objection that the testimony will be inadmissible on trial if such testimony appears
reasonably calculated to lead to the discovery of admissible evidence. Harnischfeger Corp. v Miller Electric Mfg. Co.
(1955, DC Wis) 18 FRD 3, 107 USPQ 212; Morris v Connecticut General Ins. Corp. (1975, DC Conn) 19 Fed Rules
Serv 2d 1032.
Inadmissibility of statement as evidence in chief did not render such statement unobtainable for inspection.
Thompson v Hoitsma (1956, DC NJ) 19 FRD 112.
The scope of discovery examination is much broader than examination at trial, and where the questions are relevant
to the subject matter of the action and appear reasonably calculated to lead to discovery of admissible evidence such
questions are proper. Rossi v Pennsylvania R. Co. (1956, DC NY) 19 FRD 289.
Rule 26 sanctions the refusal to answer interrogatories if the information sought is itself inadmissible as evidence and
does not appear reasonably calculated to lead to the discovery of admissible evidence. Dimenco v Pennsylvania R. Co.
(1956, DC Del) 19 FRD 499 (criticized in Jewell v Pennsylvania R. Co. (1962) 55 Del 6, 183 A2d 193) and (criticized
in Rothermel v CONRAIL (1998, Del Super Ct) 1998 Del Super LEXIS 19).
Examination is not limited to matters of admissible evidence but may relate to any matter which is not privileged and
which is relevant to the subject matter involved in the pending action and may be employed to obtain evidence for use at
the trial or to ascertain where such evidence may be secured. Russo v Merck & Co. (1957, DC RI) 21 FRD 237.
Admissibility in evidence at the trial is not the test for discovery under the federal discovery rules. Fusco on behalf
of NLRB v Richard W. Kaase Baking Co. (1962, ND Ohio) 205 F Supp 459, 50 BNA LRRM 2307, 6 FR Serv 2d 13.
Plaintiff's motion to compel defendant's patent litigation counsel to answer certain questions which he refused to
answer upon the taking of his deposition by plaintiff was granted; fact that a certain question in his deposition transcript
called for a conclusion and counsel lacked the personal knowledge necessary to answer it was not sufficient to preclude
plaintiff from making any inquiry that was reasonably calculated to lead to the discovery of admissible evidence, even
though the immediate response to the question itself may not have been admissible at trial. Technograph, Inc. v Texas
Instruments, Inc. (1967, SD NY) 43 FRD 416, 157 USPQ 683, 12 FR Serv 2d 744.
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USCS Fed Rules Civ Proc R 26
Under Rule 26(b)(1), inadmissibility of matters at trial is not a ground for objection to discovery proceedings; where
incompetent matter is adduced by discovery, objection can be made at trial if deposition is offered as evidence.
Teplitzky v Boston Ins. Co. (1971, DC Pa) 52 FRD 160, 15 FR Serv 2d 325, 19 ALR Fed 966.
In an action involving a collision between a motorcycle driven by a plaintiff and an automobile being driven by an
agent and employee of defendant in the course of its business, inter office memorandum which would be inadmissible at
trial and in no way reasonably calculated to lead to the discovery of admissible evidence is not discoverable within the
scope of Rule 26(b)(1) as it is concerned only with mental impressions, conclusions and opinions. Smedley v Travelers
Ins. Co. (1971, DC NH) 53 FRD 591, 15 FR Serv 2d 1260.
Last sentence of Rule 26(b)(1) was inserted as clarification of sentence providing for "discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the pending action"; thus information which is
relevant is discoverable even though it may not be admissible at trial. Goodman v International Business Machine
Corp. (1973, DC Ill) 59 FRD 278.
For purposes of discovery, question of admissibility is disregarded if "the information sought appears reasonably
calculated to lead to the discovery of admissible evidence." Re Penn Cent. In re Penn Cent. Commercial Paper
Litigation (1973, SD NY) 61 FRD 453, CCH Fed Secur L Rep P 94311, 18 FR Serv 2d 1252.
Relevancy required as to production of documents is not equated with that ordinarily used in determining
admissibility of evidence; test is relevancy to subject matter which is broader than relevancy to issues presented by
pleadings. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
Unfettered discovery of all materials relevant to case should be permitted and discovery need not be limited to facts
admissible at trial, but, to avoid oppressiveness, interrogatories must be tailored to discover only what is reasonable and
necessary to litigation at hand. In re U. S. Financial Sec. Litigation (1975, SD Cal) 74 FRD 497, 22 FR Serv 2d 710.
It is a matter of no significance that broad discovery will disclose large quantities of material which would be
completely inadmissible in evidence. Krause v Rhodes (1975, ND Ohio) 390 F Supp 1072.
Federal Rule of Civil Procedure 26 embraces expansive definition of relevancy inclusive of even unprivileged
information which would be inadmissible at trial; scope of discovery has been made very broad and restrictions imposed
upon it are directed chiefly at use of, rather than acquisition of, information discovered. Clayton Brokerage Co. v
Clement (1980, DC Md) 87 FRD 569.
Scope of discovery provided for by Rule 26 is to be liberally construed so as to provide both parties with information
essential to proper litigation on all facts and therefore Rule is not ground for objection that information sought will be
inadequate at trial if information sought appears reasonably calculated to lead to discovery of admissible evidence.
Donovan v Prestamos Presto Puerto Rico, Inc. (1981, DC Puerto Rico) 91 FRD 222, 94 CCH LC P 34201, 32 FR Serv
2d 921.
Purpose of discovery is to remove surprise from trial preparation so parties obtain evidence necessary to evaluate and
resolve their dispute; toward this end, FRCP 26(b) is liberally interpreted to permit wide-ranging discovery of all
information reasonably calculated to lead to discovery of admissible evidence, even though discoverable information
need not be admissible at trial. Ragge v MCA/Universal (1995, CD Cal) 165 FRD 601, 68 CCH EPD P 44126.
It is not grounds for objection that information sought will be inadmissible at trial, so long as material requested
could lead to other information that may be relevant to subject matter of action. Burns v Imagine Films Entertainment
(1996, WD NY) 164 FRD 589, 34 FR Serv 3d 960, subsequent app, remanded (1997, CA2 NY) 1997 US App LEXIS
4031.
In context of FRCP 26, potential inadmissibility at trial of information sought is not grounds for objection if
information appears reasonably calculated to lead to discovery of admissible evidence. EEOC v Electro-Term (1996,
DC Mass) 167 FRD 344, 36 FR Serv 3d 222.
Discovery of financial information relevant to punitive damages claim is permissible, whether or not such evidence
would be admissible at trial. Oakes v Halvorsen Marine Ltd. (1998, CD Cal) 179 FRD 281.
35. Geographical reach of discovery
Judgment creditor is entitled to discover identity and location of any of judgment debtor's assets, wherever located;
thus, suit brought in Virginia on judgment entered on motion for summary judgment in favor of payee on promissory
note against maker corporation and individual defendants does not render post-judgment discovery attempts in Georgia
moot. National Service Industries, Inc. v Vafla Corp. (1982, CA11 Ga) 694 F2d 246, 35 FR Serv 2d 889.
District court did not err in refusing to order deposition of corporate vice president and controller in gender
discrimination suit since officer worked more than 1,000 miles from facility where plaintiff was employed so that
requested depositions would have been quite costly and burdensome and plaintiff failed to use inexpensive, convenient
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USCS Fed Rules Civ Proc R 26
method of interrogatories to determine whether official possess information that was more than marginally relevant to
her claim. Patterson v Avery Dennison Corp. (2002, CA7 Ind) 281 F3d 676, 88 BNA FEP Cas 413.
36. --Foreign country
Defendant upon whom request for discovery has been served cannot avoid request to search for documents in hands
of its foreign subsidiaries. In re Richardson-Merrell, Inc. (1983, SD Ohio) 97 FRD 481, 36 FR Serv 2d 278.
Court will not limit plaintiffs to discovery that is obtainable pursuant to Hague Convention, where it is not clear that
compliance with plaintiffs' discovery request would require violation of foreign law or impinge upon sovereignty of
foreign country. Lasky v Continental Products Corp. (1983, ED Pa) 569 F Supp 1227, 38 FR Serv 2d 1524.
Fact that documents sought by plaintiff are in hands of foreign subsidiaries of defendant multi-national corporation is
not ground for objection to discovery. In re Richardson-Merrell, Inc. "Bendectin" Products Liability Litigation (1985,
SD Ohio) 624 F Supp 1212, affd (1988, CA6 Ohio) 857 F2d 290, 11 FR Serv 3d 1267, cert den (1989) 488 US 1006,
102 L Ed 2d 779, 109 S Ct 788, dismd (1990, DC Dist Col) 1990 US Dist LEXIS 11504.
37. Objection to scope of discovery
Mere statement by party that interrogatory is overly broad, burdensome, oppressive and irrelevant is not adequate to
constitute successful objection to interrogatory. Josephs v Harris Corp. (1982, CA3 Pa) 677 F2d 985, CCH Prod Liab
Rep P 9287, 10 Fed Rules Evid Serv 612, 34 FR Serv 2d 28.
Objection, based on ground that discovery request seeks information and documents equally available to
propounding parties from their own records or from records which are equally available to propounding parties, is
insufficient to resist discovery request. St. Paul Reinsurance Co. v Commer. Fin. Corp. (2000, ND Iowa) 198 FRD 508,
48 FR Serv 3d 1232.
Parties asserting objection to discovery on ground of privilege must present that objection in timely and proper
manner. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
Second motion by United States for protective order was granted pursuant to Fed. R. Civ. P. 26(b)(i),(ii),(iii) because
corporation's request for documents from Department of Energy (DOE) over 19 year period was unduly burdensome
and would not likely lead to relevant material because DOE was not agency involved in rules imposed upon
corporation. United States v Duke Energy Corp. (2003, MD NC) 214 FRD 392.
In dispute over whether parties had entered into supply contract for laminated body cloth, corporation failed to
establish that discovery request that sought production of documents concerning corporation's solicitation and purchase
of laminates was overly broad; corporation did not argue that it could not readily identify documents requested or that it
would be unduly difficult to determine which documents fell within scope of request. Gen. Elec. Capital Corp. v Lear
Corp. (2003, DC Kan) 215 FRD 637.
In plaintiff's action seeking declaration regarding propriety of defendant's cancellation of retrocession agreement and
alleging violation of CUTPA predicated on alleged violation of Connecticut Unfair Insurance Practices Act (CUIPA),
Conn. Gen. Stat. § 38a-815 et seq., plaintiff was entitled to discovery of documents relevant to determinations of bad
faith and pattern or practice under CUTPA, even though such documents were also involved in arbitration proceedings
in United Kingdom between defendant and three other parties, because confidentiality concerns did not apply to actual
business transaction that served as substance of defendant's arbitrable disputes and because plaintiff obtained permission
for release of requested documents from two of three parties in arbitration with defendant; hence, in response to
plaintiff's motion to compel product, court ordered defendant to provide requested documents to extent permitted by
other parties involved in foreign arbitration. Sec. Ins. Co. v Trustmark Ins. Co. (2003, DC Conn) 218 FRD 18.
38. Miscellaneous
Interrogatories requiring legal opinions as answers are permissible if court is convinced that by requiring responses
thereto lawsuits could be expedited, information obtained could lead to relevant evidence, issues could be narrowed,
unnecessary testimony and wasteful preparation avoided, or any other substantial purpose sanctioned by the discovery
provisions of these rules served. Leumi Financial Corp. v Hartford Acci. & Indem. Co. (1969, SD NY) 295 F Supp
539, 13 FR Serv 2d 888.
Scope of discovery after commencement of Title VII action by EEOC is not limited to scope of administrative
discovery conducted before commencement of action; rather, it is limited in scope by federal discovery rules, and
especially Rule 26(b). EEOC v Hickey-Mitchell Co. (1973, ED Mo) 372 F Supp 1117, 7 BNA FEP Cas 134, 7 BNA
FEP Cas 136, 6 CCH EPD P 8962, 7 CCH EPD P 9063.
Discovery permitted must be sufficiently broad to enable plaintiffs requesting class certification realistic opportunity
to meet requirements of USCS FRCivP Rule 23 but opposing party must be protected from discovery which is overly
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USCS Fed Rules Civ Proc R 26
burdensome, irrelevant, or which invades privileged or confidential areas. NOW, Farmington Valley Chapter v Sperry
Rand Corp. (1980, DC Conn) 88 FRD 272, 24 BNA FEP Cas 781, 25 CCH EPD P 31610, 30 FR Serv 2d 979.
Taxpayer is entitled to discovery prior to responding to Internal Revenue Service summons because taxpayer is not
usually in possession of information necessary to determine whether government's purpose, in issuing IRS summons, is
proper. Marx v United States (1983, ED Wis) 560 F Supp 921, 36 FR Serv 2d 724.
Plaintiff's counsel's failure to actively pursue discovery for 4 months because of his involvement in appeal involving
co-defendant was unacceptable reason for not pressing motion to compel discover earlier where at beginning of
discovery period court had set date for completion of discovery and trial, so that motion to compel would be denied
except as to one issue. Pearce v E.F. Hutton Group, Inc. (1986, DC Dist Col) 117 FRD 477.
FRCP 45(c), which delineates circumstances justifying quashing subpoena, was not intended to diminish rights
conferred by FRCP 26-37. Linder v Calero-Portocarrero (1998, DC Dist Col) 183 FRD 314.
Discovery in Freedom of Information Act (5 USCS § 552) action is extremely limited, especially when compared to
discovery conducted in traditional civil action. Alexander v FBI (1998, DC Dist Col) 188 FRD 111.
Generally, discovery proceedings take place only after defendant has been served; however, in rare cases, courts
have made exceptions, permitting limited discovery to ensue after filing of complaint to permit plaintiff to learn
identifying facts necessary to permit service on defendant. Columbia Ins. Co. v Seescandy.com (1999, ND Cal) 185
FRD 573, 51 USPQ2d 1130.
Federal Rules of Civil Procedure cannot be trumped by regulations of federal departments that place arbitrary limits
on court's discovery powers. United States ex rel. Roby v Boeing Co. (1999, SD Ohio) 189 FRD 512.
Because confidentiality of settlement agreements is primary inducement to parties to settle cases, courts require
strong countervailing interest to breach that confidentiality and allow discovery of such agreements. Centillion Data
Sys. v Ameritech Corp. (1999, SD Ind) 193 FRD 550.
It is appropriate for court to consider time and expense related to requiring party in pending case to initiate action in
another court for sole purpose of requesting modification of discovery order issued by that court. Tucker v Ohtsu Tire &
Rubber Co. (2000, DC Md) 191 FRD 495.
FRCrP 6(e), which imposes general rule of secrecy on grand jury materials, did not prohibit defendants in civil
action, who, as defendants in separate criminal action, had obtained grand jury materials legitimately, from producing
such materials in civil action pursuant to plaintiff's request for production of documents. Liberty Mut. Ins. Co. v
Diamante (2000, DC Mass) 193 FRD 15.
Although scope of discovery is generally broad, court may limit discovery where burden or expense of proposed
discovery outweighs its likely benefits; if such limits are imposed, court should consider needs of case, amount in
controversy, parties' resources, importance of issues at stake in litigation, and importance of proposed discovery in
resolving issues. Simon Prop. Group L.P. v MySimon, Inc. (2000, SD Ind) 194 FRD 639, supplemented (2000, SD Ind)
2000 US Dist LEXIS 8953.
Court has discretion to delay requested discovery, or order that facts sought by one discovery device be obtained by
another. Marens v Carrabba's Italian Grill, Inc. (2000, DC Md) 196 FRD 35.
Surveillance evidence conducted by defendant in personal injury case is discoverable even though defendant only
intends to use evidence for impeachment purposes, since evidence, which bears directly on plaintiff's physical
condition, is relevant to subject matter of case. Gutshall v New Prime, Inc. (2000, WD Va) 196 FRD 43, 47 FR Serv 3d
752.
Letters that transmit documents from counsel to expert witness ("cover" or "transmittal" letters) are subject to
discovery. Krisa v Equitable Life Assur. Soc'y (2000, MD Pa) 196 FRD 254.
Witness testimony at FRCP 30(b)(6) deposition is not limited to subject matter of designation in notice, since
limiting scope of such deposition to what is noticed in deposition subpoena would frustrate objectives of FRCP 26(b)(1)
whenever deposing party seeks information relevant to subject matter of pending litigation that was not specified; thus,
once witness satisfies minimum standard, scope of deposition is determined solely be relevance under FRCP 26. Detoy
v City & County of San Francisco (2000, ND Cal) 196 FRD 362.
Party resisting production bears burden of establishing lack of relevancy or undue burden. St. Paul Reinsurance Co.
v Commer. Fin. Corp. (2000, ND Iowa) 198 FRD 508, 48 FR Serv 3d 1232.
Where there is no claim of privilege in relation to questions asked on deposition, FRCP 30(d)(1) and FRCP 26
(relating to scope of discovery) should be strictly applied. Pilates, Inc. v Georgetown Bodyworks Deep Muscle Massage
Ctrs., Inc. (2000, DC Dist Col) 201 FRD 216.
Where defendant has moved to dismiss for lack of personal jurisdiction, plaintiff need not establish prima facie case
of personal jurisdiction prior to conducting discovery related to jurisdictional issues. Orchid Biosciences, Inc. v St.
Louis Univ. (2001, SD Cal) 198 FRD 670.
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USCS Fed Rules Civ Proc R 26
FRCP 34, when read in conjunction with FRCP 26(b), must be broadly construed to require production of relevant
physical evidence, including handwriting exemplars. Harris v Athol-Royalston Regional School Dist. (2001, DC Mass)
200 FRD 18.
Courts have duty to pare down overbroad discovery requests under FRCP 26(b)(2), which provides that information
may sometimes be withheld, even if relevant; court should consider totality of circumstances, weighing value of
material sought against burden of providing it, discounted by society's interest in furthering truthseeking function.
Rowlin v Ala. Dep't of Pub. Safety (2001, MD Ala) 200 FRD 459.
Where partial summary judgment has been entered in favor of defendant, FRCP 54(b) does not give plaintiff broad
license to engage in costly, unproductive discovery on issues no longer relevant to litigation. Jenkins v Campbell (2001,
MD Ga) 200 FRD 498.
Entry of order staying discovery pending determination of dispositive motions is appropriate exercise of court's
discretion. Chavous v D.C. Fin. Responsibility & Mgmt. Assistance Auth. (2001, DC Dist Col) 201 FRD 1.
Stay of discovery pending determination of motion to dismiss is rarely appropriate when pending motion will not
dispose of entire case. Chavous v D.C. Fin. Responsibility & Mgmt. Assistance Auth. (2001, DC Dist Col) 201 FRD 1.
Defendant has standing to move for protective order where issued subpoena is in violation of case management
orders issued under FRCP 16 and 26. Thomas v Marina Assocs. (2001, ED Pa) 202 FRD 433.
Discovery of absent class members is ordinarily not permitted in class actions. On the House Syndication, Carey
Bros. v Fed. Express Corp. (2001, SD Cal) 203 FRD 452.
Depositions of high level corporate executives may be duplicative, cumulative and burdensome where person sought
to be deposed has no personal knowledge of events in dispute. Harris v Computer Assocs. Int'l, Inc. (2001, ED NY) 204
FRD 44.
Class members who object to class action settlement do not have absolute right to discovery; court may, in its
discretion, allow discovery if it will help court determine whether settlement is fair, reasonable and adequate. United
Wisc. Servs. v Mylan Labs., Inc. (In re Lorazepam & Clorazepate Antitrust Litig.) (2001, DC Dist Col) 205 FRD 24.
Employee's Fed. R. Civ. P. 34(a)(2) motion to compel employer to allow her to inspect areas in two of its facilities
was denied where employee justified her request by little more than, "it could help," made little attempt to demonstrate
inspection's relevance, and used language that was tantamount to boilerplate; thus, she did not demonstrate necessity for
inspection, and it appeared that information sought was obtainable from some other source that was more convenient,
less burdensome, or less expensive. Johnson v Mundy Indus. Contrs., Inc. (2002, ED NC) 52 FR Serv 3d 511.
Electronic documents are no less subject to disclosure than paper records. Rowe Entm't, Inc. v William Morris
Agency, Inc. (2002, SD NY) 205 FRD 421, 2002-1 CCH Trade Cases P 73567, 51 FR Serv 3d 1106 (criticized in
Murphy Oil USA, Inc. v Fluor Daniel, Inc. (2002, ED La) 2002 US Dist LEXIS 3196).
By its production request, corporation sought to obtain all documents related to communications between company
and their liability insurance carrier, carrier that was actively involved and paid at least portion of costs of defense of
action against company; therefore, corporation's request was unreasonable, duplicative, overly broad, and propounded
for improper purpose of harassment and obtaining information to which corporation was clearly not entitled, and its
motion to compel response to its request for production of documents was denied. Lectrolarm Custom Sys. v Pelco
Sales, Inc. (2002, ED Cal) 212 FRD 567.
In objection to special master's report made pursuant to Fed. R. Civ. P. 53, assertion of food company and chemical
company that response to interrogatory would be unduly burdensome, was rejected since it appeared that defendants had
already undertaken necessary research. In re Vitamins Antitrust Litig. (2002, DC Dist Col) 217 FRD 229.
Claim of hostile work environment by Internal Revenue Service (IRS) employee was dismissed on motion for
summary judgment filed by IRS because employee had not set forth any issues supporting claim, and employee was not
permitted to maintain unsupportable claim of hostile work environment in order to seek discovery on alleged facts.
Smith v O'Neill (2003, DC Dist Col) 277 F Supp 2d 12.
B. Relevancy
1. In General
39. Generally
Questions which are relevant to the subject matter in the litigation are within the scope of an examination before
trial. Conmar Products Corp. v Lamar Slide Fastener Corp. (1941, DC NY) 2 FRD 154, 51 USPQ 266, 51 USPQ 377.
At an examination before trial, the eliciting of clearly irrelevant testimony may not be permitted. De Seversky v
Republic Aviation Corp. (1941, DC NY) 2 FRD 183.
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USCS Fed Rules Civ Proc R 26
Interrogatories may not be used to secure information concerning matters occurring after the cause of action arose,
since such information would be irrelevant and immaterial. Massachusetts Bonding & Ins. Co. v Harrisburg Trust Co.
(1941, DC Pa) 2 FRD 197.
Aside from the matter of privilege, the only restriction placed upon evidence which may be obtained by discovery is
that it must be relevant to the issues. Prosperity Co. v St. Joe Machines, Inc. (1942, DC Mich) 2 FRD 299, 53 USPQ
15.
Although the rules have liberalized the scope of examination before trial, nevertheless relevancy to the issue is still
the test. Blumenthal v Lukacs (1942, DC NY) 2 FRD 427.
As long as the deposition-discovery process has not been used to formulate the issue in a case, the pleadings are the
means by which relevance of the matters sought is determined, but after issues have been formulated by the
deposition-discovery process, the issues formulated thereby are the means by which relevance is to be determined.
Vilastor Kent Theatre Corp. v Brandt (1955, DC NY) 18 FRD 199.
While it is not necessary, to sustain the relevancy of interrogatories, that they be relevant directly to the issues raised
by the pleadings, provided that they are or may become relevant to the subject matter of the action, clearly, where such
interrogatories are relevant directly to the issues raised by the pleadings, they cannot be attacked. Sandee Mfg. Co. v
Rohm & Haas Co. (1959, ND Ill) 24 FRD 53, 2 FR Serv 2d 489.
The test of the scope of allowable interrogatories under Rule 33 is relevance, as defined in Rule 26. Lumbermen's
Mut. Casualty Co. v Pistorino & Co. (1961, DC Mass) 28 FRD 1, 5 FR Serv 2d 529.
Although a party to an action is "adverse" to plaintiff on only one issue, he may inquire into matters relevant to the
case as a whole even though it is irrelevant to that issue. Carey v Schuldt (1967, ED La) 42 FRD 390, 11 FR Serv 2d
812.
Rule 26 contemplates that if discovery is contested, discovering party has burden of demonstrating that information
sought is relevant to subject matter of pending action. United States v International Business Machines Corp. (1974,
SD NY) 66 FRD 215, 1974-2 CCH Trade Cases P 75381, 19 FR Serv 2d 550.
Though documents requested to be produced under federal discovery rules must be relevant to litigation, concept of
relevancy is to be given liberal interpretation. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146,
184 USPQ 775.
Relevant information conveyed in communications which are confidential but which do not fall within confines of
privileged communications is discoverable, since interest which men have in keeping their affairs private is outweighed
by society's interest in search for truth through judicial process, but societal interest ends where information sought does
not relate to matter before court, and at that point pursuit of testimony may become unreasonably annoying,
embarrassing, or oppressive, with courts at that point not countenancing party's use of judicial process in pursuit of ends
unrelated to claims cognizable within judicial process. Oliver v Committee for Re-Election of President (1975, DC
Dist Col) 66 FRD 553, 19 FR Serv 2d 1517.
Plaintiffs and their attorneys should be compelled to answer interrogatories propounded by defendant only if
information sought comes within proper scope of discovery as set forth in Rule 26(b)(1). Brame v Ray Bills Finance
Corp. (1977, ND NY) 76 FRD 25, 23 FR Serv 2d 486.
Single initial hurdle which must be cleared by party seeking discovery is to demonstrate relevance of information
sought to issues involved in case; relevant material subsequently may be protected from discovery by proper claims of
privilege, but initial question is relevance. Pierson v United States (1977, DC Del) 428 F Supp 384, 77-1 USTC P
9245, 39 AFTR 2d 77-1015.
At early stages of litigation, it is rare that showing can be made that particular item of requested information is not
relevant under broad definition given that word in Rule 26. United States v American Tel. & Tel. Co. (1978, DC Dist
Col) 461 F Supp 1314, 1978-2 CCH Trade Cases P 62247, 26 FR Serv 2d 984.
Interrogatories seeking substance of communications are proper where they seek information relevant to subject
matter of litigation. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 256, 28 FR Serv 2d 109.
Discovery may be had of materials brought into existence after date of filing of complaint where they are relevant to
claims. Dart Drug Corp. v Corning Glass Works (1979, DC Md) 480 F Supp 1091, 1980-1 CCH Trade Cases P
63126, 29 FR Serv 2d 541.
Tribunal considering private party's discovery request should demand heightened showing of relevancy once
constitutional argument for withholding information has been asserted. Adolph Coors Co. v Wallace (1983, ND Cal)
570 F Supp 202, 37 FR Serv 2d 752.
Relevance is broadly construed, and determined in relation to facts and circumstances of each case. Hall v
Harleysville Ins. Co. (1996, ED Pa) 164 FRD 406.
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USCS Fed Rules Civ Proc R 26
Relevancy must be broadly construed at discovery stage, such that information is discoverable if there is any
possibility it might be relevant to subject matter of action; relevant information includes any matter that is or may
become issue in litigation. EEOC v Electro-Term (1996, DC Mass) 167 FRD 344, 36 FR Serv 3d 222.
For purposes of FRCP 26(b)(1), which requires discoverable material to be relevant to subject matter involved,
impeachment materials are only relevant to extent plaintiff puts forth substantive evidence susceptible to impeachment.
Denty v CSX Transp. (1996, ED NC) 168 FRD 549.
Admissibility at trial is not standard for discovery disputes; moreover, actions alleging violations of 42 USCS §
1983 require especially generous discovery. Cox v McClellan (1997, WD NY) 174 FRD 32.
Information is relevant if it relates to claim or defense of party seeking discovery or any other party, or to credibility
of any witness. Cable & Computer Tech. v Lockheed Saunders, Inc. (1997, CD Cal) 175 FRD 646.
Where company that had entered into agreement to be exclusive representative of manufacturer's products in United
States sought to compel information from manufacturer regarding total gross income manufacturer realized from sales
of products, alleging that company was entitled to damages resulting from sale and services made by manufacturer,
motion to compel was granted. Quality Aero Tech., Inc. v Telemetrie Elektronik, GmbH (2002, ED NC) 212 FRD 313,
52 FR Serv 3d 1390.
In age discrimination suit, city did not show that its employees' written discovery requests were irrelevant, since in
order to analyze whether governmental action was in compliance with Due Process Clause of Fourteenth Amendment, it
was necessary to consider private interest at stake, risk to that interest from governmental action, and weight of
government's competing interests; therefore, employees were entitled to inquire into interests, other than collective
bargaining agreement, which may have prompted passage of city's mandatory retirement ordinance. Minch v City of
Chi. (2003, ND Ill) 213 FRD 526.
When discovery sought appears relevant on its face, party resisting discovery has burden to establish lack of
relevance by demonstrating that requested discovery (1) does not come within broad scope of relevance as defined
under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that potential harm discovery would outweigh
presumption in favor of broad disclosure; conversely, when relevancy is not apparent on face of request, party seeking
discovery has burden to show relevancy of request. McCoy v Whirlpool Corp. (2003, DC Kan) 214 FRD 642, motions
ruled upon (2003, DC Kan) 214 FRD 646, 55 FR Serv 3d 740, motions ruled upon (2003, DC Kan) 2003 US Dist LEXIS
6909.
40. Establishment of relevancy
At an examination before trial, the examining party need not establish the absolute relevancy of the testimony, it is
sufficient if in all probability it is relevant. Grinnell Co. v National Bank of Far Rockaway (1941, DC NY) 2 FRD 116.
Unless it is palpable that the evidence sought can have no possible bearing upon the issues, the spirit of the rules
calls for every relevant fact, however remote, to be brought out for the inspection not only of the opposing party but for
the benefit of the court which in due course can eliminate those facts which are not to be considered in determining the
ultimate issues. Hercules Powder Co. v Rohm & Haas Co. (1943, DC Del) 3 FRD 302, 60 USPQ 169.
A party should not be foreclosed from examining on any subject which might conceivably have a bearing upon the
subject matter of the action. Bloomer v Sirian Lamp Co. (1944, DC Del) 4 FRD 167.
The test of relevancy with reference to the scope of examination is that of relevancy to the subject matter of the case
and not the narrow test of relevancy to the particular pleadings. Enger-Kress Co. v Amity Leather Products Co. (1955,
DC Wis) 18 FRD 347, 107 USPQ 323.
The test to be applied to interrogatories under Rule 26 is whether inquiry is regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action. Novak v Good Will Grange, etc. (1961, DC
Conn) 28 FRD 394, 4 FR Serv 2d 523.
Interrogatories are relevant if they have a bearing on the subject matter of the action. Triangle Mfg. Co. v
Paramount Bag Mfg. Co. (1964, ED NY) 35 FRD 540, 143 USPQ 145, 8 FR Serv 2d 33.353, Case 3.
Test of relevancy applied for discovery purposes is relevancy to subject matter of trial, admissibility at trial and
relevancy to precise issues framed by pleadings not being criteria. Muller v Olin Mathieson Chemical Corp. (1965, SD
NY) 240 F Supp 662, 145 USPQ 79; Goldinger v Boron Oil Co. (1973, WD Pa) 60 FRD 562, 1974-1 CCH Trade Cases
P 74975; Holliman v Redman Dev. Corp. (1973, DC SC) 61 FRD 488, 18 FR Serv 2d 1048.
Relevancy is the principal inquiry for general objections that the interrogatories are burdensome or onerous to
answer, too many in number, or related to matter immaterial to any issue raised by the pleadings; inquiries which are
too indefinite or all-inclusive are regarded as irrelevant and will be stricken. Greene v Raymond (1966, DC Colo) 41
FRD 11, 10 FR Serv 2d 881.
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USCS Fed Rules Civ Proc R 26
Criteria for determining relevancy of interrogatories is not whether evidence which one party attempts to elicit from
other is admissible at trial or whether it is within issues raised by pleadings, but test is information's relevancy to subject
matter of the action, not limited to the precise issues framed by pleadings; inquiry as to any matter which is or may
become relevant to subject of action should be allowed, subject only to objection of privilege. Felix A. Thillet, Inc. v
Kelly-Springfield Tire Co. (1966, DC Puerto Rico) 41 FRD 55, 10 FR Serv 2d 884.
Requirement of relevancy must be construed liberally with common sense rather than measured by precise issues
framed by pleadings or limited by other concepts of narrow legalisms; thus, discovery should ordinarily be allowed
under concept of relevancy unless it is clear that information sought can have no possible bearing upon subject matter of
action. La Chemise Lacoste v Alligator Co. (1973, DC Del) 60 FRD 164, 178 USPQ 393.
Although an interrogatory under federal discovery rules must be relevant to the litigation, concept of relevancy is to
be given a liberal interpretation. Holliman v Redman Dev. Corp. (1973, DC SC) 61 FRD 488, 18 FR Serv 2d 1048.
Range of discovery permitted by Rule 26(b)(1) is exceedingly broad, and discovery is to be considered relevant
where there is any possibility that information sought may be relevant to subject matter of action. United States v
International Business Machines Corp. (1974, SD NY) 66 FRD 215, 1974-2 CCH Trade Cases P 75381, 19 FR Serv 2d
550.
If documents requested to be produced are relevant and not prepared in anticipation of litigation, they are
discoverable without showing of undue hardship and substantial need; relevancy and admissibility of documents depend
on circumstances of particular case. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184
USPQ 775.
For purposes of discovery under Rule 26, "relevance" is determined by reference to subject matter in issue and not
particular pleadings. Alliance to End Repression v Rochford (1977, ND Ill) 75 FRD 441.
In taxpayer's action for refund of federal income taxes allegedly improperly assessed, taxpayers are not entitled to
discover whether, in career of agent who conducted audit of taxpayers' return, agent had any occasion to do audits of
any other phonographic record distributors and whether he conducted any investigation of unreported income by
vendors of phonographic records because taxpayers failed to establish relevancy of matter in dispute to issue whether
IRS properly assessed taxes. Piks Corp. v United States (1982, ND Ohio) 97 FRD 327, 82-2 USTC P 9564, 36 FR Serv
2d 1099, 50 AFTR 2d 82-5817.
It is helpful to apply test of relevance stated in Rule 401 of Federal Rules of Evidence to problems relating to
appropriate scope of discovery. Planned Parenthood Federation, Inc. v Heckler (1984, DC Dist Col) 101 FRD 342.
When relevancy is not apparent, it is burden of party seeking discovery to show relevancy of discovery request.
Leighr v Beverly Enterprises-Kansas (1996, DC Kan) 164 FRD 550.
When relevancy of propounded discovery is not apparent, its proponent has burden to show that discovery is
relevant. Etienne v Wolverine Tube, Inc. (1999, DC Kan) 185 FRD 653.
Employee alleging sexual harassment by co-employee was ordered to produce DNA sample where co-employee
established its relevance under FRCP 26(b)(1), and established reasonable possibility of match with DNA profiles on
blanket allegedly containing employee's and co-employee's DNA profiles. McGrath v Nassau Health Care Corp. (2002,
ED NY) 209 FRD 55.
Motion to compel defendants to produce certain privileged documents granted, and waiver of attorney/client
privilege by raising advice-of-counsel defense extended to all documents upon which that defense was based. Minn.
Specialty Crops, Inc. v Minn. Wild Hockey Club, L.P. (2002, DC Minn) 210 FRD 673.
Aerospace companies' motion to compel in False Claims Act action was granted because Government conceded
documents sought were relevant to relator's claims, but Government was given 60 days to formally claim state secrets
privilege. United States ex rel. Schwartz v TRW, Inc. (2002, CD Cal) 211 FRD 388.
Where company and individual claimed that they had fire prevention permit in place which was renewed by town
each year, and town denied that company's permit was ever actually issued or renewed, town placed directly in issue its
protocols for issuing and renewing permits and correspondence and accompanying documentation which would
typically be expected upon application, issuance or denial and renewal; thus, documents requested by company and
individual were relevant and proper discovery materials. AMW Materials Testing, Inc. v Town of Babylon (2003, ED
NY) 215 FRD 67.
Court found that certain discovery sought by employees, information on other regions or districts using or currently
not using overtime-eligible plan similar to that utilized in employee's store at issue, appeared relevant under Fed. R. Civ.
P. 26(b)(1) to defining proposed class of plaintiffs. Hammond v Lowe's Home Ctrs., Inc. (2003, DC Kan) 216 FRD 666.
41. --Discovery of information calculated to lead to relevant information
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USCS Fed Rules Civ Proc R 26
Discovery, like all matters of procedure, has ultimate and necessary boundaries, and discovery of matter not
reasonably calculated to lead to discovery of admissible evidence is not within scope of discovery under Rule 26(b)(1)
of Federal Rules of Civil Procedure; thus, it is proper to deny discovery of matter that is relevant only to claims or
defenses that have been stricken, or to events that occurred before applicable limitations period, unless information
sought is otherwise relevant to issues in case; there is no absolute rule which always prohibits obtaining, under
discovery Rules of Federal Rules of Civil Procedure (Rules 26-37), class members' names and addresses; there may be
instances where such information could be relevant to issues that arise under Rule 23 as to class actions, or where party
has reason to believe that communication with some members of class could yield information bearing on such or other
issues. Oppenheimer Fund, Inc. v Sanders (1978) 437 US 340, 57 L Ed 2d 253, 98 S Ct 2380, CCH Fed Secur L Rep P
96470, 25 FR Serv 2d 541.
The information sought by means of the discovery process must be relevant to the issues in an action or must be
useful in uncovering the existence of information relevant to the issues. Vilastor Kent Theatre Corp. v Brandt (1955,
DC NY) 18 FRD 199.
Where the answer to any specific interrogatory can conceivably lead to discovery of relevant information, it is
deemed proper. Stanzler v Loew's Theatre & Realty Corp. (1955, DC RI) 19 FRD 286.
The incorporation in Rule 33 of the provisions of Rule 26(b) enunciated the criterion determinative of the propriety
of a discovery interrogatory that matter inquired must be relevant to the issues in the action or must appear reasonably
calculated to lead to the discovery of admissible evidence. Curtis v Loew's, Inc. (1957, DC NJ) 20 FRD 444.
The phrase "relevant to the subject matter" in Rule 26(b) contemplates either evidence to be introduced at the trial or
information that may lead to the discovery of evidence to be used at the trial. Cooper v Stender (1962, ED Tenn) 30
FRD 389, 6 FR Serv 2d 534.
Ruling permitting discovery in no way required court to permit plaintiffs to use information found in course of
discovery as evidence at trial; court had to find only that information sought was reasonably calculated to lead to
admissible evidence within meaning of Rule 26(b)(1). Bowman v General Motors Corp. (1974, ED Pa) 64 FRD 62, 18
FR Serv 2d 1510.
Relevancy is broadly construed at the discovery stage of litigation, and a request for discovery should be considered
relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.
Biliske v American Live Stock Ins. Co. (1977, WD Okla) 73 FRD 124, 24 FR Serv 2d 691.
Although relevance in context of discovery is decidedly broader than in context of admissible evidence, it is not
without limit; parties to lawsuit are only entitled under Rule 26(b)(1) to discover information that appears reasonably
calculated to lead to discovery of admissible evidence. Payne v Howard (1977, DC Dist Col) 75 FRD 465, 23 FR Serv
2d 1483.
Four year statute of limitation for antitrust actions does not relate to information which could lead to relevant
material; plaintiff in antitrust suit filed in 1977 would be required to answer interrogatories covering period from 1970
to 1973. G. O. Coin Service, Inc. v Ace Vending Co. (1978, DC Ohio) 25 Fed Rules Serv 2d 775.
Scope of discovery as defined by Rule 26 is limited only by relevance, and relevance is construed broadly to include
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
case. Midland-Ross Corp. v United Steelworkers of America (1979, WD Pa) 83 FRD 426, 88 CCH LC P 11897, 28 FR
Serv 2d 342.
In action for variety of federal and state securities laws violation, remaining defendants are not entitled to disclosure
of former codefendant's compromise agreement in order to provide admissible evidence on question of damages
because terms of settlement do not appear to be reasonably calculated to lead to discovery of admissible evidence and
defendants made no showing to contrary. Bottaro v Hatton Assocs. (1982, ED NY) 96 FRD 158, CCH Fed Secur L Rep
P 99051, 11 Fed Rules Evid Serv 1860, 35 FR Serv 2d 562 (criticized in United States v Barrier Indus. (1997, SD NY)
1997 US Dist LEXIS 2244).
On plaintiff's motion to compel production of report prepared by defendants in defamation action consisting of
findings made by senior executive producer as result of study of allegedly defamatory broadcast, plaintiff is entitled to
disclosure of report because report can lead to relevant evidence on both issues of truth and malice. Westmoreland v
CBS, Inc. (1983, SD NY) 97 FRD 703, 9 Media L R 1521, 13 Fed Rules Evid Serv 42, 36 FR Serv 2d 318.
Motion to compel continued deposition of state treasurer, defendant in political discrimination action brought by
former employees of her office, is denied, where plaintiffs' attorney has harassed defendant long enough with rambling,
repetitious questions, because no principle of relevance or potential relevance under FRCP 26 can justify appalling
probes by attorney into defendant's personal life. Six v Henry (1992, WD Okla) 796 F Supp 1448, subsequent app
(1994, CA10 Okla) 42 F3d 582.
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USCS Fed Rules Civ Proc R 26
Party does not have to prove prima facie case to justify discovery request which appears reasonably calculated to
lead to discovery of admissible evidence. Leighr v Beverly Enterprises-Kansas (1996, DC Kan) 164 FRD 550.
Matter related to settlement negotiations, although barred by FRE 408 to prove liability at trial, may still be
discoverable under FRCP 26 if information sought is reasonably calculated to lead to admissible evidence. City of
Wichita v Aero Holdings, Inc. (2000, DC Kan) 192 FRD 300.
Settlement agreements from previous child molestation cases against assailant and his employer, childcare company,
were not discoverable by plaintiffs, victim and her parents, in their suit against the company because the agreements
were inadmissible at trial and plaintiffs made it clear that they sought production of the settlement agreements for their
own sake and not for any evidence the agreements might have led them to discover. Doe v Aramark Educ. Res., Inc.
(2002, MD Tenn) 206 FRD 459.
Former employer was entitled to discover information from its former employee concerning employee's current
employment situation, because information requested was relevant and appeared reasonably likely to lead to discovery
of admissible evidence. Handwerker v AT& T Corp. (2002, SD NY) 211 FRD 203.
Testimony of selection-board personnel was relevant under Fed. R. Civ. P. 26(b)(1) in dispute alleging that U.S.
Navy's policies and practices--including selection board process--favored liturgical Christians over non-liturgical
Christians as clearly testimony of former selection-board personnel with direct knowledge of board proceedings was
reasonably calculated to lead to discovery of admissible evidence regarding alleged Navy discrimination against
non-liturgical chaplains in those very proceedings. Chaplaincy of Full Gospel Churches v Johnson (2003, DC Dist Col)
217 FRD 250.
Because corporation alleged that it was "forced," as result of company's business conduct, to incur costs in form of
supra-competitive prices for prunes from alternate sources needed to satisfy its customer contracts obligations, company
was entitled to learn factual basis for those contentions; discovery request was granted because corporation's motion to
compel responses to interrogatory and document request sought information regarding corporation's contracts, all of
which was reasonably calculated to provide factual basis for corporation's contention that as result of company's abuse
of its market power it incurred significant damages. Cliffstar Corp. v Sunsweet Growers, Inc. (2003, WD NY) 218 FRD
65.
Suit alleging that investment bank breached its underwriting contract with issuers of initial public offerings (IPOs)
by requiring extra payments in order for investors to participate in IPOs, putative class representative was entitled to
discovery of pot lists, indications of interest, and staffing information regarding IPOs of non-class members because
such was reasonably calculated to lead to discovery of admissible evidence under Fed. R. Civ. P. 26(b)(1). Xpedior
Credit Trust v Credit Suisse First Boston (USA), Inc. (2003, SD NY) 309 F Supp 2d 459.
42. Determination by court, generally
To the end that the discovery provisions of the Federal Rules of Civil Procedure are construed to secure the just,
speedy, and inexpensive determination of every action as required by Rule 1, the requirement of Rule 26(b)(1) that the
material sought in discovery be "relevant" should be firmly applied, and the Federal District Courts should not neglect
their power to restrict discovery where justice requires protection for a party or person from annoyance, embarrassment,
oppression, or undue burden or expense; with such authority at hand, judges should not hesitate to exercise appropriate
control over the discovery process. Herbert v Lando (1979) 441 US 153, 60 L Ed 2d 115, 99 S Ct 1635, 4 Media L R
2575, 3 Fed Rules Evid Serv 822, 27 FR Serv 2d 1.
Question of relevance on discovery is for District Court, and only in most unusual case would Court of Appeals
consider reviewing decision on question by means of extraordinary writ. Heathman v United States Dist. Court for
Cent. Dist. (1974, CA9) 503 F2d 1032, 19 FR Serv 2d 157.
Denial of discovery sought by defendants precluded fair trial, and judgment must therefore be set aside, where
matters or subjects at time of discovery were ruled not to be relevant but became relevant at trial and were included in
plaintiff's case in chief. Shaklee Corp. v Gunnell (1984, CA10 Utah) 748 F2d 548, 40 FR Serv 2d 1005.
A statement by the attorney for a party seeking production of documents that they constitute and contain relevant and
material evidence is not sufficient to support the motion; affidavits should disclose facts to enable the court to determine
the issue of relevancy. Archer v Cornillaud (1941, DC Ky) 41 F Supp 435, 4 CCH LC P 60733; Courteau v Interlake
S.S. Co. (1941, DC Mich) 1 FRD 525.
Where the scope of discovery contained in both defendant's and plaintiffs' motions and affidavits indicated the action
was extremely complicated necessitating extensive and broad discovery so that it was sheer guesswork for the court to
designate any particular item as irrelevant, court would grant discovery requests of both parties even though extremely
broad. Bank of America v Loew's International Corp. (1956, DC NY) 19 FRD 115.
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USCS Fed Rules Civ Proc R 26
Where plaintiff sought production of all records relating to his custody in prison and in state hospital, and court
records in certain named cases, court was not in position to determine relevance of documents until they were produced
and therefore ordered production with ruling on relevance deferred until the documents were presented to the court.
Ferenc v Moss (1973, DC Pa) 61 FRD 1.
Clearly those requests that relate to information unquestionably relevant to the legal issues raised in a case should be
honored; however, when the requests approach the outer bounds of relevance and the information requested may only
marginally enhance the objectives of providing information to the parties or narrowing the issues, the court must then
weigh that request with the hardship to the party from whom the discovery is sought. Carlson Cos. v Sperry &
Hutchinson Co. (1973, DC Minn) 374 F Supp 1080, 1974-2 CCH Trade Cases P 75144, 19 FR Serv 2d 696.
Where court is uncertain whether unprivileged document, whose production is resisted solely on grounds of
irrelevancy, is relevant to subject matter involved, production should be ordered. Duplan Corp. v Deering Milliken,
Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
Where defendants sought discovery of certain government documents to support their argument concerning defense
they wished to assert, court was fully justified in determining issue of relevancy on basis of in camera inspection alone,
without adversary proceedings on matter, where case was factually distinct from other cases in which adversary
proceedings had been used, documents at issue were not voluminous or complex, and defendants had failed to
demonstrate compelling need for disclosure. SEC v National Student Marketing Corp. (1975, DC Dist Col) 68 FRD
157, CCH Fed Secur L Rep P 95011, 20 FR Serv 2d 216, affd (1976) 176 US App DC 56, 538 F2d 404, 22 FR Serv 2d
335, cert den (1977) 429 US 1073, 50 L Ed 2d 790, 97 S Ct 809 and cert den (1977) 429 US 1073, 50 L Ed 2d 791, 97 S
Ct 811.
Audit letter concerning potential financial implications of lawsuit is not discoverable under Rule 26(b), where court
reviewed document in camera and determined it contained no factual references which would be discoverable and was
only an opinion, and nothing in opinion conceivably would lead to admissible evidence. Tronitech, Inc. v NCR Corp.
(1985, SD Ind) 108 FRD 655, 1986-1 CCH Trade Cases P 67161, 3 FR Serv 3d 1265.
Defendant suing city for civil rights violations by police officers was entitled to in camera review of officers'
personnel files for evidence of prior similar acts where state claimed confidentiality based on state law, since court
would comply with procedural requirements of state law but was not necessarily bound by substance of it. Martin v
Lamb (1988, WD NY) 122 FRD 143.
When there is doubt about relevance, court should tend toward permitting discovery. Hall v Harleysville Ins. Co.
(1996, ED Pa) 164 FRD 406.
Where there is doubt over relevancy, court should still permit discovery. Coker v Duke & Co. (1998, MD Ala) 177
FRD 682.
State of Wyoming's attempt to subpoena certain documents, namely copies of documents that non-party witnesses
possessed involving Roadless Regulations, and all documents non-party witnesses had sent to any member of USDA,
Forest Service, and other parties, was denied where documents that State sought were irrelevant to its claim that USDA
and Forest Service had violated terms of Federal Advisory Committee Act, 5 USCS app. 2, § 1 et seq. Wyoming v
United States Dep't of Agric. (2002, DC Dist Col) 208 FRD 449.
Discovery was allowed from third party defendant's parent company, Canadian corporation, because matters sought
were relevant to litigation issues presented as required by Fed. R. Civ. P. 26(b)(1); however, court disallowed discovery
requested by defendant that involved documents that were not generated by corporation. Sec. Ins. Co. v Trustmark Ins.
Co. (2003, DC Conn) 218 FRD 24.
Although plaintiff contended that it was not required to respond to discovery requests concerning issues which were
raised but not resolved in underlying administrative proceedings, issues in case were expressly identified by court and
plaintiff was required to provide discovery concerning such issues, including issues which were not administratively
resolved. Nat'l Semiconductor Corp. v Ramtron Int'l Corp. (2003, DC Dist Col) 265 F Supp 2d 71.
43. Trial standards distinguished
Test of relevancy for purposes of discovery under Rule 26(b)(1) is broader than test for admissibility at trial, so that
party may discover information which is not admissible at trial if such information will have some probable effect on
organization and presentation of moving party's case. Smith v Schlesinger (1975) 168 US App DC 204, 513 F2d 462,
20 FR Serv 2d 473.
Showing of relevancy for discovery purposes is not as strict as that which governs admissibility of evidence at the
trial. Trans World Airlines, Inc. v Hughes (1964, CA2 NY) 332 F2d 602, 8 FR Serv 2d 37D.32, Case 1, cert dismd
(1965) 380 US 248, 13 L Ed 2d 817, 85 S Ct 934, 1965 CCH Trade Cases P 71391 and cert dismd (1965) 380 US 249,
13 L Ed 2d 818, 85 S Ct 934, 1965 CCH Trade Cases P 71392.
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USCS Fed Rules Civ Proc R 26
Keynote of federal discovery rules is open disclosure of all potentially relevant information, and test for relevancy of
material to be discovered is not ultimate admissibility. Burns v Thiokol Chemical Corp. (1973, CA5 Ala) 483 F2d 300,
6 BNA FEP Cas 269, 6 CCH EPD P 8737, 17 FR Serv 2d 884, 31 ALR Fed 646, reh den (1973, CA5 Ala) 485 F2d 687,
6 CCH EPD P 8737.
Question of relevancy is to be more loosely construed at discovery stage than at trial. Kerr v United States Dist.
Court for Northern Dist. (1975, CA9) 511 F2d 192, 20 FR Serv 2d 474, affd (1976) 426 US 394, 48 L Ed 2d 725, 96 S
Ct 2119, 21 FR Serv 2d 1021.
The rules contemplate a liberal discovery and the test of relevancy is not as strict as that which governs admissibility
at the trial. Compagnie Continentale D'Importation v Pacific Argentine Brazil Line, Inc. (1940, DC NY) 1 FRD 388;
Mackerer v New York C. R. Co. (1940, DC NY) 1 FRD 408.
At an examination before trial, the question of relevancy is more loosely construed than upon a trial. Conmar
Products Corp. v Lamar Slide Fastener Corp. (1941, DC NY) 2 FRD 154, 51 USPQ 266, 51 USPQ 377.
Depositions before trial are not confined to matters strictly material to the issue, but extend to all matters not
privileged which are relevant to the subject matter involved; incompetent matter, adduced in depositions, may be
objected to at the trial if the depositions are offered. Heiner v North American Coal Corp. (1942, DC Pa) 3 FRD 63.
Rule 26 does not call into operation legal tests of materiality or admissibility; single question is whether the items
sought to be made subject to discovery are relevant to the subject matter of the cause of action. Hercules Powder Co. v
Rohm & Haas Co. (1943, DC Del) 3 FRD 302, 60 USPQ 169.
Interrogatories under Rule 33 may relate to any matter which can be inquired into under Rule 26(b); hence, in
determining whether answers should be ordered to interrogatories the court is not called upon to adjudicate their
admissibility but only to determine the relevancy of the information sought to the subject matter involved in the pending
action. Bowles v Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
The scope of discovery examination is much broader than examination at trial, and where the questions are relevant
to the subject matter of the action and appear reasonably calculated to lead to discovery of admissible evidence such
questions are proper. Rossi v Pennsylvania R. Co. (1956, DC NY) 19 FRD 289.
Tests of relevancy as they relate to documents sought by a motion to produce under Rule 26 are considerably less
stringent than requirements which govern admissibility of evidence at trial. Jensen v Boston Ins. Co. (1957, DC Cal)
20 FRD 619.
Relevancy of question propounded to bankrupt in investigation of his diversion of funds is to be determined not by
standards applied in trial of issues, but by wide latitude of inquiry. In re Autocue Sales & Distributing Corp. (1957,
DC NY) 151 F Supp 798.
"Relevant" as used in Rule 26 is not equivalent to "relevant" as a requisite to admissibility into evidence; connotation
of the term for discovery purposes is relevancy to the subject matter of the action. Bergen Rambler, Inc. v American
Motors Sales Corp. (1962, DC NJ) 30 FRD 334, 5 FR Serv 2d 533.
The scope of relevancy in deposition proceedings is broader than at trial. Independent Productions Corp. v Loew's,
Inc. (1962, SD NY) 30 FRD 377, 5 FR Serv 2d 438.
Where questions asked witnesses on cross-examination, upon taking of depositions, were relevant to the subject
matter of the action, it was immaterial whether or not such questions pertained to subject matter within the scope of the
direct examination since the ordinary trial limitations on the scope of cross-examination are not grounds for a witness
refusing to answer a question asked during the taking of his deposition for purposes of discovery. Spray Products, Inc.
v Strouse, Inc. (1962, ED Pa) 31 FRD 211, 134 USPQ 237, 6 FR Serv 2d 568.
The scope of interrogatories under Rule 33 is expressly governed by Rule 26(b) and under latter rule, discovery may
be had regarding any matter, not privileged, which is relevant to the subject matter involved in a pending action;
objection that the material sought to be discovered will be inadmissible at the trial is not well taken if the material
appears to be reasonably calculated to lead to the discovery of admissible evidence; requirement of relevancy thus has
reference to the subject matter of the action and the latter rule does not call into operation legal tests of relevancy or
admissibility. Griffin v Memphis Sales & Mfg. Co. (1965, ND Miss) 38 FRD 54, 9 FR Serv 2d 33.321, Case 3.
Test of relevancy applied for discovery purposes is relevancy to subject matter of trial, admissibility at trial and
relevancy to precise issues framed by pleadings not being criteria. Muller v Olin Mathieson Chemical Corp. (1965, SD
NY) 240 F Supp 662, 145 USPQ 79; Goldinger v Boron Oil Co. (1973, WD Pa) 60 FRD 562, 1974-1 CCH Trade Cases
P 74975; Holliman v Redman Dev. Corp. (1973, DC SC) 61 FRD 488, 18 FR Serv 2d 1048.
Relevancy required as to production of documents is not equated with that ordinarily used in determining
admissibility of evidence; test is relevancy to subject matter which is broader than relevancy to issues presented by
pleadings. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
Page 88
USCS Fed Rules Civ Proc R 26
Ordinarily, in ruling on discovery motion, court will not determine whether claim in complaint, if proved, would
have bearing on ultimate outcome of action, it being sufficient that matter to be explored is relevant to issues made by
pleadings. Apel v Murphy (1976, DC RI) 70 FRD 651.
Relevancy at discovery level of litigation is not same as relevancy at trial; defendant, in suit for breach of insurance
obligation, was not heard to object to production of any document in underwriting file, which predated issuance of
policy, on ground that they were not relevant. Westhemeco, Ltd. v New Hampshire Ins. Co. (1979, SD NY) 82 FRD
702.
44. Appellate review of relevancy decisions
In reviewing the decision of Federal Court of Appeals which reversed Federal District Court's decision in which
District Court, rejecting newsman's claim of constitutional privilege, ruled that public figure in defamation action could
discover from newsman whether newsman had any reason to doubt veracity of certain of his sources or to prefer
veracity of one source over another since such matters were relevant under the discovery standard of Rule 26(b), United
States Supreme Court will not review District Court's rulings on relevancy, where question as to propriety of trial
judge's application of rules of discovery was not within boundaries of question certified for review in Court of Appeals
on interlocutory appeal under 28 USCS § 1292(b), such question having been as to effect to be given to First
Amendment protection of press with respect to its exercise of editorial judgment in pretrial discovery in libel case
involving public figure or public official. Herbert v Lando (1979) 441 US 153, 60 L Ed 2d 115, 99 S Ct 1635, 4 Media
L R 2575, 3 Fed Rules Evid Serv 822, 27 FR Serv 2d 1.
In taxpayer's action for refund of federal income taxes allegedly improperly assessed, taxpayers are not entitled to
discover whether, in career of agent who conducted audit of taxpayers' return, agent had any occasion to do audits of
any other phonographic record distributors and whether he conducted any investigation of unreported income by
vendors of phonographic records because taxpayers failed to establish relevancy of matter in dispute to issue whether
IRS properly assessed taxes. Piks Corp. v United States (1982, ND Ohio) 97 FRD 327, 82-2 USTC P 9564, 36 FR Serv
2d 1099, 50 AFTR 2d 82-5817.
45. Miscellaneous
Discovery of matter as to damages not relevant until plaintiffs demonstrate that they have a meritorious law suit.
Molinaro v Lafayette Radio Electronics (1973, ED Pa) 62 FRD 464, 182 USPQ 548, 17 FR Serv 2d 1606.
Interrogatories requesting information as to who will control defense of litigation irrelevant because regardless of
who controls defense, adjudication will be res judicata as to all named defendants. Molinaro v Lafayette Radio
Electronics (1973, ED Pa) 62 FRD 464, 182 USPQ 548, 17 FR Serv 2d 1606.
Interrogatory which is actually request for production of documents will be partially granted where, although request
is massive and appears burdensome, documents sought are relevant to subject matter of lawsuit. Realco Services, Inc. v
Holt (1979, ED Pa) 479 F Supp 880.
Computer information and machine records are not per se irrelevant; discovery requests relating to computer, its
programs, inputs and outputs should be processed under methods consistent with approach taken to discovery of other
types of information. Dunn v Midwestern Indem. (1980, SD Ohio) 88 FRD 191, 30 FR Serv 2d 539.
Once party has demonstrated relevancy of certain matters in discovery requests, requested material does not become
irrelevant because it turns out to be proprietary information of nonparty competitors; it is competitor's burden to prove
that information is confidential and injury would result from unnecessary and unreasonable disclosure. Mead Digital
Systems, Inc. v A. B. Dick Co. (1980, SD Ohio) 89 FRD 318.
Even though nonparty may be unconcerned with outcome litigation, it may legitimately oppose even slight burden
upon itself where discovery sought is irrelevant; therefore nonparty accounting firm which audited defendant
corporation's financial reports during period when corporation allegedly violated securities laws has standing to object
to discovery. Fein v Numex Corp. (1981, SD NY) 92 FRD 94, CCH Fed Secur L Rep P 98355, 32 FR Serv 2d 1254.
Plaintiff is not entitled to seek discovery relating to employment practices and policies of company at all its facilities
within state in order to support contention that lawsuit should be maintained as class action since plaintiff has not made
any specific factual allegations of discrimination that pertain to any facility of company other than one at which she was
employed. Hinton v Entex, Inc. (1981, ED Tex) 93 FRD 336, 33 BNA FEP Cas 1300, 27 CCH EPD P 32237, 32 FR
Serv 2d 1328.
Defendant employers in employment discrimination action is not required to answer plaintiff's interrogatories
seeking discovery of information relating to entire scope of defendant's personnel practices and procedures for entire
corporation. Hardrick v Legal Services Corp. (1983, DC Dist Col) 96 FRD 617.
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USCS Fed Rules Civ Proc R 26
Defendant's financial condition is not proper subject of pretrial discovery where nothing in court file indicates even
minimal showing of prima facie case supporting claim for punitive damages; further, even where claim for punitive
damages has some factual support in discovery record, discovery directed to this issue should be limited to net worth,
and production of annual or other periodic balance sheet, distributed to stockholders in regular course of business, or
other financial statement or balance sheet subject to audit or independent CPA verification of accuracy should suffice.
Skinner v Aetna Life Ins. Co. (1984, DC Dist Col) 38 FR Serv 2d 1194.
Individual's medical and mental health history involve private, personal information which ought not to be disclosed
on basis of attenuated relevance. Gatewood v Stone Container Corp. (1996, SD Iowa) 170 FRD 455.
When motion to dismiss is filed asserting lack of personal jurisdiction, discovery may be limited to matters relevant
to jurisdictional issues; if affidavits appear sufficient and it is clear that further discovery would not demonstrate facts
sufficient to constitute basis for jurisdiction, discovery on jurisdictional issues may be denied altogether, but if issue is
not so clear or readily determined from motion papers, it may be abuse of discretion to deny plaintiff opportunity for
discovery to establish his jurisdictional allegations. Fishel v BASF Group (1997, SD Iowa) 175 FRD 525.
Fact that 26 USCS § 6103(a) designates tax information as confidential does not obviate need for party to satisfy
requirements of FRCP 26(c); tax returns and other information regarding income are discoverable if relevant to issues in
lawsuit. Yancey v Hooten (1998, DC Conn) 180 FRD 203.
Reach of subpoena issued pursuant to FRCP 45 is subject to general relevancy standard applicable to discovery
under FRCP 26(b)(1). Syposs v United States (1998, WD NY) 181 FRD 224.
Information is not relevant or discoverable under FRCP 26(b) because it might assist party's evaluation of whether to
settle or try case or help party prepare negotiating strategies. Centillion Data Sys. v Ameritech Corp. (1999, SD Ind) 193
FRD 550.
Matter related to settlement negotiations, although barred by FRE 408 to prove liability at trial, may still be
discoverable under FRCP 26 if information sought is reasonably calculated to lead to admissible evidence. City of
Wichita v Aero Holdings, Inc. (2000, DC Kan) 192 FRD 300.
Surveillance evidence conducted by defendant in personal injury case is discoverable even though defendant only
intends to use evidence for impeachment purposes, since evidence, which bears directly on plaintiff's physical
condition, is relevant to subject matter of case. Gutshall v New Prime, Inc. (2000, WD Va) 196 FRD 43, 47 FR Serv 3d
752.
Witness testimony at FRCP 30(b)(6) deposition is not limited to subject matter of designation in notice, since
limiting scope of such deposition to what is noticed in deposition subpoena would frustrate objectives of FRCP 26(b)(1)
whenever deposing party seeks information relevant to subject matter of pending litigation that was not specified; thus,
once witness satisfies minimum standard, scope of deposition is determined solely be relevance under FRCP 26. Detoy
v City & County of San Francisco (2000, ND Cal) 196 FRD 362.
As long as parties request information or documents relevant to claims at issue in case, and such requests are
tendered in good faith and are not unduly burdensome, discovery must proceed. St. Paul Reinsurance Co. v Commer.
Fin. Corp. (2000, ND Iowa) 198 FRD 508, 48 FR Serv 3d 1232.
Party resisting production bears burden of establishing lack of relevancy or undue burden. St. Paul Reinsurance Co.
v Commer. Fin. Corp. (2000, ND Iowa) 198 FRD 508, 48 FR Serv 3d 1232.
Courts have duty to pare down overbroad discovery requests under FRCP 26(b)(2), which provides that information
may sometimes be withheld, even if relevant; court should consider totality of circumstances, weighing value of
material sought against burden of providing it, discounted by society's interest in furthering truthseeking function.
Rowlin v Ala. Dep't of Pub. Safety (2001, MD Ala) 200 FRD 459.
Settlement agreement between plaintiff and former defendant, along with agreement's accompanying documents,
may be discoverable by co-defendant. White v Kenneth Warren & Son, Ltd. (2001, ND Ill) 203 FRD 364.
Fact that entities affiliated with corporation may or may not have conspired to or engaged in copyright infringement
was solid basis for discovery in copyright infringement case since it related to record companies' claims and defenses,
and although corporation alleged that it had voluntarily produced over 14,800 documents in discovery, information
requested was not unreasonably cumulative or duplicative, and in light of important issues raised by record companies
in obtaining that information, was not burdensome under Fed. R. Civ. P. 26(b)(2); therefore, record companies' motion
to compel under Fed. R. Civ. P. 37 was granted. Sanyo Laser Prods. v Arista Records, Inc. (2003, SD Ind) 214 FRD
496.
2. Relevancy in Particular Cases
46. Antitrust
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USCS Fed Rules Civ Proc R 26
Individual charged with violating Hart-Scott-Rodino Antitrust Improvements Act (15 USCS § 18a) for failure to
notify Justice Department and FTC when his purchases of particular stock exceeded $ 15 million was not entitled to
disclosure of FTC documents requested since they were protected by work-product and deliberative process privileges
and not relevant to issue presented by government or to defendant's affirmative defenses. United States v Farley (1993,
CA7 Ill) 11 F3d 1385, 1993-2 CCH Trade Cases P 70441, 27 FR Serv 3d 1020.
Where defendant charged that suit was not filed in good faith, not because it did not state a cause of action under the
Sherman Antitrust Act [15 USCS § § 1-7, 15 note] but because action was induced by political considerations and to
pay a political debt to another refining company, not made a party, such facts showed that testimony sought from
Attorney General and United States Attorney was irrelevant and was not subject to inquiry on oral depositions. United
States v Cotton Valley Operators Committee (1948, DC La) 75 F Supp 1, affd (1950) 339 US 940, 94 L Ed 1356, 70 S
Ct 793, reh den (1950) 339 US 972, 94 L Ed 1379, 70 S Ct 994.
Interpretation of relevancy for discovery in antitrust cases is quite broad. Maritime Cinema Service Corp. v Movies
En Route, Inc. (1973, SD NY) 60 FRD 587, 1973-2 CCH Trade Cases P 74782, 18 FR Serv 2d 569.
Where plaintiffs alleged monopolization of national trading stamps market and submarkets, as well as illegal tie-in
loan programs, unlawful payments and acquisitions, and various discriminations in price, terms and conditions, while
information pertaining to all aspects of plaintiffs' stamp and related premium business was relevant, to attempt to extend
the scope of inquiry to all enterprises and non-stamp related acquisitions of the plaintiffs would disrupt the process of
discovery envisioned in the Federal Rules and would serve only to delay the course of the lawsuit and unduly burden
the plaintiffs. Carlson Cos. v Sperry & Hutchinson Co. (1973, DC Minn) 374 F Supp 1080, 1974-2 CCH Trade Cases
P 75144, 19 FR Serv 2d 696.
47. Assault and battery
Information pertinent to plaintiff's status as priest is subject to discovery in action for assault and battery, where such
information is intended for use in impeaching credibility of plaintiff. Coyne v Houss (1984, ED NY) 584 F Supp 1105,
39 FR Serv 2d 105.
48. Attorneys' fees
In motion for award of attorneys' fees and costs by plaintiff's counsel, following judgment for plaintiff in age
discrimination action, defendant's counsel's hours expended on case, hourly rate, and total billings and cost were
relevant to motion and therefore discoverable under Rule 26. Real v Continental Group, Inc. (1986, ND Cal) 116 FRD
211, 43 BNA FEP Cas 926, 42 CCH EPD P 36937, reported at (1986, ND Cal) 44 BNA FEP Cas 242.
49. Bankruptcy
Discovery is restricted to material that is relevant to subject matter involved in pending action; restrictions on
discovery may be broader where nonparty is target of discovery to protect such third parties from unnecessary
harassment, inconvenience, expense or disclosure of confidential information; Rule 26(b)(1) of federal rules of civil
procedure makes no distinction between information in hands of parties and information in possession of nonparties;
debtor's prior factor has standing to object to subpoena on grounds of relevancy in adversary proceeding to recover
alleged preferential transfers in which defendant asserted that debtor's prior factor was guilty of ordinary and gross
negligence in factoring of debtor's accounts receivable; alleged misconduct of debtor's prior factor is not valid defense
in trustee's action to recover alleged preferential transfers and any discovery intended to prove this invalid defense is not
relevant to action. In re Candor Diamond Corp. (1983, BC SD NY) 26 BR 847.
50. Conspiracy
In a conspiracy action, scope of testimony and its possible relevancy would be almost impossible to determine before
trial. Heiner v North American Coal Corp. (1942, DC Pa) 3 FRD 63.
Race discrimination plaintiff was entitled to discovery of documents from employer's labor-reporting system that
recorded number of hours actually worked on each task by employees for 2-year period and operations and inspections
reports from employer's production shop since evidence was relevant to show any change in employer's labor needs
during alleged discrimination and shortly before and after it, and likely to lead to discovery of information that
employer's stated reason for terminating plaintiff was pretext. Miles v Boeing Co. (1994, ED Pa) 154 FRD 117, 65 CCH
EPD P 43191.
51. Contracts
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USCS Fed Rules Civ Proc R 26
Parents suing on behalf of daughter, who won talent search for star of "Annie" but was replaced before show's
opening on Broadway, were entitled to disclosure of store's communications with and relationship to producers
regarding terms of contract producers intended to offer successful contestant, and pecuniary benefit store received as
result of search since information could shed light on store's knowledge that it would not offer Broadway opening, and
its motives for failing to limit offer accordingly. Pacitti by Pacitti v Macy's (1999, CA3 Pa) 193 F3d 766, 44 FR Serv 3d
1240.
In action brought by United States against government contractor, information sought by United States, including
testimony from contractor's employees concerning their labor, material records on series of defense contracts
undertaken by defendant, as well as some of defendant's personnel and business records, is relevant to calculation and
proof that United States suffered damages, notwithstanding defendant's contention that discovery should be limited to
specific contracts which are basis of action against it, where government is attempting to compare labor hours on other
contracts to those that were logged on contracts in question. United States v Di Bona (1985, DC Pa) 610 F Supp 449.
Subcontractor documented specific instances where withheld material would show increases in its construction costs,
thus withheld material could reasonably be construed as leading to admissible evidence on issue of damages caused by
construction delays, and subcontractor thus made factual allegations sufficient to satisfy particularized showing test.
Morse/Diesel, Inc. v Fidelity & Deposit Co. (1988, SD NY) 122 FRD 447, 27 Fed Rules Evid Serv 69.
In breach of contract action involving electric power outages, plaintiffs would be compelled to answer interrogatories
concerning course of conduct under similar contracts since information sought appeared to lead to discovery of
admissible evidence concerning plaintiff's interpretation of contract in instant case. Public Service Enterprise Group,
Inc. v Philadelphia Electric Co. (1990, DC NJ) 130 FRD 543, 16 FR Serv 3d 623.
In declaratory judgment lawsuit by business owner and two businesses against National Association of Securities
Dealers (NASD), district court rejected plaintiffs' argument that they were entitled to conduct discovery before court
ruled on NASD's Fed. R. Civ. P. 12(b)(6) motion to dismiss; where plain language of two "click agreements" on NASD
Internet site unambiguously prohibited plaintiffs' commercial use of information downloaded from that site, intent of
party regarding meaning of those agreements was irrelevant, so plaintiffs were not entitled to discovery, Fed. R. Civ. P.
26, of evidence regarding intent. Siedle v Nat'l Assoc. of Sec. Dealers, Inc. (2002, MD Fla) 248 F Supp 2d 1140.
Applying relevancy standards of FRCP 26(b) and 34, subpoena under FRCP 45 for records of operational checking
account of defendant in dispute over non-competition agreement was relevant to financial issues in case, including
relationship between defendant and entity that allegedly competed with plaintiff; however, defendant's payroll account
records were not relevant, and protective order was granted to prevent disclosure to non-parties or use outside litigation.
Transcor, Inc. v Furney Charters, Inc. (2003, DC Kan) 212 FRD 588.
52. Copyrights
In action for copyright infringement involving song published by plaintiff, defendant will not be required to identify
all advertising, publicity, correspondence, and documents relating to allegedly infringing song, notwithstanding
plaintiff's contention that advertising of allegedly infringing song as song on several long-playing records is important
in determining portion of revenues attributable to song from sale or license of such records for purposes of computing
defendant's profits, where similar information has not been requested with respect to other songs on same records.
Intersong-USA, Inc. v CBS, Inc. (1985, SD NY) 1 FR Serv 3d 609.
Since copyright law (17 USCS § 504(b)) provides that copyright owner is entitled to recover any profits of infringer
that are attributable to infringement, which could include even those profits attributable indirectly, information and
documents relating to indirect profits is relevant, and may be discovered by copyright owner. Burns v Imagine Films
Entertainment (1996, WD NY) 164 FRD 589, 34 FR Serv 3d 960, subsequent app, remanded (1997, CA2 NY) 1997 US
App LEXIS 4031.
In copyright infringement suit involving development plans made specifically for parcel of land, certain discovery
requests, regarding defendants' financial information, made by copyright owner constituted harassment and were
outside scope of legitimate discovery on issue of damages and lost profits. Ocean Atl. Woodland Corp. v DRH
Cambridge Homes, Inc. (2003, ND Ill) 262 F Supp 2d 923.
53. Corporate mergers
In former shareholders' action against merged and acquiring corporations for material omission of fact from proxy
statement, true value of merged corporation's stock at time of merger was relevant to claim that proxy statement failed
to disclose controlling shareholders' urgent need to sell in order to raise cash for payment of estate tax liability as fact
raising potential conflict of interest with other shareholders, and was therefore discoverable, since approval of merger at
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price far below true value tended to establish economic pressure to get cash as soon as possible. Mendell v Greenberg
(1987, SD NY) 113 FRD 680, CCH Fed Secur L Rep P 93121, 7 FR Serv 3d 655.
Generally, attorney-client privilege will not preclude contact with former employees of opposing party to litigation;
in certain circumstances, court may extend party's attorney-client privilege to cover its former employees, but before
privilege can be used to prevent such ex parte contact, party asserting privilege must meet its burden of establishing that
privilege exists. United States v Housing Auth. (1997, DC Conn) 179 FRD 69.
54. Customs
In action in which plaintiff seeks possession of suitcase and its contents, based on facts that he holds baggage claim
check corresponding to number originally assigned to suitcase, has given accurate description of suitcase and its
contents, and has entered and filed necessary customs documents, interrogatories and other discovery devices which go
to issue of ownership are not sufficiently relevant to subject matter of action to fall within parameters of Rule 26(b).
Fonseca v Regan (1984, CA2 NY) 734 F2d 944, 39 FR Serv 2d 378, cert den (1984) 469 US 882, 83 L Ed 2d 186, 105 S
Ct 249.
55. Employment
District court did not err in quashing subpoena for second deposition of former chief executive officer of defendant
publisher in class action charging gender discrimination in company's stock ownership program, since it found that
another deposition would be undue burden on nonparty and cause embarrassment, inquiry into "sex for stock" claim
would be of only limited relevance, and appellants had had opportunity to ask questions at previous deposition but did
not do so. Miscellaneous Docket Matter 1 v Miscellaneous Docket Matter 2 (1999, CA8 Minn) 197 F3d 922, 81 BNA
FEP Cas 807, 77 CCH EPD P 46206.
Information regarding institutions' reduction in force (RIF) procedures are discoverable in action alleging sex
discrimination in employment, where subject matter of lawsuit is effect of certain of defendants' policies on female
employees; that plaintiffs have not specifically alleged that RIF procedures have effect of discriminating against women
is not fatal, as pleadings may be liberally amended before trial. Penk v Oregon State Bd. of Higher Education (1982,
DC Or) 99 FRD 506, 37 BNA FEP Cas 918, 35 FR Serv 2d 416.
In employment discrimination action against hotel chain stemming from denial of promotion and alleged
constructive discharge, information concerning policies, practices, and procedures that impact on promotions within
divisions of defendant's hotels other than one at which plaintiff worked is subject to discovery where it is undisputed
that employees are from time to time transferred and promoted from one hotel to another. Brown v Marriott Corp.
(1983, ND Ga) 33 BNA FEP Cas 550.
Plaintiff alleging employment discrimination was entitled to discovery of employer's regional employment statistics,
despite defendant's contention that decision to replace plaintiff was made at local level, since regional statistics might
show whether employer's explicit or implicit policies encouraged or permitted discriminatory employment decisions by
its local supervisory personnel. Guruwaya v Montgomery Ward, Inc. (1988, ND Cal) 119 FRD 36, 60 BNA FEP Cas
811, 48 CCH EPD P 38564.
Magistrate's order that redacted portions of plaintiff's former employer's computer systems manuals were relevant
was not clearly erroneous in action alleging that defendant defrauded its sales persons by failing to pay them proper
commissions pursuant to written compensation plans since issues were not confined merely to calculations and payment
of commissions, but also related to other computer functions. Smith v MCI Telecommunications Corp. (1991, DC Kan)
137 FRD 25, 21 FR Serv 3d 207.
EEOC had marshalled sufficient facts suggesting that three defendants were integrated to entitle it to conduct
discovery that defendants operated as integrated enterprise and therefore should be treated as single employer under
Title VII for purposes of determining number of employees and assessing liability. EEOC v Alford (1992, ED Va) 142
FRD 283, 62 BNA FEP Cas 1018, 63 BNA FEP Cas 930, 65 CCH EPD P 43288.
Tenure review files of law school professor who was granted tenure were not relevant to claims of law school
professor who was not granted tenure; there was no mention of plaintiff in those files and plaintiff had failed to
demonstrate how information in them could reasonably lead to other information that could conceivably tend to prove
that professor's tenure had anything to do with plaintiff. Blum v Schlegel (1993, WD NY) 150 FRD 38, 27 FR Serv 3d
469.
Plaintiff who alleged emotional trauma and pain and suffering due to discrimination he suffered as employee of
defendant and his subsequent termination from employment placed his emotional well-being at issue, his own expert
witness opined that significant cause of his emotional distress was deterioration of his relationship with ex-girlfriend;
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therefore, deposition of her was reasonably calculated to lead to discovery of admissible evidence and would be
allowed. Gladfelter v Wal-Mart Stores (1995, DC Neb) 162 FRD 589.
Plaintiff who alleged that unhealthy conditions at her workplace caused her serious medical problems was entitled to
discover report relating to renovation done at workplace under liberal discovery provided by Rules; defendant presented
no evidence to support assertion that renovation report could be considered embarrassing and that its disclosure could
negatively impact ridership. O'Brien v Amtrak (1995, ED Pa) 163 FRD 232.
Plaintiff's medical records were relevant to litigation in which she alleged employment discrimination by virtue of
employer's alleged refusal to reasonably accommodate her disability. Whitbeck v Vital Signs (1995, DC Dist Col) 163
FRD 398.
Plaintiff alleging age and sex discrimination in employment was entitled to information that would help establish
record of promotions of similarly situated employees, since information regarding defendant's employment practices
prior to plaintiff's employment might be relevant to establish pattern or practice of discrimination and showing that
defendant's proffered reason for disparate treatment was pretext for discrimination. Lyoch v Anheuser-Busch Cos.
(1995, ED Mo) 164 FRD 62, 74 BNA FEP Cas 691, 69 CCH EPD P 44518, subsequent app, remanded (1998, CA8 Mo)
76 BNA FEP Cas 773.
Defendant employer in Title VII (42 USCS § § 2000e et seq.) employment discrimination case was entitled to
copies of state and federal income tax returns that had been filed by plaintiff for particular years, where plaintiff was
seeking compensatory damages and lost income, because discovery had uncovered report of psychological consultation
that indicated that plaintiff had expressed feelings of depression due to his inability to work and financial problems; as
such, documents sought by defendant were relevant to claims for relief made by plaintiff. Dunlap v Midcoast-Little
Rock (1995, ED Ark) 166 FRD 29, 67 CCH EPD P 43886.
General rule that defendant's financial status is relevant for purposes of discovery when claim for punitive damages
has been made is applicable in Title VII (42 USCS § § 2000e et seq.) cases, despite fact that 42 USCS § 1981a places
cap on defendant's liability for punitive damages. EEOC v Klockner H & K Machs. (1996, ED Wis) 168 FRD 233, 71
BNA FEP Cas 833, 70 CCH EPD P 44714, 35 FR Serv 3d 1446.
In Title VII (42 USCS § § 2000e et seq.) cases, courts should avoid placing unnecessary limitations on discovery.
Jackson v Montgomery Ward & Co. (1997, DC Nev) 173 FRD 524, 74 BNA FEP Cas 529, 38 FR Serv 3d 1304.
Sexual harassment plaintiff must strictly confine her discovery requests to matters bearing directly on her claims and
all discovery requests and information disclosed must henceforth be kept strictly confidential, even though scope of
relevant discovery is generally construed broadly, because plaintiff's discovery requests have inquired into every
conceivable office rumor of her former employer, with little or no regard for subject matter. Rossbach v Rundle (2000,
SD Fla) 128 F Supp 2d 1348, 14 FLW Fed D 200.
In employment discrimination cases, evidence of other acts of discrimination is generally discoverable. Morrison v
Phila. Hous. Auth. (2001, ED Pa) 203 FRD 195.
Company-wide responses to certain discovery requests were relevant and appropriate because there was confusion
over who made allegedly discriminatory decision to terminate employees; however, reasonable time limits were
properly imposed to limit scope of requests. Horizon Holdings, LLC v Genmar Holdings, Inc. (2002, DC Kan) 209 FRD
208.
56. --Age discrimination
Plaintiff who only alleges age discrimination is not entitled to discover of information pertaining to race. Prouty v
National R. Passenger Corp. (1983, DC Dist Col) 99 FRD 545.
Where complaint alleges age discrimination in employment, court will not compel answer to plaintiff's interrogatory
seeking information on all lawsuits filed against employer by employees discharged during particular period,
notwithstanding plaintiff's contention that he will be able to contact individuals who have filed lawsuits and obtain
admissible evidence from them, since issues raised in other lawsuits are not relevant to plaintiff's suit. Prouty v
National R. Passenger Corp. (1983, DC Dist Col) 99 FRD 545.
In action under Age Discrimination in Employment Act, plaintiff who was fired on October 8, 1982 is entitled to
discovery of copies of all complaints, lawsuits, or charges filed against defendant since January 1, 1980 which
contained allegations of age discrimination. Jackson v Alterman Foods (1984, ND Ga) 37 BNA FEP Cas 837, 1 FR
Serv 3d 559.
In action under Age Discrimination in Employment Act, plaintiff is entitled to discovery of any and all written
descriptions of various jobs, supervisory and nonsupervisory, available at defendant's Georgia location, notwithstanding
defendant's contention that descriptions of jobs that plaintiff did not actually hold are irrelevant because defendant had
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no duty to transfer plaintiff into other positions once his position was terminated. Jackson v Alterman Foods (1984,
ND Ga) 37 BNA FEP Cas 837, 1 FR Serv 3d 559.
In action under Age Discrimination in Employment Act, plaintiff is entitled to discovery of name, birth date, job
title, and date of hire for all salaried, non-bargaining unit employees of defendant from January 1, 1980 until October
21, 1983, notwithstanding defendant's contention that statistics relative to employees hired before October 8, 1982,
which was date on which defendant reduced its work force and plaintiff was fired, are irrelevant and not discoverable.
Jackson v Alterman Foods (1984, ND Ga) 37 BNA FEP Cas 837, 1 FR Serv 3d 559.
Notwithstanding its objections based on grounds of relevancy, defendant in action under Age Discrimination in
Employment Act is properly ordered to respond to interrogatories seeking detailed financial information concerning
defendant's overall operations, interrogatories seeking (1) information concerning defendant's hiring activity, (2)
information concerning managerial employes whose employment was terminated since 1970 for any reason after they
reached age 40, (3) information concerning average and mean salary increases and bonuses received by managerial
employees each year from 1980 to present, and (4) sales figures for mills that were assigned to plaintiffs for each year
beginning in 1980; in addition, in light of defendant's failure to file timely objection, defendant is properly order to
respond to interrogatory which seeks information concerning other claims of age discrimination that may have been
filed against it since January 1, 1980. Bumpers v International Mill Service, Inc. (1984, ED Pa) 40 FR Serv 2d 1334.
Age discrimination plaintiff's prior charges of job discrimination were discoverable by defendant as reasonably
calculated to lead to admissible evidence; defendant sought information in order to mount defense based on their
frivolous nature, to fo EEOC v Buffalo Broadcasting Co. (1995, WD NY) 163 FRD 178, 68 BNA FEP Cas 1443.
Age discrimination plaintiff's prior charges of job discrimination were discoverable by defendant as reasonably
calculated to lead to admissible evidence; defendant sought information in order to mount defense based on their
frivolous nature, to form predicate for defense that retaliation claim does not lie where prior charge was frivolous, and
to discover evidence bearing upon plaintiff's credibility. EEOC v Buffalo Broadcasting Co. (1995, WD NY) 163 FRD
178, 68 BNA FEP Cas 1443.
Request by District of Columbia Public Schools (DCPS) for protective order so that DCPS would not have to
produce documents showing teaching disciplines of all teachers employed during year at issue was granted because
request would have minimal relevance to claim by Equal Employment Opportunity Commission that teacher was
terminated in violation of Age Discrimination in Employment Act, 29 USCS § 623. EEOC v D.C. Pub. Schs. (2003,
DC Dist Col) 217 FRD 12, 56 FR Serv 3d 1102.
57. --Race discrimination
District Court properly grants plaintiff's motion to compel discovery of information regarding numbers and
comparative percentages of whites and Hispanics who applied for or who were considered for hiring or promotion by
director of federal agency, as well as information concerning those who were evaluated and hired and/or promoted by
the agency, where plaintiff seeks class certification of Title VII action and designation as representative of class
composed of Hispanic Americans who have been denied employment or promotion by defendant, and where, by
agreement of parties, discovery with regard to merit issues is being held in abeyance, but discovery is proceeding with
regard to class certification issue. Velasquez v Faurer (1983, DC Md) 101 FRD 8, 34 BNA FEP Cas 1094, 38 FR Serv
2d 1123.
In job discrimination action in which plaintiff employees assert claims of disparate disciplinary and promotion
standards applied to black and white laborers at one of employer's facilities, employees may discover information about
organizational structure of production and maintenance division of facility in question, job classification of each job title
in that division, range of wage rates within each unit of division, information relating to hiring of foremen and
promotion of employees to foremen positions, information regarding internal complaints or grievances alleging race
discrimination, general information relating to investigations of employer by federal and state agencies, and affirmative
action plans in effect during class period, including self-critical analyses contained in in-house affirmative action plans;
however, employees are not entitled to discovery of information regarding identity of employees who filed complaints
with federal or state agencies, and they cannot discover self-critical information contained in affirmative action plans
which were submitted to Government. Watson v Carpenter Technology Corp. (1984, ED Pa) 40 FR Serv 2d 139.
In Title VII action against employer railroad alleging race discrimination against discharged black train attendant,
railroad would be required to provide requested information regarding investigation of alleged employee violations
conduct rules for 5 year period on nationwide basis, where attendant asserted need for data beyond his own work unit in
order to create sufficient statistical base as evidence of railroad's discrimination against him, and limiting geographical
and temporal scope of discovery to attendant's work unit and period during which investigations were conducted by
particular hearing officer would be improper limitation on attendant's theory of discrimination and consequent need for
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proof. Henderson v National R. Passenger Corp. (1986, ND Ill) 113 FRD 502, 21 Fed Rules Evid Serv 1011, 5 FR
Serv 3d 53.
Discharged black train attendant in Title VII action against employer railroad alleging race discrimination was
entitled to discover names of members of investigating committee formed to examine complaints regarding assessment
of discipline, background on creation of committee, and committee report, since if something were wrong with
disciplinary or hearing procedures and committee was created to remedy that problem, background of committee's
creation was relevant and might show evidence of past discrimination by railroad. Henderson v National R. Passenger
Corp. (1986, ND Ill) 113 FRD 502, 21 Fed Rules Evid Serv 1011, 5 FR Serv 3d 53.
In employment action which alleged race discrimination, defendant employer's equal employment opportunity forms
were relevant to subject matter of action to extent that such forms dealt with racial composition of defendant's
workforce; employer's affirmative action plans were also relevant. Gatewood v Stone Container Corp. (1996, SD Iowa)
170 FRD 455.
58. Franchises
Documents relating to fee arrangements between plaintiffs and their attorneys are not relevant to case involving
alleged breach of franchise agreement where defendant seeking documents has suggested that information would be
relevant to motion it might make to disqualify plaintiffs' counsel but has filed no such motion. Sandler v
McGraw-Edison Co. (1981, SD Ohio) 92 FRD 463, 33 FR Serv 2d 501.
Franchisees who alleged breach of implied covenant of good faith, promissory estoppel and unfair competition
against franchisor were entitled to discovery as to other franchisees since it could be relevant to issues of bad faith and
franchisor's alleged policy of thwarting expansion. Cohn v Taco Bell Corp. (1993, ND Ill) 147 FRD 154.
In suit by franchisor against franchisee and its principals for underreporting sales, where defendants contended that
"additional cash" in franchisee's business came, not from unreported sales, but from emergency cash loans from
nonparty relatives of franchisee's principals, magistrate found that one of principals placed in issue ability of relatives to
make such loans, so that relatives' finances were relevant to franchisor's attempt to prove alleged underreported sales;
thus, magistrate denied relatives' motion for protective order. Dunkin' Donuts Inc. v Mary's Donuts., Inc. (2002, SD Fla)
206 FRD 518.
59. Fraud
Despite lack of allegation concerning kickback, kickback is discoverable as relevant to central allegation of fraud.
Rorer International Cosmetics, Ltd. v Halpern (1979, ED Pa) 85 FRD 43, 28 FR Serv 2d 837.
Information regarding overall condition and supervision of bank, contained in Comptroller of Currency's report of
examination of bank holding deed of trust security interest in plaintiffs' time share project, was relevant for discovery
purposes to alleged conspiracy to defraud plaintiffs out of their security interest in funds attributable to sale of time
share units, since evidence of bank's practices and procedures might indicate a climate conducive to encouraging,
acquiescing in, or being oblivious to fraud engaged in by certain persons which would be probative on the issue of
scienter, and evidence that bank was in poor financial condition would be probative of bank's motives in carrying out
any scheme to defraud. Delozier v First Nat'l Bank (1986, ED Tenn) 113 FRD 522.
In suit by hazardous waste treatment facility operator against source of waste, alleging fraud, negligent
misrepresentation, and breach of contract, defendant's request for documents relating to any environmental investigation
or inquiry by any governmental agency or authority concerning facility in question was relevant to defense that plaintiff
attempted to shift blame to defendant. Republic Envtl. Sys. v Reichhold Chems. (1994, ED Pa) 157 FRD 351.
Corporation's argument that discovery had been unduly limited in its fraud and breach of contract action against
governmental entities was rejected, where court found that limitations placed on discovery under Fed. R. Civ. P.
26(b)(2) by magistrate judge were appropriate in light of issues pertinent to case, and mere hope that additional
discovery may have given rise to winning evidence did not warrant authorization of wide-ranging fishing expeditions.
Tolliver v Fed. Republic of Nig. (2003, WD Mich) 265 F Supp 2d 873.
In creditors committee's fraud suit against debtor's officers, directors, and professional employees, court granted
committee's Fed. R. Civ. P. 37 motion to compel production of auditor's audit manual; any failure to follow auditor's
internal policies could be probative of scienter and, thus, was discoverable pursuant to Fed. R. Civ. P. 26. Official
Unsecured Creditors Comm. of Media Vision Tech., Inc. v Jain (2003, ND Cal) 215 FRD 587.
60. Freedom of Information Act
In action brought pursuant to Freedom of Information Act (5 USCS § 552), scope of discovery is limited to whether
complete disclosure has been made by agency in response to individual's request for information; plaintiff can discover
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whether thorough search for documents has taken place and whether withheld items are exempt from disclosure. Niren
v Immigration & Naturalization Service (1984, DC Or) 103 FRD 10, 39 FR Serv 2d 498.
61. Insurance
District Court did not abuse its discretion in denying insurer's discovery request after viewing partnership documents
in camera to determine whether there was any information relevant to insurer, where insurer claimed that plaintiff's
counsel and arbitrator appointed by plaintiff were limited partners in same partnership and arbitrator was therefore
partial to plaintiff. Lozano v Maryland Casualty Co. (1988, CA11 Fla) 850 F2d 1470, 11 FR Serv 3d 1297, cert den
(1989) 489 US 1018, 103 L Ed 2d 197, 109 S Ct 1136.
Documents in possession of excess or umbrella insurer involving (a) demands by such insurer that a primary insurer
offer or pay its policy limits in settlement of lawsuit, (b) accusations that a primary carrier is guilty of bad faith for
failing to offer policy limits, (c) threats of legal action against a primary carrier for failing to offer its policy limits, or
(d) notice to a primary carrier of lawsuit against it for failing to offer policy limits in settlement of suit, during particular
time period, are not discoverable in action brought by excess insurer against primary insurer alleging, inter alia, that
primary insurer has breached its contractual obligation to exercise good faith in negotiating and settling claim, since
such documents are irrelevant under Rule 26, but defendant primary insurer has right to ascertain whether plaintiff, as
excess carrier, has policy for determining whether a primary insurance carrier is acting in bad faith. United States Fire
Ins. Co. v Royal Ins. Co. (1983, ED Pa) 37 FR Serv 2d 871.
In action by plaintiff British corporation seeking declaratory judgment that defendant insurance company is and was
obligated to defend it in numerous products liability suits by virtue of policy held by American corporation beneficially
owned by plaintiff which defined insured persons as including stockholders acting within scope of their duties, in which
defendant seeks sales and other data concerning products marketed by plaintiff and its other subsidiaries in United
States as determinative of extent to which any claimant against plaintiff was exposed to plaintiff's products, rather than
product of American corporation, magistrate may deny motion to compel discovery, in part, provided that one or both
parties file motion for partial summary judgment on legal issues involving interpretation of policy's coverage provision
within 30 days of order, and grant motion, in part, to extent that plaintiff shall furnish complete list of all cases known to
it in which products of American corporation are basis for suit against plaintiff, since although determination of
coverage of insurance policy may render discovery sought by defendant completely unnecessary, such information in
record may assist court in placing legal issue in its factual context and provide broader perspective into ramifications of
legal issue to be decided, as well as in determining if there is bona fide justiciable dispute and controversy between
parties, and such information will be relevant if coverage issue is not dispositive. Turner & Newall, PLC v American
Mut. Liability Ins. Co. (1984, DC Dist Col) 38 FR Serv 2d 1196.
In action against insurer which raises issues of insurer's alleged failure or refusal to pay $ 519 in chiropractic
expenses and $ 2,108.75 in lost income, and whether such failure or refusal to pay was done in good faith under state
law, insurer's conduct regarding insurance claims of persons other than plaintiff is of no consequence to case and
therefore is not subject to discovery. Moses v State Farm Mut. Auto. Ins. Co. (1984, ND Ga) 104 FRD 55.
In declaratory judgment action insured's discovery request for all claims made against insurer and all complaints
made to state insurance commissioners for past 5 years was too broad, since sole issue was coverage not bad faith, so
that information about how other insureds under different policies felt about insurer's response to their claims was too
marginal in utility to justify burden on insurer that complying with requests as framed would entail. Lawyers Title Ins.
Corp. v United States Fidelity & Guar. Co. (1988, ND Cal) 122 FRD 567.
In declaratory judgment action, insured's request for information about computer systems insurer used to store,
organize and retrieve data about claims was too broad, where it was presumably made to facilitate future discovery
requests, since court should not force party that has invested heavily in developing information management systems to
share their systems with opposing counsel without some showing that party has failed to respond in good faith and
adequately to discovery probes. Lawyers Title Ins. Corp. v United States Fidelity & Guar. Co. (1988, ND Cal) 122
FRD 567.
In declaratory judgment suit concerning insurance coverage, plaintiff was entitled to discover information
concerning drafting history of insurance policies, insurer's participation in insurance organizations, and insurer's
adoption of standard form policy language promulgated by organizations since information was relevant to insurers'
intent concerning policies in question. Leksi, Inc. v Federal Ins. Co. (1989, DC NJ) 129 FRD 99.
Drafting history of comprehensive general liability policy was discoverable by insured where insurer denied
coverage for environmental property damage since, in order for insured to determine whether there was claim for
ambiguity, it must be allowed to explore creation of language and whether intent of drafter was inconsistent with its
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application. Nestle Foods Corp. v Aetna Cas. & Sur. Co. (1990, DC NJ) 135 FRD 101, reported in full (1990, DC NJ)
1990 US Dist LEXIS 16096.
Materials involving insured/tortfeasor's claims filed with his insurer were relevant to claim that insurer acted in bad
faith in handling claims of insured's victim, which was sole issue in litigation, and therefore discoverable. Walters v
State Farm Mut. Auto Ins. Co. (1990, DC Mont) 141 FRD 307.
In declaratory judgment action in which insurer raised arson defense, insured's supermarket checkout receipts were
not indicative of defendants' financial status and were therefore not discoverable. State Auto Ins. Cos. v Briley (1992,
ED Mo) 140 FRD 394.
Information about other claims against insurer arising out of attorneys' fees in take-over litigation was not relevant
since reasonableness of plaintiff's litigation fees would be determined by reference to facts and circumstances of that
particular action. MacMillan, Inc. v Federal Ins. Corp. (1992, SD NY) 141 FRD 241.
Motion to compel response to interrogatories was granted as to two interrogatories, where court concluded that
interrogatories requested information that was relevant to claims and defenses, but overreached to extent they sought
information generally about every current and former business client; thus, court found that defendant individual should
provide requested information respecting every business client only through 1995, when plaintiff company alleged that
individual induced company to purchase insurance polices from individual. Vica Coal Co. v Crosby (2003, SD W Va)
212 FRD 498.
Reports prepared for insurer over previous five years in connection with home foundation damage allegedly caused
by plumbing leaks were discoverable under Fed. R. Civ. P. 26(b)(1) in connection with insureds' claims of bad faith
denial of coverage; reports were relevant to whether insurer knowingly hired biased engineering firm to render opinion
that insurer could use as pretext for denying insureds' claim. Hussey v State Farm Lloyds Ins. Co. (2003, ED Tex) 216
FRD 591.
Because claim under Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. § 42-110a et seq., or
under Connecticut Unfair Insurance Practices Act (CUIPA), Conn. Gen. Stat. § 38a-815 et seq., required proof of
general business pattern, in plaintiff's action seeking declaration regarding propriety of defendant's cancellation of
retrocession agreement and alleging violation of CUTPA predicated on alleged violation of CUIPA, plaintiff was
entitled to discovery of documents evidencing defendant's failure to pay insurance claims by entities not involved in
litigation and attempted or actual modification, recission, or commutation of defendant's reinsurance or retrocession
agreements because details of those disputes restricted in time to period relatively contemporaneous with allegations in
plaintiff's case might substantiate such pattern or practice and would, therefore, have been relevant and discoverable.
Sec. Ins. Co. v Trustmark Ins. Co. (2003, DC Conn) 218 FRD 18.
Because court dismissed debtor's breach of implied covenant of good faith and fair dealing claim against its insurer,
and documents sought by debtor's motion to compel production of documents under Fed. R. Civ. P. 26, 37, were
irrelevant absent claim for consequential damages, court denied debtor's motion to compel. Eurospark Indus. v Mass.
Bay Ins. Co. (In re Eurospark Indus.) (2003, BC ED NY) 288 BR 177, 40 BCD 227.
62. Immigration
In action by alien seeking judicial review of government's decision denying his application for adjustment of status to
that of lawful permanent resident, which decision was based on express finding of statutory ineligibility and was not
discretionary, scope of judicial review was limited to whether ineligibility determination was based on substantial
evidence, so that only documents which were part of administrative record on which government's decision was based
were relevant, and alien was not entitled to discovery regarding findings of statutory ineligibility for permanent
residence as applied to other applicants, nor to documents outside those already in administrative record about
organizations of which alien was a member. Naji v Nelson (1986, ND Ill) 113 FRD 548.
63. Labor relations
In action brought by Secretary of Labor to challenge conduct of mail-ballot election of defendant union's officers,
unredacted copy of chapter of U.S. Department of Labor's Labor Management Standards Enforcement Manual is not
relevant to trial of action and thus not subject to discovery by union where chapter relates solely to Secretary's
investigative practices, techniques, and procedures. Donovan v CSEA Local Union 1000, etc. (1984, ND NY) 116 BNA
LRRM 2955, 39 FR Serv 2d 805.
64. Libel and slander
In libel action brought by former Minister of Defense of Israel against magazine publisher, alleging that statement
was defamatory in depicting him as having encouraged massacre of Palestinians and in stating that commission had
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made secret finding that he had encouraged or condoned massacre, publisher will not be permitted to examine former
Minister concerning his alleged excessive personal political ambition or extent to which he influenced Israeli actions in
country where massacre occurred, beyond particular events bearing directly on core issues in suit, i.e., details of
conversation in which his encouragement was allegedly expressed and whether commission reported secretly on such
details. Sharon v Time, Inc. (1984, SD NY) 103 FRD 86, 11 Media L R 1044, 16 Fed Rules Evid Serv 580, 40 FR Serv
2d 145.
In libel action in which plaintiff has stipulated that his ability to earn money as government official or as farmer has
not been affected by alleged defamatory statement, and has voluntarily restricted his claim to injury done to his stature
as national leader and one who has reputation as military hero, as well as future lost opportunities that such damages
may have predictably caused, defendant must conduct discovery accordingly, approaching damages issue as one that is
related exclusively to stature and reputation. Sharon v Time, Inc. (1984, SD NY) 103 FRD 86, 11 Media L R 1044, 16
Fed Rules Evid Serv 580, 40 FR Serv 2d 145.
In defamation action brought by dismissed employee against her former employer, dismissed employee is not
entitled to discover names of other employees who have complained about employer and nature of their complaints,
since information sought is irrelevant to any material issue and is not calculated to lead to any admissible evidence.
Davis v Ross (1985, SD NY) 107 FRD 326, 2 FR Serv 3d 1497 (criticized in Hazeldine v Beverage Media (1997, SD
NY) 1997 US Dist LEXIS 8971).
Plaintiff in libel action against author and publisher of book about events surrounding and subsequent to killing of
FBI agents on Indian reservation would not be limited to discovery of matter pertaining to specific alleged defamatory
statements identified in complaint, but could discover background facts closely related to subject matter of alleged
defamations probative of defendants' general disdain for truth and accuracy; however, plaintiff was not entitled to
discovery regarding areas unrelated to himself and alleged defamation, such as distant historical facts, broad conspiracy
theories, mineral deposits, Indian legends, and unrelated activities and backgrounds of other persons described in book.
Price v Viking Press, Inc. (1986, DC Minn) 113 FRD 585, 13 Media L R 1906.
Defendant in libel case would not be granted motion to compel nonparty-mayor to answer questions concerning his
alleged social relations with women and representations about them to media since these were not relevant to principal
issue in case, namely what information newspaper's reporters had at time news stories in issue were published.
Clyburn v News World Communications, Inc. (1987, DC Dist Col) 117 FRD 1, 9 FR Serv 3d 335.
65. Malpractice
In malpractice action against doctors and hospital, where hospital sought to obtain discovery of settlement agreement
reached between plaintiff and doctors, District Court held that pursuant to Rule 26(b), settlement agreement was
relevant and subject to discovery since damages that plaintiff could collect from hospital if liability was proved would
depend to some extent on terms, amount, and value of settlement agreement; hospital did not have burden of making
particularized showing of likelihood that admissible evidence would be generated by discovery of settlement agreement.
Bennett v La Pere (1986, DC RI) 112 FRD 136.
In employer's legal malpractice suit against law firm in connection with labor negotiations and disputes,
interrogatories seeking information about plaintiff's cost cutting bargaining strategy were relevant since whether
defendant knew of strategy and advised plaintiff to employ it remained at issue. Stabilus, Div. of Fichtel & Sachs
Industries, Inc. v Haynsworth, Baldwin, Johnson & Greaves, P.A. (1992, ED Pa) 144 FRD 258.
66. Patents
In action involving validity and infringement of patents for automated teller machines, portions of diaries of
plaintiff's chief executive officer pertaining to his employment by plaintiff in any capacity which relates to such
machines, entry apparatus, item dispensers, cash dispensers, and patents covering these items are relevant, and plaintiff
does not meet its burden by merely labeling bulk of diaries as irrelevant while neither offering explanation why
documents are not relevant nor showing why time frame is unreasonable. Chubb Integrated Sys. v National Bank of
Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
In litigation involving validity of patent, volume of sales, market share, growth in market share, replacement of
earlier units sold by others, dollar amounts, nexus between sales and merits of invention, ability of applicant to license
invention, and ability of licensees to sell product are subject to discovery as relevant to commercial success. Chubb
Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
In action involving validity of patent, interrogatories inquiring whether defendant patent holder is currently selling
machines in question and requesting identity of every model manufactured by or for patent holder, and beginning and
ending dates of manufacture, use, and sale or lease of each model are appropriate as relevant to commercial success, and
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information sought with respect to period subsequent to issuance of patents is also reasonable and relevant. Chubb
Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
In action involving validity of patents, interrogatories requesting information about uses and sales of patented
machines prior to dates plaintiff filed for U.S. patents are relevant, notwithstanding patent holder's contention that its
prima facie entitlement to benefits of United Kingdom filing dates renders such information inadmissible. Chubb
Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
In patent infringement action, interrogatories addressed to patent holder seeking date upon which it first believed,
determined, or concluded that each claim had been infringed are proper, since information is relevant to defense of
laches. Chubb Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39
FR Serv 2d 1262.
Defendants would be ordered to disclose any administrative, civil, criminal or licensing proceedings against them
involving false or misleading advertising or trademark infringement since it could lead to other substantive evidence as
well as be used for impeachment of defendants' witnesses at trial; defendants' response that there was only one "lawsuit"
was vague and did not address other areas as to which discovery was sought, and its claim that administrative
proceedings before PTO were voluminous and irrelevant was insufficient without any explanation why documents were
irrelevant. American Angus Ass'n v Sysco Corp. (1994, WD NC) 158 FRD 372.
Patentee was entitled to discover information calculated to lead to admissible evidence of whether defendant made,
used or sold protein that stimulates production of red blood cells during term of patent, and whether defendant induced
others to infringe patent. Amgen, Inc. v Elanex Pharmaceuticals (1994, WD Wash) 160 FRD 134, 32 USPQ2d 1688.
Plaintiff was entitled to discovery of documents pertaining to alleged patent infringer's activities within state,
including its volume of sales and number of its customers and distributors, since it was relevant to issue of court's
personal jurisdiction over alleged infringer. Oregon Precision Indus. v International Omni-Pac Corp. (1995, DC Or)
160 FRD 592, 36 USPQ2d 1117, motion den, request gr (1995, DC Or) 889 F Supp 412, 36 USPQ2d 1708.
Even if documents were not ones requested, and even if alleged patent infringer was unduly evasive and should have
produced draft of book in response to requests, sanctions were not warranted because book did not create genuine issue
of material fact on infringement. Epcon Gas Sys. v Bauer Compressors, Inc. (2003, ED Mich) 243 F Supp 2d 729.
Where plaintiff argued that defendant's alleged inventor did not provide sufficient information to permit enablement
of invention, and defendant responded that plaintiff's alleged inventor provided no greater information in applying for
patent, discovery of what plaintiff's alleged inventor did or did not disclose in patent application was legitimate and
permitted. Nat'l Semiconductor Corp. v Ramtron Int'l Corp. (2003, DC Dist Col) 265 F Supp 2d 71.
Where plaintiff argued that defendant's alleged inventor engaged in inequitable conduct by failing to disclose
information which would have affected decision to issue patent, plaintiff was required to identify information allegedly
withheld, which reasonable patent examiner would find either disclosed or rendered obvious patents for which alleged
inventor applied. Nat'l Semiconductor Corp. v Ramtron Int'l Corp. (2003, DC Dist Col) 265 F Supp 2d 71.
Patent assignee claiming infringement of his patent for "combined holder for keys and protective spray" failed to
establish need for broad range of information requested from nonparty who was successor in interest to company that
had sold tear gas products to defendant. Katz v Batavia Marine & Sporting Supplies, Inc. (1993, CA) 984 F2d 422, 25
USPQ2d 1547, 25 FR Serv 3d 724.
67. Personal injury and wrongful death
Surveillance videotape showing allegedly injured worker going about daily activities was substantive evidence to
which worker was entitled to disclosure since it was relevant to severity of her pain and extent to which she had lost
enjoyment of normal activity. Chiasson v Zapata Gulf Marine Corp. (1993, CA5 La) 988 F2d 513, 38 Fed Rules Evid
Serv 729, 25 FR Serv 3d 430, reh, en banc, den (1993, CA5 La) 3 F3d 123 and cert den (1994) 511 US 1029, 128 L Ed
2d 189, 114 S Ct 1536.
District court did not abuse its discretion in admitting hospital records of party who was shot when police officer
fired gun at car in which she was passenger, even though plaintiff failed to disclose them before trial as required by
Rule 26, since defendant had opportunity to get records and it made no sense to exclude them in case of stipulated
shooting. Fisher v City of Memphis (2000, CA6 Tenn) 234 F3d 312, 2000 FED App 407P.
In action by mother, father and sister of decedent for recovery of damages against United States for wrongful death,
medical records of mother are discoverable since pecuniary loss alleged in complaint includes payments which deceased
son would have made to his mother during his lifetime and medical records bear upon life expectancy and are relevant
in determination of amount of pecuniary loss suffered. McCluskey v United States (1983, SD NY) 562 F Supp 515, 13
Fed Rules Evid Serv 1775, 37 FR Serv 2d 86.
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Wrongful death defendant was entitled to access to decedent's juvenile records since they were relevant to
determining decedent's expected lifetime earnings because they would be probative of occupational category that
decedent may have entered. Hamilton v District of Columbia (1994, DC Dist Col) 152 FRD 426, 28 FR Serv 3d 829.
Personnel files of arresting officers were relevant to claim of police chief's supervisory liability in plaintiff's § 1983
action alleging use of excessive force in pursuing and arresting him. Green v Fulton (1994, DC Me) 157 FRD 136.
Surveillance evidence conducted by defendant in personal injury case is discoverable even though defendant only
intends to use evidence for impeachment purposes, since evidence, which bears directly on plaintiff's physical
condition, is relevant to subject matter of case. Gutshall v New Prime, Inc. (2000, WD Va) 196 FRD 43, 47 FR Serv 3d
752.
68. Prisons and jails
Inmate was entitled to discover dates on which defendants were hired, dates and reasons for termination, and
educational training; he did not seek personal information that might jeopardize defendants' safety nor entire files on
defendants for his own perusal. Brandon v Beard (1991, MD Pa) 140 FRD 328.
Inmate who alleged correctional officer's use of excessive force to stop fight with another inmate was not entitled to
have defendants produce reports and complaints involving use of excessive force by named defendants since they were
not relevant to whether force used on inmate was more than what was reasonably necessary at time and under
circumstances then existing; it was undisputed that inmate was engaged in fight with another inmate and every witness
to incident described him as aggressive, uncooperative, and hostile. Hendershott v Skipper (1995, DC Or) 160 FRD
129.
In inmate's 42 USCS § 1983 action against, inter alia, prison employees, alleging violation of 28 USCS § 1915(b),
retaliation under U.S. Const. amend. I, and violation of his right of access to courts, prison employees' motion to compel
answers to interrogatories was granted where prison employees' interrogatories requesting identity of persons and
seeking witnesses having information regarding inmate's claim, requesting oral conversations inmate had with prison
employees regarding his complaint, requesting inmate to detail his damages, seeking all correspondence allegedly not
mailed in violation of inmate's rights, seeking information as to inmate's efforts to re-mail disputed correspondence, and
seeking identification of inmate's legal proceedings were subject to mandatory disclosure under Fed. R. Civ. P.
26(a)(1)(A), were relevant under Fed. R. Civ. P. 26(b)(1), were related to inmate's 42 USCS § 1983 claims, and were
not privileged. Davidson v Goord (2003, WD NY) 215 FRD 73, app den (2003, WD NY) 259 F Supp 2d 238.
69. Products liability
Names of persons known to manufacturer to have been injured by manufacturer's printing presses are relevant in
products liability action since information may lead to relevant evidence regarding existence of defect. Josephs v
Harris Corp. (1982, CA3 Pa) 677 F2d 985, CCH Prod Liab Rep P 9287, 10 Fed Rules Evid Serv 612, 34 FR Serv 2d
28.
Discovery of predecessor designs of truck's sleeping compartment was properly denied since differences in design
were fully explored at trial and dissimilarities were sufficient that burdensome production of documents regarding
earlier models would not have yielded relevant information. Hofer v Mack Trucks, Inc. (1992, CA8 SD) 981 F2d 377,
24 FR Serv 3d 872, reh, en banc, den (1993, CA8) 1993 US App LEXIS 1589.
In products liability action brought by kitchen employee who alleges that he was injured when food processor fell on
him due to its faulty design and manufacture by defendant, trial court properly grants plaintiff's motion to compel
answer to interrogatory which requests listing of (1) total number of machines sold, (2) names and addresses of
customers who purchased this type of machine, (3) extensive information regarding all complaints received by
defendant regarding machine, and (4) extensive information regarding all complaints received by defendant as to any
prototype or successor machines. Gidlewski v Bettcher Industries, Inc. (1983, ED Pa) 38 FR Serv 2d 664.
In products liability action brought by kitchen worker allegedly injured when food processor fell on him due to its
faulty design and manufacture by defendant, trial court properly grants plaintiffs motion to compel answers to
interrogatories which seek extensive information regarding any individual who had involvement with design,
manufacture, advertisement, or distribution and sale of machine in question or its prototypes or successors, but
defendant will be given opportunity to demonstrate propriety of producing business records in lieu of specific answers
to interrogatories. Gidlewski v Bettcher Industries, Inc. (1983, ED Pa) 38 FR Serv 2d 664.
Manufacturer of contraceptive was entitled to discovery of plaintiffs' sexual histories, including names of sexual
partners, since such information was likely to lead to relevant evidence that something other than defendant's product
caused plaintiffs' injuries, but confidential designation would be applied to such information and defendant would be
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barred from contacting third parties without further motion showing cause based on specific facts in record. Allen v
G.D. Searle & Co. (1988, DC Or) 122 FRD 580.
In products liability suit against drug manufacturer alleging that plaintiff's cancer was caused by DES taken by her
mother during pregnancy, court would not order execution of general medical authorization by plaintiff's mother who
was not party to suit in absence of showing that she had any medical conditions that might have some bearing on issue
of causation. Brown v Eli Lilly & Co. (1990, DC Neb) 131 FRD 176.
Documents from other lawsuits involving defendant's DPT vaccine manufacturer were relevant to instant suit and
therefore discoverable where defendant was same in all suits, question of defect in vaccine would be same, and 12 year
time period in which cases occurred could provide relevant information given that plaintiff was vaccinated 7 years
previously and research, testing and manufacture of vaccine took many years. Snowden v Connaught Laboratories,
Inc. (1991, DC Kan) 137 FRD 325, 22 FR Serv 3d 263.
Information about all of automobile manufacturer's restraint systems dependent upon pendulum-induced locking
mechanism were relevant and hence discoverable regardless of which vehicle lines they were used in since it was
restraint system built upon essential component of pendulum-induced locking mechanism that was at issue. Baine v
General Motors Corp. (1991, MD Ala) 141 FRD 328.
Destructive testing of cane whose failure allegedly caused plaintiff's personal injuries would be approved since its
tensile strength and composition were relevant. Spell v Kendall-Futuro Co. (1994, ED Tex) 155 FRD 587.
Records requested of keyboard manufacturer's then-parent company in products liability action reflected
communications concerning complaints of repetitive stress injury and were thus relevant to whether parent had notice
that certain types of keyboard designs and uses might result in repetitive stress injuries. Fletcher v Atex, Inc. (1994, SD
NY) 156 FRD 45, 30 FR Serv 3d 739.
Interrogatories requesting information solely concerning same type model ladder as involved in plaintiff's accident,
such as reports of other incidents and/or any lawsuits with ladder, and information concerning modifications or
alterations to same type model ladder was relevant to subject matter of product liability lawsuit; defendant's objections
confused admissibility of similar accidents with discoverability. Scaturro v Warren & Sweat Mfg. Co. (1995, MD Pa)
160 FRD 44.
Injured parties' request for certain items in regard to overheating of dishwasher which allegedly started fire and killed
their daughter was approved as they had right to discover information to support their expert's opinion in regard to
overheating and fire issues. McCoy v Whirlpool Corp. (2003, DC Kan) 214 FRD 637.
70. Punitive damages
Information of defendant's net worth or financial condition is relevant to punitive damages claim. Mid Continent
Cabinetry, Inc. v George Koch Sons, Inc. (1990, DC Kan) 130 FRD 149.
Defendant's objections to discovery concerning its financial resources as irrelevant were without merit where court
had denied its motion to dismiss punitive damages claims and its motion for summary judgment on grounds that it was
allegedly not responsible for its employee's actions. Floyd-Mayers v American Cab Co. (1990, DC Dist Col) 130 FRD
278.
Plaintiff need not establish prima facie case on issue of punitive damages before he or she can obtain pretrial
discovery of defendant's financial statements and tax returns; it is sufficient for plaintiff to show that his or her claim is
not spurious in order to be entitled to discovery of defendant's financial condition. Krenning v Hunter Health Clinic
(1996, DC Kan) 166 FRD 33.
General rule that defendant's financial status is relevant for purposes of discovery when claim for punitive damages
has been made is applicable in Title VII (42 USCS § § 2000e et seq.) cases, despite fact that 42 USCS § 1981a places
cap on defendant's liability for punitive damages. EEOC v Klockner H & K Machs. (1996, ED Wis) 168 FRD 233, 71
BNA FEP Cas 833, 70 CCH EPD P 44714, 35 FR Serv 3d 1446.
71. RICO
In suit under RICO for misrepresentation in sale of chemical plant, court will not grant discovery where plaintiff
does not make threshold actual showing linking information sought to alleged racketeering activity, and where there is
no showing that information sought would be relevant to subject matter of suit. PMC, Inc. v Ferro Corp. (1990, CD
Cal) 131 FRD 184, 18 FR Serv 3d 287.
72. Securities
Although whether plaintiffs owned particular stock was relevant to subject matter of litigation, other matters
defendant sought to discover--how plaintiffs invested their tender offer proceeds, whether their investment history made
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it likely they would have elected to receive preferred stock instead of cash, and whether they would pay taxes on cash
proceeds they received--were not and district court therefore abused its discretion in holding plaintiffs in contempt; any
information defendant would have gleaned from discovery requests would have no bearing on either merits or class
certification motion since all plaintiffs are required to establish to recover damages under Rule 14d-10 is either that one
individual defendant received consideration not offered to other shareholders that was worth more than what other
shareholders received, or that another individual defendant received extra $ 21 million payment for tendering his shares.
Epstein v MCA (1995, CA9 Cal) 54 F3d 1422, 95 CDOS 3827, 95 Daily Journal DAR 6589, 32 FR Serv 3d 840,
subsequent app (1995, CA9 Cal) 1995 US App LEXIS 22474.
Court would deny sweeping motion for in-camera inspection of 800 Securities and Exchange Commission
documents withheld as privileged, but would reconsider appropriateness of examination where plaintiff, within
reasonable time, identified and made a particularized, limited demand for specified documents with adequate showing
of relevance and need. Canadian Javelin, Ltd. v Lawler, Kent & Eisenberg (1979, DC Dist Col) 478 F Supp 448, CCH
Fed Secur L Rep P 97160.
In action brought for variety of federal and state securities laws violations, defendants are not entitled to disclosure of
former codefendant's compromise agreement for purposes of determining amount of settlement since amount of
settlement contained in agreement is not relevant in determining whether former codefendant is possibly liable to
remaining defendant for contribution despite its settlement with plaintiff, because full liability of all defendants will not
be known until final judgment. Bottaro v Hatton Assocs. (1982, ED NY) 96 FRD 158, CCH Fed Secur L Rep P 99051,
11 Fed Rules Evid Serv 1860, 35 FR Serv 2d 562 (criticized in United States v Barrier Indus. (1997, SD NY) 1997 US
Dist LEXIS 2244).
In action by bank against securities clearing corporation stemming from defendant's failure to tender certain shares of
stock in bank's account in accordance with bank's instructions, defendant may refuse to disclose identity of all its
personnel presently assigned to relevant department in view of facts that (1) such discovery is inadmissible and (2)
defendant has agreed to provide information regarding whether any staff members were fired, reprimanded, or
transferred from department as result of incident. Philadelphia Nat'l Bank v Depository Trust Co. (1984, ED Pa) 38
FR Serv 2d 1314.
In action by bank alleging breach of contract, tortious activity, and breach of fiduciary duty by securities clearing
corporation based on defendant's failure to execute instructions to tender certain securities pursuant to corporate
exchange offer, plaintiff is not entitled to information regarding all actions filed at any time asserting liability against
defendant, but it is entitled to information regarding transactions substantially similar to that involved in case which
could be productive on issue of whether defendant had any reason to know of defective processing procedures.
Philadelphia Nat'l Bank v Depository Trust Co. (1984, ED Pa) 38 FR Serv 2d 1314.
Motive of shareholder in suing corporation for allegedly false statements in proxy materials was relevant to defense
of unclean hands and laches, since equitable relief requested might produce effect plaintiff was allegedly seeking,
namely control of corporation. Parsons v Jefferson-Pilot Corp. (1992, MD NC) 141 FRD 408.
Securities fraud plaintiff was not entitled to discover internal operating procedures and deliberations of nonparty
organization which rated creditworthiness of defendant's securities since organization was not party to action nor were
its rating or analysis of defendant's stock subject of litigation. In re Scott Paper Co. Sec. Litig. (1993, ED Pa) 145 FRD
366.
Documents relating to operation of funds and defendants' participation in operating funds in question in securities
litigation were discoverable since they were relevant; information concerning procedures to be utilized according to
Prospectus and actual operation of funds was clearly at heart of litigation. In re ML-Lee Acquisition Fund II, L.P.
(1993, DC Del) 151 FRD 37.
Location and nature of defendants' Swiss accounts and banks' records of transactions involving those accounts was
relevant to pending securities fraud action, hence use of consent directives to obtain discovery from Swiss banks was
reasonably calculated to lead to production of relevant evidence. SEC v College Bound (1994, DC Dist Col) 155 FRD 1.
Where plaintiffs in securities fraud action are seeking class certification pursuant to FRCP 23, and plaintiffs testified
in their depositions that they had been plaintiffs in other securities actions, defendant's discovery request for information
concerning plaintiffs' involvement in prior securities litigation is relevant to issue of whether plaintiffs can adequately
represent current class. Roseman Profit Sharing Plan v Sports Rec. (1996, MD Fla) 165 FRD 108.
In securities fraud case, investors, who alleged brokerage house charged municipal bond purchasers excessive
markups and failed to disclose markups, were entitled to production of algorithms brokerage house used to calculate
equity commissions and municipal bond markups; regardless of whether investors had proved lawsuit was appropriate
for class action, pursuant to FRCP 26(b)(1), information was relevant to named investors' claims. Grandon v Merrill
Lynch & Co. (2002, SD NY) 208 FRD 107.
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Documents that shareholders sought to discover concerned revised hedge policy that postdated class period, and
shareholders had access to other documents concerning company's hedge book as it existed during and before class
period; but this did not prove irrelevance and company was ordered to produce those documents. In re Ashanti
Goldfields Secs. Litig. (2003, ED NY) 213 FRD 102.
Suit alleging that investment bank breached its underwriting contract with issuers of initial public offerings (IPOs)
by requiring extra payments in order for investors to participate in IPOs, putative class representative was entitled to
discovery of letters from bank to interested investors, in which it was believed bank mentioned extra payments, because
such were relevant to claim and representative was entitled to discovery of bank's proprietary trading in IPO shares
because re-selling of IPOs at issue was form of compensation alleged in complaint and, therefore, was relevant as
contemplated by Fed. R. Civ. P. 26(b)(1). Xpedior Credit Trust v Credit Suisse First Boston (USA), Inc. (2003, SD NY)
309 F Supp 2d 459.
Suit alleging that investment bank breached its underwriting contract with issuers of initial public offerings (IPOs)
by requiring extra payments in order for investors to participate in IPOs, putative class representative was not entitled to
discovery of bank's Chinese Walls policies because information about policies was not probative of conflicts of interest
alleged to exist between bank's analyst and banking divisions and would not have been evidence of whether anyone at
bank adhered to policies; hence, such documents were not relevant as required by Fed. R. Civ. P. 26(b)(1). Xpedior
Credit Trust v Credit Suisse First Boston (USA), Inc. (2003, SD NY) 309 F Supp 2d 459.
73. Taxation
In tax refund case motion to compel production of any and all files of IRS relating to particular revenue ruling and
rationale behind it was properly denied since question was solely one of law, facts had been stipulated, and materials
sought were not relevant. Groves v United States (1976, CA5 Fla) 533 F2d 1376, 76-2 USTC P 9509, 38 AFTR 2d
76-5322, 43 ALR Fed 523, cert den (1976) 429 US 1000, 50 L Ed 2d 611, 97 S Ct 529.
Where taxpayer challenges validity of admittedly clear and concise interpretative regulation, taxpayer raises issue of
law, and opinions, discussions, and considerations of tax officials with respect to history, development and application
of challenged regulation are not obtainable through discovery, since they are irrelevant to resolution of legality issue.
Furman v United States (1983, DC SC) 83-2 USTC P 9739, 53 AFTR 2d 84-428.
Homeowners were not pursuing lost income, and financial loss claimed was due to damage to their house; thus,
homeowners did not place amount of their income at issue and insurer's motion to compel tax returns was denied. Evans
v Allstate Ins. Co. (2003, ND Okla) 216 FRD 515.
74. Trade secrets
Plaintiff is entitled to discovery of defendants nonoffice copier projects in xerography albeit plaintiff's case is based
upon defendant's alleged misuse of trade secrets and confidential information in connection with xerographic office
copiers, because the information plaintiff seeks reasonably appears calculated to lead to discovery of admissible
evidence. Xerox Corp. v International Business Machines Corp. (1977, SD NY) 75 FRD 668.
Computer manufacturer who was sued by competitor on claims of false advertising because it used recycled parts
was entitled to discover from nonparty competitor variety of information concerning re-use of component parts of
personal computers; defendant had substantial need as basis for expert testimony to establish industry practice, and
appropriate protective order would protect nonparty's confidential information from being used by competitors. Compaq
Computer Corp. v Packard Bell Elecs. (1995, ND Cal) 163 FRD 329.
75. Miscellaneous
On motion to compel a New York nonparty witness to produce at his deposition certain documents described in
subpoena duces tecum, New York auxiliary court could properly consider document's relevancy, although California
primary court had ordered production of the documents. In re Surety Asso. of America (1967, CA2 NY) 388 F2d 412,
11 FR Serv 2d 976.
Bar examinee, in civil rights action alleging discrimination as cause of her failure of bar exam, relied heavily on
former member of Committee on Bar Admissions alleged threat, in urging that examinations were not really graded
anonymously, and, therefore, defendants' request for production of tape recording of telephone conversation containing
such threat, was relevant. Jones v Louisiana State Bar Asso. (1979, CA5 La) 602 F2d 94, 28 FR Serv 2d 162.
Interrogatories to implicated blood donor were reasonably calculated to lead to evidence relevant to plaintiff's theory
that defendant had been negligent in its donor screening process; donor's knowledge of AIDS-related risks might
prompt memories of having been told of such risks during prior donation attempt, or of receiving assurances during
prior donation attempt that incarceration or homosexuality were not disqualifying circumstances, and likewise questions
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about donor's level of education were relevant to screening process since if he was illiterate, regular screening process
should have been explained orally and duration of entire process might be relevant to question of adequacy of
procedures employed. Watson v Lowcountry Red Cross (1992, CA4 SC) 974 F2d 482, amd, corrected (1992, CA4) slip
op.
In motorists' 42 USCS § 1983 action against deputy sheriff, videotapes of event were relevant to prove pattern and
practice of illegal stops by deputy sheriff, and subpoena for them was not overbroad, burdensome or harassing.
Gonzales v NBC (1998, CA2 NY) 155 F3d 618, 26 Media L R 2300.
In preenforcement proceeding to review Federal Trade Commission's annual line-of-business reporting program,
protective order prohibiting deposition of Commission official would be granted where scope of court's review,
confined to administrative record, rendered such testimony improper and irrelevant. Smith v Federal Trade Com.
(1975, DC Del) 403 F Supp 1000, 20 FR Serv 2d 1382.
Limitation on examination of deponent, representative of packaging company, to answer questions having to do with
milk cartons as distinguished from folding cartons is improper where throughout discovery proceedings no inherent
distinction was made between milk cartons and folding cartons, deponent testified that he had overlapping responsibility
for milk and folding cartons, and although packaging company did not sell folding cartons to plaintiffs bringing motion
to compel certain deponents to answer questions, questions by these plaintiffs are appropriate because packaging
company could have bid on business and because sale of folding cartons is "relevant to subject matter involved in
pending action, whether it relates to claim or defense of party seeking discovery or to claim or defense of any other
party." In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 132, 4 Fed Rules Evid Serv 1372, 28 FR Serv
2d 112.
Information, concerning participation agreement, designed to determine if defendant made loans other than those to
particular groups, is sufficiently probative to sustain relevancy of interrogatories. Federal Deposit Ins. Corp. v
Mercantile Nat'l Bank (1979, ND Ill) 84 FRD 345, 5 Fed Rules Evid Serv 857, 28 FR Serv 2d 972.
Documents relating to lobbying behind statute being challenged on constitutional grounds are irrelevant to issues in
case and not subject to discovery, since statute's constitutionality may be upheld regardless of lobbying intent behind it.
Primary Care Physicians Group, P.C. v Ledbetter (1984, ND Ga) 102 FRD 254.
For purposes of personal jurisdiction with respect to defendant foreign state served pursuant to 28 USCS § 1608,
relevant area in delineating contacts is entire United States, and documents which plaintiff has requested relating to
defendant's contacts throughout United States are therefore relevant. Ruiz v Transportes Aereos Militares
Ecuadorianos (1984, DC Dist Col) 103 FRD 458.
Protective order vacating notice of deposition is granted where defendant seeks to inquire into motive for instituting
lawsuit, because decision to institute lawsuit has no relevancy or bearing on issues in case. Digital Equipment Corp. v
System Industries, Inc. (1986, DC Mass) 108 FRD 742.
In action alleging violations of federal law in connection with defendant corporation's incentive program that had
been offered to plaintiff's competitors but not to plaintiff, where plaintiff noticed depositions of several high-level
executives at defendant corporation and later filed motion to compel those depositions, District Court rejected
corporation's claim that depositions were requested solely for purpose of harassment and stated that when motives
behind corporate action were at issue, opposing party had right to depose those officers and employees who approved
and administered particular action at issue, and court noted that corporation did not establish that all information sought
was available and/or had already been obtained from other sources. Travelers Rental Co. v Ford Motor Co. (1987, DC
Mass) 116 FRD 140, 7 FR Serv 3d 1349.
In Love Canal case, motion to compel deposition testimony from government witnesses regarding health,
epidemiological, habitability, and migration evidence would be denied in liability phase of trial because evidence of
actual adverse health effects was largely irrelevant and unnecessary to question of proof of health threat to support
public nuisance claim, and allowing such discovery at liability phase would seriously undermine intent of case
management and discovery order. United States v Hooker Chemicals & Plastics Corp. (1987, WD NY) 118 FRD 321.
Motion to compel discovery, filed more 2 months after close of discovery, would not be granted where there was no
showing that additional information sought was relevant to pending action. Krauss v First City Nat'l Bank & Trust Co.
(1989, SD NY) 125 FRD 80, CCH Fed Secur L Rep P 94426.
In turnover proceeding, corporate minutes of debtor corporation were discoverable since they might contain
representations concerning ownership of corporate stock and were therefore relevant. A.F.L. Falck, S.p.A. v E.A. Karay
Co. (1990, SD NY) 131 FRD 46.
Documents regarding defendant's lobbying efforts were discoverable as relevant since plaintiffs alleged that
defendants conspired to effect sham legislative, executive, administrative, and judicial proceedings to mask private
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intent to wrest ownership/control of plaintiff's marina business. P.& B. Marina, Ltd. Partnership v Logrande (1991,
ED NY) 136 FRD 50, affd without op (1992, CA2 NY) 983 F2d 1047.
In suit alleging that bank violated its fiduciary obligations as trustee of ESOP by agreeing to ESOP's participation in
leveraged buyout of plan sponsor, documents relating to buyout, similar transactions, and those concerning possible
preparation and issuance of guidelines to govern assessment of these types of transactions were relevant for discovery
purposes. Martin v Valley Nat'l Bank (1991, SD NY) 140 FRD 291.
Pre-discovery disclosure order cannot be construed to require party to disclose information concerning unpleaded
claims and defenses, rather to require disclosure of that information that bears significantly on adversary's claims or
defenses; common-sense interpretation of such disclosure order is required to effectuate its purpose, i.e., to reduce costs
and delay. Paradigm Sales v Weber Marking Sys. (1993, ND Ind) 151 FRD 98.
Owners of lobster pots, trawls and associated fishing equipment who sued vessel owner for damage or destruction of
their equipment from conducting dragging operations in same area did need not to establish prima facie case on issue of
punitive damages before they could obtain pretrial discovery of defendants' financial information, and they alleged
sufficient facts to make nonspurious claim for punitive damages. CEH, Inc. v FV "Seafarer" (1994, DC RI) 153 FRD
491, judgment entered (1995, DC RI) 880 F Supp 940, affd (1995, CA1 RI) 70 F3d 694, 1996 AMC 467.
Student's diary was relevant and discoverable since she alleged that defendants failed to properly address her sexual
harassment complaint against professor, she maintained diary during that time period, and diary pertained to her
relationship with professor. Topol v Trustees of the Univ. of Pa. (1995, ED Pa) 160 FRD 476, 74 BNA FEP Cas 899.
Defendant Medicare providers in False Claims Act case were not entitled to discover explanations of medical
benefits regarding other providers' claims since they would not change nature of whether defendant's conduct was
wrongful nor prove or disprove that at time defendants submitted claims at issue they did so knowingly. United States
ex rel. Stephens v Prabhu (1995, DC Nev) 163 FRD 340.
Non-settling defendant may have access to settlement agreement that is confidential by agreement of signatories if he
shows that agreement is relevant to subject matter involved in pending action. Doe v Methacton Sch. Dist. (1995, ED
Pa) 164 FRD 175.
In Fair Credit Reporting Act lawsuit, court declined to reconsider its decision not to quash subpoena seeking
documents in possession of state agency, which were relevant, FRCP 26(b)(1), to fact dispute about reason or reasons
for recent increase in homeowners insurance policy premiums; however, court reconsidered its prior decision and
quashed subpoena to 14 insurance agents because subpoena imposed on them undue burden, and insured could get same
information from insurer. Braxton v Farmer's Ins. Group (2002, ND Ala) 209 FRD 651.
Pursuant to Fed. R. Civ. P. 26(b)(1), district court partially denied insurer's motion for protective order precluding
individual from seeking information outside administrative record in appeal of insurer's decision to terminate disability
benefits under Employee Retirement Income Security Act where review of insurer's decision was de novo and
individual alleged that insurer, as both plan administrator and insurer, had acted under conflict of interest in terminating
disability benefits. Waggener v Unum Life Ins. Co. of Am. (2002, SD Cal) 238 F Supp 2d 1179.
Where student was attempting discovery of certain documents to help secure special education services under IDEA,
court held that unlike discoverable documents available to parties before and during administrative hearing, certain
documents did appear to be evidence concerning relevant events occurring subsequent to administrative hearing and,
thus, granted school district's protective order as to those documents. Johnson v Olathe Dist. Schs. (2003, DC Kan) 212
FRD 582.
City parking authority's motion to compel psychiatric examination, under Fed. R. Civ. P. 35, of employee who
alleged emotional distress was denied, where employee (1) specifically represented that he did not intend to offer expert
testimony to support his claim of emotional distress, (2) failed to allege specific psychiatric malady, and (3) did not
assert claim of unusually severe emotional distress within meaning of Rule 35; however, authority was not precluded
from obtaining discovery concerning employee's psychiatric history, which was governed by Fed. R. Civ. P. 26(b), not
Rule 35(a). Bowen v Parking Auth. (2003, DC NJ) 214 FRD 188, 91 BNA FEP Cas 1200.
In action by tenants against their landlord and apartment manager alleging violation of Fair Housing Act, 42 USCS §
3601 et seq., and various state laws regarding manager's harassment of tenants following their adoption of child,
landlord's and manager's subpoenas of medical and psychological records of tenants were quashed where pure medical
records sought by subpoenas were not relevant under Fed. R. Civ. P. 26(b)(1) because tenants were not claiming bodily
injury, they were not claiming that they received any medical treatment for any purely physical injury or disorder, and
they were not putting their physical conditions at issue; although psychological records sought by subpoenas were
relevant under Fed. R. Civ. P. 26(b)(1), psychotherapist-patient privilege applied pursuant to Fed. R. Evid. 501, and,
under narrow approach to waiver, tenants had not waived privilege because they stipulated that they would not rely on
any treating psychotherapist or other expert to prove their emotional distress damages, they had not pleaded claim for
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intentional or negligent infliction of emotional distress or any specific psychiatric injury or disorder, and their mental
condition was not in controversy. Fitzgerald v Cassil (2003, ND Cal) 216 FRD 632.
C. Privileged Matters
1. In General
76. Generally
Term "not privileged" undoubtedly refers to "privileges" as word is understood in law of evidence. United States v
Reynolds (1953) 345 US 1, 97 L Ed 727, 73 S Ct 528, 32 ALR2d 382; Mitchell v Bass (1958, CA8 Ark) 252 F2d 513, 34
CCH LC P 71318; Mitchell v Roma (1959, CA3 Pa) 265 F2d 633, 36 CCH LC P 65361, 2 FR Serv 2d 513; Lincoln
American Corp. v Bryden (1973, DC Kan) 375 F Supp 109, 19 FR Serv 2d 150; Snead v American Export-Isbrandtsen
Lines, Inc. (1973, ED Pa) 59 FRD 148, 17 FR Serv 2d 13.
"Privileged" as used in Rule 26(b)(1) is determined by reference to Federal Rules of Evidence. In re International
Horizons, Inc. (1982, CA11 Ga) 689 F2d 996, 9 BCD 1262, 7 CBC2d 584, 11 Fed Rules Evid Serv 1772, 35 FR Serv 2d
82.
Because recognition of privilege generally precludes striking balance between individual interest and interest of
society on case-by-case basis, courts must be careful to construe recognized privileges narrowly and to adopt new
privileges with extreme caution. In re Sealed Case (1982, App DC) 219 US App DC 195, 676 F2d 793, CCH Fed
Secur L Rep P 98647, 82-1 USTC P 9335, 10 Fed Rules Evid Serv 490, 33 FR Serv 2d 1778, 50 AFTR 2d 82-5637
(criticized in Frontier Ref. v Gorman-Rupp Co. (1998, CA10 Wyo) 136 F3d 695, 39 FR Serv 3d 1236).
Interrogatories under Rule 33 may relate to any matters which may be inquired into under Rule 26(b), and if a matter
is privileged under Rule 26(b) it is likewise privileged under Rule 33 and may not be subject of discovery under latter
rule. American Oil Co. v Pennsylvania Petroleum Products Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493.
To be outside scope of discovery, matters must be privileged, and merely confidential materials are not thereby
excluded. Luey v Sterling Drug, Inc. (1965, WD Mich) 240 F Supp 632, 9 FR Serv 2d 33.353, Case 1.
Rule 26(b) recognizes that some discovery may be limited in its scope because the matter sought may be privileged;
law of evidence governing the actual trial as to privileged matters also governs discovery examinations. Goldinger v
Boron Oil Co. (1973, WD Pa) 60 FRD 562, 1974-1 CCH Trade Cases P 74975.
Privileges contemplated by Rules 34 and 26(b) are those such as husband-wife, physician-patient, or attorney-client
privileges--privileges specifically recognized by law; disclosure of information at the discovery stage of litigation which
would be inadmissable at trial due to existence of a testimonial or evidentiary privilege created by statute or common
law is not permitted, assuming privilege is arrested at appropriate time and burden of establishing its existence is
satisfied. Lincoln American Corp. v Bryden (1973, DC Kan) 375 F Supp 109, 19 FR Serv 2d 150.
Evidentiary privileges are to be construed narrowly to permit broadest possible discovery consistent with purposes of
privilege. Kinoy v Mitchell (1975, SD NY) 67 FRD 1, 20 FR Serv 2d 1413.
In determining if documents requested by discovery are privileged, court must apply same rules of privilege to
discovery as it applies at trial, and party objecting to discovery must raise objection in first instance and have burden of
establishing existence of privilege. Biliske v American Live Stock Ins. Co. (1977, WD Okla) 73 FRD 124, 24 FR Serv
2d 691.
Party objecting to discovery on basis of privilege has burden of establishing existence of privilege; term "privileged"
in Rule 26 is generally understood to refer to those evidentiary privileges applicable at trial; evidentiary privileges
operate to exclude relevant information from factfinder and thus are not favored. Robinson v Magovern (1979, WD Pa)
83 FRD 79, 1979-1 CCH Trade Cases P 62658, 4 Fed Rules Evid Serv 573, 27 FR Serv 2d 810, 27 FR Serv 2d 1372.
Although privilege is not defined for purposes of Rule 26(b)(1), courts have generally understood term to refer to
those evidentiary privileges applicable in trial proceeding; thus, information which would be inadmissible at trial
because of evidentiary privilege, would not be available in course of discovery. Smith v B & O R. Co. (1979, DC Md)
473 F Supp 572, 102 BNA LRRM 2109, 87 CCH LC P 11675, 4 Fed Rules Evid Serv 816, 27 FR Serv 2d 1284; Boyd v
Gullett (1974, DC Md) 64 FRD 169, 18 FR Serv 2d 1520.
Since purpose of FRCP 26(b)(5) is to reduce need for in camera examination of documents that are claimed to be
privileged, in camera procedures should be rare procedure in discovery disputes. Krenning v Hunter Health Clinic
(1996, DC Kan) 166 FRD 33.
Only privilege, not confidentiality, is valid objection under FRCP 26(b). Walt Disney Co. v DeFabiis (1996, CD Cal)
168 FRD 281.
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USCS Fed Rules Civ Proc R 26
Under certain circumstances, production of some privileged documents waives privilege as to all documents of same
subject matter; however, such subject matter waiver does not apply to kind of work product expressly defined in FRCP
26(b)(3). Canel v Lincoln Nat'l Bank (1998, ND Ill) 179 FRD 224, magistrate's recommendation (1998, ND Ill) 1998
US Dist LEXIS 12519.
Absent privilege, no party is entitled to restrict opponent's access to witness, however partial or impartial to him, by
insisting upon some notion of allegiance. Galarza v United States (1998, SD Cal) 179 FRD 291.
77. Controlling law
Federal law is referred to on issue of existence and scope of asserted privilege, and reference to federal law is
especially appropriate where, as in case presented, documents in question were prepared pursuant to federal law;
accordingly, question of existence and scope of taxpayer's privilege to withhold tax return information would be
determined by federal law for purpose of federal question case. Heathman v United States Dist. Court for Cent. Dist.
(1974, CA9) 503 F2d 1032, 19 FR Serv 2d 157.
In civil rights action brought against state officers and others with respect to defendants' actions in regard to parole,
sentencing, and imposition of sanctions for alleged infractions of rules, where defendants claimed privilege under
California law for certain files and documents which plaintiff sought by discovery, reference to federal law was
necessary on issue of existence and scope of claimed privilege. Kerr v United States Dist. Court for Northern Dist.
(1975, CA9) 511 F2d 192, 20 FR Serv 2d 474, affd (1976) 426 US 394, 48 L Ed 2d 725, 96 S Ct 2119, 21 FR Serv 2d
1021.
In wrongful death action arising out of building explosion, where discovery was sought from city's Department of
Buildings with regard to inquiry it had made into such explosion, while substantive question of privilege as to material
sought by discovery would be governed by law of state where Federal District Court sat, discovery procedure would be
governed by Federal Rules. Dixon v 80 Pine Street Corp. (1975, CA2 NY) 516 F2d 1278, 20 FR Serv 2d 222.
Motion by defendant city to vacate and quash notice for taking of depositions of officials in charge of various city
departments in action against the city for purchase price of snow removal equipment was denied where the motion was
made upon broad ground that persons named, as employees of the city, were exempt from examination before trial;
even though New York Civil Practice Act might exempt such officials from pretrial examination by deposition, there
was nothing in the Federal Rules containing such limitation. Joy Mfg. Co. v New York (1939, DC NY) 30 F Supp 403.
The words "not privileged," as used in the federal rules, mean not privileged under decisions of the federal courts,
rather than under state court decisions. Panella v Baltimore & O. R. Co. (1951, DC Ohio) 14 FRD 196; Brookshire v
Pennsylvania R. Co. (1953, DC Ohio) 14 FRD 154; Scourtes v Fred W. Albrecht Grocery Co. (1953, DC Ohio) 15 FRD
55.
Whether or not a matter is privileged within meaning of federal discovery rules is matter of procedure to be
determined in accordance with federal principles, and not by state law. Humphries v Pennsylvania R. Co. (1953, DC
Ohio) 14 FRD 177; Scourtes v Fred W. Albrecht Grocery Co. (1953, DC Ohio) 15 FRD 55.
Scope of attorney-client privilege upon taking of deposition is governed by state law. Spray Products Corp. v
Strouse, Inc. (1962, ED Pa) 31 FRD 244, 135 USPQ 155, 6 FR Serv 2d 542.
State law was applied in determining validity of asserted privilege by writer of alleged libelous article in refusing to
answer certain questions on deposition claiming information was privileged. Cepeda v Cohane (1964, SD NY) 233 F
Supp 465, 9 FR Serv 2d 26B.43, Case 1.
In civil rights action seeking declaratory and injunctive relief to force supervisory personnel to establish effective
rules and procedures to prevent police brutality and to force police officers to refrain from further illegal acts, where
defendants requested protective order to prevent discovery of investigative files, complaints, records, and reports
relating to alleged incidents of police brutality in possession of county police department and Human Relations
Commission on grounds of privilege, federal law would be applied unless it could be shown that state of Maryland had
strong public policy in favor of privilege for investigative files, and where state had no such policy, federal law of
discovery would be applied in case. Boyd v Gullett (1974, DC Md) 64 FRD 169, 18 FR Serv 2d 1520.
In action brought in Federal District Court for alleged violations of federal securities law and for alleged common
law fraud, scope of attorney-client privilege asserted by plaintiff would not be governed by law of New York, but
federal law would control, since jurisdiction in case was predicated upon federal securities laws. J. P. Foley & Co. v
Vanderbilt (1974, SD NY) 65 FRD 523, CCH Fed Secur L Rep P 94363.
In determining choice-of-law problem in area of privileged communications, factors which must be considered are:
place where communication occurred and relation of parties to this communication with state where it occurred, public
policies underlying particular privilege statute being invoked, interest of situs state in preserving confidentiality of this
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communication, and interest of forum state in preserving confidentiality of this out-of-state communication. Mitsui &
Co. v Puerto Rico Water Resources Authority (1978, DC Puerto Rico) 79 FRD 72, 26 FR Serv 2d 365.
In federal question case state privilege need not be honored if it is broader than those recognized at common law;
accountant's privilege invoked pursuant to state statutory law will not be recognized in case based almost totally on
federal securities laws. Osterneck v E. T. Barwick Industries, Inc. (1979, ND Ga) 82 FRD 81, CCH Fed Secur L Rep P
96819, 28 FR Serv 2d 122.
Court may look to privileges created by state courts and applicable state statutes if court finds them appropriate in
suit to compel response to discovery requests, even though suit is based on federal question; in antitrust action for denial
of hospital staff privileges whether defendants have properly invoked privilege is to be determined by federal common
law where plaintiff asserts federal cause of action and joins pendent state claims with federal statutory claims; despite
Pennsylvania's Peer Review Protection Act's "powerful interest in confidentiality", hospital committee records,
regarding review of applications for staff privileges, are necessary and relevant to federal cause of action brought by
plaintiff for denial of hospital staff privileges, and therefore discovery of such documents in connection with denial of
plaintiff's request for staff privileges by hospital committee should not be barred. Robinson v Magovern (1979, WD
Pa) 83 FRD 79, 1979-1 CCH Trade Cases P 62658, 4 Fed Rules Evid Serv 573, 27 FR Serv 2d 810, 27 FR Serv 2d
1372.
In suit based on pendent jurisdiction and where information sought is relative to federal claim, state accountant
privilege will not be recognized in federal court notwithstanding that information is also relevant to state claim.
Federal Deposit Ins. Corp. v Mercantile Nat'l Bank (1979, ND Ill) 84 FRD 345, 5 Fed Rules Evid Serv 857, 28 FR Serv
2d 972.
State law, which provides that accountant/client privilege does not protect persons from disclosing information
obtained from accountant, precludes defendant from objecting to plaintiffs motion to compel production of letter which
defendant received from accountant. Stauffer Chemical Co. v Keysor-Century Corp. (1982, DC Del) 94 FRD 180, 34
FR Serv 2d 864.
In case involving both federal and state law claims, federal rule with respect to privilege controls. Sneirson v
Chemical Bank (1985, DC Del) 108 FRD 159, 19 Fed Rules Evid Serv 1004, 3 FR Serv 3d 1044.
In federal question cases, federal law determines whether there is discovery privilege. Kaufman v Bd. of Trustees
(1996, CD Cal) 168 FRD 278.
FRE 501 governs whether information is privileged for purposes of FRCP 26(b)(1). Morgan v Union Pac. R.R.
(1998, ND Ill) 182 FRD 261.
78. --Diversity cases
In diversity actions, the scope of privilege referred to in Rule 26(b) is to be determined by state law. Merlin v Aetna
Life Ins. Co. (1960, SD NY) 180 F Supp 90, 3 FR Serv 2d 502; Brookshire v Pennsylvania R. Co. (1953, DC Ohio) 14
FRD 154.
Even assuming, arguendo, that plaintiffs' signed statements taken by defendant were privileged under state law, their
discovery was to be treated as a matter of procedural rather than substantive law, and in instant diversity action were to
be governed by Federal Rules of Civil Procedure and not state law. Belback v Wilson Freight Forwarding Co. (1966,
WD Pa) 40 FRD 16, 10 FR Serv 2d 943.
While state privileges may be honored in diversity cases, question of privilege must be governed solely by federal
rules and decisional law in actions predicated on federal law. Gaison v Scott (1973, DC Hawaii) 59 FRD 347, 17 FR
Serv 2d 1328.
Privilege as used in Federal Rules of Civil Procedure means privilege as determined by Federal Rule of Evidence
Rule 501; diversity jurisdiction cases involve application of state privileges but federal privileges, as determined by
common law, apply when jurisdiction is based on federal claim. Sirmans v South Miami (1980, SD Fla) 86 FRD 492, 6
Fed Rules Evid Serv 599, 30 FR Serv 2d 1003.
Where plaintiff's cause of action is predicated on court's diversity jurisdiction, court examines parties' reliance upon
attorney-client privilege under state law. Marvin Lumber v PPG Indus. (1996, DC Minn) 168 FRD 641.
79. Claim and establishment of privilege
Although it is not seriously disputed that privilege would have attached to document sought if objection had been
timely and adequately asserted, failure to demonstrate entitlement to privilege at time when trial court is called upon to
make its ruling defeats privilege; it is not enough that document would have been privileged if adequate and timely
showing had been made, since applicability of privilege turns on adequacy and timeliness of showing as well as on
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USCS Fed Rules Civ Proc R 26
nature of document. Peat, Marwick, Mitchell & Co. v West (1984, CA10) 748 F2d 540, 40 FR Serv 2d 502, cert dismd
(1985) 469 US 1199, 83 L Ed 2d 984, 105 S Ct 983.
The claim of privilege may be raised during the taking of the depositions but should not be considered on a motion to
vacate the notice to take depositions or to vacate subpoena. Lewis v United Air Lines Transport Corp. (1939, DC
Conn) 27 F Supp 946.
Burden is on the moving party to show that statements whose discovery is sought are not privileged. Herbst v
Chicago, R. I. & P. R. Co. (1950, DC Iowa) 10 FRD 14; Dulansky v Iowa-Illinois Gas & Electric Co. (1950, DC Iowa)
10 FRD 146.
Objection to motion for production of documents on ground that documents demanded involved disclosure of
confidential and private business affairs was not sufficiently specific to constitute valid objection. Technical Tape
Corp. v Minnesota Mining & Mfg. Co. (1955, DC NY) 18 FRD 318, 107 USPQ 118.
If a party is of the opinion that some of the material sought to be produced is privileged it is his duty to assert the
same by application to the court for protective order, pointing out the alleged privileged material, and it is not
incumbent upon the party seeking production to allege that the material is not privileged. Wilson v David (1957, DC
Mich) 21 FRD 217.
Even if the plaintiffs' attorney believed the questions to witnesses to have been without the court's order for the
taking of depositions, he should have done nothing more than state his objections; alternatively, if the plaintiffs' attorney
believed that the examination was being conducted in bad faith, that the information sought was privileged, or that the
deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and
applied immediately to the ex parte judge for a ruling on the questions, he had no right whatever to impose silence or to
instruct the witnesses not to answer, especially so when the witnesses were not even his clients. Shapiro v Freeman
(1965, SD NY) 38 FRD 308, 9 FR Serv 2d 30B.42, Case 1.
Where discovery is sought in order to establish in personam jurisdiction over defendant, burden of establishing
attorney-client privilege barring discovery of information is on party from whom discovery is sought. Puerto Rico v SS
Zoe Colocotroni (1974, DC Puerto Rico) 61 FRD 653, 18 FR Serv 2d 322.
Right to object on grounds of privilege is not lost merely because there has been disclosure. Kenyatta v Kelly (1974,
ED Pa) 375 F Supp 1175, 18 FR Serv 2d 825.
On plaintiff's motion to have court conduct in camera review of documents claimed to be privileged, District Court is
authorized to conduct in camera inspection of documents in order to determine whether defendants' claims of privilege
are valid; however, in camera production may exclude correspondence between co-counsel involved in litigation, legal
research memoranda and internal law firm memoranda dealing only with mental impressions or strategies of attorneys.
In re Federal Skywalk Cases (1982, WD Mo) 95 FRD 477.
Submission of computer list and typed list showing from whom documents came, to whom they were sent and
cryptic statement as to content of documents is insufficient to meet burden of showing that documents fall within
privilege. In re Uranium Antitrust Litigation (1982, ND Ill) 552 F Supp 517, 1983-1 CCH Trade Cases P 65307, 35
FR Serv 2d 1556.
Defendants in antitrust action are properly required to supply names of persons who received any document or were
present at any communications as to which defendants may assert attorney-client privilege, since plaintiffs are entitled
to ascertain whether claim of privilege is justified and should not be denied information critical to doing so. Board of
Education v Admiral Heating & Ventilating, Inc. (1984, ND Ill) 104 FRD 23, 1985-1 CCH Trade Cases P 66420, 40 FR
Serv 2d 638.
Voluntary disclosure of information covered by privilege could constitute, but does not mandate, waiver of privilege.
J.J.C. v Fridell (1995, DC Minn) 165 FRD 513.
In action by unsuccessful job applicant for position with federal agency alleging that agency failed to comply with
veterans preference statute and regulations in considering his application, sanctions are imposed against government
under FRCP 37(b)(2) for failure to disclose information concerning job applications of unsuccessful candidates and
candidates who declined offered positions, where government did not claim information was privileged or describe
documents containing this information in its automatic disclosure letter, because government violated automatic
discovery obligations in FRCP 26(a) and, absent substantial justification, should be sanctioned. Taydus v Cisneros
(1995, DC Mass) 902 F Supp 288.
Party asserting privilege and resisting discovery has burden of establishing existence of privilege; blanket assertions
of privilege are insufficient to satisfy this burden, rather, party claiming privilege must supply opposing counsel with
sufficient information to assess applicability of privilege or protection, without revealing information which is
privileged or protected. Burns v Imagine Films Entertainment (1996, WD NY) 164 FRD 589, 34 FR Serv 3d 960,
subsequent app, remanded (1997, CA2 NY) 1997 US App LEXIS 4031.
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USCS Fed Rules Civ Proc R 26
Failure of party to expressly claim privilege or work product protection and describe nature of documents or
communications not disclosed in manner that will enable other parties to assess applicability of privilege or protection
may constitute implied waiver of privilege or protection. Durkin v Shields (In re Imperial Corp. of Am.) (1997, SD Cal)
174 FRD 475, 39 FR Serv 3d 244.
Mere conclusory or ipse dixit assertions of privilege are insufficient to satisfy burden of establishing applicability of
privilege. In re Pfohl Bros. Landfill Litig. (1997, WD NY) 175 FRD 13.
Under FRCP 26(b)(5), party asserting attorney-client privilege or work product protection must specifically identify
each document or communication, and type of privilege or protection being asserted, in privilege log. In re Pfohl Bros.
Landfill Litig. (1997, WD NY) 175 FRD 13.
Parties asserting objection to discovery on ground of privilege must present that objection in timely and proper
manner. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
Failure to follow procedural requirements of FRCP 26(b)(5) may result in waiver of privilege. Ritacca v Abbott
Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
When party objects to discovery on ground of privilege, but fails to follow procedural requirements of FRCP
26(b)(5), minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances
militate against finding waiver of privilege. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
Defendants' motion to compel was denied, but holder in patent infringement suit had to provide detailed objections
and privilege log for communications with counsel; because holder had been designated as expert, such
communications were discoverable. Kooima v Zacklift Int'l (2002, DC SD) 209 FRD 444, motion den, stay den, dismd
(2002, DC SD) 2002 US Dist LEXIS 17155.
Where plaintiff was requested to state its positions with regard to issues involved in case, such request neither
required disclosure of what client told attorney in confidence for purpose of seeking legal advice or legal representation,
nor production of documents prepared in anticipation of litigation, and thus, no privilege protected plaintiff from
responding to request. Nat'l Semiconductor Corp. v Ramtron Int'l Corp. (2003, DC Dist Col) 265 F Supp 2d 71.
80. Discretion of court
Assertion of governmental privilege protecting absolutely secrets of state and military secrets on ground of jeopardy
to national security, which is not to be lightly invoked, must be made by head of department or agency responsible for
records, after personal consideration of material sought, and that person must set forth, with enough particularity to
enable court to make informed decision, nature of material withheld and of threat to national security should it be
revealed; requirement that decision to object on ground of privilege should be taken by minister who is political head of
department and that he should have seen it and considered contents of documents and himself formed view that on
grounds of public interest they ought not to be produced is not mere technical requirement, since, where court must rely
so heavily upon judgment of responsible executive officer, it must be clear that judgment was properly exercised, so
that there must be explicit representation to such effect at minimum. Kinoy v Mitchell (1975, SD NY) 67 FRD 1, 20 FR
Serv 2d 1413.
Unless claimed privilege is express product of statutory grant, it is province of court to assess legitimacy of assertion
of privilege in response to interrogatories. Christy v United States (1975, ND Tex) 68 FRD 375, 1 Fed Rules Evid Serv
67, 21 FR Serv 2d 209.
Magistrate clearly erred in disallowing claimed attorney-client and work-product privileges without further inquiry,
once prima facie showing of privilege was made. Gray v Cleaning Sys. & Suppliers (1992, SD NY) 143 FRD 48.
81. Appellate review
Writ of mandamus is not ordinarily available to litigant to obtain appellate review of interlocutory discovery orders
entered by District Court as litigation proceeds; however, where claim of attorney-client privilege has been raised and
rejected by District Court, mandamus is available as means of immediate appellate review. Diversified Indus. v
Meredith (1977, CA8) 572 F2d 596, 1977-2 CCH Trade Cases P 61591, 1978-1 CCH Trade Cases P 61879, 23 FR
Serv 2d 1473, 24 FR Serv 2d 1201 (criticized in Genentech, Inc. v United States ITC (1997, CA FC) 122 F3d 1409, 19
BNA Intl Trade Rep 1451, 43 USPQ2d 1722, 38 FR Serv 3d 592) and (criticized in United States v Massachusetts Inst.
of Tech. (1997, CA1 Mass) 129 F3d 681, 97-2 USTC P 50955, 48 Fed Rules Evid Serv 66, 39 FR Serv 3d 4, 80 AFTR
2d 97-7981).
82. Miscellaneous
Absent privilege, no party is entitled to restrict opponent's access to witness, however partial or important to him, by
insisting upon some notion of allegiance, and privilege was never intended to be used as trial tactic by which party may
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control timing and circumstances of release of information which must inevitably be revealed. Doe v Eli Lilly & Co.
(1983, DC Dist Col) 99 FRD 126, 38 FR Serv 2d 706.
Infant plaintiff who voluntarily agrees to pool proceeds of interim settlement of action for personal injuries sustained
in plane crash during Viet Nam baby-lift cannot invoke attorney-client or physician-patient privilege to withhold
medical information needed in course of administering central trust established to pay future medical cost of infant
plaintiffs. Friends for all Children, Inc. v Lockheed Aircraft Corp. (1983, DC Dist Col) 563 F Supp 552, 13 Fed Rules
Evid Serv 790.
In camera review of materials alleged to be privileged is not generally favored. Nishka, Ltd. v Fuji Photo Film Co.
(1998, DC Nev) 181 FRD 465.
Federal Rules of Civil Procedure establish broad policy which favors full disclosure of facts during discovery; thus,
law disfavors privileges because privileges interfere with fundamental goals of judicial process. Morgan v Union Pac.
R.R. (1998, ND Ill) 182 FRD 261.
Relevance is not standard for determining whether or not evidence should be protected from disclosure as privileged,
and that remains so even if one might conclude that facts to be disclosed are vital, highly probative, directly relevant, or
even go to heart of issue. Dion v Nationwide Mut. Ins. Co. (1998, DC Mont) 185 FRD 288.
Inadvertent production of privileged document does not waive privilege unless producing party's conduct was so
careless as to suggest that it was not concerned with protection of asserted privilege. SEC v Cassano (1999, SD NY) 189
FRD 83.
Party claiming protection of privilege bears burden of demonstrating, by fair preponderance of evidence, not only
that privilege applies, but also that it has not been waived. Amgen Inc. v Hoechst Marion Roussel, Inc. (2000, DC Mass)
190 FRD 287, 53 USPQ2d 1898, app den, injunction den, mand den, motion gr, app dismd (2000, CA FC) 2000 US App
LEXIS 5102, app dismd without op (2000, CA FC) 2000 US App LEXIS 5090.
Any type of privileged material, including materials or documents prepared by nontestifying expert, lose their
privileged status when disclosed to, and considered by, testifying expert. Johnson v Gmeinder (2000, DC Kan) 191
FRD 638.
If privileged material was revealed without fault of owner and without waiver, courts have power to take reasonable
steps to give holder some protection, and thus to uphold concept and power of privilege for future. Falise v American
Tobacco Co. (2000, ED NY) 193 FRD 73.
Failure to follow procedural requirements of FRCP 26(b)(5) may result in waiver of privilege. Ritacca v Abbott
Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
When party objects to discovery on ground of privilege, but fails to follow procedural requirements of FRCP
26(b)(5), minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances
militate against finding waiver of privilege. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
Where ERISA (29 USCS § § 1001 et seq.) trustee seeks attorney's advice on matter of plan administration, and
where advice clearly does not implicate trustee in any personal capacity, trustee cannot invoke attorney-client privilege
against plan beneficiaries; however, where plan fiduciary retains counsel in order to defend herself against plan
beneficiaries, attorney-client privilege remains intact. Lewis v UNUM Corp. Severance Plan (2001, DC Kan) 203 FRD
615.
FRCP 26(b)(5) applies to depositions as well as other discovery vehicles. Moloney v United States (2001, DC Mass)
204 FRD 16.
2. Attorney-Client Privilege
a. In General
83. Generally
A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the
knowledge of his attorney. Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395
(superseded by statute on other grounds as stated in Hawkins v District Court of Fourth Judicial Dist. (1982, Colo) 638
P2d 1372) and (superseded by statute on other grounds as stated in Graham v Gielchinsky (1991) 126 NJ 361, 599 A2d
149).
Attorney-client privilege, unlike work product privilege, is limited to communications. In re Sealed Case (1982,
App DC) 219 US App DC 195, 676 F2d 793, CCH Fed Secur L Rep P 98647, 82-1 USTC P 9335, 10 Fed Rules Evid
Serv 490, 33 FR Serv 2d 1778, 50 AFTR 2d 82-5637 (criticized in Frontier Ref. v Gorman-Rupp Co. (1998, CA10 Wyo)
136 F3d 695, 39 FR Serv 3d 1236).
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USCS Fed Rules Civ Proc R 26
Institutional benefits of allowing interlocutory review of attorney-client privilege claims outweighed costs of delay
and piecemeal review that may result. United States v Philip Morris (2003, App DC) 314 F3d 612, RICO Bus Disp
Guide (CCH) P 10408 (criticized in Burden-Meeks v Welch (2003, CA7 Ill) 2003 US App LEXIS 2215).
A witness whose deposition is to be taken orally may not be required to divulge information which is privileged by
reason of an attorney-client relationship. Grauer v Schenley Products Co. (1938, DC NY) 26 F Supp 768.
Although a subpoena for the production of documents under Rule 45 may be procured and served on the attorney for
a party, he has the right to a determination by the court of the question of privilege. Bough v Lee (1939, DC NY) 26 F
Supp 1000.
A document, the production of which may otherwise be required, may not be rendered privileged by delivering it to
the attorney for one of the parties. Kane v News Syndicate Co. (1941, DC NY) 1 FRD 738, 49 USPQ 169.
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the
communications relating to that purpose, made in confidence by the client, or at his instance are permanently protected
from disclosure by himself or by the legal adviser, except as such protection may be waived. Comercio E Industria
Continental, S. A. v Dresser Industries, Inc. (1956, DC NY) 19 FRD 513.
Although attorney may be deposed, discovery from an attorney is proscribed regarding matters as to which
attorney-client privilege applies. Re Penn Cent. In re Penn Cent. Commercial Paper Litigation (1973, SD NY) 61 FRD
453, CCH Fed Secur L Rep P 94311, 18 FR Serv 2d 1252.
Documents having bearing on litigation at hand do not fall automatically under attorney-client privilege just because
they have been entrusted to a lawyer. Puerto Rico v SS Zoe Colocotroni (1974, DC Puerto Rico) 61 FRD 653, 18 FR
Serv 2d 322.
Purpose of attorney-client privilege is to encourage complete disclosure of information between attorney and his
client and to further interests of justice; confidential communications between attorney and client which fall within
purview of privilege are thus rendered immune from discovery. Burlington Industries v Exxon Corp. (1974, DC Md)
65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
For purposes of attorney-client privilege in situations where common attorney is acting for two parties, confidence or
privilege is relative, and each situation must be examined separately. Duplan Corp. v Deering Milliken, Inc. (1974, DC
SC) 397 F Supp 1146, 184 USPQ 775.
Attorney-client privilege must be claimed at time production is requested or at least when document is presented to
court for in camera review. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
Attorney-client privilege protects only advice that reveals (by adoption or implication) a fact communicated in
confidence by client to attorney; privilege is unavailable when attorney's communication is demonstrably based on facts
that did not come from client in confidence; attorney's opinions and legal theories, even if recorded in his own files, are
privileged if they reveal information supplied in confidence by client, but absent such information from client, it is only
work product rule and not privilege that protects attorney's uncommunicated expression of opinion. SCM Corp. v
Xerox Corp. (1976, DC Conn) 70 FRD 508, 1976-2 CCH Trade Cases P 61207, 1976-2 CCH Trade Cases P 61208, 2
Fed Rules Evid Serv 535, app dismd (1976, CA2 Conn) 534 F2d 1031, 1976-1 CCH Trade Cases P 60840, 21 FR Serv
2d 1114.
Attorney-client privilege must be narrowly construed. Haymes v Smith (1976, WD NY) 73 FRD 572.
Attorney-client privilege obstructs free and full disclosure and should be narrowly construed. Re Transocean Tender
Offer Secur. In re Transocean Tender Offer Sec. Litigation (1978, ND Ill) 78 FRD 692, 27 FR Serv 2d 180.
Policy of encouraging persons to seek legal advice and assistance overrides general policy of disclosure of USCS
Rules of Civil Procedure. Crane Co. v Goodyear Tire & Rubber Co. (1979, ND Ohio) 27 FR Serv 2d 1058.
Opinions of counsel are privileged only to extent they are based upon, and consequently reveal, information
furnished by client in confidence. North American Soccer League v National Football League (1979, SD NY) 28 FR
Serv 2d 107.
Attorney-client privilege arises when one consults attorney for rendition of legal advice or opinions. Osterneck v E.
T. Barwick Industries, Inc. (1979, ND Ga) 82 FRD 81, CCH Fed Secur L Rep P 96819, 28 FR Serv 2d 122.
No special privilege or immunity shields person from deposition simply because he or she is attorney, or even
attorney for party to suit; however, discovery may be restricted for good cause and where testimony of attorney is
sought only to establish credibility of other witnesses, any value to person requesting such testimony is outweighed by
risk of delay and serious infringement upon right to counsel; short of prohibiting such deposition, it is hard to imagine
how to protect attorney's mental impressions, opinion, legal theories, or litigation strategy; depositions which might
provide such revelations should not be permitted absent strong showing of necessity or prejudice or hardship in
preparation of case. Walker v United Parcel Services (1980, ED Pa) 87 FRD 360, 23 BNA FEP Cas 1493, 31 FR Serv
2d 407.
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USCS Fed Rules Civ Proc R 26
Advice given by attorney to his client is privileged only if advice is based on, or would reveal, confidential
information furnished by client; however, some jurisdictions have accepted broader rule which protects from forced
disclosure any communication from attorney to client when made in course of giving legal advice. Re LTV Secur. In
re LTV Sec. Litigation (1981, ND Tex) 89 FRD 595, CCH Fed Secur L Rep P 97969, 8 Fed Rules Evid Serv 748, 31 FR
Serv 2d 1542.
Neither attorney-client privilege nor work product doctrine constitutes absolute ban on all discovery sought from
attorney simply because of his professional status; attorney-client privilege does not foreclose inquiry into act of
representation or dates upon which services are rendered as long as substance of attorney-client relationship is shielded.
Condon v Petacque (1981, ND Ill) 90 FRD 53, 31 FR Serv 2d 711.
Because attorney-client privilege impairs court's search for truth, it is narrowly construed. Allen v Chicago Transit
Auth. (2001, ND Ill) 198 FRD 495.
84. Requisites
Because appellant could not have met prerequisite of demonstrating that information requested from appellee's
attorney was not available from any other source, lack of ruling on appellant's motion to compel discovery did not
warrant reversal. Navajo Nation v Norris (2003, CA9 Wash) 331 F3d 1041, 2003 CDOS 4856, 2003 Daily Journal DAR
6139.
Principle of privileged communications is an exception to general liability of every person to give full disclosure
upon all facts inquired of, and thus it is incumbent upon party seeking to invoke attorney-client privilege to bar
discovery to show that the communication in question satisfies requirements as to privileged communications.
Goldinger v Boron Oil Co. (1973, WD Pa) 60 FRD 562, 1974-1 CCH Trade Cases P 74975.
To extent that information sought to be discovered was not conveyed to counsel by his client but was prepared by
counsel using information gathered from other sources, attorney-client privilege was inapplicable. Bird v Penn Cent.
Co. (1973, ED Pa) 61 FRD 43, 17 FR Serv 2d 1402.
In general, federal courts, where the attorney-client privilege is invoked in discovery proceedings, will accord to the
privilege the same latitude and scope as that recognized so far as the admissibility of evidence is concerned, and this
means that it must be determined whether the traditional evidentiary criteria identifying this privilege are present in the
materials sought to be discovered. Puerto Rico v SS Zoe Colocotroni (1974, DC Puerto Rico) 61 FRD 653, 18 FR Serv
2d 322.
In order for the attorney-client privilege to bar discovery of a communication, it must appear that the communication
relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for purpose
of securing primarily either an opinion on law, or legal services or assistance in some legal proceeding; also, it must
appear that the attorney at the time was acting professionally as a lawyer in connection with such communications.
Puerto Rico v SS Zoe Colocotroni (1974, DC Puerto Rico) 61 FRD 653, 18 FR Serv 2d 322.
While it is essential that communications between client and attorney deal with legal assistance and advice in order
to be privileged, it is not essential that such requests by client for legal advice be expressed; basic element of
communications within attorney-client privilege is that communications must be made by client to attorney in
confidence for purpose of obtaining legal advice and assistance, and privilege further extends to attorney's legal advice
and opinions which encompass thoughts and confidences of client, but mere fact that person is attorney does not render
as privileged everything he does for and with client, since only those attorney-client communications pertaining to legal
assistance and made with intention of confidentiality are within ambit of privilege. Burlington Industries v Exxon
Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
Although material which would otherwise come within attorney-client privilege is not lost merely because
communication containing legal advice also contains relevant nonlegal information, party seeking protection, in order to
invoke privilege, must make clear showing that documents containing technical matters are communicated in
confidence and are primarily legal in nature; there must be finding that each document is involved in rendition of legal
assistance. Burlington Industries v Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
Requirement for attorney-client privilege that communications be made without presence of strangers means that
communication must have been intended as confidential, that is, not intended to be related to others. Burlington
Industries v Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
Attorney-client privilege applies only if (1) asserted holder of privilege is or sought to become client, (2) person to
whom communication was made is member of bar of court, or his subordinate, and acting as lawyer in connection with
such communication, (3) communication relates to fact of which attorney was informed by his client, without presence
of strangers, for purpose of securing primarily either opinion on law, or legal services, or assistance in some legal
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USCS Fed Rules Civ Proc R 26
proceeding, and (4) privilege has been claimed and not waived by client. J. P. Foley & Co. v Vanderbilt (1974, SD NY)
65 FRD 523, CCH Fed Secur L Rep P 94363.
Mere existence of attorney-client relationship does not raise presumption of confidentiality; each of conditions for
privilege must be satisfied before claimed privilege will attach communication. Duplan Corp. v Deering Milliken, Inc.
(1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
In plaintiff's civil rights suit against state prison officials challenging his confinement in prison's mental health unit,
defendant officials would be treated as individuals for purposes of evaluating breadth of attorney-client privilege, and
all communications between individual defendants and state attorney general which were shared with third persons,
whether communicated in presence of such third persons or lodged in files that were accessible to others, would not be
deemed confidential for purposes of privilege. Hearn v Rhay (1975, ED Wash) 68 FRD 574, 2 Fed Rules Evid Serv
523, 33 FR Serv 2d 704.
Possession of law degree and admission to bar is not enough to establish person as attorney for purposes of
determining whether attorney-client privilege applies; for privilege to exist, lawyer must not only be functioning as
advisor, but advice given must be predominantly legal, as opposed to business, in nature. North American Mortg.
North American Mortg. Investors v First Wisconsin Nat'l Bank (1975, ED Wis) 69 FRD 9, 22 FR Serv 2d 1012.
Attorney-client privilege applies only if asserted holder of privilege is or sought to be client; person to whom
communication was made is member of bar or his subordinate and in connection with communication is acting as
lawyer; communication relates to fact which attorney was informed of by client without presence of strangers for
purpose of securing primarily either opinion on law or legal services or assistance in some legal proceeding, and not for
purpose of committing crime or tort; and privilege has been claimed and not waived by client. Handgards, Inc. v
Johnson & Johnson (1975, ND Cal) 69 FRD 451, motion sustained, app den (1976, ND Cal) 413 F Supp 926, 192
USPQ 316, remanded (1979, CA9 Cal) 601 F2d 986, 202 USPQ 342, 1979-1 CCH Trade Cases P 62625, 62 ALR Fed
183, cert den (1980) 444 US 1025, 62 L Ed 2d 659, 100 S Ct 688, 100 S Ct 689, 204 USPQ 880.
Communication need not be of confidential information for attorney-client privilege to apply; instead, client
communication is privileged if it was made with intention of confidentiality and attorney communication is privileged if
it would directly or indirectly reveal confidential communications by client and if it was considered confidential by
client. In re Ampicillin Antitrust Litigation (1978, DC Dist Col) 81 FRD 377, 202 USPQ 134, 1978-1 CCH Trade
Cases P 62043, 25 FR Serv 2d 1248.
Communications between attorney and client are not privileged if made in presence of or communicated to third
parties; communications must have as primary purpose securing or providing of legal services and reports of general
corporate legal advice based upon confidential information are not privileged. Barr Marine Products Co. v
Borg-Warner Corp. (1979, ED Pa) 84 FRD 631, 1980-1 CCH Trade Cases P 63062, 5 Fed Rules Evid Serv 407, 28 FR
Serv 2d 978.
In order for attorney-client privilege to be asserted several conditions must be met; those conditions are (1) asserted
holder of privilege is or seeks to become client; (2) person to whom communication is made is (a) is member of bar of
court, or his subordinate and (b) in connection with this communication is acting as lawyer; (3) communication relates
to fact which attorney is informed (a) by his client (b) without presence of strangers (c) for purpose of securing
primarily either (i) opinion on law (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for purpose
of committing crime or tort; and (4) privilege is (a) claimed and (b) not waived by client. Re LTV Secur. In re LTV
Sec. Litigation (1981, ND Tex) 89 FRD 595, CCH Fed Secur L Rep P 97969, 8 Fed Rules Evid Serv 748, 31 FR Serv 2d
1542.
Assertion of attorney-client privilege does not justify refusal of lawyer witness to answer questions before grand jury
concerning client's identity since lawyer witness failed to establish that communication between him and unidentified
client concerning payment of legal fees and bond for 2 drug couriers was for purpose of obtaining legal advice for
unidentified client and since government had made prima facie showing that agreement to furnish legal assistance was
part of conspiracy. In re Witness Before Grand Jury No. 82-5 (1983, SD Fla) 558 F Supp 1089, 12 Fed Rules Evid
Serv 1803.
Shelter afforded by attorney-client privilege only protects disclosure of communications; it does not protect
disclosure of underlying facts by those who communicated with attorney. Savoy v Richard A. Carrier Trucking (1997,
DC Mass) 176 FRD 10.
Party asserting attorney-client privilege in response to subpoena must prove that privilege applies, that privilege
protects documents in question, and that party did not waive privilege. FEC v Christian Coalition (1998, ED Va) 178
FRD 61, affd in part and mod in part, motion den (1998, ED Va) 1998 US Dist LEXIS 4832, corrected (Apr 15, 1998).
Motion to compel was granted in part; some documents were discoverable because they related to corporate affairs
and were not segregable from personal affairs of defendant, and/or were generated after attorney-client relationship
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USCS Fed Rules Civ Proc R 26
between defendant personally and law firm was terminated. Grassmueck v Ogden Murphy Wallace (2003, WD Wash)
213 FRD 567.
85. Who may assert privilege
Foreign patent agent who is not registered with U.S. Patent Office does not qualify for attorney-client privilege with
respect to communications relating to United States, notwithstanding corporate principal's contention that agent is its
employee. Chubb Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002,
39 FR Serv 2d 1262.
Surviving corporation in merger has authority to assert attorney-client privilege relating to documents of
nonsurviving corporation, since by operation of law it succeeded to all rights, privilege, and powers of nonsurviving
corporation. O'Leary v Purcell Co. (1985, MD NC) 108 FRD 641, 3 FR Serv 3d 1373.
Since attorney-client privilege belongs to client, client determines whether communication made to his attorney may
be disclosed by attorney, and client has authority to raise or waive privilege. George v Siemens Indus. Automation
(1998, DC NJ) 182 FRD 134.
If government party is dealing with its attorneys as would any private party seeking advice to protect personal
interests, and needs same assurance of confidentiality so it will not be deterred from full and frank communications with
its counsel, attorney-client privilege applies to those communications just as if parties were private entities. Arizona
Rehabilitation Hosp. v Shalala (1998, DC Ariz) 185 FRD 263.
Attorney-client privilege is exercisable by client, not by attorney. United States v Randall (1999, DC Mass) 194 FRD
369, 99-2 USTC P 50596, 83 AFTR 2d 2795.
Where ERISA (29 USCS § § 1001 et seq.) plan trustee/administrator seeks attorney's advice on matter of plan
administration, and where advice clearly does not implicate trustee in any personal capacity, trustee cannot invoke
attorney-client privilege against plan beneficiaries; however, where plan fiduciary retains counsel in order to defend
himself against plan beneficiaries, attorney-client privilege remains intact. Geissal v Moore Med. Corp. (2000, ED Mo)
192 FRD 620.
Attorney-client privilege, and purpose of privilege, apply to corporations. Alexander v FBI (2000, DC Dist Col) 198
FRD 306.
Before application of attorney-client privilege will be extended to non-employees of company, party asserting
privilege must make detailed factual showing that non-employee is functional equivalent of employee and that
information sought from non-employee would be subject to privilege if he were employee of party. Horton v United
States (2002, DC Colo) 204 FRD 670.
86. Joint privilege
There is sufficient mutuality of interest between plaintiffs in instant suit and plaintiffs in second suit for joint
privilege to arise regarding work product and attorney-client confidences, where second suit was initially filed as class
action and instant plaintiffs, as putative members of class in second suit, were in effect parties to that litigation and may
still stand to gain if that case successfully proceeds as class action, and where factual bases for 2 cases are sufficiently
similar that attorneys should be allowed to coordinate prosecution efforts to some extent without jeopardizing
confidentiality of their work product or shared confidences. Schachar v American Academy of Opthalmology, Inc.
(1985, ND Ill) 106 FRD 187, 1985-2 CCH Trade Cases P 66681, 1 FR Serv 3d 584.
In relator's qui tam action against company and its principal under False Claims Act, 31 USCS § 3729 et seq., court
found that in cases where government intervenes in action, government and relator have joint prosecutorial privilege,
which protected communications between relator and government from disclosure. United States ex rel. Purcell v MWI
Corp. (2002, DC Dist Col) 209 FRD 21.
In trademark dispute between restaurant and manufacturer that produced, marketed, and sold products originally
developed in restaurant, common interest doctrine protected some communications between heirs of founder of
restaurant and manufacturer, heirs' attorneys, administrator of founder's estate, administrator's counsel, and individuals
who worked for that counsel, but doctrine did not protect documents created before heirs and estate had agreed or were
close to agreeing to initiate trademark claims against manufacturer; consequently, court granted in part and denied in
part manufacturer's motion to compel production of documents and further deposition of one of heirs, and motion of
heirs and restaurant for protective order. Ken's Foods, Inc. v Ken's Steak House, Inc. (2002, DC Mass) 213 FRD 89.
87. Effect of client's death
Attorney-client privilege is qualified by client's death and witness's unavailability through death, coupled with
non-existence of any client concern for liability after death, creates discrete realm, i.e., use in criminal proceedings after
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USCS Fed Rules Civ Proc R 26
death of client, where privilege should not automatically apply. In re Sealed Case (1997, App DC) 326 US App DC 317,
124 F3d 230, 47 Fed Rules Evid Serv 327, reh, en banc, den (1997, App DC) 327 US App DC 145, 129 F3d 637, 47 Fed
Rules Evid Serv 1233.
88. Law governing
Federal courts sitting in diversity jurisdiction must apply state substantive law with regard to attorney-client
privilege. Garvey v National Grange Mut. Ins. Co. (1996, ED Pa) 167 FRD 391.
In diversity action involving state law claims, court must apply law of state where it sits concerning scope and
application of claimed attorney-client privilege. Conoco Inc. v Boh Bros. Constr. Co. (1998, WD La) 191 FRD 107.
If attorney-client privilege exists in foreign country, then comity requires federal district court to apply that country's
law to documents at issue. McCook Metals L.L.C. v Alcoa, Inc. (2000, ND Ill) 192 FRD 242.
Plaintiffs' motion to compel in diversity action was granted; because there was no statute specifically authorizing
representation by lay persons at system adjustment board proceeding, communications of two former airline employees
to pilots association's representatives were not privileged under California law. McCoy v Southwest Airlines Co. (2002,
CD Cal) 211 FRD 381.
89. Burden of proof
Witness-contemptor claiming attorney-client privilege has burden of establishing all essential elements thereof;
burden of proof in contempt proceeding for failure to disclose documents and manuscripts, is not discharged by mere
conclusory assertions, for otherwise any meaningful inquiry into existence of attorney-client relationship would be
foreclosed spurious claims could never be exposed. Von Bulow v Von Bulow (1987, CA2 NY) 811 F2d 136, 13 Media
L R 2041, 22 Fed Rules Evid Serv 737, 7 FR Serv 3d 389, cert den (1987) 481 US 1015, 95 L Ed 2d 498, 107 S Ct 1891.
Burden of proving applicability of attorney-client privilege is on party resisting discovery on those grounds, and he
must show by affidavit sufficient facts to bring disputed matters within confines of privilege; in camera examination by
court of document alleged to be privileged does not constitute adequate or suitable substitute for such proof. North
American Mortg. North American Mortg. Investors v First Wisconsin Nat'l Bank (1975, ED Wis) 69 FRD 9, 22 FR
Serv 2d 1012.
Discovery is not barred by attorney-client privilege when confidential communications between attorney and client
concern advice in preparation for commission of fraudulent act, but prima facie showing of fraud must be made to
abrogate privilege and mere allegation of fraud is insufficient. Aspen Industries, Inc. v Chem Lab Products, Inc. (1976,
CD Cal) 23 FR Serv 2d 193.
Mere conclusory or ipse dixit assertions of privilege are insufficient to satisfy burden of establishing applicability of
privilege. In re Pfohl Bros. Landfill Litig. (1997, WD NY) 175 FRD 13.
In certain circumstances, court may extend party's attorney-client privilege to cover its former employees, but before
privilege can be used to prevent such ex parte contact, party asserting privilege must meet its burden of establishing that
privilege exists. United States v Housing Auth. (1997, DC Conn) 179 FRD 69.
Proponent of attorney-client privilege has burden of establishing not only that attorney-client relationship existed, but
also that particular communications at issue are privileged and that privilege was not waived. McCafferty's, Inc. v Bank
of Glen Burnie (1998, DC Md) 179 FRD 163.
With respect to crime-fraud exception to attorney-client privilege, party seeking to overcome privilege must offer
evidence that, if believed by trier of fact, would establish elements of ongoing or imminent crime or fraud, and must
show that client consulted lawyer for purpose of committing crime or fraud. Alexander v FBI (2000, DC Dist Col) 192
FRD 32.
Attorney-client privilege must be established on document-by-document basis; blanket claim failing to specify what
information is protected will not suffice. Smithkline Beecham Corp. v Apotex Corp. (2000, ND Ill) 193 FRD 530.
Proponent of attorney-client privilege must establish that privilege was not waived. Connecticut Indem. Co. v
Carrier Haulers, Inc. (2000, WD NC) 197 FRD 564.
Attorney-client privilege must be established on document-by-document basis; blanket claim failing to specify what
information is protected will not suffice. Allen v Chicago Transit Auth. (2001, ND Ill) 198 FRD 495.
Party asserting attorney-client privilege has burden of proving applicability of privilege and that it has not waived
privilege. Greene, Tweed of Del., Inc. v DuPont Dow Elastomers, L.L.C. (2001, ED Pa) 202 FRD 418.
Burden of establishing elements of attorney-client privilege can be met only by evidentiary showing based on
competent evidence, and cannot be discharged by mere conclusory or ipse dixit assertions. Greene, Tweed of Del., Inc. v
DuPont Dow Elastomers, L.L.C. (2001, ED Pa) 202 FRD 418.
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USCS Fed Rules Civ Proc R 26
To satisfy burden of proving that attorney-client privilege applies, party asserting privilege must provide privilege
log that describes in detail documents or information claimed to be privileged and precise reasons materials are subject
to privilege asserted. Horton v United States (2002, DC Colo) 204 FRD 670.
90. Miscellaneous
If primary motivating purpose behind creation of document is not to assist in pending or impending litigation, then
finding that document enjoys work product immunity is not mandated; thus documents created at client's request to
allow client to prepare financial reports which would satisfy requirements of federal securities laws do not qualify as
attorney work product. United States v Gulf Oil Corp. (1985, Em Ct App) 760 F2d 292, 17 Fed Rules Evid Serv 896, 1
FR Serv 3d 528.
Defendant is entitled to depose jurors who rendered verdict in similar claim in state court where party demonstrates
factual basis for belief that judgment on similar claim, asserted against party as collateral estoppel, was based upon
compromise verdict. Katz v Eli Lilly & Co. (1979, ED NY) 84 FRD 378, 29 FR Serv 2d 652.
Although confidentiality may occasion protective order pursuant to FRCP 26(c) to restrict use of requested
information, confidentiality does not necessarily bar discovery. Mackey v IBP, Inc. (1996, DC Kan) 167 FRD 186.
Since attorney-client privilege belongs to client, client determines whether communication made to his attorney may
be disclosed by attorney, and client has authority to raise or waive privilege. George v Siemens Indus. Automation
(1998, DC NJ) 182 FRD 134.
Attorney-client and work product privileges can extend to communications with accountant hired by attorney's client,
rather than attorney; if other elements of privileges are established, information exchanged with accountant is protected
if it is shown that accountant was consulted, in confidence, for purpose of obtaining legal advice from attorney, and
communications between accountant, client and attorney are reasonably related to purpose of obtaining confidential
legal advice from attorney. Aull v Cavalcade Pension Plan (1998, DC Colo) 185 FRD 618.
Communication covered by attorney-client privilege is entitled to protection regardless of whether proceeding is
civil, criminal or administrative, and whether question arises in grand jury, in discovery or at trial, unless client has
waived privilege. Bristol-Myers Squibb Co. v Rhone-Poulenc Rorer, Inc. (1999, SD NY) 188 FRD 189, request den
(1999, SD NY) 1999 US Dist LEXIS 8808, request gr, in part, request den, in part (1999, SD NY) 1999 US Dist LEXIS
8929.
Where ERISA (29 USCS § § 1001 et seq.) trustee seeks attorney's advice on matter of plan administration and
where advice clearly does not implicate trustee in any personal capacity, trustee cannot invoke attorney-client privilege
against plan beneficiaries; however, where plan fiduciary retains counsel in order to defend herself against plan
beneficiaries (or government acting in their stead), attorney-client privilege remains intact. Fischel v Equitable Life
Assur. (2000, ND Cal) 191 FRD 606.
If attorney-client privilege exists in foreign country, then comity requires federal district court to apply that country's
law to documents at issue. McCook Metals L.L.C. v Alcoa, Inc. (2000, ND Ill) 192 FRD 242.
Where ERISA (29 USCS § § 1001 et seq.) plan trustee/administrator seeks attorney's advice on matter of plan
administration, and where advice clearly does not implicate trustee in any personal capacity, trustee cannot invoke
attorney-client privilege against plan beneficiaries; however, where plan fiduciary retains counsel in order to defend
himself against plan beneficiaries, attorney-client privilege remains intact. Geissal v Moore Med. Corp. (2000, ED Mo)
192 FRD 620.
Attorney-client privilege must be established on document-by-document basis; blanket claim failing to specify what
information is protected will not suffice. Smithkline Beecham Corp. v Apotex Corp. (2000, ND Ill) 193 FRD 530.
Attorney-client privilege applies only to communications made to attorney in his capacity as legal advisor; where
business and legal advice are intertwined, legal advice must predominate for communication to be protected. Neuder v
Battelle Pac. Northwest Nat'l Lab. (2000, DC Dist Col) 194 FRD 289.
Where work product doctrine or attorney-client privilege is raised in objection to discovery request, court of appeals
reviews district court's decision that certain documents are subject to privilege de novo, since it involves mixed question
of law and fact. Connecticut Indem. Co. v Carrier Haulers, Inc. (2000, WD NC) 197 FRD 564.
When governmental agency is asserting attorney-client privilege, confidentiality element will be satisfied only if
documents in question were circulated among those agency employees who are authorized to speak on matter dealt with
in documents; if circulated to larger group of individuals, privilege does not apply because agency did not maintain
confidentiality of information. Wyoming v USDA (2002, DC Wyo) 239 F Supp 2d 1219.
b. Matters Privileged
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91. Generally
Attorney-client privilege protects communications from client to attorney made in confidence for purpose of
obtaining legal advice; it shields communications from lawyer to client only to extent that these are based on, or may
disclose, confidential information provided by client or contain advice or opinions of attorney. Wells v Rushing (1985,
CA5 Miss) 755 F2d 376, reh den (1985, CA5 Miss) 760 F2d 660.
That a statement taken from plaintiff is technically in the possession of defendant's legal department and attorneys
does not give it the protection of a privileged communication. Blank v Great Northern R. Co. (1943, DC Minn) 4 FRD
213.
Attorney-client privilege applies not only to communications from lawyer to client, but also extends to protect
communications by lawyer to his client, agents, or superiors, or to other lawyers in case of joint representation, if those
communications reveal confidential client communications. FEC v Christian Coalition (1998, ED Va) 178 FRD 61, affd
in part and mod in part, motion den (1998, ED Va) 1998 US Dist LEXIS 4832, corrected (Apr 15, 1998).
Court rejected insured's reasons for not respecting insurer's claims of privilege because insured failed to cite any
authority for insured's extraordinary dismissal of confidentiality of communications between insurer and its counsel.
Mordesovitch v Westfield Ins. Co. (2002, SD W Va) 235 F Supp 2d 512.
Use of terms "regarding" and "related to" in plaintiffs' request for privilege log were very general categories of
documents; therefore, requests were unduly burdensome on their face. Aikens v Deluxe Fin. Servs. (2003, DC Kan) 217
FRD 533.
92. Circumstances surrounding attorney's employment
In determining whether an attorney, asserting the attorney-client privilege, must reveal his client's identity and
comply with the NLRB's subpoena duces tecum for reports of a private detective hired by the attorney for surveillance
of a union representative, the issue, which should be considered upon full evidentiary hearing rather than upon
affidavits, is for determination by the District Judge, not the attorney, and the judge should be fully advised whether the
attorney's employment concerned a criminal or a civil matter, and what legal services, if any, were involved; if the
attorney was retained by his client to render a legal opinion, perform a legal service, or afford representation in legal
proceedings and as an incident to this employment he hired the detective, the privilege should be recognized, whereas if
the attorney was engaged to obtain information for his client without being retained to furnish a legal opinion, services,
or representation, in connection with the request for information, the privilege does not exist and he must disclose the
name of his client and comply with the subpoena. NLRB v Harvey (1965, CA4) 349 F2d 900, 59 BNA LRRM 2875, 52
CCH LC P 16565, 16 ALR3d 1035.
Attorney who is subpoenaed by grand jury which is investigating his retention to represent several grand jury
witnesses is allowed reasonable opportunity to present and establish claim of attorney-client privilege where, although
government informs him that subpoena to appear before grand jury is continuing, attorney fails to file response or make
request for hearing on motion to compel prior to court's entry of compulsion order, or otherwise seek relief from
subpoena. In re Grand Jury Proceedings in Matter of Freeman (1983, CA11 Fla) 708 F2d 1571, 13 Fed Rules Evid
Serv 1017.
The date of an attorney's retainer is not privileged and may be inquired into at the taking of his deposition. Steingut
v Guaranty Trust Co. (1941, DC NY) 1 FRD 723.
Attorney-client privilege need not foreclose inquiry into general nature of lawyer's activities on behalf of client,
conditions of lawyer's employment, or any of other external trappings of relationship; privilege is concerned only with
confidential communications, not with structural framework within which they are uttered. Cohen v Uniroyal, Inc.
(1978, ED Pa) 80 FRD 480, CCH Fed Secur L Rep P 96868, 27 FR Serv 2d 172.
In class action, defendant was permitted to inquire into plaintiffs' financial status and fee arrangement with attorney,
despite claim of attorney-client privilege, as such information was relevant to question of plaintiffs' ability to protect
interests of potential class members by adequate funding of lawsuit, and question of award of attorneys' fees in
settlement or possible judgment of lawsuit. Klein v Henry S. Miller Residential Services, Inc. (1978, ND Tex) 82 FRD
6, 1980-1 CCH Trade Cases P 63087, 27 FR Serv 2d 398.
Inquiries into general nature of legal services performed do not invade area protected by attorney-client privilege
because they do not call for confidential communications; attorney-client privilege attaches to substance of
communications exchanged, inquiry into subject matter of communications is not precluded; plaintiff's interrogatory,
requesting disclosure of purposes for which defendant retained attorneys in connection with claim for breach of insurer's
obligation, and identity of person who acted on behalf of defendant in retaining attorneys, was not protected by
attorney-client privilege. Westhemeco, Ltd. v New Hampshire Ins. Co. (1979, SD NY) 82 FRD 702.
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Defendant in class action is not entitled to discover manner in which plaintiff intends to compute attorney's fees or
fee arrangement between plaintiff and her counsel. Stahler v Jamesway Corp. (1979, ED Pa) 85 FRD 85, 28 FR Serv
2d 976.
Attorney-client privilege does not encompass nonconfidential matters such as terms and conditions of employment,
purpose for which attorney has been engaged, steps which attorney takes or intends to take in discharging his obligation,
or any other external trappings of relationship between parties. In re LTV Sec. Litigation (1981, ND Tex) 89 FRD 595,
CCH Fed Secur L Rep P 97969, 8 Fed Rules Evid Serv 748, 31 FR Serv 2d 1542.
Information concerning time period and general nature of witness's relationship with attorney is not within
attorney-client privilege. United Nat'l Records, Inc. v MCA, Inc. (1985, ND Ill) 106 FRD 39, 1985-1 CCH Trade
Cases P 66594, 1 FR Serv 3d 580.
Exception to rule of disclosure of fee information is narrow one to be applied only where revealing such information
probably would incriminate client on same charges for which client sought legal assistance, and client cannot invoke
exception by relying on risk of incrimination on charges about which he never consulted his attorney, even if he
established attorney-client relationship with regard to other matters. In re Grand Jury Proceedings (Doe) (1985, DC
RI) 602 F Supp 603.
Party would not be permitted to depose one of other party's trial counsel regarding allegations in counterclaim that
they had created sham corporation where it was uncontested that counsel was not party to any of underlying
transactions, so that all information in possession of attorney was either result of privileged communications or was
protected work product. Advance Systems, Inc. v APV Baker PMC, Inc. (1989, ED Wis) 124 FRD 200.
93. Statements made to attorney's agent or representative
In patent infringement suit, attorney-client privilege applied with regard to communications by client to patent agent
who was attorney's agent. Congoleum Industries, Inc. v G A F Corp. (1969, ED Pa) 49 FRD 82, 164 USPQ 376, 14
FR Serv 2d 128, affd without op (1973, CA3 Pa) 478 F2d 1398.
Statement by party to agent or representative of party's attorney is protected by attorney-client privilege. Daniels v
Hadley Memorial Hospital (1975, DC Dist Col) 68 FRD 583, 21 FR Serv 2d 603.
Employer's former EEOC representative, who received information from employees in EEOC investigations and
analyzed that data for employer's law department, was not "agent" of law department so as to protect such information
from discovery by discharged employee under attorney-client privilege in Title VII action, since representative did not
affect legal relations of employer or work for employer's benefit, but talked with employees who had complaints against
employer and then reported to law department, having no say in what legal remedies were taken, and obtained
information from employees that was antagonistic to employer's interests in most cases; even if representative was
considered law department's agent, her role as such was not subject to attorney-client privilege, because employees who
spoke with representative knew that information discussed would be given to law department and none of such
information indicated that employees had manifest intention to seek legal advice from representative. Henderson v
National R. Passenger Corp. (1986, ND Ill) 113 FRD 502, 21 Fed Rules Evid Serv 1011, 5 FR Serv 3d 53.
Attorney-client privilege may cover communications made to agents of attorney hired to assist in rendition of legal
services; thus, attorney-client privilege can attach to reports of third parties made at request of attorney or client where
purpose of report was to put in usable form information obtained from client. Occidental Chem. Corp. v OHM
Remediation Servs. Corp. (1997, WD NY) 175 FRD 431, 45 Envt Rep Cas 1821.
Although there is no traditional accountant-client privilege, under limited circumstances, communications made to
accountant may still be privileged; privilege extends to communications made by client to certain agents of attorney,
including accountant, hired to assist attorney in providing legal advice. United States v Randall (1999, DC Mass) 194
FRD 369, 99-2 USTC P 50596, 83 AFTR 2d 2795.
94. Communications with non-legal personnel performing legal services
Although attorney-client privilege extends to agents or immediate subordinates of attorney, such as attorney's
secretary, with agents of attorney for purposes of privilege being those persons essential to lawyer's performance of
legal services, communications between patent holder's outside counsel and foreign patent agents would not be within
attorney-client privilege. Burlington Industries v Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv
2d 533.
Finding that non-lawyer performs legal services does not create attorney-client privilege for communications with
that non-lawyer; legal secretaries and paraprofessionals also sometimes perform legal services, but no attorney-client
privilege attaches for communications with them because they are not attorneys. Duplan Corp. v Deering Milliken,
Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
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Communications between United States attorneys and foreign patent agents, who are neither members of bar of
United States nor agents of such members, cannot be protected by attorney-client privilege. Revlon, Inc. v Carson
Products Co. (1983, SD NY) 37 FR Serv 2d 325.
95. Initial interview with attorney
Defendants in antitrust class action are not entitled to discover circumstances surrounding plaintiffs' initial approach
to their attorneys, and communications between plaintiffs, their attorneys and any member of class plaintiffs purported
to represent when it is difficult to imagine how any incidental solicitation might have prejudicial effect sufficient to
warrant denial of class status. In re Nissan Motor Corp. Antitrust Litigation (1975, SD Fla) 22 FR Serv 2d 63.
Memorandum prepared by party for attorney prior to commencement of action was protected by attorney-client
privilege since in recounting party's recollection of conversation forming basis of suit, it was clearly equivalent to intake
interview to apprise attorney of everything client knew while it was fresh in his memory. Solomon v Scientific
American, Inc. (1988, SD NY) 125 FRD 34, 13 FR Serv 3d 1320.
96. Correspondence based on public information
Attorney-client privilege does not extend to correspondence from attorney to client when that correspondence
contains advice based upon public information rather than confidential information provided by client; thus, in actions
seeking judicial review of Federal Home Loan Bank Board decision granting savings and loan association permission to
establish branch office, information provided to Board by Office of General Counsel, which consists almost entirely of
material which is in public record, is not protected from discovery by attorney-client privilege. Community Sav. &
Loan Asso. v Federal Home Loan Bank Board (1975, ED Wis) 68 FRD 378, 22 FR Serv 2d 1435.
Attorney-client privilege protects only advice that reveals (by adoption or implication) a fact communicated in
confidence by client to attorney; privilege is unavailable when attorney's communication is demonstrably based on facts
that did not come from client in confidence; attorney's opinions and legal theories, even if recorded in his own files, are
privileged if they reveal information supplied in confidence by client, but absent such information from client, it is only
work product rule and not privilege that protects attorney's uncommunicated expression of opinion. SCM Corp. v
Xerox Corp. (1976, DC Conn) 70 FRD 508, 1976-2 CCH Trade Cases P 61207, 1976-2 CCH Trade Cases P 61208, 2
Fed Rules Evid Serv 535, app dismd (1976, CA2 Conn) 534 F2d 1031, 1976-1 CCH Trade Cases P 60840, 21 FR Serv
2d 1114.
97. Non-legal considerations in legal advice
Communications by attorney to client in consultation process are privileged when they state or imply facts
communicated to attorney in confidence; claims to privilege are not circumvented by framing question to request
reasons for particular decision or action when there is every indication that those reasons are limited to reliance on
protected legal advice; legal advice should remain protected along with "nonlegal considerations" discussed between
client and counsel that is relevant to that consultation; however when ultimate decision then requires exercise of
business judgment and when what are relevant nonlegal considerations incidental to formulation of legal advice emerge
as business reasons for and against course of action, those business reasons considered among executives are not
privileged. SCM Corp. v Xerox Corp. (1976, DC Conn) 70 FRD 508, 1976-2 CCH Trade Cases P 61207, 1976-2 CCH
Trade Cases P 61208, 2 Fed Rules Evid Serv 535, app dismd (1976, CA2 Conn) 534 F2d 1031, 1976-1 CCH Trade
Cases P 60840, 21 FR Serv 2d 1114.
Documents containing considerable technical factual information, but which are nonetheless primarily concerned
with giving legal guidance to client, are privileged. Chubb Integrated Sys. v National Bank of Washington (1984, DC
Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
Mere fact that business considerations are weighed in rendering legal advice does not vitiate attorney-client
privilege. Coleman v American Broadcasting Cos. (1985, DC Dist Col) 106 FRD 201.
98. Transcripts of prior proceedings
Where 40 separate antitrust suits by state and local governments, public schools and public libraries against
publishers and wholesalers of childrens' library books were consolidated for discovery and pretrial proceedings,
plaintiffs had right to inspect debriefing memoranda which were prepared (apparently by defendants' counsel) soon after
certain witnesses testified before the grand jury; the documents, which were essentially factual summaries of the
witnesses' testimony before the grand jury, were not protected by either a personal attorney-client privilege or a
corporate attorney-client privilege. Illinois v Harper & Row Publishers (1969, ND Ill) 50 FRD 37, 1969 CCH Trade
Cases P 72965, mand gr, in part sub nom Harper & Row Publishers v Decker (1970, CA7 Ill) 423 F2d 487, 1970 CCH
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USCS Fed Rules Civ Proc R 26
Trade Cases P 73084, 13 FR Serv 2d 984, 9 ALR Fed 674, affd (1971) 400 US 348, 27 L Ed 2d 433, 91 S Ct 479, 1971
CCH Trade Cases P 73430, reh den (1971) 401 US 950, 28 L Ed 2d 234, 91 S Ct 917.
In action under § 10(b) of Securities Exchange Act (15 USCS § 78j) and SEC Rule 10b-5 to recover some $ 22
million dollars alleged to have been lost through defendants' fraud, plaintiffs are entitled to order directing defendants to
produce and permit copying of transcripts of testimony given by them or any of their officers or directors concerning
affairs of corporation and its subsidiaries before British Department of Trade and Industry, where defendants' resistance
to motion arguing attorney-client privilege has no merit either under English law or under law of United States, and
where there is no basis for contention that testimony is inadmissible in court. Leasco Data Processing Equipment
Corp. v Maxwell (1973, SD NY) 63 FRD 94, 18 FR Serv 2d 126.
Defendant-attorney's deposition in previous case was discoverable where there was no indication that his deposition
testimony was without his client's knowledge or consent and defendant's assertion that transcript was sealed was
insufficient absent copy of sealing order and in light of fact that it was matter of public record in case. Fox v California
Sierra Financial Services (1988, ND Cal) 120 FRD 520.
99. Matters learned from third parties
A party cannot refuse to produce statements taken by his counsel from independent parties who may be called as
witnesses and support his refusal on ground that statements are in nature of privileged communications between
attorney and client. Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395 (superseded by
statute on other grounds as stated in Hawkins v District Court of Fourth Judicial Dist. (1982, Colo) 638 P2d 1372) and
(superseded by statute on other grounds as stated in Graham v Gielchinsky (1991) 126 NJ 361, 599 A2d 149);
Humphries v Pennsylvania R. Co. (1953, DC Ohio) 14 FRD 177.
Where both parties in personal injury action arising out of train-car collision had obtained statements from railroad
employees who had witnessed the accident, neither party could assert attorney-client privilege or claim that statements
constituted "work product" of attorneys where statements were not taken by attorneys but by investigators employed by
parties' insurers. Rucker v Wabash R. Co. (1969, CA7 Ill) 418 F2d 146, 13 FR Serv 2d 981.
Reports, statements, and affidavits obtained by a party before the matter is submitted to his attorney can properly be
examined, but those obtained by the attorney in preparation for trial are protected. Matthies v Peter F. Connolly Co.
(1941, DC NY) 2 FRD 277.
Statements not in themselves privileged in a discovery proceeding taken under the federal rules do not become
privileged because of having been placed in the hands of an attorney for use in litigation. Blank v Great Northern R.
Co. (1943, DC Minn) 4 FRD 213; Marron v Atlantic Refining Co. (1947, DC Pa) 7 FRD 660; Humphries v
Pennsylvania R. Co. (1953, DC Ohio) 14 FRD 177.
Attorney-client privilege does not extend to information which attorney secures from witnesses while acting for
client in anticipation of litigation. United States v 38 Cases, etc. (1964, WD Pa) 35 FRD 357, 8 FR Serv 2d 26B.411,
Case 1, app dismd (1966, CA3 Pa) 369 F2d 399.
In securities action alleging that defendant auditor made material misrepresentations by failing to disclose material
facts regarding financial condition of corporation during course of negotiations leading up to series of loan agreements,
where defendant auditor, not having participated in any of negotiations leading up to agreement, seeks by deposition of
plaintiff to determine what was actually represented to plaintiffs during negotiations, and where plaintiff refuses to
answer certain questions on ground that answers would violate attorney-client privilege, since attorney-client privilege
extends to communications from attorney to his client, but does not cover attorney's communications, whether in form
of information or advice, which are based upon conversations with third parties, that portion of magistrate's ruling
which orders plaintiff to testify as to matters which plaintiff's attorney learned from third parties and reported back to
plaintiff is adopted, and auditor is also allowed to question plaintiff regarding substance of any comments or advice
which attorney may have given plaintiff in course of such discussions, because such communications are not based
upon confidential communication of client. J. P. Foley & Co. v Vanderbilt (1974, SD NY) 65 FRD 523, CCH Fed
Secur L Rep P 94363.
Negotiations of non-party witness in case, which took place between such witness and adverse parties and which led
to settlement in another case, were not communications between such witness and his own legal advisor and did not fall
within attorney-client privilege. Oliver v Committee for Re-Election of President (1975, DC Dist Col) 66 FRD 553, 19
FR Serv 2d 1517.
In sex-based job discrimination action, employer may have access to information contained in questionnaires sent to
class members and returned to plaintiffs' counsel, where clarifying notice explicitly stated that plaintiffs' counsel are not
attorneys for individual class members; however, due to promise of confidentiality in notice, access to information
obtained from questionnaires would be restricted to employer's counsel. Penk v Oregon State Bd. of Higher Education
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USCS Fed Rules Civ Proc R 26
(1983, DC Or) 99 FRD 511, 48 BNA FEP Cas 1692, 13 Fed Rules Evid Serv 1419, 36 FR Serv 2d 961, 36 FR Serv 2d
965.
Materials that party requires from third parties in preparation for litigation do not fall within work product privilege
where documents are prepared in regular course of business prior to onset of litigation; documents prepared by third
parties contemporaneous with events to which documents relate cannot fairly be deemed to have been prepared in
anticipation of litigation. Compagnie Francaise d'Assurance Pour le Commerce Exterieur v Phillips Petroleum Co.
(1984, SD NY) 105 FRD 16, 1 FR Serv 3d 167, 79 ALR Fed 763.
Where defendants sought to obtain investigative file compiled by private investigators hired by plaintiffs' attorney
and containing statements from witnesses, court concluded that, pursuant to Rule 26(b)(3) any statements made by
plaintiffs to private investigator were protected by attorney-client privilege, but statements made by third parties either
to attorney or to private investigator did not come within purview of attorney-client privilege and were subject to
discovery. Clark v Munster (1987, ND Ind) 115 FRD 609.
100. Identity and address of client
Attorney-client privilege is protection for client; thus, identity of client, address at which client is located at
particular time, location where affidavit is sent for execution by client are not protected by attorney-client privilege
from discovery during deposition of client's attorney. Warnaco, Inc. v Freund (1980, ED NY) 94 FRD 237, 33 FR Serv
2d 499.
Client's name may be protected pursuant to attorney-client privilege where substantive communications have been
previously revealed that are by their nature such an integral part of attorney-client relationship that any subsequent
revelation of identity would seriously impinge upon that relationship. Ritt v Thriving Enterprises (1983, ED Pa) 14
Fed Rules Evid Serv 1647, 37 FR Serv 2d 1159.
Attorney-client privilege applies to client's address only when client communicated address confidentially, and legal
advice sought involves address. Viveros v Nationwide Janitorial Ass'n (2000, ND Ga) 200 FRD 681, 143 CCH LC P
34285.
101. Billing information and cost of services
Attorney-client privilege does not extend to billing statements for legal services rendered on behalf of party by
various attorneys, including description of type of service provided, cost of such services, and checks paying for such
services. Schachar v American Academy of Opthalmology, Inc. (1985, ND Ill) 106 FRD 187, 1985-2 CCH Trade
Cases P 66681, 1 FR Serv 3d 584.
Number of hours billed by defendant's counsel, parties' fee arrangement, total costs and fees paid do not constitute
privileged information protected from discovery in connection with plaintiffs' counsel's motion for attorneys' fees and
costs award, though defendant's counsel's statement of fees and billing computer printouts were privileged given the
highly detailed itemization required by defendant since production would necessarily reveal nature of legal services
performed. Real v Continental Group, Inc. (1986, ND Cal) 116 FRD 211, 43 BNA FEP Cas 926, 42 CCH EPD P
36937, reported at (1986, ND Cal) 44 BNA FEP Cas 242.
Where lender obtained judgment against borrower in another court and sought to track down borrower's assets,
present court found that attorney-client privilege did not apply and granted lender's motion to compel compliance with
subpoena duces tecum served upon borrower's counsel for financial documents and billing records. GFL Advantage
Fund, Ltd. v Colkitt (2003, DC Dist Col) 216 FRD 189.
102. Insurance investigations
There is no general attorney-client privilege in insured-insurer communications, although one would obtain where
insured communicates with insurer for express purpose of seeking legal advice regarding concrete claim or of aiding
insurer-provided attorney in preparing specific legal case, but statement betraying neither interest in nor pursuit of legal
counsel bears only most attenuated nexus to attorney-client relationship and does not come within privilege's ambit.
Linde Thomson Langworthy Kohn & Van Dyke, P.C. v Resolution Trust Corp. (1993, App DC) 303 US App DC 316, 5
F3d 1508, 37 Fed Rules Evid Serv 1119, 26 FR Serv 3d 1330, motion den sub nom Resolution Trust Corp. v Miller
Nelson Vohland & Assocs. (1993, App DC) 1993 US App LEXIS 26648 and reh, en banc, den sub nom Resolution Trust
Corp. v Miller Nelson Vohland & Assocs. (1993, App DC) 1993 US App LEXIS 37046.
Application by defendant and an insurance company to vacate taking of deposition of employees of the insurance
company with regard to its investigation of an automobile accident in which plaintiff was injured was denied where the
examination particularly sought information with regard to accident and statements taken during investigation by
insurance company's representatives, court rejecting claim of privilege by attorney for defendant, who was also attorney
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USCS Fed Rules Civ Proc R 26
for insurance company, pointing out that it did not regard the examination as invasion of private papers of an attorney
for defendant, inasmuch as the investigation was made by and on behalf of insurance company rather than by an
attorney for defendant. Kulich v Murray (1939, DC NY) 28 F Supp 675.
Fact that insurer turns statements over to an attorney who acts for both insurer and defendant does not render the
statements privileged. Price v Levitt (1939, DC NY) 29 F Supp 164; Bough v Lee (1939, DC NY) 29 F Supp 498;
Colpak v Hetterick (1941, DC NY) 40 F Supp 350.
Motion to vacate and set aside notice for taking deposition of insurance company and an attorney employed by it to
represent defendant in a personal injury action was denied where insurance company had been ordered to produce
statements made to its agents by defendant and plaintiff, and certain photographs of the accident; statements and
photographs were not privileged or irrelevant to cause of action since there was no attorney-and-client relationship
between attorney and the insurance company and result was that statements were not made to attorney by his client but
were obtained by an investigator for the insurance company as a routine matter. Bough v Lee (1939, DC NY) 29 F
Supp 498.
The mere fact that certain information is in the hands of defendant's insurer or its attorney does not make it
privileged. Seligson v Camp Westover, Inc. (1941, DC NY) 1 FRD 733.
Depositions of agents of insurance company may not be taken without proper notice which designates officers or
agents to be examined, and while reports, statements, and affidavits taken by company before matter was submitted to
its attorney could properly be examined, statements and affidavits taken by attorney for the insurance company, in
preparation for trial, were privileged. Matthies v Peter F. Connolly Co. (1941, DC NY) 2 FRD 277.
Plaintiff in suit against insurance company for negligence, recklessness, and bad faith in not settling a prior case
which it handled for her pursuant to a provision of her liability insurance policy was entitled to the production of the
records and files of the insurance company regarding such case; such records were relevant, and they were not subject
to the attorney-client privilege, since plaintiff had been the joint client of the attorneys in the prior case. Chitty v State
Farm Mut. Auto. Ins. Co. (1964, DC SC) 36 FRD 37, 8 FR Serv 2d 13B.11, Case 1, 8 FR Serv 2d 34.13, Case 11.
In action brought by plaintiff to recover for collapse of building's roof under terms of property insurance policy
issued by defendant insurer recording and transcript of plaintiff's employee, supervising engineer at building site, which
had resulted from interview by representative of plaintiff's liability insurer, was not exempt from discovery by
third-party defendants on ground of attorney-client privilege, although representative of property insurer was said to
have functioned under direction of attorney who was designated by property insurer to represent plaintiff. Ft. Ft.
Howard Paper Co. v Affiliated F. M. Ins. Co. (1974, ED Wis) 64 FRD 694, 20 FR Serv 2d 225.
In action by insurer of lessee of truck against insurer of lessor of truck to recover amounts lessee's insurer paid on
behalf of lessee in negligence action brought against lessee, attorney-client privilege did not apply so as to bar discovery
by defendant insurer of records and deposition of attorney who represented plaintiff insurer in negligence action, since
attorney for plaintiff insurer who defended negligence action was attorney representing both plaintiff and defendant
insurers and neither client could claim attorney-client privilege when waived by other. Truck Ins. Exch. v St. Paul Fire
& Marine Ins. Co. (1975, ED Pa) 66 FRD 129, 19 FR Serv 2d 1134 (criticized in Northwood Nursing & Convalescent
Home v Continental Ins. Co. (1995, ED Pa) 161 FRD 293).
In context of action to recover on insurance policy, correspondence between counsel for insurer and insurer's special
fraud investigator, who was employed by insurer to assist in preparing defense to plaintiff's claim, clearly falls within
attorney-client privilege. Pate v Federal Ins. Co. (1985, SD NY) 1 FR Serv 3d 616.
In suit alleging bad faith in handling insurance claim brought against insurer, communications between attorney
appointed for insured by insurer and the insurer, and between insurer and insured were covered by attorney-client
privilege. Reavis v Metropolitan Property & Liability Ins. Co. (1987, SD Cal) 117 FRD 160, 9 FR Serv 3d 258.
Claims adjuster's interviews of participants, specifically two police officers in underlying matter which was subject
of excessive force claim, were not protected by attorney-client privilege where, even if interviewing claims adjuster
were attorney (there had been no evidence offered that interviewing claims adjuster was in fact attorney), attorney-client
privilege would not have attached because officers were not seeking legal advice from claims adjuster; claims adjuster's
capacity was principally to determine whether to pay arrestee's claim, not to offer legal advice to officers. Garcia v City
of El Centro (2003, SD Cal) 214 FRD 587.
103. Corporate communications
Attorney-client privilege provided to corporations is limited to communications made to attorneys solely for purpose
of corporation seeking legal advice and its counsel rendering it. In re John Doe Corp. (1982, CA2 NY) 675 F2d 482,
CCH Fed Secur L Rep P 98648, 10 Fed Rules Evid Serv 1390 (criticized in Garrett v Metropolitan Life Ins. Co. (1996,
SD NY) 1996 US Dist LEXIS 8054).
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USCS Fed Rules Civ Proc R 26
Even assuming Garner doctrine--that shareholders suing their corporation may discover communications otherwise
protected by attorney-client privilege--applies to unions so as to permit union members to have access to
communications between union counsel and union negotiators, discovery in case by union members alleging that union
negotiators received personal benefits in return for concessions that hurt members was properly denied since only tiny
percentage of union's members were members of plaintiff class and interest of plaintiff class was adverse to those not in
class. Cox v Administrator United States Steel & Carnegie (1994, CA11 Ala) 17 F3d 1386, 146 BNA LRRM 2158, 127
CCH LC P 11063, RICO Bus Disp Guide (CCH) P 8527, RICO Bus Disp Guide (CCH) P 8682, 28 FR Serv 3d 1166, 8
FLW Fed C 59, mod on other grounds, reh, en banc, den (1994, CA11 Ala) 30 F3d 1347, 147 BNA LRRM 2012, 8 FLW
Fed C 527, 8 FLW Fed C 650 and cert den (1995) 513 US 1110, 130 L Ed 2d 784, 115 S Ct 900, 148 BNA LRRM 2256,
148 BNA LRRM 2576 and cert den (1995, US) 148 BNA LRRM 2256.
Once district court found that attorney-client privilege applied to corporate general counsel's communications to
board of directors, it should not have ordered deposition of general counsel without prior finding that corporation
waived privilege or that exception applied to withdraw communication from purview of privilege. In re Dow Corning
Corp. (2001, CA2 NY) 261 F3d 280.
General rule that communications between attorney and client are privileged from discovery should not be extended
to communications pertaining to the attorney's negotiations with a third party over terms and details of business
transactions. Comercio E Industria Continental, S. A. v Dresser Industries, Inc. (1956, DC NY) 19 FRD 513.
The attorney-client privilege does not apply against stockholders in a corporate client. Fischer v Wolfinbarger
(1968, WD Ky) 45 FRD 510, CCH Fed Secur L Rep P 92339.
In dealing with attorney-client privilege as applied to corporate client, in patent-antitrust action, court would apply
two-part test, first being "control group" test whereby court would require communications between attorney and
corporate client to be limited to persons within "control group" of each corporation and those agents, employees, and
representatives acting at direction of control group member, and second being "subject matter" test under which
communication would be considered to have passed test if communication was incident to request for or rendition of
legal advice. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
In shareholders' derivative action alleging unlawful rescission of stock option plan, plaintiffs may obtain discovery of
opinions of corporate legal counsel concerning defendant's stock option plan; attorney-client privilege does not bar
discovery of communications between corporation and its counsel in shareholders' derivative actions. Horenstein v
Gulf Oil Corp. (1975, DC Mass) 20 FR Serv 2d 1258.
Determination of whether requirement of confidentiality is satisfied with respect to intercorporate communication of
otherwise privileged advice involves consideration of whether there are sufficient common interests in subject matter;
shared interest necessary to justify extending privilege to encompass intercorporate communications appears most
clearly in cases of co-defendants and impending litigation but is not necessarily limited to those situations; corporations
should be encouraged to seek legal advice in planning their affairs to avoid litigation as well as in pursuing it; timing
and setting of communications are important indicators of measure of common interest. SCM Corp. v Xerox Corp.
(1976, DC Conn) 70 FRD 508, 1976-2 CCH Trade Cases P 61207, 1976-2 CCH Trade Cases P 61208, 2 Fed Rules
Evid Serv 535, app dismd (1976, CA2 Conn) 534 F2d 1031, 1976-1 CCH Trade Cases P 60840, 21 FR Serv 2d 1114.
Legal advice in nature of antitrust analysis given to officials of one corporation in presence of officials of second
corporation during negotiations between them with respect to acquisition by first corporation of voting and managerial
control of joint venture of which they were equal partners was not subject to attorney-client privilege since as to subject
matter of negotiations parties were not commonly interested but adverse, negotiating arm's length business transaction
between themselves, and advice was not of such common interest to second corporation or sufficiently concerned with
second corporation's shared exposure to liability as would make advice privileged from subsequent disclosure; two
corporations shared sufficiently common interests in exploitation of certain patents so that attorney-client privilege
would appropriately apply and protect their joint discussions on subject of antitrust; requisite common interest to satisfy
confidentiality aspect of privilege was present with respect to joint analysis and cooperative study by individual and
representatives of two corporations where they shared common business interest in successful exploitation of certain
patents, regardless of whether legal advice was focused on pending litigation or on developing patent program that
would afford maximum protection. SCM Corp. v Xerox Corp. (1976, DC Conn) 70 FRD 508, 1976-2 CCH Trade
Cases P 61207, 1976-2 CCH Trade Cases P 61208, 2 Fed Rules Evid Serv 535, app dismd (1976, CA2 Conn) 534 F2d
1031, 1976-1 CCH Trade Cases P 60840, 21 FR Serv 2d 1114.
To determine which corporate employee communications are within attorney-client privilege: (1) particular
employee or representative of corporation must have made communication of information which was reasonably
believed to be necessary to decision-making process concerning problem on which legal advice was sought, (2)
communication must have been made for purpose of securing legal advice, (3) subject matter of communication to or
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from employee must have been related to performance by employee of duties of his employment, and (4)
communication must have been confidential one. In re Ampicillin Antitrust Litigation (1978, DC Dist Col) 81 FRD
377, 202 USPQ 134, 1978-1 CCH Trade Cases P 62043, 25 FR Serv 2d 1248.
Attorney-client privilege is that of corporation and not that of corporation's shareholders; shareholder is not entitled
to assert privilege in face of corporation's desire to disclose information. Marshall v Fitzsimmons (1979, ED NY) 4 Fed
Rules Evid Serv 808, 27 FR Serv 2d 1379.
Corporation is entitled to assert attorney-client privilege in response to requested discovery from Special Officer
appointed to oversee their consent decree as trustee unless those seeking discovery can demonstrate compelling need for
individual items, documents, interview transcripts, notes and reports generated by Special Officer, or prepared by
defendants solely for used of Special Officer. Re LTV Secur. In re LTV Sec. Litigation (1981, ND Tex) 89 FRD 595,
CCH Fed Secur L Rep P 97969, 8 Fed Rules Evid Serv 748, 31 FR Serv 2d 1542.
In securities fraud case, defendants' conversations with corporate in-house and outside counsel were protected by
attorney-client privilege since plaintiff had not made sufficient showing of fiduciary relationship between themselves as
stockholders and defendants as corporate managers at time discussions with counsel took place so as to override
applicability of privilege. In re Atlantic Financial Management Sec. Litigation (1988, DC Mass) 121 FRD 141, 26 Fed
Rules Evid Serv 248.
Fiduciary-beneficiary exception to attorney-client privilege applied to communications between union officials and
attorneys which were sought to be discovered by union members who alleged that union officials breached their
contractual, fiduciary, and fair representation duties. Nellis v Air Line Pilots Assoc. (1992, DC Va) 144 FRD 68
(criticized in Jones v Union Carbide Chem. & Plastics Co. (1995, CA4 W Va) 1995 US App LEXIS 27273).
Privileged communications between employee and corporate counsel should not automatically lose their protected
status upon employee leaving corporate employer. Infosystems, Inc. v Ceridian Corp. (2000, ED Mich) 197 FRD 303.
Counsel's communications with former employee of client corporation generally should be treated no differently
from communications with any other third party fact witness. Infosystems, Inc. v Ceridian Corp. (2000, ED Mich) 197
FRD 303.
In light of affirmative duty imposed by Fed. R. Civ. P. 30(b)(6), corporate representative was obliged to gain some
understanding of underlying facts, regardless of source identifying underlying facts, and to answer questions
accordingly; therefore, court granted defendant's Fed. R. Civ. P. 37 motion to compel and required company to identify
documents relied on by its 30(b)(6) witness and produce such documents to extent it had not done so already, as
attorney-client privilege did not provide valid basis on which to refuse to divulge facts underlying company's response
to defendant's allegations. Sec. Ins. Co. v Trustmark Ins. Co. (2003, DC Conn) 218 FRD 29.
104. --Communications to and among in-house counsel
Fact that attorney was corporate employee did not exclude him from the position of attorney with reference to the
attorney-client privilege. Georgia-Pacific Plywood Co. v United States Plywood Corp. (1956, DC NY) 18 FRD 463,
108 USPQ 294.
Attorney-client privilege and attorney work product exception apply to work done by outside attorneys and members
of party's legal department in prosecuting interference action in the patent office. Sperry Rand Corp. v International
Business Machines Corp. (1968, DC Del) 45 FRD 287, 159 USPQ 86, 12 FR Serv 2d 893.
Attorney-client privilege applies to confidential communications between members of corporate control group and
its attorneys acting in legal capacity, and "house" lawyers, acting as legal advisors, are within purview of attorney-client
privilege under same circumstances as "outside" counsel; whether viewed as communications between client and
counsel or as communications between co-counsel, those communications which otherwise meet privilege requirements
do not lose that protection merely because they occur between in-house and outside counsel. Burlington Industries v
Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
Communications between in-house counsel seeking legal advice for corporate client and outside counsel giving legal
advice as attorney are covered by attorney-client privilege; documents which have passed around offices of corporation
for review by all who care to read them cannot have attorney-client privilege attach, since such communications from
attorney to corporate client do not have requisite confidentiality to warrant attorney-client privilege. Duplan Corp. v
Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
Communications between co-counsel of corporation are protected by attorney-client privilege and are not
discoverable. Electronic Memories & Magnetics Corp. v Control Data Corp. (1975, DC Ill) 20 F R Serv 2d 705.
In private antitrust action involving alleged attempted monopolization of disposable plastic glove industry, narrower
view of scope of attorney-client privilege to provide fuller disclosure of relevant documents was appropriate in situation
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where privilege was claimed by in-house counsel who could, with relative ease, be converted into privileged sanctuary
for corporate records. Handgards, Inc. v Johnson & Johnson (1975, ND Cal) 69 FRD 451, motion sustained, app den
(1976, ND Cal) 413 F Supp 926, 192 USPQ 316, remanded (1979, CA9 Cal) 601 F2d 986, 202 USPQ 342, 1979-1
CCH Trade Cases P 62625, 62 ALR Fed 183, cert den (1980) 444 US 1025, 62 L Ed 2d 659, 100 S Ct 688, 100 S Ct
689, 204 USPQ 880.
Memoranda prepared by in-house patent attorneys which contained much public information, brief descriptions of
patents, and what was characterized as legal opinions regarding patent applicability, which memoranda were sought in
context of antitrust action for purposes of establishing that corporation retained large number of unused patents, were
not entitled to protection of attorney-client privilege since (1) they did not reveal facts communicated by client in
confidence, (2) to extent they may have expressed legal opinions, those concerned scope of public patents, (3) it did not
appear that documents were communicated to client; however even if routine transmission of information copies to
general counsel's office could be considered communication with client, that "communication" demonstrably revealed
no confidences of client, and (4) there was no indication that in-house patent counsel were seeking anyone's legal advice
concerning contents of those documents. SCM Corp. v Xerox Corp. (1976, DC Conn) 70 FRD 508, 1976-2 CCH
Trade Cases P 61207, 1976-2 CCH Trade Cases P 61208, 2 Fed Rules Evid Serv 535, app dismd (1976, CA2 Conn)
534 F2d 1031, 1976-1 CCH Trade Cases P 60840, 21 FR Serv 2d 1114.
Plaintiff corporation in patent infringement action is entitled to attorney-client privilege for necessary
communications between its patent counsel and another attorney. Crane Co. v Goodyear Tire & Rubber Co. (1979,
ND Ohio) 27 FR Serv 2d 1058.
Attorney-client privilege does not apply to letter written by attorney in capacity other than that of attorney; internal
business communication constituting restatement of attorney's legal advice, which reflects or reveals such advice, does
not fall within attorney-client privilege. North American Soccer League v National Football League (1979, SD NY) 28
FR Serv 2d 107.
Fact document is offered by in-house counsel rather than by independent attorney is of no significance in
determining privilege if attorney was acting as confidential counsel and document reveals confidential communication.
O'Brien v Board of Education (1980, SD NY) 86 FRD 548, 29 FR Serv 2d 1079.
Corporate communications with in-house counsel which partially contain technical, non-legal matters may still be
privileged if they are essentially legal in nature. Sneider v Kimberly-Clark Corp. (1980, ND Ill) 91 FRD 1, 33 FR Serv
2d 449.
Letter written by employee of manufacturer to in-house counsel for manufacturer's parent corporation containing
information concerning litigation between manufacturer and its customer, and requesting advice from attorney, falls
within attorney-client privilege, and is not subject to discovery under Rule 26(b)(1). Scott Paper Co. v Ceilcote Co.
(1984, DC Me) 103 FRD 591, 17 Fed Rules Evid Serv 1510, 40 FR Serv 2d 1073.
Infant suing drug company was entitled to discovery of certain corporate documents despite company's argument that
they were protected by attorney-client privilege since they were addressed by company employees to in-house counsel,
since all but one of documents appeared to be sent to in-house counsel in capacity as business adviser, not attorney.
Henson v Wyeth Laboratories, Inc. (1987, WD Va) 118 FRD 584.
Deposition of employer's attorney by discharged comptroller suing over her termination is proper and allowed with
limitations under FRCP 26(b)(1), where employer alleges comptroller was fired for failure to complete garnishment
documents, but comptroller claims that attorney assumed responsibility for processing garnishments, because plaintiff
has right to attorney's testimony, at least as to conduct that occurred (1) before litigation started, (2) was not in
anticipation of litigation, and (3) is basis of her claim. Cascone v Niles Home for Children (1995, WD Mo) 897 F Supp
1263.
105. --Documents
Minutes of meeting attended by top-level executives of defendant automobile manufacturer were for purpose of
obtaining legal advice and thus protected by attorney-client privilege from disclosure to product liability plaintiff. Kelly
v Ford Motor Co. (In re Ford Motor Co.) (1997, CA3 Pa) 110 F3d 954, 37 FR Serv 3d 600 (criticized in Dellwood
Farms v Cargill, Inc. (1997, CA7 Ill) 128 F3d 1122, 1997-2 CCH Trade Cases P 71962, 39 FR Serv 3d 188).
Documents which are prepared at direction of members of control group to aid counsel in rendering legal assistance
to corporation at express or implied request of counsel, and which are primarily legal in nature, will not fall outside
scope of attorney-client privilege merely because at their inception communications were intracorporate, but no
privilege will attach for documents designed merely to communicate non-privileged business or technical data, nor
when element of confidentiality is lacking, nor as to those documents directed to attorney for purpose of shielding
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documents from disclosure. Burlington Industries v Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR
Serv 2d 533.
For purposes of discovery of corporation's documents in antitrust litigation, internal instructions or suggestions to
seek legal advice and internal communications transmitting information for purpose of obtaining legal advice did not
fall within attorney-client privilege; also, corporation's documents--consisting of (1) internal restatements of counsel's
request for information or internal communications requesting information for counsel's use in rendering legal advice,
(2) internal restatements of attorney's legal advice or internal documents reflecting or revealing such advice, and (3)
documents showing that specific activities were reviewed by attorneys, including restatements of requests for legal
advice, documents revealing that specific information was given to attorneys for legal review, and statements of facts
relating to litigation or legal issues by attorney to other attorneys or to businessmen so that businessmen or attorneys
would have sufficient background information to understand attorney's legal advice, which documents corporation
claimed were exempt from discovery, were not privileged since such privilege exists to protect disclosure by client to
attorney, and purpose of privilege is to protect communications of client and not requests or advice of attorney. United
States v International Business Machines Corp. (1976, SD NY) 71 FRD 376, 21 FR Serv 2d 1126.
Attorney-client privilege did not attach to documents pertaining to development and implementation of affirmative
action plan, where documents were not prepared by attorney, did not mention pending or threatened litigation, were not
prepared to assist in-house or outside counsel in rendering legal advice, were conveyed to individual operating in
capacity as director of employee relations rather than as legal advisor, were not marked confidential or privileged, and
were intermingled with other personnel documents. Hardy v New York News, Inc. (1987, SD NY) 114 FRD 633, 46
BNA FEP Cas 1199, 43 CCH EPD P 37281.
Minutes of board of directors' meetings were protected by attorney-client privilege since attorney, who was also
member of board, was acting in his capacity as attorney during relevant portion of meetings in giving legal advice
relating to corporation's litigation with movant. Great Plains Mut. Ins. Co. v Mutual Reinsurance Bureau (1993, DC
Kan) 150 FRD 193, 27 FR Serv 3d 1508.
Interoffice memorandum between defendant's president and engineer was not protected by attorney-client privilege
since it was merely internal communication between coworkers, not communication between attorney and client.
Kaiser Aluminum & Chem. Corp. v Phosphate Eng'g & Constr. Co. (1994, MD Fla) 153 FRD 686, 8 FLW Fed D 7.
Attorney-client privilege does not protect communications between attorney and "control group," where
communications concerned factual information about proceedings in fraud action, because documents sought do not
contain legal advice, but merely convey factual information. Dawson v New York Life Ins. Co. (1995, ND Ill) 901 F
Supp 1362, 33 FR Serv 3d 1171.
Where in-house attorneys provided not only legal advice but business advice in their capacities as management
executives, corporation for which they worked could not assert attorney-client privilege over documents that contained
only business advice, and where certain documents discussed business and legal issues, district court ordered production
of non-legal portions of documents. TVT Records v Island Def Jam Music Group (2003, SD NY) 214 FRD 143.
106. --Interviews with employees
Communications between corporate employees and corporation's general counsel--which are evidenced both by
responses to questionnaires made by corporation's foreign managers in connection with corporate investigation into
questionable payments made to foreign government officials, and by notes taken by general counsel reflecting responses
in interviews with corporate employees--are protected by attorney-client privilege, and accordingly disclosure of such
communications may not be compelled by Internal Revenue Service pursuant to an administrative summons issued
under 26 USCS § 7602 during course of investigation into tax consequences of payments, where communications at
issue were made by corporation's employees to general counsel, acting as such, at direction of corporate superiors in
order to secure legal advice from counsel, and where communications concerned matters within scope of the employees'
corporate duties. Upjohn Co. v United States (1981) 449 US 383, 66 L Ed 2d 584, 101 S Ct 677, CCH Fed Secur L Rep
P 97817, 1980-81 CCH Trade Cases P 63797, 81-1 USTC P 9138, 30 FR Serv 2d 1101, 47 AFTR 2d 81-523.
Summaries of a meeting held between corporation's outside counsel and representatives of the corporation, prepared
by one of corporation's representatives, was a privileged communication between corporation and its attorneys. Natta v
Zletz (1969, CA7 Ill) 418 F2d 633, 163 USPQ 675, 13 FR Serv 2d 970.
A corporate employee, though not a member of the corporation's control group, is sufficiently identified with the
corporation so that his communication to the corporation's attorney is privileged where the employee makes the
communication at the direction of his superiors in the corporation and where the subject matter upon which the
attorney's advice is sought by the corporation and dealt with in the communication is the performance by the employee
of the duties of his employment. Harper & Row Publishers v Decker (1970, CA7 Ill) 423 F2d 487, 1970 CCH Trade
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USCS Fed Rules Civ Proc R 26
Cases P 73084, 13 FR Serv 2d 984, 9 ALR Fed 674, affd (1971) 400 US 348, 27 L Ed 2d 433, 91 S Ct 479, 1971 CCH
Trade Cases P 73430, reh den (1971) 401 US 950, 28 L Ed 2d 234, 91 S Ct 917.
In civil antitrust action attorney-client privilege did not forbid production of document consisting of a transcript of
tape recorded statement of the testimony which defendant's employee gave defendant's attorneys relating to employee's
testimony before grand jury which indicted defendant for antitrust violations. Philadelphia v Westinghouse Electric
Corp. (1962, ED Pa) 32 FRD 350, 6 FR Serv 2d 691.
Communications between administrative personnel and legal counsel of an agency can be entitled to the
attorney-client privilege, providing third parties are not present and they do not consist of things of public record; if the
communications qualify for the attorney-client privilege, records of them need not be produced. United States v
Anderson (1963, DC Colo) 34 FRD 518, 8 FR Serv 2d 34.411, Case 4.
Where a corporate client is involved, the attorney-client privilege applies only where the communication for which
privilege is claimed is based on disclosure from a member of the control group to its attorney. Congoleum Industries,
Inc. v G A F Corp. (1969, ED Pa) 49 FRD 82, 164 USPQ 376, 14 FR Serv 2d 128, affd without op (1973, CA3 Pa) 478
F2d 1398.
In determining what corporate officers and employees of a company asserting the attorney-client privilege speak for
the company within the meaning of the word "client," the test is whether the person has the authority to control, or
substantially participate in, a decision regarding action to be taken on advice of counsel, or is an authorized member of a
group that has this power. Honeywell, Inc. v Piper Aircraft Corp. (1970, MD Pa) 50 FRD 117, 165 USPQ 273, 1970
CCH Trade Cases P 73122, 14 FR Serv 2d 507.
In action for defamation and invasion of privacy arising from alleged false and scurrilous information contained in
credit report made and allegedly published by defendant credit reporting company about plaintiffs, where plaintiffs
sought to compel production of certain memorandum prepared by employee of company at request of branch manager,
who was in turn acting at request of defendant's house counsel, memorandum was protected by attorney-client privilege
since memorandum was submitted in confidence by representative of client to counsel acting in legal capacity for
purpose of facilitating rendition of legal services to client. Hasso v Retail Credit Co. (1973, ED Pa) 58 FRD 425, 17
FR Serv 2d 706.
Although attorney-client privilege extends to corporations, when corporation seeks to invoke attorney-client
privilege, communications generally must have been between counsel and corporation's control group; in determining
what officers and employees of company asserting privilege are members of control group, test is whether person had
authority to control or substantially participate in decision regarding action to be taken on advice of counsel, or whether
person was bona fide member of group that had such power. Burlington Industries v Exxon Corp. (1974, DC Md) 65
FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
Since "control group" theory provided most satisfactory solution to problem of assertion of attorney-client privilege
by defendant corporation as to documents generated by groups allegedly created at request of counsel to educate them
about electronic data processing industry and to assist them in investigation and defense of any litigation which might
emanate from Department of Justice's investigation of such industry and of defendant in general, special masters, in
reviewing assertions of privilege, would be directed to apply control group theory. United States v International
Business Machines Corp. (1974, SD NY) 66 FRD 154, 1974-2 CCH Trade Cases P 75151, 19 FR Serv 2d 349.
Communications made after fact of commission of crime, fraud, or tort between attorney and persons within control
group of corporate client are protected by attorney-client privilege, but communications made before fact of or during
commission of crime, fraud, or tort between attorney and persons within control group of corporate client are not
protected by attorney-client privilege. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184
USPQ 775.
In ruling upon motion to compel production of defendant corporation's documents for copying, which documents
defendant refused to produce on ground of attorney-client privilege, Federal District Court would apply "control group"
test requiring that communicant be in position to control or take substantial part in decision about any action to be taken
upon advice of lawyer, or that communicant be member of group having such authority, where such rule was most
likely to obtain greatest discovery, would more easily be applied by court, would be more easily understood by lawyers,
would be more likely to be recognized as reasonable by parties, and would be most consonant with purposes of
attorney-client privilege, and where defendant had principal offices in Pennsylvania which was jurisdiction where
control group test was formulated. Virginia Electric & Power Co. v Sun Shipbuilding & Dry Dock Co. (1975, ED Va)
68 FRD 397, 20 FR Serv 2d 872.
Tests with respect to whether employee of corporation is "client" for purposes of lawyer-client privilege when
dealing with communications from such employee to lawyer for corporation are (1) "control group" test which requires
that communicant be in position to control or take substantial part in decision about any action to be taken upon advice
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USCS Fed Rules Civ Proc R 26
of lawyer, or that communicant be member of group having such authority, and (2) "Decker" test under which employee
of corporation, though not member of its control group, is sufficiently identified with corporation so that his
communication to corporation's lawyer is privileged where employee made communication at direction of his superiors,
and where subject matter upon which lawyer's advice was sought by corporation and dealt with in communication was
within performance by employee of duties of his employment. Virginia Electric & Power Co. v Sun Shipbuilding &
Dry Dock Co. (1975, ED Va) 68 FRD 397, 20 FR Serv 2d 872.
Privileged communication should not lose its protection if executive relays legal advice to another who shares
responsibility for subject matter underlying consultation. SCM Corp. v Xerox Corp. (1976, DC Conn) 70 FRD 508,
1976-2 CCH Trade Cases P 61207, 1976-2 CCH Trade Cases P 61208, 2 Fed Rules Evid Serv 535, app dismd (1976,
CA2 Conn) 534 F2d 1031, 1976-1 CCH Trade Cases P 60840, 21 FR Serv 2d 1114.
Attorney-client privilege does not extend to telephone company employee whose responsibilities are limited to
obtaining and assembling information requested by legal department and where he has no authority to make or
participate in making decisions and is therefore not member of corporate control-group; privilege was never meant to
protect extended chain of communication within large corporation. Jarvis, Inc. v American Tel. & Tel. Co. (1979, DC
Colo) 84 FRD 286.
Privilege protection is not dependent upon content of communication or context in which such content was originally
developed; uninhibited client communication in securing legal advice is deserving of privileges protection and
communication should be protected even if information was originally obtained by attorney before communicator
became corporate client's employee, as long as communication is made by client's employee, qua employee, at client's
behest, in order to secure legal advise and is intended by client and participants to be confidential. Baxter Travenol
Lab. v Lemay (1981, SD Ohio) 89 FRD 410, motion gr, amd (1981, SD Ohio) 514 F Supp 1156, app dismd without op
(1982, CA6 Ohio) 708 F2d 721.
Statements of corporate personnel may be considered privileged if employees make communications concerning
matters pertinent to their job tasks, regardless of echelon, in order to assist attorney in formulating and rendering legal
advise to corporation. In re LTV Sec. Litigation (1981, ND Tex) 89 FRD 595, CCH Fed Secur L Rep P 97969, 8 Fed
Rules Evid Serv 748, 31 FR Serv 2d 1542.
Corporate employees stand in shoes of entity for purposes of attorney-client privilege. Royal Embassy of Saudi
Arabia v S.S. Mt. Dirfys (1981, ED NC) 537 F Supp 55, 10 Fed Rules Evid Serv 420, 34 FR Serv 2d 489.
Information obtained from employees and relayed by her to employer's law department, upon which employer
developed position with regard to specific discrimination complaints, was not protected by attorney-client privilege for
purposes of discharged employee's discovery request in Title VII action, where representative had no manifest intention
to seek legal advice for herself or fellow employees, representative was not in control group and did not take substantial
part in decision about employer's handling of specific discrimination cases, and information regarding employer's
discrimination was antagonistic to its interests. Henderson v National R. Passenger Corp. (1986, ND Ill) 113 FRD
502, 21 Fed Rules Evid Serv 1011, 5 FR Serv 3d 53.
Conversations between litigation consultant and plaintiff's attorneys were not protected by attorney-client privilege
since consultant, who was former employee of plaintiff and also key witness, was no longer employee of plaintiff and
therefore not part of plaintiff's "control group" when he spoke with plaintiff's attorneys. Barrett Industrial Trucks, Inc.
v Old Republic Ins. Co. (1990, ND Ill) 129 FRD 515, 16 FR Serv 3d 243.
County attorney's conversation with retaliatory discharge plaintiff's immediate supervisor was protected by
attorney-client privilege since communication at issue occurred during pre-deposition conference in which defendant's
counsel was not only obtaining witness's knowledge but preparing witness for her deposition, witness was employee of
defendant and was being produced by defendant county for deposition, and plaintiff's counsel's inquiry requested
substance of all communications by witness to attorney. Boyer v Board of County Comm'rs (1995, DC Kan) 162 FRD
687, 33 FR Serv 3d 666.
Generally, communications by employees to counsel acting at direction of corporate superiors in order to secure
legal advice are protected by attorney-client privilege. Savoy v Richard A. Carrier Trucking (1997, DC Mass) 176 FRD
10.
107. Patent information
Attorney-client privilege applies to the activities of patent lawyer in preparing and submitting a patent application,
but not to factual information which the attorney had to disclose to the Patent Office. Jack Winter, Inc. v Koratron Co.
(1970, ND Cal) 50 FRD 225, 166 USPQ 295, 14 FR Serv 2d 755.
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USCS Fed Rules Civ Proc R 26
In a patent infringement action, in camera inspection of the requested documents is an appropriate procedure by
which the documents can be tested against the requirements of the attorney-client privilege. Continental Coatings
Corp. v Metco, Inc. (1970, ND Ill) 50 FRD 382, 164 USPQ 499, 13 FR Serv 2d 1125.
Although information concerning description of product, processes used, and public use and sale for more than one
year prior to date of application, conveyed by client to attorney preparing patent application, is technical and not
privileged under attorney-client privilege, those documents or portions thereof which, while containing considerable
technical factual information, are nonetheless primarily concerned with asking for or granting legal advice, remain
privileged. Burlington Industries v Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
No communications from patent agents, whether American or foreign, are subject to attorney-client privilege in
United States. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
In private antitrust action involving alleged attempted monopolization of disposable plastic glove industry,
documents which relate to negotiation and interpretation of patent licensing agreements between defendants and other
are within ambit of attorney-client privilege, which privilege extends to communications calling for or expressing legal
opinions or advice concerning business negotiations as well as documents prepared with "eye toward litigation"; but
documents which pertain primarily to undertaking of patent and infringement studies or which contain discussions of
technical and business considerations are not protected by attorney-client privilege since they are not transmitted for
purpose of giving or receiving legal advice. Handgards, Inc. v Johnson & Johnson (1975, ND Cal) 69 FRD 451,
motion sustained, app den (1976, ND Cal) 413 F Supp 926, 192 USPQ 316, remanded (1979, CA9 Cal) 601 F2d 986,
202 USPQ 342, 1979-1 CCH Trade Cases P 62625, 62 ALR Fed 183, cert den (1980) 444 US 1025, 62 L Ed 2d 659,
100 S Ct 688, 100 S Ct 689, 204 USPQ 880.
Memoranda prepared by in-house patent attorneys which contained much public information, brief descriptions of
patents, and what was characterized as legal opinions regarding patent applicability, which memoranda were sought in
context of antitrust action for purposes of establishing that corporation retained large number of unused patents, were
not entitled to protection of attorney-client privilege since (1) they did not reveal facts communicated by client in
confidence, (2) to extent they may have expressed legal opinions, those concerned scope of public patents, (3) it did not
appear that documents were communicated to client; however even if routine transmission of information copies to
general counsel's office could be considered communication with client, that "communication" demonstrably revealed
no confidences of client, and (4) there was no indication that in-house patent counsel were seeking anyone's legal advice
concerning contents of those documents. SCM Corp. v Xerox Corp. (1976, DC Conn) 70 FRD 508, 1976-2 CCH
Trade Cases P 61207, 1976-2 CCH Trade Cases P 61208, 2 Fed Rules Evid Serv 535, app dismd (1976, CA2 Conn)
534 F2d 1031, 1976-1 CCH Trade Cases P 60840, 21 FR Serv 2d 1114.
Attorney-client privilege will be available for communications relating to patent activities in United States only if
patent agent is registered with United States Patent Office and for communications relating to patent activities in
another country only if other country specifically grants such privilege. In re Ampicillin Antitrust Litigation (1978, DC
Dist Col) 81 FRD 377, 202 USPQ 134, 1978-1 CCH Trade Cases P 62043, 25 FR Serv 2d 1248.
Documents relating to tests and analyses which corporation performed on samples of its customers' products to
detect patent infringement were not prepared for purpose of seeking legal advice and are not protected by attorney-client
privilege. Loctite Corp. v Fel-Pro, Inc. (1978, ND Ill) 203 USPQ 184, 28 FR Serv 2d 99.
Attorney-client privilege may apply to certain patent cases; documents primarily legal in nature, consisting of legal
advice or requests therefor regarding possible weaknesses in patent, are within attorney-client privilege. In re
Subpoena to Ford Aerospace & Communications Corp. (1979, ED Pa) 27 FR Serv 2d 402.
Communications between United States attorneys and foreign patent agents, who are neither members of bar of
United States nor agents of such members, cannot be protected by attorney-client privilege. Revlon, Inc. v Carson
Products Co. (1983, SD NY) 37 FR Serv 2d 325.
Communications to and from lawyer engaged in preparing or prosecuting patent application are protected by
attorney-client privilege so long as elements of privilege are otherwise met. Chubb Integrated Sys. v National Bank of
Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
Draft of reply to patent examiner prepared by defendant's outside counsel for defendant's house counsel was
protected from discovery by attorney-client privilege because it was not largely technical information which would put
it outside bounds of privilege, but represented effort by claimant's counsel to convince examiner to adopt its position
and therefore consisted of the quintessentially professional advise patent lawyers give clients about how best to present
their cases. Hewlett-Packard Co. v Bausch & Lomb (1987, ND Cal) 116 FRD 533, 4 USPQ2d 1676, 8 FR Serv 3d 105.
In patent infringement suit, invention submissions by plaintiff's technical staff for purpose of conveying information
gathered from notebooks and monthly reports to attorneys and patent agents in plaintiff's patent department in order for
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them to give legal opinion on patentable aspects of that information were protected from disclosure by attorney-client
privilege. Cuno, Inc. v Pall Corp. (1988, ED NY) 121 FRD 198, 26 Fed Rules Evid Serv 1075, 12 FR Serv 3d 668.
In patent infringement suit, those communications between plaintiff's non-attorney employees which were for
purpose of second employee transmitting information to counsel for advice or which reflected request and directions of
counsel and transmitted from one employee to another for purpose of obtaining information for counsel on which legal
advice was to be premised were protected from disclosure by attorney-client privilege, but other documents in this
category were not protected from disclosure where it was evident they were not made for purpose of obtaining legal
advice. Cuno, Inc. v Pall Corp. (1988, ED NY) 121 FRD 198, 26 Fed Rules Evid Serv 1075, 12 FR Serv 3d 668.
Most of plaintiff's memoranda of patent review meetings which reflected decisions made on various inventions were
not protected by attorney-client privilege and hence were discoverable in patent infringement suit since they were not
legal in nature and attorney-client privilege does not protect nonlegal communications based on business advice given
by lawyer; those portions of documents where invention submission set forth direction to counsel to pursue legal course
of action or which contained legal opinion of counsel would be held privileged, however. Cuno, Inc. v Pall Corp.
(1988, ED NY) 121 FRD 198, 26 Fed Rules Evid Serv 1075, 12 FR Serv 3d 668.
Communications between defendant and its patent agent would be protected by disclosure in patent information suit
by attorney-client privilege, since agent was acting under authority and control of corporation's attorneys, to extent
communications reflected agent's legal advice and opinions. Cuno, Inc. v Pall Corp. (1988, ED NY) 121 FRD 198, 26
Fed Rules Evid Serv 1075, 12 FR Serv 3d 668.
Documents prepared in order to allow attorneys to assess patentability and sift information to prepare patent
applications are immune from discovery under attorney-client privilege. Smithkline Beecham Corp. v Apotex Corp.
(2000, ND Ill) 193 FRD 530.
108. Miscellaneous
Defendant's disclosures of its in-house counsel's communications with its horizontal competitors were not protected
under the common legal interest attorney-client privilege since disclosures were not made in anticipation of common
defense against antitrust violations; as plaintiffs argued, disclosures may have been made to facilitate price-fixing in
violation of antitrust laws. In re Santa Fe Int'l Corp. (2001, CA5 Tex) 272 F3d 705, 2001 CCH Trade Cases P 73491.
Documents relating to A's consultation with attorney about legal action against B are protected from disclosure by
attorney-client privilege, notwithstanding that attorney had initially assumed joint representation of common interest of
A and B, where communications sought were made not only after interests of A and B diverged but after their common
attorney knew they diverged and undertook separate representation of B on this understanding; given A's expectations
of confidentiality and absence of any policy favoring disclosure to B, A should not be deprived of privilege due to
attorney's failure to avoid conflict of interest. Eureka Invest. Corp., N.V. Eureka Inv. Corp., N.V. v Chicago Title Ins.
Co. (1984, App DC) 240 US App DC 88, 743 F2d 932, 16 Fed Rules Evid Serv 308, 39 FR Serv 2d 1327.
Information embodied in letter from plaintiff to its counsel is protected by the attorney-client privilege and such
letter could not be subpoenaed by defendant. Uncle Ben's, Inc. v Uncle Ben's Pancake Houses, Inc. (1962, SD Tex) 30
FRD 506, 6 FR Serv 2d 657.
In an action by a discharged college professor against the president of a state college and members of the board of
trustees for alleged violation of the Civil Rights Act, plaintiff was entitled to production and inspection of documents
containing information communicated from defendants to an assistant state attorney general, before commencement of
the suit, over defendants' objection that the documents and information sought were attorney-client privileged
communications. Stolberg v Buley (1970, DC Conn) 50 FRD 281, 14 FR Serv 2d 125.
Steps taken by client to protect its interests, such as investigating accident or obtaining surveillance films, are not
within attorney-client privilege, but discussion between client and counsel about films would be, and mental
impressions, opinions, and evaluations of films by attorney would be exempt from discovery by Rule 26(b)(3). Snead
v American Export-Isbrandtsen Lines, Inc. (1973, ED Pa) 59 FRD 148, 17 FR Serv 2d 13.
In action against auditor for alleged violations of federal securities law on ground that auditor made material
misrepresentations and failed to disclose material facts regarding financial condition of corporation during course of
negotiations leading to series of loan agreements, where auditor, not having participated in negotiations leading to
agreement, seeks by deposition of plaintiff to determine what was actually represented to plaintiffs during negotiations,
plaintiff can not refuse to answer questions dealing with whether plaintiff consulted with his attorney regarding specific
documents and agreements, since attorney-client privilege pertains solely to substance of communications and does not
preclude inquiry into subject matter of communications. J. P. Foley & Co. v Vanderbilt (1974, SD NY) 65 FRD 523,
CCH Fed Secur L Rep P 94363.
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Although attorney-client privilege belongs to client, where client is not party to proceedings in which disclosure is
sought, attorney may invoke privilege on client's behalf; in action brought against members of rent control board
alleging that 3 of members of board had financial interest in outcome of hearings because they owned rental property in
city or represented clients who did, defendants are not required to produce law firm's records and accounts of clients
who own, manage or have direct or indirect financial interest in residential properties. Hall-Clapman v Watkins (1975,
DC Mass) 20 FR Serv 2d 1093.
In plaintiff's civil rights suit against state prison officials challenging his confinement in prison's mental health unit,
wherein officials asserted defense of good faith immunity, attorney-client privilege would not be applied to protect
advice given defendants by state attorney general where (1) substantial showing of merit to plaintiff's case was made
and (2) defendants' communications with attorney general were inextricably merged with elements of plaintiff's case
and defendants' affirmative defense and denying access to them would preclude court from fair and just determination
of issues so that benefit to be gained from disclosure far outweighed resulting injury to attorney-client relationship.
Hearn v Rhay (1975, ED Wash) 68 FRD 574, 2 Fed Rules Evid Serv 523, 33 FR Serv 2d 704.
Documents which did not belong to plaintiff and were not entrusted to his attorney but rather had been located by
attorney during his preparation of case constituted evidence of neutral and objective facts to which every party is
entitled and therefore attorney-client privilege did not apply and documents were within scope of discovery under rule
26(b)(1). Zucker v Sable (1975, SD NY) 72 FRD 1, 22 FR Serv 2d 712.
Charges in complaint are not proper subject matter of any confidential communication between attorney and client;
accordingly, defendants are entitled to have plaintiff's attorney answer any question propounded to him relating to
anything contained in complaint which they do not understand and want amplified and to make full revelation of any
evidence or testimony attorney may use to prove charges. Brown v Waco Fire & Casualty Co. (1976, SD Miss) 73
FRD 297, 22 FR Serv 2d 1180.
Attorney-client privilege does not apply to report prepared by special counsel for special review committee
established by corporation pursuant to consent and undertaking reached in action by SEC. Osterneck v E. T. Barwick
Industries, Inc. (1979, ND Ga) 82 FRD 81, CCH Fed Secur L Rep P 96819, 28 FR Serv 2d 122.
Testimony and documents of lawyers, employed as special counsel to special review committee for board of
acquiring corporation in merger case, were not excepted from discovery by attorney-client privilege, as special counsel
were not retained for value of legal services but for skill as investigators. Osterneck v E. T. Barwick Industries, Inc.
(1979, ND Ga) 82 FRD 81, CCH Fed Secur L Rep P 96819, 28 FR Serv 2d 122.
Attorney-client privilege applies to documents and deposition testimony of attorney where attorney's participation in
affairs of clients amounts to no more than providing necessary expertise as experienced securities lawyers and such
privilege is not waived by defendant's voluntary disclosure of privileged material to Securities Exchange Commission in
separate, private proceeding to which plaintiffs are not party. Byrnes v IDS Realty Trust (1980, SD NY) 85 FRD 679,
CCH Fed Secur L Rep P 97308, 29 FR Serv 2d 1431.
Statements obtained in course of factual investigation undertaken preliminary to resolution of legal problem are
privileged, and privilege is not forfeited merely because information is subsequently disclosed in course of counsel's
representational duties. Dowd v Calabrese (1984, DC Dist Col) 101 FRD 427.
Communications dealing with solicitation or giving of business advice are not privileged. Chubb Integrated Sys. v
National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
Substance of telephone conversation between witness and attorney following witness's appearance before Los
Angeles grand jury is within attorney-client privilege, notwithstanding witness's statement to effect that he had no
attorney, where attorney in question represented witness earlier when he appeared before grand jury in New Jersey, and
where attorney, when informed of witness's upcoming appearance before Los Angeles grand jury, requested that
witness let him know what happened. United Nat'l Records, Inc. v MCA, Inc. (1985, ND Ill) 106 FRD 39, 1985-1 CCH
Trade Cases P 66594, 1 FR Serv 3d 580.
In action by employees attacking quality of representation afforded them by union and law firm representing union in
employer's bankruptcy proceeding, letters between union and law firm, and firm's notes of telephone calls, messages,
conversations, and working notes with respect to bankruptcy proceeding and union concerns therein were exempt from
discovery by attorney-client privilege, despite employees' argument that law firm represented them by accepting powers
of attorney from some employees to enable law firm to assert their individual claims for unpaid compensation in
bankruptcy proceeding, since acceptance of powers of attorney established relationship of attorney-in-fact rather than
attorney at law, individual claims were part of collective bargaining process and not independent therefrom, and context
in which communications between union, law firm, and employees were made, including facts that employees were not
charged a fee for law firm's services, did not talk to lawyers about representing them, and prepared individual proofs of
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claims themselves, indicated employees' knowledge that law firm acted as arm of union. Bachner v Air Line Pilots
Asso. (1987, DC Alaska) 113 FRD 644.
Communications between insured and its attorneys pertaining to defense of underlying lawsuits were protected by
both attorney client privilege and work product doctrine from discovery by insurer seeking production in suit by insured
for indemnification of settlement and judgment amounts paid in those cases; common interest doctrine was inapplicable
since it was clear that coverage dispute arose and continued throughout settlement negotiations in underlying suits and
communications were thus prepared in atmosphere of uncertainty as to scope of any common identity between insured
and insurer's interests. Carey-Canada, Inc. v Aetna Casualty & Surety Co. (1987, DC Dist Col) 118 FRD 250, 10 FR
Serv 3d 134.
Attorney-client privilege protected most, and work-product privilege protected all, correspondence between law firm
and international union in suit by former employee/union members against former employer for violation of Age
Discrimination In Employment Act and Employment Retirement Income Security Act, arising out of plant closing,
where international union played very active role in case representing interests of its members and former members,
community of interest between plaintiffs and union was demonstrated so as to meet attorney-client privilege, and
demand for law firm's entire file on international union could not meet requirement of good cause for production of
materials covered by work-product privilege. Anderson v Torrington Co. (1987, ND Ind) 120 FRD 82, 45 BNA FEP
Cas 935, 46 CCH EPD P 37998, 25 Fed Rules Evid Serv 216, 10 FR Serv 3d 1252.
While attorney-client privilege did not shield plaintiff in complex federal securities case involving sale of limited
partnerships from answering questions about why she believed she had been misled concerning nature and operation of
partnerships, because defendant was seeking attorney's conclusions not confidences entrusted to attorney by client, work
product privilege did shield plaintiff from answering such questions for that reason. Clute v Davenport Co. (1988, DC
Conn) 118 FRD 312.
Diary of former hospital chaplin suing for wrongful discharge was protected from discovery by both attorney-client
and work-product privileges since entries summarized conversations with plaintiff's attorney, mental impressions,
opinions or legal theories of his attorney, and conversations with his daughter and son-in-law, both of whom were
attorneys, since they were made in anticipation of litigation. Moore v Tri-City Hospital Authority (1988, ND Ga) 118
FRD 646.
Attorney-client privilege attached to letters written by U.S. Attorney to Army Corps of Engineers since U.S.
Attorney was engaged in giving Corps legal advice regarding reasonably anticipated litigation, namely instant case
related to court-ordered cleanup of Boston Harbor. Norfolk & Walpole v United States Army Corps of Engineers
(1991, DC Mass) 137 FRD 183, 22 ELR 20105.
Principles of work product and attorney-client privilege do not apply to mere identification of documents containing
protected information, only to their substantive content. Lawrence v First Kan. Bank & Trust Co. (1996, DC Kan) 169
FRD 657, 72 BNA FEP Cas 1496, 37 FR Serv 3d 93.
Communications between attorney and client in furtherance of commission of crime or fraud are ab initio not
protected by attorney-client privilege. Recycling Solutions v District of Columbia (1997, DC Dist Col) 175 FRD 407, 39
FR Serv 3d 1451.
Although attorney-client privilege may be extended to non-lawyers who are employed to assist lawyer in rendition of
professional legal services, such extension of privilege must be strictly confined within narrowest possible limits
consistent with logic of its principle and should only occur when communication was made in confidence for purposes
of obtaining legal advice from lawyer. Blumenthal v Drudge (1999, DC Dist Col) 186 FRD 236, 27 Media L R 2004.
Any information obtained by employee while employee, including any information conveyed by counsel during that
period, remains privileged upon termination of employment. Peralta v Cendant Corp. (1999, DC Conn) 190 FRD 38,
81 BNA FEP Cas 1328.
With respect to crime-fraud exception to attorney-client privilege, party seeking to overcome privilege must offer
evidence that, if believed by trier of fact, would establish elements of ongoing or imminent crime or fraud, and must
show that client consulted lawyer for purpose of committing crime or fraud. Alexander v FBI (2000, DC Dist Col) 192
FRD 32.
Concern that witnesses will be contacted directly will not justify assertion of attorney-client privilege to protect
addresses and phone numbers of witnesses. Viveros v Nationwide Janitorial Ass'n (2000, ND Ga) 200 FRD 681, 143
CCH LC P 34285.
Because denying benefits to beneficiary under ERISA (29 USCS § § 1001 et seq.) plan is as much part of
administration of plan as conferring benefits to beneficiary, prospect of post-decisional litigation against plan is
insufficient basis for gainsaying fiduciary exception to attorney-client privilege. Lewis v UNUM Corp. Severance Plan
(2001, DC Kan) 203 FRD 615.
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In context of Employee Retirement Income Security Act (ERISA) (29 USCS § § 1001 et seq.), fiduciary exception
to attorney-client privilege provides that one acting in capacity of ERISA fiduciary is disabled from asserting such
privilege against plan beneficiaries on matters of plan administration. Coffman v Metro. Life Ins. Co. (2001, SD W Va)
204 FRD 296, 27 EBC 1188.
Common interest doctrine applied to protect at least those communications between company and its insurance
company, which was actively involved in defending lawsuit against company, related to claims and defenses in
underlying lawsuit because as to those communications, there was commonality of interest and attorney client privilege
and attorney work product privilege were not waived by disclosure to insurance company. Lectrolarm Custom Sys. v
Pelco Sales, Inc. (2002, ED Cal) 212 FRD 567.
With respect to memo that was inadvertently provided by city to plaintiffs during discovery, attorney-client privilege
did not apply to recitation of facts, but did apply to settlement discussions outlined in memo, as such communication
was protected by FRCP 26(b)(3); city's motion for protective order was granted in part. Myers v City of Highland Vill.
(2003, ED Tex) 212 FRD 324.
Disclosure statements prepared by relator and his counsel that were provided to government under 31 USCS §
3730(b)(2) constituted opinion work product under Fed. R. Civ. P. 26(b)(3) because factual narratives in disclosure
statements revealed mental impressions, conclusions, opinions, and legal theories of relator and his counsel, and
therefore, defendant's motion to compel production of those disclosure statements was denied. United States ex rel.
Bagley v TRW, Inc. (2003, CD Cal) 212 FRD 554.
Government's motions to seal portion of responses to court monitor and for protective order were granted because
five of six documents were protected under attorney-client privilege and sixth document was protected core work
product because it was developed in aid of instant litigation and it quoted from and responded to opinions of
government's attorney. Cobell v Norton (2003, DC Dist Col) 213 FRD 69, motion to strike gr (2003, DC Dist Col) 213
FRD 42, motion to strike den (2003, DC Dist Col) 2003 US Dist LEXIS 2816.
c. Waiver or Loss of Privilege
109. Generally
Litigant who wishes to assert confidentiality must maintain genuine confidentiality and therefore corporation waives
attorney-client privilege which might have attached to documents when it turns documents over to Securities and
Exchange Commission. Permian Corp. v United States (1981, App DC) 214 US App DC 396, 665 F2d 1214, CCH Fed
Secur L Rep P 98280, 8 Fed Rules Evid Serv 1424, 32 FR Serv 2d 429.
If a client has previously waived privilege, the attorney may not invoke it when the attorney's deposition is being
taken. Knaust Bros. v Goldschlag (1939, DC NY) 34 F Supp 87.
Attorney-client privilege was not destroyed by fact that client was a public body. Connecticut Mut. Life Ins. Co. v
Shields (1955, DC NY) 18 FRD 448.
Waiver of attorney-client privilege does not necessarily affect attorney's work product protection. Ceco Steel
Products Corp. v H. K. Porter Co. (1962, ND Ill) 31 FRD 142, 6 FR Serv 2d 540.
It is well settled that the dissemination of a communication between a corporation's lawyer and an employee of that
corporation to those employees directly concerned with such matters does not waive the attorney-client privilege.
Sylgab Steel & Wire Corp. v Imoco-Gateway Corp. (1974, ND Ill) 62 FRD 454, 182 USPQ 187, 18 FR Serv 2d 812,
affd without op (1976, CA7 Ill) 534 F2d 330.
Interests furthered by attorney-client privilege are not impinged upon by compelling discovery of communications
sought or rendered in furtherance of what is known or reasonably should be known to be unlawful conduct regardless of
whether such conduct constitutes fraud or another intentional tort. Irving Trust Co. v Gomez (1983, SD NY) 100 FRD
273, 38 FR Serv 2d 530.
It is technically proper to speak of waiver only in cases where attorney or client communicates privileged
information to third party after privilege has come into existence; if third party is present when communication is made,
it is not technically correct to say that client has waived privilege because one cannot waive what never existed. FEC v
Christian Coalition (1998, ED Va) 178 FRD 61, affd in part and mod in part, motion den (1998, ED Va) 1998 US Dist
LEXIS 4832, corrected (Apr 15, 1998).
110. Who may waive privilege
Only the client can waive the attorney-client privilege and to support a finding of waiver there must be evidence that
he intended to waive it. Connecticut Mut. Connecticut Mut. Life Ins. Co. v Shields (1955, DC NY) 18 FRD 448.
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USCS Fed Rules Civ Proc R 26
Testimony of former president of defendant corporation did not constitute waiver of attorney-client privilege, since
only party which holds privilege may waive it. Southwire Co. v Essex Group, Inc. (1983, ND Ill) 570 F Supp 643, 219
USPQ 1053, 37 FR Serv 2d 318.
Attorney-client privilege belongs to client, and cannot be waived by attorney without client's consent. Maloney v
Sisters of Charity Hosp. (1995, WD NY) 165 FRD 26.
Since attorney-client privilege belongs to client, client determines whether communication made to his attorney may
be disclosed by attorney, and client has authority to raise or waive privilege. George v Siemens Indus. Automation
(1998, DC NJ) 182 FRD 134.
By virtue of releasing bankrupt medical services limited partnership's files to plaintiffs, bankruptcy trustee waived
partnership's attorney-client and work-product privilege with regard to released documents. Meoli v Am. Med. Serv. of
San Diego (2003, SD Cal) 287 BR 808.
Where employee of bankrupt medical services limited partnership who also served as trustee for 401k plan had no
employment or managerial relationship with two corporations during relevant time period, there was no evidence to
support plaintiffs' claim that employee's waiver of attorney-client and attorney work product privileges extended to
either corporation. Meoli v Am. Med. Serv. of San Diego (2003, SD Cal) 287 BR 808.
111. Implied waiver
Waiver, as applied to attorney-client privilege, may be made by implication, and there can be no presumption against
waiver of attorney-client privilege; if attorney-client privilege is not claimed at time production is requested, or at least
when document is presented to court for in camera review, it will be considered waived by implication. Duplan Corp.
v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
In plaintiff's civil rights suit against state prison officials challenging his confinement in prison's mental health unit,
defendants, by virtue of assertion of defense of good faith immunity, would be deemed to have impliedly waived
attorney-client privilege as to legal advice rendered them by state attorney general where substantial showing of merit to
plaintiff's case was made and all elements of implied waiver existed. Hearn v Rhay (1975, ED Wash) 68 FRD 574, 2
Fed Rules Evid Serv 523, 33 FR Serv 2d 704.
Client may waive attorney-client privilege by placing privileged information into issue by some affirmative act for
his own benefit; to protect from disclosure information brought into issue by party with privilege would be unfair to
opposing party. Pitney-Bowes, Inc. v Mestre (1980, SD Fla) 86 FRD 444.
Bank's understanding from its counsel as to capacity in which it was trading with defendant corporation, whose
collapse led to losses on part of bank which are subject of suit, is not subject to discovery, notwithstanding contention
that there is waiver implied by bank's filing of securities fraud suit, which includes justifiable reliance as element; while
it may be useful to defendant accounting firm to know substance of advice bank received concerning its liability on
transaction, such communications are not essential to establish what reasonably prudent bank should have known and
should have done under circumstances, and need for disclosure is not sufficiently compelling to effect implied waiver.
Chase Manhattan Bank, N.A. v Drysdale Sec. Corp. (1984, SD NY) 587 F Supp 57, 16 Fed Rules Evid Serv 558, 39 FR
Serv 2d 1206.
To hold that insurance policy containing co-operation clause creates contractual waiver of attorney-client privilege,
even when insurance company later sues insured contending insured's claim is not covered, would completely eviscerate
attorney-client privilege. Bituminous Casualty Corp. v Tonka Corp. (1992, DC Minn) 140 FRD 381.
Under Connecticut law, insured did not impliedly waive its attorney-client privilege in underlying environmental
damage suits by bringing suit against insurer on grounds of its contractual obligation to indemnify and defend insured.
Remington Arms Co. v Liberty Mut. Ins. Co. (1992, DC Del) 142 FRD 408.
Information provided by plaintiff to support its attorney-client privilege claim was woefully inadequate to meet
burden of establishing privilege, particularly since presence of so many people at meetings in issue, including
non-parties, raised legitimate issue of whether communications and notes of them were confidential. Jones v Boeing Co.
(1995, DC Kan) 163 FRD 15.
Party impliedly waives attorney-client privilege if assertion of privilege was result of some affirmative act, such as
filing suit, by asserting party, through this affirmative act, asserting party put protected information at issue by making it
relevant to case, and application of privilege would have denied opposing party access to information vital to his
defense. Rutgard v Haynes (1999, SD Cal) 185 FRD 596.
112. Disclosure to third parties
In civil rights case by antinuclear demonstrators alleging that defendants deprived them of effective assistance of
counsel by planting undercover informer in their midst while they were discussing their defense to trespass charges with
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their attorney, defendants were entitled to depose attorney only as to those meetings at which undercover informant was
present since this was only information for which defendants had true need, they presumably had the information
already, and there was no reason for defendants to invade attorney-client privilege any further. Greater Newburyport
Clamshell Alliance v Public Service Co. (1988, CA1 NH) 838 F2d 13, 10 FR Serv 3d 151.
Party that disclosed information protected by attorney-client privilege and work-product doctrine in order to
cooperate with government agency that is investigating it waives privilege and doctrine completely, thereby exposing
documents to civil discovery in litigation between discloser and third party, since selective waiver does not serve
purpose of encouraging full disclosure to one's attorney in order to obtain informed legal assistance, nor does it promote
attorney-client relationship; such disclosure waives protection of work-product doctrine since it is not made to further
goal underlying doctrine but to forestall prosecution or obtain lenient treatment. Westinghouse Elec. Corp. v Republic
of Philippines (1991, CA3 NJ) 951 F2d 1414, 35 Fed Rules Evid Serv 1070, 22 FR Serv 3d 377.
University waived attorney-client and work-product privilege when it disclosed documents sought by IRS to Defense
Contract Audit Agency; university's disclosure to audit agency resulted from its own voluntary choice, even if choice
was made at time it became defense contractor and subjected itself to alleged obligation of disclosure, and its disclosure
to audit agency was disclosure to potential adversary, which forfeited work product protection. United States v
Massachusetts Inst. of Tech. (1997, CA1 Mass) 129 F3d 681, 97-2 USTC P 50955, 48 Fed Rules Evid Serv 66, 39 FR
Serv 3d 4, 80 AFTR 2d 97-7981.
Defendant waived attorney-client privilege as to documents underlying its advice-of-counsel reliance claim with
respect to merger, since reliance and disclosure occurred only in limited area of tax advice regarding effects of merger,
and did not waive attorney-client privilege with respect to merger itself, merger negotiations, effect of merger on
intellectual property rights, or financial benefits of it other than tax benefits. In re Pioneer Hi-Bred Int'l, Inc. (2001, CA
FC) 238 F3d 1370, 57 USPQ2d 1658, CCH Fed Secur L Rep P 91326, 2001-1 USTC P 50239.
In action by terminated service station operator against oil company for violation of antitrust laws, discovery with
regard to present form of contractual relationship between defendant and service station operators could not be barred
by attorney-client privilege since, by its very nature, such contract must have been read and signed by other than the
defendant or their attorneys; once a document or communication is shown to a third party, any privilege that once might
have attached is thereby waived by its disclosure to such third party. Goldinger v Boron Oil Co. (1973, WD Pa) 60
FRD 562, 1974-1 CCH Trade Cases P 74975.
Confidential information disclosed during settlement negotiations does not constitute waiver of entire attorney-client
or work product privilege, but is waiver limited to that information disclosed during negotiations; once party begins to
disclose any confidential communication for purpose outside scope of privilege, privilege is lost for all communications
relating to same matter. Burlington Industries v Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv
2d 533.
Attorney-client privilege was waived as to statement given by defendant in malpractice action to agent of her
attorney where defendant failed to assert privilege but rather relied on work-product rule which was not applicable to
statements of parties. Daniels v Hadley Memorial Hospital (1975, DC Dist Col) 68 FRD 583, 21 FR Serv 2d 603.
Disclosure to District Attorney's office of reports of interviews conducted as part of plaintiff's in-house investigation
of irregularities in its sales department sacrificed any expectation of confidentiality; disclosure "substantially increased
the opportunities for potential adversaries to obtain the information" and vitiated any work product immunity. Litton
Systems, Inc. v American Tel. & Tel. Co. (1979, SD NY) 27 FR Serv 2d 819.
Disclosure of privileged information by party asserting attorney work product privilege to third-party does not
constitute waiver unless such disclosure is inconsistent with maintenance of secrecy from disclosing party's adversary.
GAF Corp. v Eastman Kodak Co. (1979, SD NY) 85 FRD 46, 1980-1 CCH Trade Cases P 63093, 28 FR Serv 2d 1216.
Waiver of attorney client privilege is found where privileged documents and testimony are voluntarily given to
Securities Exchange Commission in compliance with subpoena when privilege could have been asserted but was not.
Maryville Academy v Loeb Rhoades & Co. (1982, ND Ill) 559 F Supp 7, 12 Fed Rules Evid Serv 1324, 36 FR Serv 2d
81.
Privilege which initially attached to papers is waived when manufacturer transmits attorney-client material to
independent research organization for its guidance and edification, where such research organization is separately
engaged by manufacturer to perform research and testing of its products for fee; research organization is independent
third-party, rather than manufacturer's attorneys' investigator or consultant, where research organization performs and
has performed research activities for manufacturer for many years. Revlon, Inc. v Carson Products Co. (1983, SD NY)
37 FR Serv 2d 325.
Documents which are product of investigation by law firms into corporation's alleged illegal payments to foreign
officials are not protected by attorney-client privilege, where law firms have voluntarily disclosed such documents to
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federal agency, agency made no representations as to confidentiality, and agency has made no assertion that discovery
of documents would disrupt its voluntary disclosure program. In re Subpoenas Duces Tecum to Fulbright & Jaworski
(1983, DC Dist Col) 99 FRD 582, CCH Fed Secur L Rep P 99505, CCH Fed Secur L Rep P 99567, 14 Fed Rules Evid
Serv 898, affd (1984, App DC) 238 US App DC 221, 738 F2d 1367, CCH Fed Secur L Rep P 91566, 16 Fed Rules Evid
Serv 165, 39 FR Serv 2d 611.
Party does not waive attorney-client privilege by disclosure of certain information when his disclosure was not of
any significant part of privileged matter, but was of publicly available facts; nor does party waive privilege for
communications with his New York attorneys by disclosing communications from lawyers in Portland, Maine, and
France. Diotima Shipping Corp. v Chase, Leavitt & Co. (1984, DC Me) 102 FRD 532.
Mere fact that third-party had opportunity to open file drawer cannot constitute disclosure of privileged information
where third-party did not learn gist of document's content. Chubb Integrated Sys. v National Bank of Washington
(1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
As general matter, attorney-client privilege is not destroyed when third person is present at conversation between
lawyer and client if that person is needed to make conference possible or to assist attorney in providing legal services, as
in case where meeting is attended by insurance agent who was instrumental in arranging certain coverage, purpose of
meeting was to prepare answer to complaint involving scope of insurance coverage, and purpose of agent's presence at
meeting was to aid in preparation of answer. Miller v Haulmark Transport Systems (1984, ED Pa) 104 FRD 442, 18
Fed Rules Evid Serv 340, 3 FR Serv 3d 453.
Where attorney interviewed witness in course of representing client, memorandum of his conversation with witness
is privileged, notwithstanding that client has waived privilege, where witness believed that attorney was representing
both witness's interests and those of client. In re Grand Jury (1985, DC NH) 106 FRD 255.
Extent of waiver of attorney-client privilege which results from disclosure turns on particular circumstances in which
disclosure was made and purpose for disclosure; thus, where plaintiff which was assignee of patent rights disclosed to
assignor its corporate counsel's memorandum as to proper interpretation of agreements relative to assignment and as to
formula which should govern calculation of royalties due assignor, and where ostensible purpose of disclosure was to
explain assignee's determination that it had used incorrect formula for many years and its adoption of new formula
resulting in reduced royalty payments, such disclosure did not result in waiver of privilege with respect to all prior and
subsequent communications between assignee and its counsel on interpretation of contracts in issue, but it does result in
waiver with respect to all communications between assignee and both its in-house counsel and outside counsel which
were generated from time when possibility of altering formula was first explored up to date of disclosure of
memorandum and which concern subject matter of memorandum. AMCA International Corp. v Phipard (1985, DC
Mass) 107 FRD 39, 18 Fed Rules Evid Serv 192, 2 FR Serv 3d 1081.
Attorney-client privilege does not protect conversation between attorney and real estate broker which took place at
client's instigation and purpose of which was to have attorney discuss client's worthiness as tenant. In re Grand Jury
Proceedings (Doe) (1985, DC RI) 602 F Supp 603.
Attorney-client privilege did not apply to meeting among defendant, its counsel, and employee of design firm, since
design firm was independent third party whose presence at meeting in question destroyed confidentiality necessary for
privilege to attach. Liggett Group, Inc. v Brown & Williamson Tobacco Corp. (1986, MD NC) 116 FRD 205.
Letters from plaintiff's counsel to accounting firm allegedly relevant to issue of insured's failure to disclose to insurer
matters relevant to scope of insurance coverage were discoverable by insurer since there was no attorney-client
privilege since accounting firm was not the client or an agent of the counsel's client, and in any case privilege is waived
when documents are disclosed to independent auditors. Independent Petrochemical Corp. v Aetna Casualty & Surety
Co. (1987, DC Dist Col) 117 FRD 292.
Defendants' testimony given to Securities and Exchange Commission was not protected by attorney-client privilege
so as to shield it from discovery from other defendants in suit not involving SEC as party, since disclosure to SEC of
information protected by attorney-client privilege waives such privilege as to such information. Biben v Card (1987,
WD Mo) 119 FRD 421, CCH Fed Secur L Rep P 93549, 10 FR Serv 3d 1091.
Defendant-attorney's communications with state department of corporations regarding allegedly fraudulent
investment scheme was not protected by attorney-client privilege since information communicated to attorney by client
in confidence which client expects attorney to relate to third parties is not protected by attorney-client privilege, and to
extent communications related to business affairs of client, namely status of its sales program as security, attorney-client
privilege may not be invoked to cloak client's business affairs in secrecy. Fox v California Sierra Financial Services
(1988, ND Cal) 120 FRD 520.
Attorney-client privilege was waived as to information disclosed to Securities and Exchange Commission since,
where information has been voluntarily and selectively disclosed to SEC without steps to protect privileged nature of
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such information, fairness requires finding that attorney-client privilege has been waived as to disclosed information
and all information on same subject. Fox v California Sierra Financial Services (1988, ND Cal) 120 FRD 520.
Party waived attorney-client privilege as to documents in accountant's file since there was no evidence that
accountant was not third party for purposes of attorney-client privilege. First Interstate Bank, N.A. v National Bank &
Trust Co., N.A. (1989, DC Or) 127 FRD 186.
Defendant waived its right to assert work-product and attorney-client privileges concerning its internal investigations
of matter in issue to government agencies since they were in adversarial relationship, but plaintiff did not waive
privilege since government agencies were ally in this matter. Republic of Philippines v Westinghouse Electric Corp.
(1990, DC NJ) 132 FRD 384, 17 FR Serv 3d 1476.
Special agent's consent to disclosure of his interview statements to IRS officials conducting administrative
investigation of shooting incident resulting in death of plaintiff's decedent resulted in waiver of any attorney-client
privilege which may have attached to statements, despite any agreement defendants may have had with IRS regarding
"restricted" nature of memorandum. Griffith v Davis (1995, CD Cal) 161 FRD 687, 32 FR Serv 3d 1322.
In breach-of-contract action in which auction company sought commission from bank on unsuccessful attempts to
sell land as part of effort to restructure and pay off loan from seller of land to bank, bank is entitled to refuse discovery
of documents it showed to Farm Credit Administration (FCA), where documents are confidential documents protected
by attorney-client privilege and documents were shared with FCA only upon its authority as bank examiner of bank,
because bank's disclosure of documents to FCA was not voluntary since FCA's access to such documents cannot be
refused, so documents remain protected by attorney-client privilege. Boston Auction Co. v Western Farm Credit Bank
(1996, DC Hawaii) 925 F Supp 1478.
Under joint defense exception, disclosure of privileged information to third party does not constitute waiver of
attorney-client privilege if third party is counsel for actual or potential codefendant. Burton v R.J. Reynolds Tobacco Co.
(1997, DC Kan) 177 FRD 491.
Attorney-client privilege does not extend to documents or communications relating to matters client reveals or
intends to reveal to others. FEC v Christian Coalition (1998, ED Va) 178 FRD 61, affd in part and mod in part, motion
den (1998, ED Va) 1998 US Dist LEXIS 4832, corrected (Apr 15, 1998).
Any disclosure inconsistent with maintaining confidential nature of attorney-client relationship waives
attorney-client privilege; where disclosure is voluntary, attorney-client privilege is waived, not only as to specific
communication disclosed, but often as to all other communications relating to same subject matter. McCafferty's, Inc. v
Bank of Glen Burnie (1998, DC Md) 179 FRD 163.
Attorney-client privilege is not destroyed by disclosure of protected information to outside party which is done only
under compulsion of court order. Government Guar. Fund of Fin. v Hyatt Corp. (1998, DC VI) 182 FRD 182.
Attorney-client and work product privileges can extend to communications with accountant hired by attorney's client,
rather than attorney; if other elements of privileges are established, information exchanged with accountant is protected
if it is shown that accountant was consulted, in confidence, for purpose of obtaining legal advice from attorney, and
communications between accountant, client and attorney are reasonably related to purpose of obtaining confidential
legal advice from attorney. Aull v Cavalcade Pension Plan (1998, DC Colo) 185 FRD 618.
Selective waiver doctrine (which provides that when client voluntarily reveals communications to government entity
during government investigation, waiver only applies to that government entity but not as to all other adversaries) does
not create exception to general rule that when client voluntarily reveals communications to third party, it waives
attorney-client privilege. In re Columbia/HCA Healthcare Corp. (2000, MD Tenn) 192 FRD 575.
In personal injury and wrongful death suits against beryllium plant operators, documents sold by one operator to
another as part of sale of beryllium plant were covered by attorney-client privilege and work product; common interest
doctrine negated any waiver that may have otherwise occurred when documents were sold, as operators shared common
interest in defending against lawsuits arising from exposure to beryllium products developed and manufactured at
subject plant, which they anticipated and as to which they contracted to share legal responsibility. Russo v Cabot Corp.
(2001, ED Pa) 2001 US Dist LEXIS 23861, summary judgment gr, judgment entered (2002, ED Pa) 223 F Supp 2d 644.
Defense attorney's confidential letter to his client analyzing plaintiff's claims and threatened litigation was not
protected from discovery after it had been shown by defendant to plaintiff during client settlement meeting, since
defendant, by his actions, waived both attorney-client privilege and work product doctrine. Eagle Compressors, Inc. v
HEC Liquidating Corp. (2002, ND Ill) 206 FRD 474.
In bankruptcy matter, court found that attorney-client privilege did extend to third parties regarding discovery;
however, expert had waived some matters because of expert's testimony. Tri-State Outdoor Media Group, Inc. v .
Official Comm. of Unsecured Creditors (In re Tri-State Outdoor Media Group, Inc.) (2002, BC MD Ga) 283 BR 358.
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113. Inadvertent disclosure
Inadvertent production of privileged documents in context of accelerated discovery proceedings does not constitute
waiver of attorney-client privilege where party was compelled to produce privileged documents which it certainly
would have withheld and would not have produced had discovery program proceeded under less demanding schedule.
Transamerica Computer Co. v IBM Corp. (1978, CA9 Cal) 573 F2d 646, 1978-1 CCH Trade Cases P 62031, 25 FR
Serv 2d 604 (criticized in Genentech, Inc. v United States ITC (1997, CA FC) 122 F3d 1409, 19 BNA Intl Trade Rep
1451, 43 USPQ2d 1722, 38 FR Serv 3d 592).
Privilege with respect to legal evaluations contained in letter was not waived by virtue of inclusion of substance of
those evaluations in another document where crucial sentence in second document was left in through inadvertence.
SCM Corp. v Xerox Corp. (1976, DC Conn) 70 FRD 508, 1976-2 CCH Trade Cases P 61207, 1976-2 CCH Trade
Cases P 61208, 2 Fed Rules Evid Serv 535, app dismd (1976, CA2 Conn) 534 F2d 1031, 1976-1 CCH Trade Cases P
60840, 21 FR Serv 2d 1114.
Intent is not required to waive privilege in discovery context; waiver can occur through inadvertence. Chubb
Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
Although requesting party obtained intraoffice memorandum prepared by defendant's attorneys when memorandum
was produced by defendant's employee at employee's deposition, production in this manner did not constitute waiver of
attorney-client privilege where blanket objection was made to production of any documents by employee, specific
objection was made to introduction of memorandum by one of attorneys who wrote it, and employee did not testify at
any depth about contents of memorandum. Miller v Haulmark Transport Systems (1984, ED Pa) 104 FRD 442, 18 Fed
Rules Evid Serv 340, 3 FR Serv 3d 453.
Inadvertent disclosure of documents protected by attorney-client privilege during production of documents pursuant
to Rule 34 operates as waiver of privilege. International Digital Systems Corp. v Digital Equipment Corp. (1988, DC
Mass) 120 FRD 445, 12 FR Serv 3d 1151.
Party was not entitled to return of documents allegedly protected by attorney-client privilege and inadvertently
turned over to opposing party since relief is available on basis of inadvertence only when party has taken reasonable
precautions to prevent disclosure of privileged materials and party did not do so in this case. Richmark Corp. v Timber
Falling Consultants, Inc. (1989, DC Or) 126 FRD 58.
Disclosure of defendant's outside patent counsel's letter to in-house patent counsel, one of 75,000 documents, was
inadvertent but waived attorney-client privilege only as to that document, given apparent lack of effort by defendant to
rectify error and treating it as fait accompli. Golden Valley Microwave Foods, Inc. v Weaver Popcorn Co. (1990, ND
Ind) 132 FRD 204, 18 USPQ2d 1867.
Factors to consider in determining whether inadvertent disclosure constitutes waiver of attorney-client privilege are
reasonableness of precautions taken to prevent inadvertent disclosure in view of extent of document production, number
of inadvertent disclosures, extent of disclosure, any delay and measures taken to rectify disclosure, and whether
overriding interests of justice would or would not be served by relieving party of its errors. Fidelity & Deposit Co. v
McCulloch (1996, ED Pa) 168 FRD 516.
Determination of whether inadvertent disclosure of privileged documents constitutes waiver of attorney-client
privilege requires case-by-case analysis. Briggs & Stratton Corp. v Concrete Sales & Servs. (1997, MD Ga) 176 FRD
695.
In addition to waiver by intentional disclosure, attorney-client privilege can be waived inadvertently. McCafferty's,
Inc. v Bank of Glen Burnie (1998, DC Md) 179 FRD 163.
In its determination of whether inadvertent disclosure of documents effects waiver of attorney-client privilege, court
considers reasonableness of precautions taken to prevent inadvertent disclosure, time taken to rectify error, scope of
discovery, extent of disclosure, and overriding issue of fairness. Wallace v Beech Aircraft Corp. (1998, DC Kan) 179
FRD 313.
Producing privileged document by mistake may waive or forfeit attorney-client privilege. United States ex rel Bagley
v TRW, Inc. (2001, DC Cal) 204 FRD 170.
In view of substance of disclosures and limited precautions taken by counsel to protect inadvertently produced
documents, which had written comments by plaintiffs in-house counsel, from disclosure and then to retrieve documents,
interests of justice were best served by finding that plaintiff waived its privilege with respect to documents; however,
full subject matter waiver of attorney-client privilege was not warranted. Koch Materials Co. v Shore Slurry Seal, Inc.
(2002, DC NJ) 208 FRD 109.
In trademark dispute between restaurant and manufacturer that manufactured, marketed, and sold products originally
developed in restaurant, disclosure of letters by attorney to co-administrators of estate were not disclosed inadvertently;
therefore, attorney-client privilege had been waived, court compelled disclosure of those documents and of other
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documents dealing with same subject matter and permitted further deposition of one of co-administrators, and court
declined to issue protective order permitting co-administrators to withhold those documents and refuse to answer
questions about them. Ken's Foods, Inc. v Ken's Steak House, Inc. (2002, DC Mass) 213 FRD 89.
City did not waive attorney-client privilege with respect to memo containing attorney communications regarding
settlement negotiations that was inadvertently provided by city to plaintiffs during discovery, where memo was
prepared for city manager, city attempted to retrieve memo shortly after it discovered disclosure, and memo was among
many documents produced by city. Myers v City of Highland Vill. (2003, ED Tex) 212 FRD 324.
Corporation's motion for protective order, concerning investigation and/or appraisal of sanction agreements as
intangible assets pursuant to Statement of Financial Accounting Standards, was granted where court found that
corporation's inadvertent disclosure of two documents did not waive attorney-client privilege because: (1) corporation
utilized team of attorneys that reviewed all documents to be produced and organized those documents into separate
categories; (2) Four days after discovering error, corporation contacted counsel for shareholders and requested that
shareholders return both documents; (3) corporation produced more than 78,000 pages of documents; and (4)
shareholders had no legitimate interest in keeping documents labeled as "Highly Confidential." Ferko v NASCAR (2003,
ED Tex) 218 FRD 125.
Although plaintiffs contended that certain defendants waived any privilege by failing to act in timely manner upon
discovering plaintiffs' possession of certain document, given number of documents that were produced to plaintiffs,
defendants' limited role in documents' production, and their timely and repeated objections to plaintiffs' possession of
document, plaintiffs' position was not persuasive; moreover, given their ongoing and persistent attempts to recover
memorandum, defendants acted reasonably and timely with respect to asserted privileges, and plaintiffs could not have
reasonably believed defendants intended to waive, or waived by lack of diligence, any privileges they held with regard
to document. Meoli v Am. Med. Serv. of San Diego (2003, SD Cal) 287 BR 808.
114. Partial disclosure
Voluntary waiver by client, without limitation, of one or more privileged documents passing between certain
attorney and client discussing certain subject waives privilege as to all communications between same attorney and
same client on same subject; waiver of privilege as to all communications ordinarily follows from voluntary waiver
even if made with limitations; thus, if client, through his attorney, voluntarily waives certain communications but guards
with specific oral or written assertion that it is not its intention to waive its privilege as to remainder of all similar
communications, privilege as to remaining undisclosed communications is nevertheless deemed waived. Duplan Corp.
v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
Parties cannot selectively divulge privileged information without impairing attorney-client privilege as to rest of that
information concerning same subject; once party abandons confidence by submitting privileged material in discovery
proceeding, rationale of privilege is dissipated insofar as subject matter of disclosure is concerned; where defendant
corporation had allowed its chief engineer to give deposition testimony concerning opinion orally rendered to him by
attorney, defendant corporation had waived its attorney-client privilege with respect to opinions concerning validity of
patent. B & J Mfg. Co. v FMC Corp. (1975, DC Ill) 21 FR Serv 2d 1119.
Testifying in examination before trial is waiver of attorney-client privilege as to communications disclosed, and it
need not be shown that party knowingly waived privilege since partial disclosure of communication itself is sufficient to
constitute waiver of privilege; thus defendant in malpractice action waived attorney-client privilege as to statement
given by her to agent of her attorney where, in response to questions of plaintiff's counsel at her deposition, she
admitted making statement and confirmed some parts of statement and denied other parts, and there were no special
circumstances showing that she was surprised or misled since her counsel knew that plaintiff's counsel had been told not
only of fact of statement but also substance thereof prior to taking of her deposition. Daniels v Hadley Memorial
Hospital (1975, DC Dist Col) 68 FRD 583, 21 FR Serv 2d 603.
Defendants did not waive privilege by bringing patent infringement suit preceding instant action or by making any
specific disclosures during course of litigation which could be deemed blanket waiver. Handgards, Inc. v Johnson &
Johnson (1975, ND Cal) 69 FRD 451, motion sustained, app den (1976, ND Cal) 413 F Supp 926, 192 USPQ 316,
remanded (1979, CA9 Cal) 601 F2d 986, 202 USPQ 342, 1979-1 CCH Trade Cases P 62625, 62 ALR Fed 183, cert den
(1980) 444 US 1025, 62 L Ed 2d 659, 100 S Ct 688, 100 S Ct 689, 204 USPQ 880.
If party-client chooses to disclose part of otherwise privileged communication directed to his legal counsel, then he
waives attorney-client privilege and production of all correspondence or remainder of consultation about same subject
can be demanded; attorney-client privilege may also be waived if privileged communication is injected as issue in the
case by party who enjoys its protection; in action by prisoner seeking to assert rights of inmates to organize for
collective action and challenging actions taken against plaintiff allegedly for his participation in such organizing
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USCS Fed Rules Civ Proc R 26
activities, defendant would be required to answer certain interrogatories which might otherwise be privileged where (1)
defendant had previously produced correspondence with counsel dealing with same subject matter, and (2) defendant
raised affirmative defense that his acts were performed in reasonable belief that no constitutionally protected right of
plaintiff was being infringed, which defense placed in issue information such as legal advice from counsel that might
otherwise be privileged. Haymes v Smith (1976, WD NY) 73 FRD 572.
Disclosure of very slight amount of privileged material, produced in spirit of openness in discovery, cannot be basis
for waiver of large amount of other privileged material. Shumate & Co. v New York Stock Exchange, Inc. (1980, ND
Tex) 486 F Supp 1333, CCH Fed Secur L Rep P 97585, 1980-2 CCH Trade Cases P 63501.
Defendant in patent infringement suit, who contends that his infringement was not willful and deliberate and who
produces 2 of 41 documents previously asserted to be privileged in support of this position, waives asserted
attorney-client privilege as to remaining documents, where defendant makes no reservation at time of production of 2
documents that such production does not waive privilege on remaining documents. Central Soya Co. v Geo. A. Hormel
& Co. (1982, WD Okla) 581 F Supp 51, 215 USPQ 337.
Although bulk of handwritten memorandum authored by president of plaintiff corporation at request of his counsel
are protected from disclosure by both attorney-client privilege and work-product doctrine, waiver occurred as to those
portions of memorandum to which corporation's president referred during course of deposition. S & A Painting Co. v
O.W.B. Corp. (1984, WD Pa) 103 FRD 407, 17 Fed Rules Evid Serv 645, 1 FR Serv 3d 428.
Corporation did not waive attorney-client privilege with respect to copy of board minutes produced by failing to
make timely objection where copy produced had substantial portions deleted. Eastern Technologies, Inc. v Chem-Solv,
Inc. (1989, ED Pa) 128 FRD 74.
Disclosure need not be total to constitute waiver; disclosure of any significant portion of confidential communication
waives privilege as to whole. Smith v Texaco, Inc. (1999, ED Tex) 186 FRD 354.
Company waived its attorney-client privilege in certain in certain documents, where it voluntarily disclosed portions
of privileged communications in brief to court of appeals. Vardon Golf Co. v Karsten Mfg. Corp. (2003, ND Ill) 213
FRD 528.
115. Use of communications at prior proceedings
With regard to subsequent discovery, voluntary appearance of attorney before SEC waived attorney-client privilege
as to documents he produced and matters on which he gave testimony. In re Penn Cent. Commercial Paper Litigation
(1973, SD NY) 61 FRD 453, CCH Fed Secur L Rep P 94311, 18 FR Serv 2d 1252.
Attorney-client privilege applies to documents and deposition testimony of attorney where attorney's participation in
affairs of clients amounts to no more than providing necessary expertise as experienced securities lawyers and such
privilege is not waived by defendant's voluntary disclosure of privileged material to Securities Exchange Commission in
separate, private proceeding to which plaintiffs are not party. Byrnes v IDS Realty Trust (1980, SD NY) 85 FRD 679,
CCH Fed Secur L Rep P 97308, 29 FR Serv 2d 1431.
Voluntary disclosure of documents to third party in separate litigation waives right to claim privilege with respect
same documents in instant action. Chubb Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103
FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
Although bulk of handwritten memorandum authored by president of plaintiff corporation at request of his counsel
are protected from disclosure by both attorney-client privilege and work-product doctrine, waiver occurred as to those
portions of memorandum to which corporation's president referred during course of deposition. S & A Painting Co. v
O.W.B. Corp. (1984, WD Pa) 103 FRD 407, 17 Fed Rules Evid Serv 645, 1 FR Serv 3d 428.
Insured's designating attorney to represent it in state agency proceedings did not automatically waive attorney-client
privilege as to subject matter of those proceedings since purpose was to promote settlement regarding plaintiff's liability
under urea formaldehyde foam insulated home repurchase regulations. Colonial Gas Co. v Aetna Casualty & Sur. Co.
(1991, DC Mass) 139 FRD 269.
116. Documents containing legal and nonlegal information
Attorney-client privilege, as to patent material which would otherwise come within privilege, is not lost merely
because communication containing legal advice also contains relevant nonlegal information, nor is it lost because
communication contains technical data. Burlington Industries v Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ
651, 19 FR Serv 2d 533.
Presence of business information in document will not destroy privilege if document is "primarily" legal in nature.
In re Subpoena to Ford Aerospace & Communications Corp. (1979, ED Pa) 27 FR Serv 2d 402.
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USCS Fed Rules Civ Proc R 26
Permitting discovery by insured under FRCP 26(b)(1), in her bad-faith action against automobile insurer, of
postcomplaint evidence of insurer's conduct in defending against insured's underlying coverage claims comported with
due process, since such permission did not foreclose possibility of finding that underlying claim had been fairly
debatable and, thus, that insurer could not have acted in bad faith under state law. Graham v Gallant Ins. Group (1999,
WD Ky) 60 F Supp 2d 632.
117. Communications used to prepare criminal activities
In determining whether attorney's opinion work product was prepared in futherance of crime courts do not require
proof beyond reasonable doubt that someone has committed crime; rather, there must be prima facie showing of
violation sufficiently serious to defeat work product privilege and court must find some valid relationship between work
product under subpoena and prima facie violation. In re Sealed Case (1982, App DC) 219 US App DC 195, 676 F2d
793, CCH Fed Secur L Rep P 98647, 82-1 USTC P 9335, 10 Fed Rules Evid Serv 490, 33 FR Serv 2d 1778, 50 AFTR
2d 82-5637 (criticized in Frontier Ref. v Gorman-Rupp Co. (1998, CA10 Wyo) 136 F3d 695, 39 FR Serv 3d 1236).
Crime-fraud exception will defeat attorney-client privilege only as to misconduct that occurred during period of
representation, but, to limited extent that past acts of misconduct were subject of client's fraudulent cover-up that
occurred during period of representation, then past violations properly may be subject of inquiry. In re Sealed Case
(1985, App DC) 244 US App DC 11, 754 F2d 395, 17 Fed Rules Evid Serv 600.
Crime-fraud exception bars invocation of attorney-client privilege, notwithstanding that attorneys' primary role was
prosecution of legitimate lawsuits, where attorneys represented client in litigation in which most highly probative
evidence had been destroyed by client and destruction itself was subject of ongoing cover-up, and where attorneys were
used to file and verify authenticity of false documents and thus were instrumentalities in ongoing cover-up whether they
realized it or not. In re Sealed Case (1985, App DC) 244 US App DC 11, 754 F2d 395, 17 Fed Rules Evid Serv 600.
To overcome claim of privilege, government need not prove existence of crime or fraud beyond reasonable doubt;
rather, government must first make prima facie showing of violation sufficiently serious to defeat privilege, and second,
establish some relationship between communication at issue and prima facie violation; prima facie violation is shown if
it is established that client was engaged in or planning criminal or fraudulent scheme when it sought advice of counsel
to further scheme. In re Sealed Case (1985, App DC) 244 US App DC 11, 754 F2d 395, 17 Fed Rules Evid Serv 600.
Crime-fraud exception to attorney-client privilege did not apply to subpoenaed corporate documents about campaign
finance laws since there was nothing suspect about discussion among corporate officials and general counsel which one
document reflected, given need to seek legal advice about activities like political contributions, even if one official
broke law several weeks later; and memorandum by general counsel to file relating to matters that occurred one year
after vice-president's illegal action was work product to which crime fraud exception did not apply since it occurred
after client's wrongdoing ended. In re Sealed Case (1997, App DC) 323 US App DC 233, 107 F3d 46, 37 FR Serv 3d
540.
Attorney-client privilege is not vitiated merely because client commits fraudulent act--only where confidential
communications between attorney and client concern advice in preparation for commission of criminal or fraudulent
act, or in actual commission thereof, is privilege abrogated; privilege will not be abrogated by mere allegations of fraud
on patent office or fraud on court as opposed to prima facie showing, nor will it be abrogated by allegations, however
well supported, of misuse; however, privilege will be abrogated upon prima facie showing that communications
between attorney and client were sought or obtained to assist in commission of fraud or crime. Burlington Industries v
Exxon Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
In order to overcome work product and attorney-client protection through crime/fraud exception, party seeking
discovery bears burden of showing (1) prima facie case of crime or fraud, and (2) that communications were made in
furtherance of fraud. Lemelson v Bendix Corp. (1984, DC Del) 104 FRD 13, 1984-2 CCH Trade Cases P 66303, 39
FR Serv 2d 1312.
Material in intraoffice memorandum prepared by defendant's attorneys is not subject to disclosure under crime-fraud
exception, notwithstanding contention that material reveals that plot existed to answer complaint in fraudulent fashion,
where memorandum at most reveals that attorneys and their client chose to plead certain set of facts when another set
were also plausible. Miller v Haulmark Transport Systems (1984, ED Pa) 104 FRD 442, 18 Fed Rules Evid Serv 340,
3 FR Serv 3d 453.
Exception to attorney-client privilege with respect to communications in aid or furtherance of crime or fraud does not
extend to communications allegedly in furtherance of attempt to conceal sex discrimination, sexual harassment, or other
violations of federal civil rights laws. Coleman v American Broadcasting Cos. (1985, DC Dist Col) 106 FRD 201.
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USCS Fed Rules Civ Proc R 26
To invoke crime-fraud or other misconduct exception to attorney-client privilege, party alleging misconduct must
make prima facie or probable cause showing that such misconduct occurred. Coleman v American Broadcasting Cos.
(1985, DC Dist Col) 106 FRD 201.
Two-part process is required to invoke crime-fraud exception to attorney-client privilege: first, party seeking
disclosure must make out prima facie case, through evidence independent of communications sought to be disclosed,
that attorney was retained to promote intended or continuing criminal or fraudulent activity; second, it must then be
determined whether particular communications sought were in furtherance of the crime or fraud. In re National Mortg.
Equity Corp. Mortg. Pool Certificates Litigation (1987, CD Cal) 116 FRD 297.
Crime-fraud exception to attorney-client privilege did not apply where client, not attorney, drafted and sent deceptive
letter to SEC, attorney was not affirmatively used to further client's illegal activity, rather client simply sought advice
from counsel concerning legality of his conduct before responding to SEC, hence communications were within
attorney-client privilege. Loustalet v Refco, Inc. (1993, CD Cal) 154 FRD 243, CCH Fed Secur L Rep P 98011.
Crime-fraud exception to attorney-client privilege (which recognizes that otherwise privileged communications are
not protected from disclosure if they relate to client communications in furtherance of contemplated or ongoing
criminal, fraudulent or wrongful conduct) does not apply merely upon showing that client communicated with counsel
while client was involved in alleged wrongdoing; rather, exception applies only upon showing of probable cause to
believe that communications with counsel were intended in some way to facilitate or to conceal wrongdoing. Maloney v
Sisters of Charity Hosp. (1995, WD NY) 165 FRD 26.
With respect to memo that was inadvertently provided by city to plaintiffs during discovery, attorney-client privilege
did not apply to recitation of facts, but did apply to settlement discussions outlined in memo, and city was entitled to
protective order with respect to privileged contents; furthermore, plaintiffs failed to come forward with any evidence
that crime had been committed, so crime-fraud exception was inapplicable. Myers v City of Highland Vill. (2003, ED
Tex) 212 FRD 324.
Crime-fraud exception to attorney-client privilege did not apply, where party seeking disclosure did not show that
communications at issue were in furtherance of crime or fraud. Vardon Golf Co. v Karsten Mfg. Corp. (2003, ND Ill)
213 FRD 528.
Crime-fraud exception to attorney-client privilege applied to attorneys' motion to quash subpoenas duces tecum
seeking information regarding their representation of debtor since evidence showed that debtor's sole intent in executing
partition agreement with his wife and establishing trust was to protect their assets by attempting to place them beyond
reach of IRS, and attorneys drafted agreement at same time they were assisting debtor and his wife in their troubles with
IRS. Searcy v Rigby (In re Rigby) (1996, BC ED Tex) 199 BR 358, 36 CBC2d 916.
118. Use of communications as defense
Plaintiff alleging that statute of limitations has been tolled because he did not know that he had been defrauded by
defendant until so informed by his attorneys effected partial waiver of attorney-client privilege so as to permit defendant
to depose plaintiff's attorneys as to when they told him they had reason to believe he had been defrauded. Conkling v
Turner (1989, CA5 La) 883 F2d 431, 15 FR Serv 3d 132.
Although documents prepared by attorney to record confidential communications with his client are protected by
attorney-client privilege, such privilege may be waived if privilege communication is injected as issue in case by party
which enjoys its protection, or if privileged material is pleaded as defense. Garfinkle v Arcata Nat'l Corp. (1974, SD
NY) 64 FRD 688, 19 FR Serv 2d 147.
Party asserting as essential element of defense his reliance upon advice of counsel waives attorney-client privilege
with respect to all communications, whether written or oral, to or from counsel, concerning transactions for which
counsel's advice was sought. Panter v Marshall Field & Co. (1978, ND Ill) 80 FRD 718, CCH Fed Secur L Rep P
96740, 27 FR Serv 2d 1384.
Attorney-client privilege is waived where party raises defense of good faith reliance on government regulations and
defenses do not relate solely on "objective" representations of government but directly concern party's subjective
interpretation and understanding of those representations. United States v Exxon Corp. (1981, DC Dist Col) 94 FRD
246, 33 FR Serv 2d 611.
Attorney officer of securities company waives attorney-client privilege attaching to attorney officer's communication
with other corporate officers and employees where he makes factual assertions in affidavit concerning merits of
securities litigation against attorney officer's brokerage company; thus, plaintiff is entitled to depose attorney officer
with regard to such affidavit. Computer Network Corp. v Spohler (1982, DC Dist Col) 95 FRD 500, CCH Fed Secur L
Rep P 99103, 35 FR Serv 2d 1483.
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Defendant in patent infringement action waives attorney-client privilege by expressly relying on its attorney's
opinions in stipulations. Southwire Co. v Essex Group, Inc. (1983, ND Ill) 570 F Supp 643, 219 USPQ 1053, 37 FR
Serv 2d 318.
Plaintiff in patent infringement suit was entitled to depose defendant's attorney and have him produce documents
where defendant was relying on advice-of-attorney defense and had thus waived attorney-client privilege, but attorney's
mental impressions were not to be discovered. Board of Trustees v Coulter Corp. (1987, SD Fla) 118 FRD 532, 4
USPQ2d 1652, 9 FR Serv 3d 1325.
Law firm charged, along with its client, with fraud in securities and securities offerings materials, was entitled to
disclose otherwise confidential attorney-client communications over client's objections where it was necessary to firm's
self-defense in case. In re National Mortg. Equity Corp. Mortg. Pool Certificates Sec. Litigation (1988, CD Cal) 120
FRD 687, 11 FR Serv 3d 369.
Attorney-client and work-product privileges claimed by state officials sued by terminating employee under § 1983
were waived as to agency's knowledge of applicable law at time terminations occurred since state officials asserted
qualified immunity defense and advice of counsel as element thereof. Buford v Holladay (1990, SD Miss) 133 FRD
487, 18 FR Serv 3d 858.
By asserting advise of counsel defense, party explicitly and unconditionally waived attorney-client privilege as to
communications between counsel and party regarding infringement, validity and enforceability of patent.
McCormick-Morgan, Inc. v Teledyne Indus. (1991, ND Cal) 134 FRD 275, 91 Daily Journal DAR 2024, reported in full
(1991, ND Cal) 21 USPQ2d 1412 and revd in part on other grounds, remanded (1991, ND Cal) 765 F Supp 611.
Plaintiff's assertion in counterclaim of lack of understanding of agreement and fraudulent misrepresentation, in
circumstances in which only people who would have explained agreement to it were its attorneys, was implicit waiver
of attorney-client privilege, entitling plaintiff/counterclaim defendants to motion to compel, counterclaim plaintiff to
produce documents and respond to questions at depositions. Synalloy Corp. v Gray (1992, DC Del) 142 FRD 266,
CCH Fed Secur L Rep P 97260.
Attorney-client and work-product privilege claims were waived by defendant's counterclaims alleging that plaintiffs
were responsible for ensuring that special proxy statements were printed and mailed by certain date since they depended
upon assessing who was to blame for delay, hence defendant placed into issue its discussions with its attorneys as to
arrangement, preparation and printing of proxy materials, since attorneys dealt directly with printer, accountants and
other advisors, and plaintiff/mailer and made decisions regarding timing of events. Bowne, Inc. v AmBase Corp. (1993,
SD NY) 150 FRD 465.
Party waives attorney-client privilege by placing advice of counsel in issue only where client asserts claim or
defense, and attempts to prove that claim or defense by disclosing or describing attorney-client communication; advice
of counsel is not in issue merely because it is relevant, and does not necessarily become in issue merely because
attorney's advice might affect client's state of mind in relevant manner, rather, client must take affirmative step in
litigation to place advice of attorney in issue. Fidelity & Deposit Co. v McCulloch (1996, ED Pa) 168 FRD 516.
When party asserts advice of counsel defense, it waives attorney-client privilege, as well as work product immunity,
with respect to all communication to and from counsel concerning transaction for which counsel's advice was sought.
Greene, Tweed of Del., Inc. v DuPont Dow Elastomers, L.L.C. (2001, ED Pa) 202 FRD 418.
With respect to waiver of attorney-client privilege when client asserts claims or defenses that put his attorney's
advice at issue in litigation, advice of counsel is placed in issue where client asserts claim or defense and attempts to
prove that claim or defense by disclosing or describing attorney-client communication; privilege is not waived when
party merely asserts claim or defense that would make attorney's advice relevant. Beneficial Franchise Co. v Bank One,
N.A. (2001, ND Ill) 205 FRD 212.
When attorney-client privilege is waived because client asserts claims or defenses that put his attorney's advice at
issue in litigation, waiver extends beyond particular opinions or communications that party chooses to disclose because,
having opened door to certain privileged information in effort to advance its cause, party, as matter of fairness, must
disclose other privileged materials involving subject matter of disclosed communications; thus, party must produce not
only other communications and opinions of same attorney, but also privileged information from other counsel involving
same subject. Beneficial Franchise Co. v Bank One, N.A. (2001, ND Ill) 205 FRD 212.
If attorney-client privilege is waived because client asserts claims or defenses that put his attorney's advice at issue in
litigation, time scope of waiver extends to allow opposing party to have access to documents casting doubt or
contradicting attorney's opinions even if prepared by trial counsel after suit was commenced. Beneficial Franchise Co. v
Bank One, N.A. (2001, ND Ill) 205 FRD 212.
Where party relies on advice of counsel defense to charge of willful patent infringement, party has expressly waived
its privilege with respect to attorney-client communications and work product documentation, and everything with
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respect to subject matter of counsel's advice is discoverable. Novartis Pharms. Corp. v Eon Labs Mfg. (2002, DC Del)
206 FRD 396.
119. Miscellaneous
Grand jury testimony by corporation's founder, chairman and controlling shareholder referring to advice of counsel
for basis for corporation's acts did not necessarily waive corporation's right to assert attorney-client and work-product
privileges since it was not clear that reference to attorney's advice was deliberate attempt on corporation's part, as
opposed to witness's part, at exculpation, witness was compelled to appear and could not assert Fifth Amendment
privilege on corporation's behalf, and witness was subpoenaed individually, and his testimony was not affirmatively
offered by corporation on its own behalf. United States v Doe (In re Grand Jury Proceedings) (2000, CA2 NY) 219 F3d
175.
Holder of patent did not waive immunities of attorney-client privilege and work product doctrine applicable to patent
cases in general by bringing suit which placed patent validity and enforceability in issue; Neither is privilege lost merely
because non-attorney may have been able to conduct proceedings before Patent Office. Burlington Industries v Exxon
Corp. (1974, DC Md) 65 FRD 26, 184 USPQ 651, 19 FR Serv 2d 533.
In private antitrust action in which plaintiff claimed that defendant had attempted to monopolize disposable plastic
glove industry, previous production of documents containing communications between third parties and attorneys
employed by defendants was not waiver of attorney-client privilege with regard to communications between company
officials and counsel. Handgards, Inc. v Johnson & Johnson (1975, ND Cal) 69 FRD 451, motion sustained, app den
(1976, ND Cal) 413 F Supp 926, 192 USPQ 316, remanded (1979, CA9 Cal) 601 F2d 986, 202 USPQ 342, 1979-1
CCH Trade Cases P 62625, 62 ALR Fed 183, cert den (1980) 444 US 1025, 62 L Ed 2d 659, 100 S Ct 688, 100 S Ct
689, 204 USPQ 880.
Defendant in patent infringement action is entitled to discover correspondence between president of plaintiff's
assignor of patent and attorney for said assignor where plaintiff's previous disclosures amount to waiver of privilege on
subject of other alleged infringements and licensing. Eagle-Picher Industries, Inc. v Westinghouse Air Brake Co.
(1978, DC Ill) 27 Fed Rules Serv 2d 186.
Attorney-client privilege is effectively waived by use of plaintiff employer's file marked "Communications With
Counsel" to refresh recollection of former employee immediately prior to his deposition hearing where Rule 30(c)
provides examination and cross-examination of witnesses at deposition may proceed as permitted at trial under
provisions of USCS Rules of Evidence, and under USCS Rules of Evidence, Rule 612, adverse party is entitled to
production of writing used for refreshing one's recollection for use on cross-examination so that he may search out any
discrepancies between writing and testimony. Wheeling-Pittsburgh Steel Corp. v Underwriters Laboratories, Inc.
(1978, ND Ill) 81 FRD 8, 1978-2 CCH Trade Cases P 62134, 26 FR Serv 2d 787.
Information gathered in privileged manner does not become discoverable solely because management makes other
business use of such information, if information is handled in confidential manner. Re LTV Secur. In re LTV Sec.
Litigation (1981, ND Tex) 89 FRD 595, CCH Fed Secur L Rep P 97969, 8 Fed Rules Evid Serv 748, 31 FR Serv 2d
1542.
Attorney-client privilege does not apply to papers which were found in defendant's garbage. Suburban Sew 'N
Sweep, Inc. v Swiss-Bernina, Inc. (1981, ND Ill) 91 FRD 254, 1981-2 CCH Trade Cases P 64358, 8 Fed Rules Evid
Serv 1466, 32 FR Serv 2d 653 (criticized in Mendenhall v Barber-Greene Co. (1982, ND Ill) 531 F Supp 951, 217
USPQ 786, 9 Fed Rules Evid Serv 1613, 33 FR Serv 2d 921).
Where party turns documents over to SEC pursuant to agency subpoena, waiver of attorney-client privilege in
relation to those documents occurs only if they were produced without reservation; no waiver occurs if they were
produced under protective order, stipulation or other express reservation of producing party's claim of privilege.
Teachers Ins. & Annuity Ass'n v Shamrock Broadcasting Co. (1981, SD NY) 521 F Supp 638, CCH Fed Secur L Rep P
98248, 8 Fed Rules Evid Serv 1124, 32 FR Serv 2d 289.
Communications between coinventor and patent attorney who prosecuted patent application does not lose its
privileged status by virtue of alleged misrepresentation, in responsive amendment, of patent applicant's article which
formed basis for initial rejection of patent application or alleged withholding of subsequent article where it cannot be
inferred that examiner was not familiar with entirety of former article and withheld article is merely abbreviated version
of article coauthored by one applicant and cited in body of published patent. Research Corp. v Gourmet's Delight
Mushroom Co. (1983, ED Pa) 560 F Supp 811, 219 USPQ 1023, 13 Fed Rules Evid Serv 18, 36 FR Serv 2d 338.
Bank cannot assert attorney-client privilege with respect to communications made during course of bank's fiduciary
relationship with party seeking discovery, but privilege does apply to communications occurring prior to and subsequent
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to that period. Quintel Corp., N.V. v Citibank, N.A. (1983, SD NY) 567 F Supp 1357, CCH Fed Secur L Rep P 99450,
13 Fed Rules Evid Serv 1696, 38 FR Serv 2d 878.
In case in which defendant employer challenges impartiality of arbitration proceeding and award, submitting that
author of award is partner in law firm that represented plaintiff union before panel, employer is entitled to discover
contents of conversations between union's business manager and attorneys of law firm after first arbitration hearing,
notwithstanding union's contention that this information is protected by attorney-client privilege. International
Brotherhood of Electrical Workers, Local Union No. 323 v Coral Electric Corp. (1985, SD Fla) 104 FRD 88.
Where attorney interviewed witness in course of representing client, memorandum of his conversation with witness
is privileged, notwithstanding that client has waived privilege, where witness believed that attorney was representing
both witness's interests and those of client. In re Grand Jury (1985, DC NH) 106 FRD 255.
Corporation waived any attorney-client privilege with respect to documents which were treated so loosely that they
should not be considered confidential, where reasonable precautions to insure and maintain confidentiality of
attorney-client documents were not made, and where party voluntarily produced document during a Rule 34 inspection
which could have been extracted. O'Leary v Purcell Co. (1985, MD NC) 108 FRD 641, 3 FR Serv 3d 1373.
Attorney-client privilege waived as to documents allegedly inadvertently given to opposing counsel in response to
production request where amount of documents was small, counsel had screened them and given those selected for
production to clerk for copying, and there was no indication counsel screened copies before producing them. Liggett
Group, Inc. v Brown & Williamson Tobacco Corp. (1986, MD NC) 116 FRD 205.
Attorney-client privilege with respect to memorandum prepared by defendant's counsel was waived when
defendant's marketing representative voluntarily produced memorandum to customer during ordinary course of business
negotiations stemming from contract dispute between defendant and customer, marketing representative had been
designated by defendant to deal with customer on matter, memorandum expressly noted that marketing representative
was a recipient of memorandum, and memorandum was not marked in any way as confidential or privileged. Jonathan
Corp. v Prime Computer, Inc. (1987, ED Va) 114 FRD 693.
Insurer did not waive attorney-client privilege by assigning its attorneys investigative tasks in connection with fire
insurance claim in which insured had confessed to arson since attorney-client privilege includes more than legal advice
and opinions. Dunn v State Farm Fire & Casualty Co. (1988, ND Miss) 122 FRD 507.
In service mark infringement action, magistrate's order granting plaintiff's motion to compel production of
documents allegedly protected by attorney-client privilege or work product doctrine is set aside, where order was based
on facts that defendants were untimely in turning over privilege log and produced inadequate and incomplete privilege
log, because waiver of privilege is inappropriate because (1) defendants acted promptly in curing their error, (2) while
preparing privilege log, defendants were engaged in locating and reviewing vast number of documents in response to
plaintiff's broad discovery requests, (3) defendants will be extremely prejudiced by waiver of privilege, and (4) some
documents at issue fall squarely within privilege. First Sav. Bank, F.S.B. v First Bank Sys. (1995, DC Kan) 902 F Supp
1356.
Party waives attorney-client privilege by placing advice of counsel in issue only where client asserts claim or
defense, and attempts to prove that claim or defense by disclosing or describing attorney-client communication; advice
of counsel is not in issue merely because it is relevant, and does not necessarily become in issue merely because
attorney's advice might affect client's state of mind in relevant manner, rather, client must take affirmative step in
litigation to place advice of attorney in issue. Fidelity & Deposit Co. v McCulloch (1996, ED Pa) 168 FRD 516.
If client has waived attorney-client privilege with respect to one document, it has waived privilege not only with
respect to that document, but also with respect to any information relied upon to produce that document. FEC v
Christian Coalition (1998, ED Va) 178 FRD 61, affd in part and mod in part, motion den (1998, ED Va) 1998 US Dist
LEXIS 4832, corrected (Apr 15, 1998).
Production of privileged materials in one action pursuant to court order does not constitute waiver of privilege for
other lawsuits. Government Guar. Fund of Fin. v Hyatt Corp. (1998, DC VI) 182 FRD 182.
Defendant employer in Title VII (42 USCS § § 2000e et seq.) action waived its right to invoke attorney-client
privilege with respect to statements that were given by other employees to defendant's counsel prior to and after time
that plaintiff was terminated, by asserting adequacy of its investigation as defense to plaintiff's claims of sexual
harassment. Brownell v Roadway Package Sys. (1999, ND NY) 185 FRD 19.
Party does not place otherwise privileged attorney-client communications "at issue," and thereby impliedly waive
privilege, merely by seeking award of attorney's fees as damages. Rutgard v Haynes (1999, SD Cal) 185 FRD 596.
With respect to crime-fraud exception to attorney-client privilege, party seeking to overcome privilege must offer
evidence that, if believed by trier of fact, would establish elements of ongoing or imminent crime or fraud, and must
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show that client consulted lawyer for purpose of committing crime or fraud. Alexander v FBI (2000, DC Dist Col) 192
FRD 32.
Selective waiver doctrine (which provides that when client voluntarily reveals communications to government entity
during government investigation, waiver only applies to that government entity but not as to all other adversaries) does
not create exception to general rule that when client voluntarily reveals communications to third party, it waives
attorney-client privilege. In re Columbia/HCA Healthcare Corp. (2000, MD Tenn) 192 FRD 575.
Privileged communications between employee and corporate counsel should not automatically lose their protected
status upon employee leaving corporate employer. Infosystems, Inc. v Ceridian Corp. (2000, ED Mich) 197 FRD 303.
Proponent of attorney-client privilege must establish that privilege was not waived. Connecticut Indem. Co. v
Carrier Haulers, Inc. (2000, WD NC) 197 FRD 564.
Party asserting attorney-client privilege has burden of proving applicability of privilege and that it has not waived
privilege. Greene, Tweed of Del., Inc. v DuPont Dow Elastomers, L.L.C. (2001, ED Pa) 202 FRD 418.
With respect to waiver of attorney-client privilege when client asserts claims or defenses that put his attorney's
advice at issue in litigation, advice of counsel is placed in issue where client asserts claim or defense and attempts to
prove that claim or defense by disclosing or describing attorney-client communication; privilege is not waived when
party merely asserts claim or defense that would make attorney's advice relevant. Beneficial Franchise Co. v Bank One,
N.A. (2001, ND Ill) 205 FRD 212.
When attorney-client privilege is waived because client asserts claims or defenses that put his attorney's advice at
issue in litigation, waiver extends beyond particular opinions or communications that party chooses to disclose because,
having opened door to certain privileged information in effort to advance its cause, party, as matter of fairness, must
disclose other privileged materials involving subject matter of disclosed communications; thus, party must produce not
only other communications and opinions of same attorney, but also privileged information from other counsel involving
same subject. Beneficial Franchise Co. v Bank One, N.A. (2001, ND Ill) 205 FRD 212.
If attorney-client privilege is waived because client asserts claims or defenses that put his attorney's advice at issue in
litigation, time scope of waiver extends to allow opposing party to have access to documents casting doubt or
contradicting attorney's opinions even if prepared by trial counsel after suit was commenced. Beneficial Franchise Co. v
Bank One, N.A. (2001, ND Ill) 205 FRD 212.
Plaintiff waived work product doctrine with respect to documents created or produced during certain state court
litigation and related to that litigation, where it produced work product documents with respect to state court litigation.
Sinclair Oil Corp. v Texaco, Inc. (2002, ND Okla) 208 FRD 329.
Relator's written disclosure to government pursuant to 31 USCS § 3730(b)(2) did not operate as waiver of work
product protection. United States ex rel. Bagley v TRW, Inc. (2003, CD Cal) 212 FRD 554.
In order for attorney client privilege to be expanded by joint defense/common interest rule to apply to shared
documents, party must show agreement among all members of group to share information as result of common legal
interest relating to ongoing or contemplated litigation, and expansion only applies to exchange of information which
falls within agreed shared interest. United States v Duke Energy Corp. (2003, MD NC) 214 FRD 383.
In patent infringement suit, district court found that defendant waived attorney-client privilege with respect to
pre-suit communications and, to extent it has not already done so, defendant was required to disclose all
communications, including documents that were exchanged between defendant and counsel, regarding subject matter of
original opinion letter. BASF Aktiengesellschaft v Reilly Indus. (2003, SD Ind) 283 F Supp 2d 1000.
In patent infringement suit, district court found defendant did not waive work product privilege for any pre-suit
documents that were not communicated or otherwise disseminated to defendant. BASF Aktiengesellschaft v Reilly Indus.
(2003, SD Ind) 283 F Supp 2d 1000.
In patent infringement suit, district court found that defendant waived attorney-client privilege and work product
protections, to extent disclosed to defendant, post-lawsuit related to subject matter of opinion of counsel. BASF
Aktiengesellschaft v Reilly Indus. (2003, SD Ind) 283 F Supp 2d 1000.
3. Government and Official Documents and Information
a. In General
120. Generally
Confidential report privilege, which covers wide range of situations in which government seeks to protect from
disclosure confidential reports received from citizens, must be statutorily based; it will not suffice that government
merely has held report out as confidential by marking report form "confidential" or simply because department head,
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acting only on general authority, declares via regulation that reports submitted to his agency are to be considered
"confidential." Association for Women in Science v Califano (1977) 185 US App DC 19, 566 F2d 339, 24 FR Serv 2d
393.
Governmental privilege must be formally asserted and delineated in order to be raised properly; claiming official
must have seen and considered contents of documents, must himself have formed view that on grounds of public
interest they ought not to be produced, and must state with specificity rationale of claimed privilege, and when formally
claiming privilege should specify which documents or class of documents are privileged and for what reasons,
especially where nature of requested documents does not reveal obviously privileged matter. Kerr v United States Dist.
Court for Northern Dist. (1975, CA9) 511 F2d 192, 20 FR Serv 2d 474, affd (1976) 426 US 394, 48 L Ed 2d 725, 96 S
Ct 2119, 21 FR Serv 2d 1021.
Official information privilege protects only suggestions, advice, recommendations, and opinions, rather than factual
and investigatory reports, data and surveys in government files; in applying balancing test to determine whether litigant
can pierce qualified governmental official information privilege, District Court must find that litigant's objective, rather
than its subjective, need for documents overrides governmental interest in secrecy; in assessing need, District Court
should consider, inter alia, importance of documents to litigant's defense and availability elsewhere of information
contained in documents. United States v Leggett & Platt (1976, CA6 Ohio) 542 F2d 655, 1976-2 CCH Trade Cases P
61124, 22 FR Serv 2d 493, cert den (1977) 430 US 945, 51 L Ed 2d 792, 97 S Ct 1579.
Governmental privilege not only shields facts or communications received by public officials in performance of their
duties relating to state secrets or national security, but also shields less secret kinds of official information disclosure of
which would be harmful to some governmental interest. Branch v Phillips Petroleum Co. (1981, CA5 Tex) 638 F2d
873, 25 BNA FEP Cas 653, 25 CCH EPD P 31614, 7 Fed Rules Evid Serv 1578, 31 FR Serv 2d 135.
Deliberative process privilege may be asserted by person other than head of agency and where agency is not only
willing to submit documents to in camera inspection but actually seeks such inspection, affidavit or testimony from
responsible official is unnecessary to assert privilege effectively. United States Dep't of Energy v Brett (1981, Em Ct
App) 659 F2d 154, 9 Fed Rules Evid Serv 433, 32 FR Serv 2d 911, cert den (1982) 456 US 936, 72 L Ed 2d 456, 102 S
Ct 1992.
When the government is plaintiff in an action, it may not object to interrogatories in respect to relevant information
on the ground that the official files are confidential, since by bringing suit it waives such privilege. Fleming v Bernardi
(1941, DC Ohio) 1 FRD 624.
When government brings action in exercise of its regulatory powers it is subject to discovery, as would be a private
litigant; this general rule is subject to many qualifications, one being that production will not be ordered of matters
which would be contrary to public policy, internal security, or of a confidential nature. Fusco on behalf of NLRB v
Richard W. Kaase Baking Co. (1962, ND Ohio) 205 F Supp 459, 50 BNA LRRM 2307, 6 FR Serv 2d 13.
Governmental privilege is device which must be exercised with utmost fairness and caution, and while individual
should be entitled to information establishing foundation and crux of his lawsuit, government should not be required to
divulge information which would be injurious to public security; court must determine primacy of interest of
government versus those of individual by balancing necessity of individual obtaining information against governmental
need in maintaining secrecy of information. Philadelphia Resistance v Mitchell (1972, DC Pa) 63 FRD 125.
Under Rule 26, government has right to protect information which, if released, might be harmful to public interest.
Downs v United States (1974, MD Tenn) 382 F Supp 713, 19 FR Serv 2d 1383, revd on other grounds (1975, CA6
Tenn) 522 F2d 990, 36 ALR Fed 219.
Government, like ordinary litigant, does not waive its proper evidentiary privileges by filing suit; contention by party
that due process requires government to disclose all relevant material in its possession is without merit because nature
and scope of disclosure necessary to satisfy due process requirements is determined by court; in antitrust action brought
by government, it is not precluded from asserting claim of privilege as to documents sought to be discovered by
defendant. United States v International Business Machines Corp. (1975, SD NY) 20 FR Serv 2d 1082.
As used in Rule 26, privilege means privilege as determined by rules of evidence, so that in action where
governments sought to withhold material, such material would have to be disclosed unless it fell within governmental
privileges recognized by common law of evidence; among matters protected from disclosure by government on ground
of privilege are deliberative and decision-making processes of governmental officials, identity of informers cooperating
in law enforcement, investigative reports of administrative agency to extent that they reflect advisory rather than factual
material, and police files compiled in connection with ongoing criminal investigation; such type of information is
protected by qualified, not absolute privilege, so that claim of privilege made by government may be overcome by
litigant's showing of need for material great enough to outweigh policies favoring nondisclosure; court may reconcile
competing interests, after in camera inspection of documents, by ordering partial disclosure, or disclosure subject to
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protective order; procedurally, such claims of privilege must be lodged by head of agency concerned, after personal
consideration of material and evaluation of risks of disclosure, although decision whether to uphold claim rests always
with court, after balancing all of various interests. Kinoy v Mitchell (1975, SD NY) 67 FRD 1, 20 FR Serv 2d 1413.
Government documents are given qualified privilege to protect decision-making process and sources of information
received by government; in camera inspection of government documents, such as records of criminal investigations,
may be ordered to allow court to balance need of litigant for information and government interest in maintaining
secrecy. Sirmans v South Miami (1980, SD Fla) 86 FRD 492, 6 Fed Rules Evid Serv 599, 30 FR Serv 2d 1003.
Governmental privilege is limited in that it does not protect factual or investigative material, except as necessary to
avoid indirect revelation of decision-making process, nor does it protect policy already adopted by government agency.
Jupiter Painting Contracting Co. v United States (1980, ED Pa) 87 FRD 593, 30 FR Serv 2d 1257.
There are 3 prerequisites to successful assertion of intragovernmental deliberative process privilege; privilege must
be asserted by head of department which has control over material after actual personal review and consideration of
material, claim must specifically describe and designate documents sought to be withheld, and claim must state precise
and certain reasons for preserving confidentiality of communication. United States v Capitol Service, Inc. (1981, ED
Wis) 89 FRD 578, 1981-1 CCH Trade Cases P 63972.
While deliberative process privilege is qualified and may be overcome by showing of interest in disclosure
outweighing interest in nondisclosure, state secret privilege is absolute and will not be overcome by demonstration of
litigative need. In re "Agent Orange" Product Liability Litigation (1983, ED NY) 97 FRD 427, 13 Fed Rules Evid Serv
183, 35 FR Serv 2d 1374.
In determining whether deliberative process privilege should be upheld, court should look to number of factors,
including relevance of privileged evidence and availability of other evidence; no one factor is determinative, and weight
given to each will vary from case to case. Melzer v Board of Educ. (1997, ED NY) 176 FRD 71.
When governmental agency is asserting attorney-client privilege, confidentiality element will be satisfied only if
documents in question were circulated among those agency employees who are authorized to speak on matter dealt with
in documents; if circulated to larger group of individuals, privilege does not apply because agency did not maintain
confidentiality of information. Wyoming v USDA (2002, DC Wyo) 239 F Supp 2d 1219.
121. Executive privilege
The President of the United States does not have an absolute privilege against disclosure of materials subpoenaed for
a judicial proceeding. Herbert v Lando (1979) 441 US 153, 60 L Ed 2d 115, 99 S Ct 1635, 4 Media L R 2575, 3 Fed
Rules Evid Serv 822, 27 FR Serv 2d 1.
Where executive privilege is asserted, public interest in confidentiality of governmental information must be
balanced against litigant's needs to obtain data, not otherwise available, which he requires to pursue non-frivolous case.
Kenyatta v Kelly (1974, ED Pa) 375 F Supp 1175, 18 FR Serv 2d 825.
Applicability of executive privilege requires case by case, ad hoc balancing of public policies and material which is
sought to be discovered. Wood v Breier (1975, ED Wis) 66 FRD 8, 20 FR Serv 2d 782, dismd without op (1976, CA7
Wis) 534 F2d 330.
Discovery of documents of Federal Home Loan Bank Board is permitted in actions seeking judicial review of
Board's grant of permission to defendant savings and loan association to establish branch office, (1) where,
notwithstanding Board's contention that documents are protected by executive privilege, no ill effects will result from
allowing plaintiffs to see information in question and public confidence in soundness of decision-making process will
be promoted by discovery in light of Board's complete change of position on establishment of branch office, (2) where,
notwithstanding Board's contention that attorney-client privilege applies to opinion provided by Office of General
Counsel, such information consists almost entirely of material which is in public record, and (3) where court review of
Board decision will be facilitated by allowing discovery. Community Sav. & Loan Asso. v Federal Home Loan Bank
Board (1975, ED Wis) 68 FRD 378, 22 FR Serv 2d 1435.
Executive privilege against disclosure of intra-agency advisory communications is qualified in that privilege does not
attach to purely factual communications within or between agencies, disclosure of which would not compromise
military or state secrets; even those materials actually encompassed within limited confines of privilege are not
absolutely exempted from disclosure, privilege can be overridden in appropriate circumstances; what is involved is ad
hoc balancing in each case of need for materials against harm resulting from disclosure; burden is on claimant of
executive privilege to demonstrate proper entitlement to exemption from disclosures; to properly support claim of
executive privilege, privilege must be claimed by head of applicable agency after actual personal consideration by that
officer, there must be specific designation and description of documents claimed to be privileged, and there must be
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demonstration of precise and certain reasons for preserving confidentiality of government communications. Smith v
Federal Trade Com. (1975, DC Del) 403 F Supp 1000, 20 FR Serv 2d 1382.
Claims of executive privilege must be narrowly construed to permit broadest possible discovery otherwise allowed
under Federal Rules of Civil Procedure; governmental interest in favor of maintaining confidentiality under cloak of
privilege must be tempered by historical function of courts to provide compulsory process for production of relevant
evidence needed for fair and just determination of legal dispute. Jabara v Kelley (1977, ED Mich) 75 FRD 475, 25 FR
Serv 2d 428.
Executive privilege, whether constitutionally based or not, cannot be asserted by someone other than responsible
agency head so as to bar production of document sought by plaintiff in discovery. Pierson v United States (1977, DC
Del) 428 F Supp 384, 77-1 USTC P 9245, 39 AFTR 2d 77-1015.
Corporate counsel's handwritten notes allegedly revealing his thinking process both as lawyer and as final decision
maker on appeal within law department were not protected by New York State executive privilege which is limited to
communications between public officials since it was deliberative process itself which plaintiff alleged was crux of his
case charging retaliatory discharge. Grossman v Schwarz (1989, SD NY) 125 FRD 376 (criticized in PKFinans Int'l
Corp. v IBJ Schroder Leasing Corp. (1996, SD NY) 1996 US Dist LEXIS 13505).
Deliberative process privilege protects decisions whether to prosecute. Gomez v Nashua (1989, DC NH) 126 FRD
432.
Claim of executive privilege by department of British Government would not shield information from discovery
since, by asserting claims of fraud against defendant, British Government necessarily placed at issue questions of
knowledge, justifiable reliance and causation, and in such case, direct evidence of deliberative process is irreplaceable.
Department of Economic Dev. v Arthur Andersen & Co. (1991, SD NY) 139 FRD 295, CCH Fed Secur L Rep P 96297.
President can invoke executive privilege when asked to produce documents or other materials that reflect presidential
decisionmaking and deliberations and that President believes should remain confidential. Alexander v FBI (1998, DC
Dist Col) 186 FRD 21.
Prior to consideration of issue of whether executive privilege has been properly invoked, party seeking to compel
production of materials or testimony must make some showing of relevance or showing that materials or testimony
sought is likely to lead to discovery of admissible evidence. Alexander v FBI (1998, DC Dist Col) 186 FRD 21.
President alone possesses authority to invoke executive privilege. Blumenthal v Drudge (1999, DC Dist Col) 186
FRD 236, 27 Media L R 2004.
Chairman of International Trade Commission is clearly "head" of Commission for purposes of asserting claim of
executive privilege in response to motion to compel production of agency documents. Sprague Electric Co. v United
States (1978) 81 Cust Ct 168, 462 F Supp 966, 27 FR Serv 2d 190.
122. Interagency or intra-agency communications
Qualification to rule that when government brings action in exercise of its regulatory powers it is subject to
discovery on same basis as private litigant, is that in all but exceptional cases government will not be compelled to
produce interagency advisory opinions or correspondence. Fusco on behalf of NLRB v Richard W. Kaase Baking Co.
(1962, ND Ohio) 205 F Supp 459, 50 BNA LRRM 2307, 6 FR Serv 2d 13.
Agency validation study whose purpose is to identify and quantify data being collected, processed and used in crude
oil entitlements system is purely factual and therefore not privileged. Mobil Oil Corp. v Department of Energy (1981,
ND NY) 520 F Supp 414, 9 Fed Rules Evid Serv 435, 32 FR Serv 2d 913.
Deliberative process privilege precludes discovery of drafts of regulations relating to signs and parcels or other
property on White House sidewalk in action in which plaintiffs seek to demonstrate that regulations were adopted for
improper purpose of making it difficult to demonstrate on White House sidewalk and not for security or other valid
reason. White House Vigil for ERA Committee v Watt (1983, DC Dist Col) 38 FR Serv 2d 1364.
Deliberative process privilege will not shield from disclosure memoranda prepared by Department of Justice
attorneys recommending prosecution of individual, where allegations of governmental misconduct which lie at heart of
defense of case lend support for disclosure of documents and where alternative sources of information would be less
useful in supplying proof of states of mind of Department of Justice attorneys; on other hand, report of Department of
Justice Special Litigation Counsel who was assigned by Department to conduct investigation of charges contained in
newspaper article is clearly protected by deliberative process privilege, where defendants make only weak showing of
necessity. Dowd v Calabrese (1984, DC Dist Col) 101 FRD 427.
Redacted version of report by Comptroller of Currency on examination of bank, containing only factual statements
regarding parties to fraud litigation, fell outside scope of matters protected by qualified privilege for official information
and was therefore discoverable. Delozier v First Nat'l Bank (1986, ED Tenn) 113 FRD 522.
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Chemical corporation failed to show that state government documents withheld under deliberative privilege,
concerning validity and significance of scientific and health-related findings in connection with dumping of chemicals,
state expenditures at dump site, or state communications with media, were unavailable elsewhere or were so crucial to
corporation's case as to justify contravention of privilege; however, corporation could discover documents overtly
evidencing state's concern for political ramifications of dumping and suggesting various actions in light of such
ramifications or other factors unrelated to health and safety of persons living or working in dump site area, despite claim
of deliberative privilege. United States v Hooker Chemicals & Plastics Corp. (1987, WD NY) 114 FRD 100.
Deliberative process privilege protects from disclosure communications made prior to and as part of agency
determination; however, communications made subsequent to agency decision are not similarly protected. Ferrell v
United States HUD (1998, ND Ill) 177 FRD 424, injunction gr, sanctions disallowed (1998, ND Ill) 1998 US Dist
LEXIS 4686.
Purpose of deliberative process privilege is to prevent injury to quality of agency decisions which could result from
premature or indiscriminate disclosure of deliberations comprising part of process by which government decisions and
policies are formulated. United States v Ernstoff (1998, DC NJ) 183 FRD 148, 42 FR Serv 3d 694, affd (1998, DC NJ)
1998 US Dist LEXIS 21182.
Procedural requirements that must be satisfied in order to assert deliberative process privilege are (1) there must be
formal claim of privilege, lodged by head of department which has control over matter, after actual consideration by
that officer, (2) responsible agency official must provide precise and certain reasons for asserting confidentiality over
government information or documents, and (3) government information or documents sought to be shielded must be
identified and described. United States v Ernstoff (1998, DC NJ) 183 FRD 148, 42 FR Serv 3d 694, affd (1998, DC NJ)
1998 US Dist LEXIS 21182.
Deliberative process privilege is qualified; litigant may obtain deliberative materials if his need for materials and
need for accurate factfinding override government's interest in nondisclosure. Arizona Rehabilitation Hosp. v Shalala
(1998, DC Ariz) 185 FRD 263.
Deliberative process privilege does not apply to communications made subsequent to agency's decision. Lang v
Kohl's Food Stores, Inc. (1998, WD Wis) 185 FRD 542.
Deliberative process privilege, which should be applied as narrowly as consistent with efficient government
operation, may be overcome by sufficient showing of particularized need outweighing reasons for confidentiality. Lang
v Kohl's Food Stores, Inc. (1998, WD Wis) 185 FRD 542.
Deliberative process privilege may be overcome by sufficient showing of particularized need outweighing reasons
for confidentiality. Lang v Kohl's Food Stores (1998, WD Wis) 186 FRD 525.
Deliberative process privilege should be applied as narrowly as consistent with efficient government operation. Lang
v Kohl's Food Stores (1998, WD Wis) 186 FRD 525.
Deliberative process privilege does not apply if there is discrete factual basis for belief that deliberative information
sought may shed light on government misconduct. Alexander v FBI (1999, DC Dist Col) 186 FRD 154.
Deliberative process privilege disappears altogether when there is any reason to believe government misconduct
occurred. Alexander v FBI (1999, DC Dist Col) 186 FRD 170.
Deliberative process privilege was created to protect advisory opinions, recommendations and deliberations used by
government in making decisions and policies; however, information must be predecisional and deliberative. Olmsted v
McNutt (1999, DC Colo) 188 FRD 386.
Deliberative process privilege does not protect personnel decisions by law enforcement agencies. National Congress
for Puerto Rican Rights ex rel. Perez v City of New York (2000, SD NY) 194 FRD 88.
Deliberative process privilege is inappropriate for use in civil rights cases against police departments. National
Congress for Puerto Rican Rights ex rel. Perez v City of New York (2000, SD NY) 194 FRD 88.
Like all evidentiary privileges that derogate court's inherent power to compel production of relevant evidence,
deliberative process privilege is narrowly construed. Greenpeace v National Marine Fisheries Serv. (2000, WD Wash)
198 FRD 540, 48 FR Serv 3d 1125, injunction gr, in part (2000, WD Wash) 106 F Supp 2d 1066, 51 Envt Rep Cas
1119.
Initial burden of establishing applicability of deliberative process privilege is on government. Greenpeace v National
Marine Fisheries Serv. (2000, WD Wash) 198 FRD 540, 48 FR Serv 3d 1125, injunction gr, in part (2000, WD Wash)
106 F Supp 2d 1066, 51 Envt Rep Cas 1119.
There is no federal common law deliberative process privilege for municipal agencies. Allen v Chicago Transit Auth.
(2001, ND Ill) 198 FRD 495.
123. State secrets
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If whole object of suit and of discovery is to establish fact that is state secret, it suffices for cabinet secretary to
determine on personal consideration that disclosure of that fact would impair national security, whereupon compliance
with discovery request is excused in gross, without necessity of examining individual documents. Molerio v FBI
(1984, App DC) 242 US App DC 137, 749 F2d 815, 36 BNA FEP Cas 586, 35 CCH EPD P 34825, 16 Fed Rules Evid
Serv 1295, 40 FR Serv 2d 769.
124. Congressional reports
Congressional reports may be privileged information under Speech and Debate Clause (Article I, § 6 cl. 1) if report
is within sphere of legitimate legislative activity. United States v Peoples Temple of Disciples of Christ (1981, DC Dist
Col) 515 F Supp 246, 8 Fed Rules Evid Serv 1136, 31 FR Serv 2d 1594.
Congressional documents were privileged under speech and debate clause from discovery in railroad's suit to set
aside arbitration award since subjects of documents sought, railroad strike and railroad leases, were plainly areas of
potential legislation within Congress' constitutional jurisdiction. United Transp. Union v Springfield T. R. Co. (1990,
DC Me) 132 FRD 4, 135 BNA LRRM 2401, 116 CCH LC P 10325, 18 FR Serv 3d 49.
125. Documents and communications of nonfederal entities
In wrongful death action arising out of building explosion, information relating to city's Department of Buildings'
inquiry into explosion is not exempt from discovery on ground of privilege since societal interest in uncovering facts
underlying wrongful death claim are paramount, it is immaterial whether interests of plaintiffs or defendants are
advanced. Dixon v 80 Pine Street Corp. (1975, CA2 NY) 516 F2d 1278, 20 FR Serv 2d 222.
Motion by defendant city to vacate and quash notice for taking of depositions of officials in charge of various city
departments in action against the city for purchase price of snow removal equipment was denied where the motion was
made upon broad ground that persons named, as employees of the city, were exempt from examination before trial,
court holding that even though New York Civil Practice Act might exempt such officials from pretrial examination by
deposition, there was nothing in the Federal Rules containing such limitation. Joy Mfg. Co. v New York (1939, DC NY)
30 F Supp 403.
Background investigative report of black male applicant rejected for Ohio highway patrol position was not privileged
as confidential law enforcement investigative report under Ohio statute since such reports pertain to law enforcement,
not ancillary employment, and under common-law theory of privilege allowing discovery of confidential
communications where injury that would inure to confidential relationship is greater than benefit gained for disposal of
litigation, applicant was entitled to discovery of interoffice memorandum containing accurate synopsis of negative
information and defendant should also provide similar recitation of positive information obtained and identify trouper
who performed background investigation and prepared report. Dinkins v Ohio, Div. of State Highway Patrol (1987,
ND Ohio) 116 FRD 270, 45 CCH EPD P 37637.
Plaintiff in civil rights action against police officer for assault and battery was not entitled to discover documents in
police officer's personnel file regarding taking of sick leave and absences since these weren't not relevant, but was
entitled to discovery of documents in file relating to complaints filed against officer and internal memoranda and
investigations regarding such complaints, absent showing that confidentiality of supervisory evaluations was vital to
decision-making process of municipality. Scouler v Craig (1987, DC NJ) 116 FRD 494, 8 FR Serv 3d 766.
Executive predecisional deliberative process privilege exists for state agencies since policy underlying privilege
recognized in federal courts for federal agencies supports argument that same privilege should be recognized for state
agencies. Moorhead v Lane (1989, CD Ill) 125 FRD 680, 14 FR Serv 3d 128 (criticized in People ex rel. Birkett v City
of Chicago (1997, 2d Dist) 292 Ill App 3d 745, 226 Ill Dec 717, 686 NE2d 66).
There exists federal common-law privilege protecting deliberative processes of local legislators. United States v
Irvin (1989, CD Cal) 127 FRD 169, 28 Fed Rules Evid Serv 1375.
Government deliberative process privilege protected state officials from disclosing communications that occurred
within executive branch and between executive and legislative branch, since evidence of alleged discriminatory motive
of state's law makers was irrelevant to plaintiffs' challenge to statute on commerce clause ground, nor could secret
governmental conversations or memoranda transform otherwise clear statute into allegedly unconstitutionally vague
one. Government Suppliers Consolidating Services, Inc. v Bayh (1990, SD Ind) 133 FRD 531.
State civil rights commission's file of its investigation of employment discrimination complaint was not protected as
attorney work product since it was not created by counsel during course of client representation or in anticipation of
litigation, nor was it protected from disclosure to defendant employer by Kentucky statute prohibiting disclosure of
information acquired by commission. Kentucky Comm'n on Human Rights v Inco Alloys Int'l (1995, WD Ky) 161 FRD
671, 4 AD Cas 335.
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126. Foreign government documents and communications
Government adequately claimed state secret privilege against production of letter written by policy division of
United Kingdom's Inland Revenue to associate commissioner of Internal Revenue Service, by alleging that production
would impair government's ability to deal with foreign tax authorities by breaching historic confidentiality of
negotiations between United States and foreign governments. Xerox Corp. v United States (1987) 12 Cl Ct 93.
Plaintiff's motion that deposition of an official of Canadian Government on written interrogatories not be taken or, in
alternative, that certain interrogatories be stricken out, is denied in action by attorney seeking to recover compensation
for obtaining release of certain Canadian stocks; plaintiff's contention that the examination was improper since private
individual has no authority to examine sovereign as to its acts is rejected since whether testimony sought is privileged is
for determination of Canadian Government, or its representative. Cronan v Dewavrin (1949, DC NY) 9 FRD 337.
Assertion by party against whom discovery of documents is sought that they are "secret documents" of foreign
government, which that government wants returned, is invalid because party has no standing to raise objection for
foreign government. In re Westinghouse Electric Corp. Uranium Contracts Litigation (1977, WD Pa) 76 FRD 47, 2
Fed Rules Evid Serv 87, 23 FR Serv 2d 1148.
127. Exemption under Freedom of Information Act
In regard to discovery process, Freedom of Information Act, 5 USCS § 552, neither expands nor contracts existing
privileges, nor does it create any new privileges. Association for Women in Science v Califano (1977) 185 US App DC
19, 566 F2d 339, 24 FR Serv 2d 393.
In suit for disclosure under Freedom of Information Act for Department of Energy documents, including memoranda
from regional counsel to auditors working in DOE field offices issued in response to requests for interpretations of
regulations within context of particular facts encountered while conducting audits relative to compliance with 1973 oil
embargo, are not exempt by attorney-client privilege, attorney work product privilege, or deliberative process privilege
and such memoranda are not exempt as investigatory records compiled for law enforcement purposes. Coastal States
Gas Corp. v Department of Energy (1980) 199 US App DC 272, 617 F2d 854, 54 ALR Fed 256.
Rule 26(b) does not authorize agency to withhold any records which Freedom of Information Act commands it to
disclose, and where Department of Labor claims it can withhold contested paragraph of accident report by virtue of
traditional privilege under Rule 26(b), Department's claim for exclusion is viewed as restatement claim for exemption
from disclosure under provisions of Freedom of Information Act. Moore-McCormack Lines, Inc. v I.T.O. Corp. of
Baltimore (1974, CA4 Md) 508 F2d 945, 19 FR Serv 2d 706.
Owner of cave does not have right to inspect appraisal of his property made for government in anticipation of
condemnation proceeding; appraisal is exempt from Freedom of Information Act because it is intra-agency
memorandum; government enjoys qualified privilege to protect its bargaining position with landowner during
negotiation process; appraisal is also protected pursuant to executive privilege where it remains vital to government's
decision-making process. Hoover v United States Dep't of Interior (1980, CA5 Ala) 611 F2d 1132, 33 FR Serv 2d
1698, 57 ALR Fed 880.
Court did not abuse its discretion in denying motion to compel production of documents discovered in response to
FOIA inquiry where it scrutinized documents in camera before determining that information therein would not change
party's responses to interrogatories; parties cannot use FOIA to circumvent discovery rules and District Court denied
motion on merits rather than for policy reasons. American Lumber Corp. v National R. Passenger Corp. (1989, CA3
Pa) 886 F2d 50.
The FOIA acts as floor when discovery of government documents is sought in course of civil litigation; although
information available under FOIA is likely to be available through discovery, information unavailable under FOIA is
not necessarily unavailable through discovery. Friedman v Bache Halsey Stuart Shields, Inc. (1984, App DC) 238 US
App DC 190, 738 F2d 1336, CCH Fed Secur L Rep P 91563, 39 FR Serv 2d 764.
If interagency or intraagency records would be available by discovery process to some litigant in some sort of
litigation with the agency, they are not exempt under 5 USCS § 552(b)(5); thus, Veterans Administration's records of
hearing-aid tests were not exempt under that statute. Consumers Union of United States, Inc. v Veterans
Administration (1969, SD NY) 301 F Supp 796, app dismd (1971, CA2 NY) 436 F2d 1363.
Party who seeks to have federal investigating officers testify by way of deposition and to produce certain statements,
memoranda, documents, notes, drawings, and reports concerning their investigation of shipboard fire must show good
cause for production and that they have been unable to independently determine cause of fire; government need only
produce official conclusions and need not produce any individual conclusions, opinions, or recommendations of
investigators, recommendations of department, nor identity of potential witnesses, their statements or other information
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USCS Fed Rules Civ Proc R 26
obtained from them since files about accident were compiled for law enforcement purposes and are within investigatory
exception to Freedom of Information Act. Pilar v SS Hess Petrol (1972, DC Md) 55 FRD 159, 16 FR Serv 2d 580.
Internal Revenue Service closing agreement manual, which guided agents in negotiating with public and promoted
uniformity by detailing information and instructions pertaining to processing and technical aspects involved in drafting,
processing, reviewing, and signing of closing agreements, would be available in discovery proceedings pursuant to
Federal Rules of Civil Procedure, and was therefore not exempt from disclosure under 5 USCS § 552(b)(5). Long v
United States Internal Revenue Service (1972, WD Wash) 349 F Supp 871.
Sole fact that information in government documents is exempt from disclosure to general public under Freedom of
Information Act (5 USCS § 552(b)(1)-(9)) does not mean that it is "privileged" within meaning of Rule 26(b)(1) and
thus not discoverable by civil litigant. Pleasant Hill Bank v United States (1973, WD Mo) 58 FRD 97, 17 FR Serv 2d
897.
Exemption of privileged matters in provision of Rule 26(b)(1), providing that parties may obtain discovery regarding
any matter, not privileged, which is relevant to subject matter involved in action, including identity and location of
persons having knowledge of any discoverable matter, should be interpreted in light of specific requirements of
Freedom of Information Act which exempts from disclosure inter-agency or intra-agency memorandums or letters
which would not be available by law to party other than agency in litigation with agency. Wu v Keeney (1974, DC Dist
Col) 384 F Supp 1161, 19 FR Serv 2d 1151.
128. Miscellaneous
District Court did not err in ruling that libel case must be dismissed where, due to nature of question presented and
proof required to establish or refute claim, very subject of litigation is itself state secret. Fitzgerald v Penthouse Int'l
(1985, CA4 Md) 776 F2d 1236, 12 Media L R 1330, 19 Fed Rules Evid Serv 661, 3 FR Serv 3d 837.
Where plaintiff seeks to hold invalid regulation adopted by federal agency through that agency's informal rulemaking
procedure, discovery beyond administrative record is permitted only to discover whether administrative record is
complete and before plaintiff can conduct such discovery it must demonstrate some reasonable basis for believing that
administrative record is incomplete. Texas Steel Co. v Donovan (1982, ND Tex) 93 FRD 619.
Although names of individuals identified in report are protected under state secrets privilege, government may be
required to provide in camera additional information concerning whether or not such individuals are alive, and if alive,
whether they are willing to provide answers to questions relating to subject matter of litigation. In re "Agent Orange"
Prod. Liab. Litig. (1984, ED NY) 101 FRD 97.
Deliberative process privilege is limited in scope and aims to encourage frank discussion of ideas and policies,
thereby ensuring quality of governmental decisionmaking; privilege, which is qualified, is to be construed narrowly.
FDIC v Hatziyannis (1998, DC Md) 180 FRD 292.
Federal law enforcement investigatory privilege is qualified privilege designed to prevent disclosure of information
that would be contrary to public interest in effective functioning of law enforcement; privilege serves to preserve
integrity of law enforcement techniques and confidential sources, protects witnesses and law enforcement personnel,
safeguards privacy of individuals under investigation, and prevents interference with investigations. Tuite v Henry
(1998, DC Dist Col) 181 FRD 175.
Law enforcement investigatory privilege is based primarily on harm to law enforcement efforts which might arise
from public disclosure of investigatory files; purpose of privilege is to prevent disclosure of law enforcement techniques
and procedures, to preserve confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard
privacy of individuals involved in investigation, and otherwise prevent interference in investigation. In re
Polypropylene Carpet Antitrust Litig. (1998, ND Ga) 181 FRD 680.
Purposes of law enforcement privilege are to prevent disclosure of law enforcement techniques and procedures, to
preserve confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard privacy of
individuals involved in investigation, and otherwise to prevent interference with investigation; privilege is designed not
only to facilitate investigations, but also to protect individuals whose reputation may be damaged by disclosure of
investigative leads or statements from witnesses developed during investigation. National Congress for Puerto Rican
Rights ex rel. Perez v City of New York (2000, SD NY) 194 FRD 88.
Investigation need not be ongoing for law enforcement privilege to apply, as ability of law enforcement agency to
conduct future investigations may be seriously impaired if certain information is revealed. National Congress for Puerto
Rican Rights ex rel. Perez v City of New York (2000, SD NY) 194 FRD 88.
In action by developer against city alleging that its right to equal protection was violated when city imposed
condition of approval on developer's proposed condominium project that was more onerous than that imposed on
similarly situated projects, questions posed by developer implicated deliberative process privilege because it sought to
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question city council members about their decisionmaking process, in particular their motive and intent in approving
condition for approval, which was both pre-decisional and deliberative in nature, deliberative process privilege was
overcome because there was federal interest in enforcement of federal constitutional rights, testimony sought was highly
relevant to developer's equal protection claim, decisionmaking process of city council was central to litigation, and
information sought might well be relevant in ascertainment of motive, Cal. Gov't Code § 54956.9 did not apply to city
council's assertion of attorney-client privilege, and case-by-case rulings were necessary on assertion of attorney-client
privilege at trial regarding whether any particular communication made during closed sessions of city council, with
legal counsel present, was related primarily to seeking of legal advice. North Pacifica, LLC v City of Pacifica (2003, ND
Cal) 274 F Supp 2d 1118.
b. Particular Departments and Agencies
129. Air Force, Army and Navy
In action by a father to enjoin Department of Air Force from withholding certain information, including witnesses'
statements, regarding death of his son in airplane crash during training mission at Air Force base, report by private
aircraft company as to possible causes of the accident was not exempt under 5 USCS § 552(b)(4), but witness
statements by persons within the government as to factual matters were exempt under 5 USCS § 552(b)(5). Brockway
v Department of Air Force (1975, CA8 Iowa) 518 F2d 1184.
Navy Secretary lacks authority to require compliance with general regulation imposing severe limitations on
disclosure of any information by Navy Department personnel which is clearly intended to restrict dissemination of
information sought pursuant to proper notice and process under Federal Rules of Civil Procedure. McElya v Sterling
Medical, Inc. (1990, WD Tenn) 129 FRD 510, 16 FR Serv 3d 443.
130. Comptroller of Currency
Motion to compel the production of bank examiner reports, prepared and filed by bank examiners of the comptroller
of the currency, would be granted as to the body of the reports, after protective measures had been taken by the parties
to guard against making public facts which were nonrelevant and could be unnecessarily injurious to the bank, its
customers, or both; but examiners' confidential reports sent only to the comptroller were not required to be produced.
United States v Provident Nat'l Bank (1966, ED Pa) 41 FRD 209, 1966 CCH Trade Cases P 71940.
Where the principal question to be decided is whether the Comptroller of the United States complied with the
requirements of 12 USCS § 27 prior to the exercise of his decision to refuse plaintiff's application to commence
banking business, plaintiff's motion for the production of the Comptroller's administrative file relating to the application
must be granted since the file is a principal source of evidence of alleged arbitrariness, capriciousness and abuse of
discretion. Olsen v Camp (1969, DC Mich) 328 F Supp 728, 15 FR Serv 2d 746.
Plaintiff bank need not accede to request to produce reports of reviews, evaluations, or examinations of bank made
by Comptroller of Currency or other bank regulatory authorities, since federal regulations prohibit disclosure of
examination reports by financial institutions to persons other than those officially connected to bank as officer, director,
employee, attorney, or auditor, except as expressly permitted by Comptroller; defendants must consequently seek
documents from Comptroller. Bank of America Nat'l Trust & Sav. Asso. v Hotel Rittenhouse Associates (1983, ED Pa)
101 FRD 10, 37 FR Serv 2d 1077.
Pursuant to regulations of Comptroller of Currency, reports of reviews, evaluations, or examinations of bank made
by Comptroller or other bank regulatory authorities must be kept confidential unless confidentiality is waived by
Comptroller, notwithstanding contention that regulation is intended to govern disclosure to general public and does not
provide privilege against disclosure in civil litigation. Bank of America Nat'l Trust & Sav. Asso. v Hotel Rittenhouse
Associates (1983, ED Pa) 101 FRD 10, 37 FR Serv 2d 1077.
Redacted version of report by Comptroller of Currency on examination of bank, containing only factual statements
regarding parties to fraud litigation, fell outside scope of matters protected by qualified privilege for official information
and was therefore discoverable. Delozier v First Nat'l Bank (1986, ED Tenn) 113 FRD 522.
131. Defense Department
United States is privileged from revealing military secrets and generally cannot be required to produce documents
containing such secrets; in action against government under Federal Tort Claims Act for death of civilians in crash of
military plane in which secret electronic equipment was being tested, claim of privilege by government against the
production of the official accident report and other documents containing statements taken in connection with official
investigation of the crash will be sustained, where formal claim of privilege was filed by Secretary of Air Force and
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there was reasonable danger that documents would contain military secrets, while on other hand it was not shown that
such equipment had any causal connection with the crash, and government offered to produce surviving crew members
for examination by plaintiffs, allowing them to refresh their memories and testify as to all matters except those of a
classified nature. United States v Reynolds (1953) 345 US 1, 97 L Ed 727, 73 S Ct 528, 32 ALR2d 382.
In action against propeller manufacturer for injuries sustained by crewmember of air force bomber which crashed
allegedly because of defect in the propeller, wherein Secretary of Air Force, upon being subpoenaed, claimed an
"executive privilege" against production of accident report prepared by Air Force, insofar as it was sought to obtain
testimony of private parties who participated in the investigation, such information was privileged, but was not
privileged as to portion of report containing factual findings of air force mechanics who examined the wreckage; no
claim of privilege was asserted on basis that documents contained military or state secrets. Machin v Zuckert (1963)
114 US App DC 335, 316 F2d 336, 6 FR Serv 2d 554, cert den (1963) 375 US 896, 11 L Ed 2d 124, 84 S Ct 172.
District Court can determine claim of state secrets privilege by Secretary of Defense in camera in absence of
plaintiffs' counsel, refuse to permit oral examination of Secretary, either by deposition or before court, and refuse to
approve plaintiffs' interrogatories to Secretary and formulate its own questions. Halkin v Helms (1978, App DC) 25 FR
Serv 2d 906, reh den (1978, App DC) 194 US App DC 82, 598 F2d 1, 4 Fed Rules Evid Serv 593, 26 FR Serv 2d 1019.
District Court order prohibiting release of documents obtained from defendants--CIA, NSA, and others--to public is
deficient because it prohibits political expression, is silent as to its reasons, rests on no express findings, and is
unsupported by any evidence. In re Halkin (1979, App DC) 194 US App DC 257, 598 F2d 176, 4 Media L R 2025, 26
FR Serv 2d 798, affd (1982, App DC) 223 US App DC 254, 690 F2d 977, 11 Fed Rules Evid Serv 1381, 34 FR Serv 2d
1611.
In a patent case plaintiff's motion for inspection of drawings of alleged infringing devices manufactured by the
defendant under a military order of secrecy solely for the use of the government was denied as privileged when it
appeared that the government opposed such inspection. Pollen v Ford Instrument Co. (1939, DC NY) 26 F Supp 583,
40 USPQ 605.
In action under Federal Tort Claims Act for death of plaintiff's intestate who was on the premises into which a
government-owned airplane crashed, government was required to produce the official accident report in absence of any
showing that it contained military secrets. Cresmer v United States (1949, DC NY) 9 FRD 203.
In action under Federal Tort Claims Act arising out of military airplane, plaintiff was entitled to production of
official accident report and to copies of witnesses' statements, as against government's contention that such documents
were confidential and hence privileged. Evans v United States (1950, DC La) 10 FRD 255.
In deciding whether to uphold or overrule claim of governmental privilege protecting secrets of state and military
secrets, question for court is simply whether government has made sufficient showing that material is within privileged
category, and court must decide such question without forcing disclosure of material validly protected, with how far
court will probe depending upon showing of need for material made by party seeking disclosure; although court has
range of options, from accepting formal claim where showing of need is minimal to in camera inspection of documents
where litigant's need is great and government's claim is otherwise unsubstantiated, once court is satisfied that material is
secretive state or military secret, disclosure of which would threaten national security, material is absolutely privileged
from discovery. Kinoy v Mitchell (1975, SD NY) 67 FRD 1, 20 FR Serv 2d 1413.
Assertion of governmental privilege protecting absolutely secrets of state and military secrets on ground of jeopardy
to national security, which is not to be lightly invoked, must be made by head of department or agency responsible for
records, after personal consideration of material sought, and that person must set forth, with enough particularity to
enable court to make informed decision, nature of material withheld and of threat to national security should it be
revealed; requirement that decision to object on ground of privilege should be taken by minister who is political head of
department and that he should have seen it and considered contents of documents and himself formed view that on
grounds of public interest they ought not to be produced is not mere technical requirement, since, where court must rely
so heavily upon judgment of responsible executive officer, it must be clear that judgment was properly exercised, so
that there must be explicit representation to such effect at minimum. Kinoy v Mitchell (1975, SD NY) 67 FRD 1, 20 FR
Serv 2d 1413.
Government had sustained its burden of demonstrating, with sufficient particularity, that circumstances were
appropriate for invoking Attorney General's formal claim of privilege, where court was satisfied that there was more
than reasonable possibility that disclosure of information requested by plaintiff would reveal sensitive governmental
matters related to national defense and international relations of United States and where claim indicated that factual
basis for assertion of privilege was purportedly set forth in in camera affidavit of FBI agent; claim of executive privilege
asserted by Secretary of Defense was upheld where court was satisfied that information and material pertaining to
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interception of plaintiff's communications by unnamed federal agency would directly affect matters of continuing
military and diplomatic secrecy. Jabara v Kelley (1977, ED Mich) 75 FRD 475, 25 FR Serv 2d 428.
132. Environmental Protection Agency
Private litigant is free to use procedures outlined in Rule 34 to collect and test its own soil samples, but it has no right
to test samples secured by Environmental Protection Agency absent compelling circumstances; when EPA has
sufficient samples and private party agrees to pay costs involved, it is preferable for EPA to allow private party to use
samples it has collected, but as condition for such use, EPA may impose requirement that party make results of its
analysis available to EPA. Wehner v Syntex Corp. (1985, ED Mo) 107 FRD 248, 23 Envt Rep Cas 1032, 1 FR Serv 3d
1463, 15 ELR 21018.
133. Equal Employment Opportunity Commission
In action alleging employment discrimination, plaintiff's are not entitled to discover Equal Employment Opportunity
Commission's records concerning charges of persons who are not parties to action because such disclosure is contrary to
confidentiality provisions of Title VII; disclosure is denied, even though plaintiffs argue they need access to information
to determine whether class action is appropriate and also to determine whether defendant is engaging in pattern or
practice of discrimination. Mosley v General Motors Corp. (1975, ED Mo) 20 FR Serv 2d 701.
In Title VII civil rights action brought by Equal Employment Opportunity Commission for defendant hospital's
alleged discrimination, discovery by defendant of Commission matter was not barred on ground of absolute privilege
under 42 USCS § 2000e-5(b), providing that nothing said or done during and as part of informal conciliation endeavors
may be made public by Commission or used as evidence in subsequent proceeding without written consent of persons
concerned, where allowing defendant to review requested information, although it possibly might be inadmissible as
evidence, could lead to other possibly admissible evidence which could establish hospital's defense, and where
Commission's claimed need for confidentiality to foster voluntary compliance with Title VII did not outweigh
defendant's statutorily sanctioned discovery rights. EEOC v St. Francis Community Hospital (1976, DC SC) 70 FRD
592, 12 BNA FEP Cas 423, 11 CCH EPD P 10806, 21 FR Serv 2d 975.
Limited privilege applies to AAPs, and extends to EEO-1s and OFCC reports only to extent they contained
discussion of defendant's affirmative action plans or similar "self-critical analysis"; similarly review reports of agencies
(CCRs) are subject to limited privilege. Roberts v National Detroit Corp. (1980, ED Mich) 87 FRD 30, 25 BNA FEP
Cas 697, 26 CCH EPD P 31861, 30 FR Serv 2d 780.
Portions of employer's affirmative action reports which are not self-evaluative or subject to another claim of
privilege are discoverable; employer may delete self-evaluative portions of reports, but must turn over those portions
that are merely statistical or descriptive of present conditions or present or future plans. Penk v Oregon State Bd. of
Higher Education (1982, DC Or) 11 Fed Rules Evid Serv 1873.
Portions of affirmative action reports that are merely statistical or descriptive of present conditions or present or
future plans may be released without infringing upon need for critical self-evaluation, and portions which are not
self-evaluative or subject to another claim of privilege are also discoverable. Penk v Oregon State Bd. of Higher
Education (1982, DC Or) 99 FRD 506, 37 BNA FEP Cas 918, 35 FR Serv 2d 416.
Deliberative process privilege protected EEOC determinations, since if EEOC's investigators, attorneys and other
employees knew that their personal notes and observations and internal communications and critiques would be subject
to disclosure in virtually every employment discrimination case, then frank and open communication within agency
would clearly be hindered. Scott v PPG Industries, Inc. (1992, ND W Va) 142 FRD 291, 58 BNA FEP Cas 1211.
134. Federal Aviation Administration
In personal injury and wrongful death actions against the United States Government and an aviation company for
injuries and death caused by an airplane crash, plaintiffs and the defendant aviation company were not entitled to
production of opinions and conclusions of government employees as contained in reports made by the Analysis Branch
of the Federal Aviation Administration, but they were entitled to the factual information in those reports. Farrell v
Piedmont Aviation, Inc. (1969, WD NC) 50 FRD 385, 14 FR Serv 2d 870.
In tort claim action against government, arising out of airplane crash, opinion of chief investigator of Federal
Aviation Agency regarding cause of crash was discoverable on oral deposition, despite government claim of privilege
under statute prohibiting use of Agency reports as evidence; also, plaintiff was required to answer government's
interrogatories and furnish names and opinions of plaintiff's expert witnesses. Falk v United States (1971, DC Conn)
53 FRD 113, 15 FR Serv 2d 736.
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135. FDIC and FSLIC
Public policy favoring aiding FDIC in swift and efficient disposition of assets of failed bank and in replenishing
insurance fund for benefit of public at large outweighs defendants' interest and prevents disclosure of FDIC-generated
files reflecting post-closing efforts to replenish insurance fund and marshal assets in general. Federal Deposit Ins.
Corp. v Cherry, Bekaert & Holland (1989, MD Fla) 129 FRD 188.
Buyers of savings and loan that had been in receivership were not entitled to discovery of communications between
defendant Federal Asset Disposition Association and law firm that were shared with no one other that FSLIC or
FADA's consultants since fact that FADA was wholly owned subsidiary of FSLIC and served as agent for FSLIC
interests supported claim that FADA was client of law firm's with respect to efforts to sell savings and loan.
McCaugherty v Siffermann (1990, ND Cal) 132 FRD 234, 18 FR Serv 3d 363.
In lawsuit against federally chartered savings bank and certain of its former officers and directors, deliberative
process privilege did not protect FDIC records of examinations of bank from disclosure since they were factual in whole
or part, and even if privilege did apply, it was overridden by public interest in disclosure since records were relevant to
plaintiffs' claims of securities fraud and breach of fiduciary duty, there was no satisfactory substitute to chronicle bank's
financial decline, issues and stakes were serious, and FDIC had direct interest in outcome of litigation as receiver of
failed bank and conservator of new one. Principe v Crossland Sav., FSB (1993, ED NY) 149 FRD 444.
136. Federal Trade Commission
In civil action charging defendants with conspiracy in restraint of trade, government's objection to answering
interrogatories because regulations of Attorney General barred the disclosures sought was overruled. United States v
General Motors Corp. (1942, DC Ill) 2 FRD 528.
In action by Federal Trade Commission, government is not required to disclose internal memoranda and documents
which were authored by government lawyers and which contained many opinions, recommendations and conclusions as
to how Commission ought to act and what it ought or ought not to agree to as to defendant's offers of divestiture, type of
consent order that ought to be presented to Court of Appeals and numerous other subjects; attorney-client privilege
obtains with government attorneys as well as typical corporate house counsel and government is within its rights in
refusing to produce these documents, for many if not most of memoranda contain comments and some editorializing
and characterization. United States v Beatrice Foods Co. (1971, DC Minn) 15 FR Serv 2d 597.
Documents sought by plaintiff in preenforcement proceeding to review Federal Trade Commission's annual
line-of-business reporting program are not subject to attorney-client privilege, where there is no showing that
documents contain any facts which have previously been communicated to Commission Counsel, and wide distribution
of documents within Commission render it difficult to conclude that original information conveyed, if any, was
communicated in confidential manner. Smith v Federal Trade Com. (1975, DC Del) 403 F Supp 1000, 20 FR Serv 2d
1382.
Documents prepared by Federal Trade Commission staff economist and accountant who were working in
co-operation with and under direction of Commission's attorneys in investigating proposed acquisition in question is
protected by deliberative process privilege, where (1) it is internal report of Commission which was instrumental in its
deliberation of whether or not to bring enforcement action, (2) party seeking discovery has been supplied raw data upon
which expert based his opinion and analysis and thus can hire its own expert to refute opinions and conclusions of
Commission, and (3) although party seeking discovery contends that it cannot get expert to prepare opinion prior to
preliminary injunction hearing, parties themselves selected hearing date and persuaded court to set it at earliest possible
date on calendar. FTC v Bass Bros. Enterprises, Inc. (1984, ND Ohio) 1984-1 CCH Trade Cases P 66009, 39 FR Serv
2d 800.
137. Health and Human Services Department
The Secretary of Health, Education, and Welfare [now Health and Human Services] could not by regulation prevent
the production of documents in his care, custody, and control, when the plaintiff in an action under the Federal Tort
Claims Act [28 USCS § 1346] had moved for their production under Rule 34, after a proper showing and where the
defendant had made no claim of privilege. Merchants Nat'l Bank & Trust Co. v United States (1966, DC ND) 41 FRD
266, 10 FR Serv 2d 1001.
Since Social Security Act provision prohibiting disclosure of information does not apply to anyone other than
Federal Social Security officials, deponent with social security information obtained from anyone other than such
officials may not invoke Act as grounds for withholding information. O'Neill v Engels (1989, SD Fla) 125 FRD 518,
CCH Unemployment Ins Rep P 15843A.
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138. International Trade Commission
Documents and materials relating to United States International Trade Commission investigation of defendant may
not be discovered by plaintiffs in separate antitrust litigation where Administrative Law Judge presiding over
investigation issues confidentiality order; it is abuse of discovery process to order defendant in instant litigation to
produce all documents which he submitted in another case under judicial imprimatur that those documents, when
submitted, were judicially protected as confidential; documents not designated confidential in USITC investigation and
in control of complainant or defendant should not be subject to wholesale discovery procedure based on equity
considerations. Zenith Radio Corp. v Matsushita Electric Industrial Co. (1978, ED Pa) 26 FR Serv 2d 793.
139. Interstate Commerce Commission
In action against United States to set aside an order of the Interstate Commerce Commission, commission's objection
to production of documents which were internal memoranda, staff recommendations, and similar internal working
papers of the commission were sustained on the basis that such documents were privileged as being an integral part of
the decision-making machinery of an administrative agency, and on the basis that the documents were irrelevant since
in reviewing an administrative order court must base its decision solely on evidence in record. Walled Lake Door Co. v
United States (1962, ED Mich) 31 FRD 258, 6 FR Serv 2d 699.
140. Justice Department
Deliberative process privilege will not shield from disclosure memoranda prepared by Department of Justice
attorneys recommending prosecution of individual, where allegations of governmental misconduct which lie at heart of
defense of case lend support for disclosure of documents and where alternative sources of information would be less
useful in supplying proof of states of mind of Department of Justice attorneys; on other hand, report of Department of
Justice Special Litigation Counsel who was assigned by Department to conduct investigation of charges contained in
newspaper article is clearly protected by deliberative process privilege, where defendants make only weak showing of
necessity. Dowd v Calabrese (1984, DC Dist Col) 101 FRD 427.
In plaintiff inmate's action under Freedom of Information Act, 5 USCS § 552, portions of document originating
from Executive Office for United States Attorneys, prepared in anticipation of litigation in connection with plaintiff
inmate's criminal case and containing information justifying why defendant Department of Justice sought review of
bond ruling in inmate's criminal case, were protected under attorney work-product privilege exception of Fed. R. Civ. P.
26(b)(3) and 5 USCS § 552(b)(5). Gutman v United States DOJ (2003, DC Dist Col) 238 F Supp 2d 284.
141. Labor department and NLRB
Where NLRB seeks enforcement of order and it is alleged in opposition to petition that Board's order was not result
of fair and open hearing, and that evidence was not heard by proper personnel, nor arguments considered by Board, and
prayer is made to permit taking of depositions of members of the Board and for interrogatories for discovery, to be
answered by three members of Board, method of making order should, under facts disclosed, be inquired into before
decision is made whether to enforce it and under applicable rules, interrogatories are proper in such situation, as are
depositions. NLRB v Cherry Cotton Mills (1938, CA5) 98 F2d 444, 2 BNA LRRM 697, 1 CCH LC P 18211, reh den
(1938, CA5) 98 F2d 1021.
Memoranda, advisory opinions, and other intra-agency correspondence of the NLRB, relating to its internal workings
and policies, are not subject to discovery in proceedings in a federal court, since the efficient administration of the
Board's policies would be seriously hampered by such disclosure. NLRB v Botany Worsted Mills, Inc. (1939, CA3) 106
F2d 263, 4 BNA LRRM 595, 1 CCH LC P 18412; Davis v Braswell Motor Freight Lines, Inc. (1966, CA5 Tex) 363 F2d
600, 62 BNA LRRM 2682, 53 CCH LC P 11367.
Allegations by the employer in a petition by NLRB for enforcement of a cease and desist order that the Board
delegated its judicial authority to subordinates in its organization and that such subordinates consulted and applied
evidence outside record of hearing before the examiner, were not sufficient ground for granting discovery by requiring
the Board to file with the court unidentified documents found in "informal file of the Board" as well as interoffice
communications between the Board members and their attorneys. NLRB v Ford Motor Co. (1941, CA9) 118 F2d 766,
8 BNA LRRM 860, 4 CCH LC P 60391.
In suit by Secretary of Labor to enjoin defendants from violating Fair Labor Standards Act, the Secretary could not
refuse to produce statements taken from defendant's employees on contention that such statements were protected by an
executive privilege, where employees' names had already been voluntarily disclosed. Mitchell v Bass (1958, CA8 Ark)
252 F2d 513, 34 CCH LC P 71318.
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USCS Fed Rules Civ Proc R 26
Records, reports, files, etc. of the NLRB are proper subjects of discovery where a sufficient showing is made in
accordance with the applicable discovery rules and procedures. Sperandeo v Milk Drivers & Dairy Employees Local
Union No. 537 (1964, CA10 Colo) 334 F2d 381, 56 BNA LRRM 2472, 49 CCH LC P 19045, 8 FR Serv 2d 41B.13, Case
1; Davis v Braswell Motor Freight Lines, Inc. (1966, CA5 Tex) 363 F2d 600, 62 BNA LRRM 2682, 53 CCH LC P
11367; Schauffler on behalf of NLRB v Highway Truck Drivers & Helpers, etc. (1960, ED Pa) 196 F Supp 471, 47 BNA
LRRM 2400, 41 CCH LC P 16743.
In proceedings before federal court in which National Labor Relations Board is a party, discovery of matters within
knowledge of Board personnel, or documents within its possession, will be permitted where proper grounds therefor are
laid, and such information is not privileged under the applicable rules of discovery. NLRB v Schill Steel Products, Inc.
(1969, CA5) 408 F2d 803, 70 BNA LRRM 2778, 70 BNA LRRM 3280, 59 CCH LC P 13298, 59 CCH LC P 13382, 4
ALR Fed 483; Olson Rug Co. v NLRB (1961, CA7) 291 F2d 655, 48 BNA LRRM 2278, 42 CCH LC P 16983; Sperandeo
v Milk Drivers & Dairy Employees Local Union No. 537 (1964, CA10 Colo) 334 F2d 381, 56 BNA LRRM 2472, 49
CCH LC P 19045, 8 FR Serv 2d 41B.13, Case 1.
Statements given to NLRB by persons subsequently to be called by the Board as witnesses are subject to discovery
prior to time that they testify, but statements given to the Board by other persons, not called by Board as witnesses, are
privileged, and not subject to discovery under normal circumstances. NLRB v Schill Steel Products, Inc. (1969, CA5)
408 F2d 803, 70 BNA LRRM 2778, 70 BNA LRRM 3280, 59 CCH LC P 13298, 59 CCH LC P 13382, 4 ALR Fed 483.
The wage and hour administrator may keep secret all communications until he takes action in court based upon such
information; but then he must disclose such information if it is required by the rules as a foundation for such action.
Fleming v Bernardi (1941, DC Ohio) 4 FRD 270.
If records of wage and hour administrator are of a confidential nature they will be deemed privileged and not subject
to inspection; but the court is not bound by the claim of privilege unless in fact the records are of a confidential nature
or might have proved prejudicial to the government or to the public interest. Walling v Richmond Screw Anchor Co.
(1943, DC NY) 4 FRD 265.
In action involving violation of Fair Labor Standards Act, enforcing officer was not required to produce affidavits or
statements by defendant's employees, because such statements were privileged under regulation prohibiting any
document in enforcing agency's custody from being furnished to any person except with written consent of Secretary of
Labor. Walling v Comet Carriers, Inc. (1944, DC NY) 3 FRD 442, 8 CCH LC P 62115.
In an action in which NLRB sought injunctive relief against respondent union, which thereupon served notices to
take depositions on several members of the Board's staff, and subpoenas were subsequently served, one of which
required Board personnel to produce all writings and other matters relating to the dispute involved, as well as all matters
relating to any other cases which the person subpoenaed had petitioned for injunction prior to this time, Federal Rules of
Civil Procedure applied and defendant would be entitled to utilize discovery procedures provided therein; if production
demanded could be opposed on claim of governmental privilege, outside of the Board regulation, the government, in
bringing an action in exercise of its regulatory powers, made itself as subject to discovery as would be a private litigant,
and only exception would be in cases where production would be contrary to public policy or security, or where matter
sought would involve intra-agency advisory opinions or correspondence. Fusco on behalf of NLRB v Richard W.
Kaase Baking Co. (1962, ND Ohio) 205 F Supp 459, 50 BNA LRRM 2307, 6 FR Serv 2d 13.
Defendant employer's interrogatories directed to plaintiff Secretary of Labor seeking disclosure of sources of
information upon which plaintiff based his action to recover unpaid compensation allegedly due defendant's employees
were objectionable as seeking confidential and privileged information. Wirtz v Moore (1966, WD Pa) 41 FRD 231, 54
CCH LC P 31850, 10 FR Serv 2d 904.
In action brought by Secretary of Labor to set aside union election under Labor-Management Reporting and
Disclosure Act, defendant is not entitled to copy of investigation files which served as basis for plaintiff's finding of
probable cause that violation of Act had occurred because disclosure of investigatory files is immune under Freedom of
Information Act. Shultz v Chain Service Restaurant, Luncheonette & Soda Fountain Employees Union, Local 11
(1970, SD NY) 14 FR Serv 2d 979.
Defendant in Fair Labor Standards Act (29 USCS § § 201 et seq.) action by Secretary of Labor to recover alleged
unpaid minimum wages and overtime compensation, is not entitled to discover identity and statements of employees
and former employees who provided information to government relating to alleged violations; government is entitled to
withhold information on basis of government privilege in FLSA enforcement actions; privilege seeks to protect
employees with legitimate complaints who seek to exercise their constitutional and statutory right to present their
grievances to government. Marshall v L & H Service Corp. (1979, ED Mo) 27 FR Serv 2d 596.
142. Police and FBI investigative files
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USCS Fed Rules Civ Proc R 26
In civil suit by United States to obtain injunction against alleged violation of antitrust laws in that defendant
manufacturer had restrained commerce by requiring dealers and others purchasing fixtures from it to purchase its
fittings as well, wherein defendant filed interrogatories directed to plaintiff and seeking production and disclosure of
statements made by dealers and other persons who had dealt with defendant, and who by such statements had informed
FBI regarding defendant's practices and business transactions, it was held that the statements were privileged against
disclosure under the federal rules and, moreover, that disclosure was forbidden "by much broader considerations of
public policy." United States v Kohler Co. (1949, DC Pa) 9 FRD 289.
In an action against the United States government arising out of the FBI's electronic surveillance of a suite of hotel
rooms occupied by the plaintiff, the United States had the right to object to discovery of certain FBI investigative files
on the ground of privilege when the disclosure of secret information would be contrary to public policy or the public
interest. Black v Sheraton Corp. of America (1970, DC Dist Col) 50 FRD 130, 14 FR Serv 2d 122.
In action brought to compel defendants to answer interrogatories arising out of plaintiffs' original complaint accusing
defendants of illegal and unconstitutional surveillance, harassment, and intimidation, where defendants contended that
information they refused to answer was part of files of ongoing criminal investigation for law enforcement purposes, it
was only court, through in camera examination, that could objectively analyze material and decide merits of privilege
while concomitantly minimizing effects of any disclosure, and court would accordingly order defendants to produce
documented information from investigatory file substantiating their claim that plaintiffs were subjects of valid ongoing
criminal investigation for law enforcement purposes. Philadelphia Resistance v Mitchell (1972, DC Pa) 63 FRD 125.
Considerations to be examined in determining discoverability of police investigation files in civil rights case are (1)
extent to which disclosure will thwart governmental processes by discouraging citizens from giving government
information, (2) impact upon persons who give information of having identities disclosed, (3) degree to which
disclosure will chill governmental self-evaluation and program improvement, (4) whether information sought is factual
data or evaluative summary, (5) whether party seeking discovery is actual or potential defendant in criminal proceeding
pending or likely to follow from incident in question, (6) whether police investigation has been completed, (7) whether
interdepartmental disciplinary proceedings have arisen or may arise from investigation, (8) whether plaintiff's suit is
nonfrivolous and brought in good faith, (9) whether information sought is available through other discovery or sources,
and (10) importance of information sought to plaintiff's case. Frankenhauser v Rizzo (1973, ED Pa) 59 FRD 339, 17
FR Serv 2d 16.
In civil rights action brought to recover for death of plaintiffs' husband and father who was shot by defendant police
officers, plaintiffs were entitled to inspect and copy following materials from files containing police investigation of
shooting: reports of analysis of physical evidence made by police department; signed or unsigned statements by police
or civilian witnesses to shooting and events leading up to shooting; police investigation reports relating to shooting and
events leading up to shooting, except for such portions of reports as might constitute opinion and evaluative summary.
Frankenhauser v Rizzo (1973, ED Pa) 59 FRD 339, 17 FR Serv 2d 16.
In action brought under 42 USCS § 1983 based upon plaintiff's commitment to segregation following incident
which occurred at state penitentiary, where plaintiff sought production of statements of inmates taken by state police
subsequent to disturbance and given to Department of Corrections, but defendant asserted that criminal investigation
was pending thereby rendering statements privileged, fact of on-going investigation did not create absolute privilege;
however, since it was necessary to protect informants and maintain confidentiality of investigation, motion to compel
production would be denied, subject to renewal if circumstances should change or unreasonable time pass. United
States ex rel. Jackson v Petrilli (1974, ND Ill) 63 FRD 152, 18 FR Serv 2d 1246.
In civil rights action brought to force supervisory personnel to establish effective rules and procedures to prevent
police brutality and to force police officers to refrain from further illegal acts, where defendants requested protective
order to prevent discovery of investigative files, complaints, records, and reports which were in possession of county
police department and Human Relations Commission, no general privilege against discovery of police files existed, but
certain restrictions on discovery were appropriate. Boyd v Gullett (1974, DC Md) 64 FRD 169, 18 FR Serv 2d 1520.
In civil rights action brought to enjoin defendants from gathering information about lawful and peaceful activities
and from harassing and intimidating plaintiffs from exercising their freedoms of speech and assembly, where plaintiffs
requested admissions by defendants as to genuineness of documents which were allegedly stolen from offices of FBI,
defendants might invoke privilege against disclosure in public interest, and court would sustain objection to request for
admissions as to authenticity of stolen documents. Kenyatta v Kelly (1974, ED Pa) 375 F Supp 1175, 18 FR Serv 2d
825.
When investigation is conducted with eventual criminal prosecution in mind, or where files are sought in connection
with civil litigation while criminal prosecution arising from same facts is pending, courts will not permit defendant to
circumvent restrictions placed upon criminal discovery by attempting to compel discovery in civil case, but such
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USCS Fed Rules Civ Proc R 26
privilege is not of unlimited duration, and ceases after reasonable time. Kinoy v Mitchell (1975, SD NY) 67 FRD 1, 20
FR Serv 2d 1413.
Just as warrant is appropriate and required under Federal Constitution before electronic surveillance is undertaken in
name of domestic security, so should established rules of evidence, which permit case by case evaluations, apply when
government claims privilege with respect to such surveillance in civil litigation, especially litigation alleging violations
of Fourth Amendment rights; in civil action alleging that defendants authorized and conducted illegal and
unconstitutional electronic surveillance of telephone conversations, where Attorney General asserts privilege for
material connected with ongoing domestic intelligence investigations, although court views existence of ongoing
domestic security investigations as supportive of qualified privilege, which would permit balancing of litigant's need for
material against government's particular showing of need for secrecy, affidavit of Attorney General standing alone, does
not demonstrate with required specificity why appropriate protective order can not accommodate government's need to
safeguard intelligence investigation while at same time permit plaintiffs access to records at issue; Attorney General
must lodge formally sufficient claim of privilege, including particular reasons that protective order will not satisfy need
for secrecy, based upon his personal examination of documents in question, and court will weigh that claim against
plaintiffs' showing of need for documents and make its decision regarding discovery. Kinoy v Mitchell (1975, SD NY)
67 FRD 1, 20 FR Serv 2d 1413.
In civil action brought against defendant insurance company to recover benefits under policy of accident insurance
issued by defendant whereby defendant undertook to pay plaintiff for accidental death of decedent, where plaintiff
sought discovery, through subpoena duces tecum, of photos of certain premises, including any and all other records
involving investigation of deceased, and where county sheriff asserted that documents and things requested in subpoena
were privileged as work product of continuing criminal investigation into circumstances surrounding deceased's death,
disclosure would not compromise state's ability to prosecute, and plaintiff would be entitled to discovery of her
statement to investigating officers and of photographs of deceased. Saad v Safeco Life Ins. Co. (1975, ND Ill) 68 FRD
248.
In action against government by woman who alleges she was raped by inmate at federal correctional institution while
visiting another inmate, plaintiff is entitled to discovery of prisoner's criminal record, whether he had been released
from custody and reincarcerated, and whether prisoner had been in solitary confinement, notwithstanding contention
that materials sought were privileged, where withholding of information will cripple plaintiff's case, and where possible
injury to prisoner resulting from disclosure of criminal record is remote, considering court's ability to forestall any
misuse of information. Christy v United States (1975, ND Tex) 68 FRD 375, 1 Fed Rules Evid Serv 67, 21 FR Serv 2d
209.
Government is not required to outline nature and scope of its criminal investigations merely to aid civil action
plaintiffs in planning their discovery responses. Founding Church of Scientology, Inc. v Director, Federal Bureau of
Investigation (1979, DC Dist Col) 27 FR Serv 2d 601.
Memoranda of interviews with FBI agents, concerning unauthorized investigative techniques, compiled by
Department of Justice investigating FBI is discoverable by plaintiffs into whose homes FBI gained entry; such
memoranda are not protected by attorney-client privilege nor by Privacy Act; informant's privilege cannot be invoked
by informer and context of case does not permit Fifth Amendment protection. Clavir v United States (1979, SD NY) 84
FRD 612.
Plaintiff in civil rights action against city and several of its police officers is entitled to discover supervisory
evaluations of officers where there is no assertion by defendants that files sought involve any ongoing police
investigations. Crawford v Dominic (1979, ED Pa) 469 F Supp 260, 27 FR Serv 2d 1072.
State and its criminal investigators are entitled to qualified privilege from discovery of information compiled during
ongoing criminal investigation. Jennings v Johnson (1979, ED Tenn) 480 F Supp 47.
So-called "G.O.-15" statements provided by members of New York City Police Department in connection with
investigation of beating by Civilian Complaint Review Board are not subject to discovery, notwithstanding that public
is damaged by any cover-up of police improprieties, where plaintiff's need for information is not substantial because it
has been given names of all officers whose statements are sought and they have been deposed or have agreed to be
deposed, where plaintiff's only need for statements is for use in cross-examination, and where transcripts sought have
been heavily edited and their use on cross-examination for impeachment purposes is questionable; Review Board's
release of entire file to Corporation Counsel, who used statements of non-officer witnesses for cross-examination
purposes in depositions connected to action, weakens force of City's claim that Police Department jealously guards
confidentiality of statements, but privilege has not been waived, since statements have not been released in any public
proceeding or to any private person. Brown v Matias (1984, SD NY) 102 FRD 580, 39 FR Serv 2d 1490.
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USCS Fed Rules Civ Proc R 26
Federal privilege for criminal investigative files generally provides for protection of files relating to ongoing
investigations, not to completed investigations. Cumis Ins. Soc. v South-Coast Bank (1985, ND Ind) 610 F Supp 193, 2
FR Serv 3d 105.
Party claiming privilege with respect to criminal investigative files must formally assert and delineate such privilege,
specifying which documents or class of documents are privileged and for what reasons, before duty of demanding party
to show his or her need for disclosure is triggered. Cumis Ins. Soc. v South-Coast Bank (1985, ND Ind) 610 F Supp
193, 2 FR Serv 3d 105.
FBI could not withhold identity of informant who took plaintiff's address book from his prison cell, copied it, and
gave copy to FBI, since avenue of discovery through state department of corrections would be effective mechanism to
uncover informant only if it was employee of that agency who was responsible, and if it was corrections officer who
improperly took address book from plaintiff's prison cell, no privilege would exist since corrections officer is not proper
subject of informant privilege. Wahad v FBI (1990, SD NY) 132 FRD 17.
Purposes of law enforcement privilege are to prevent disclosure of law enforcement techniques and procedures, to
preserve confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard privacy of
individuals involved in investigation, and otherwise to prevent interference with investigation; privilege is designed not
only to facilitate investigations, but also to protect individuals whose reputation may be damaged by disclosure of
investigative leads or statements from witnesses developed during investigation. National Congress for Puerto Rican
Rights ex rel. Perez v City of New York (2000, SD NY) 194 FRD 88.
Investigation need not be ongoing for law enforcement privilege to apply, as ability of law enforcement agency to
conduct future investigations may be seriously impaired if certain information is revealed. National Congress for Puerto
Rican Rights ex rel. Perez v City of New York (2000, SD NY) 194 FRD 88.
Arrestee's motion to compel production of police officers' personnel files, especially in regards to citizen complaints,
was granted because information was relevant to arrestee's claims against municipal defendants, and presumption
against invoking privilege in 42 USCS § 1983 case was unrebutted by city and police department, which failed to
enunciate specific harms flowing from information's disclosure. Floren v Whittington (2003, SD W Va) 217 FRD 389.
143. Securities Exchange Commission
Transcript of nonpublic SEC investigatory proceedings containing testimony by corporate president was privileged
only as to the government and not as to defendant corporation president in stockholders' action alleging violations of
federal securities laws. La Morte v Mansfield (1971, CA2) 438 F2d 448, CCH Fed Secur L Rep P 92935, 14 FR Serv
2d 1126.
Existence of qualified law-enforcement investigatory files privilege as to all of subpoenaed documents in connection
with investigation of activity in silver and silver-futures markets in 1979-80 by Commodity Futures Trading
Commission was not sufficiently established by Commission so as to support rejection of motion to compel compliance
with subpoenas. Friedman v Bache Halsey Stuart Shields, Inc. (1984, App DC) 238 US App DC 190, 738 F2d 1336,
CCH Fed Secur L Rep P 91563, 39 FR Serv 2d 764.
Material voluntarily disclosed to SEC by corporation in effort to forestall investigation is not later protected by
work-product privilege. In re Subpoenas Duces Tecum (1984, App DC) 238 US App DC 221, 738 F2d 1367, CCH Fed
Secur L Rep P 91566, 16 Fed Rules Evid Serv 165, 39 FR Serv 2d 611.
Where counsel for defendant indicated interest not in objective facts disclosed by investigation but in mental
processes of commission in arriving at its conclusions, production would be refused of investigation reports, letters,
reports of telephone conversations among staff members, intra-commission memoranda, and similar matters from
nonpublic files of the Securities and Exchange Commission. SEC v Shasta Minerals & Chemical Co. (1964, DC Utah)
36 FRD 23.
In action by Securities and Exchange Commission to enjoin defendants from violating Securities Act of 1933 in
connection with the offer, sale, and delivery of short-term promissory notes, order preventing taking of deposition of
SEC officer would be granted since it was not in the public interest to compel the government to disclose its prefatory
thinking as evidenced by intra-agency advisory opinions absent showing that production of such documents was
essential to the proper presentation of the movant's case, and where no showing was made that the kind of intimate
relationship between the information sought by the deposition and the proper presentation of its defense required a
setting aside of the executive privilege. Securities & Exchange Com. v Perera Co. (1969, SD NY) 47 FRD 535, CCH
Fed Secur L Rep P 92464.
Transcript of SEC investigation containing testimony of defendant corporation president being sued by plaintiff
stockholders in action alleging violation of anti-fraud provisions of federal securities acts was discoverable by plaintiff
for purpose of verifying deposition given later by defendant; transcript was not privileged by reason of confidentiality
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provisions of SEC regulations, since SEC secrecy provisions were for benefit of Commission and not plaintiff. Zients v
La Morte (1970, SD NY) 319 F Supp 956, CCH Fed Secur L Rep P 92822, 14 FR Serv 2d 871.
In action brought by Securities and Exchange Commission alleging trading based on inside information, defendants
are not entitled to discover documents containing internal memoranda of Commission's staff in discussing standards and
guidelines to be employed in dealing with corporate insiders; such documents are not discoverable because defendants
cannot show any pressing need which outweighs strong policy of privacy of governmental decision making and because
there is no necessity to probe decision and policymaking processes of Commission in order to determine
constitutionality of statutory provisions. Securities & Exchange Com. v Bausch & Lomb, Inc. (1974, SD NY) 19 FR
Serv 2d 332.
In securities fraud litigation where defendants sought discovery of certain Securities and Exchange Commission
documents to support their argument concerning defense that Commission violated its rules and procedures by failing to
advise defendants of potential liability and right to present views to Commission, documents were not discoverable
where they were protected from disclosure by reason of privilege for internal governmental memoranda containing
advice or opinions, and where defendants' needs were not overriding because none of requested documents were
relevant to intent behind unpublished directive from Commission to its supervisory staff, which rule formed a basis for
defendants' defense. SEC v National Student Marketing Corp. (1975, DC Dist Col) 68 FRD 157, CCH Fed Secur L
Rep P 95011, 20 FR Serv 2d 216, affd (1976) 176 US App DC 56, 538 F2d 404, 22 FR Serv 2d 335, cert den (1977) 429
US 1073, 50 L Ed 2d 790, 97 S Ct 809 and cert den (1977) 429 US 1073, 50 L Ed 2d 791, 97 S Ct 811.
SEC staff memorandum recommending enforcement action is protected against disclosure by attorney-client
privilege. SEC v World-Wide Coin Invest., Ltd. (1981, ND Ga) 92 FRD 65, CCH Fed Secur L Rep P 98336, 32 FR
Serv 2d 1401.
Plaintiffs' motion to compel Commodity Futures Trading Commission to produce documents relating to its
investigation of defendant's alleged co-conspirator was denied where Commission examined documents thoroughly and
made specific objections to their disclosure pursuant to Rule 26(b) and where plaintiffs made very weak showing of
need for documents. Collins v Shearson/American Express, Inc. (1986, DC Dist Col) 112 FRD 227.
Attorney-client privilege was waived as to information disclosed to Securities and Exchange Commission since,
where information has been voluntarily and selectively disclosed to SEC without steps to protect privileged nature of
such information, fairness requires finding that attorney-client privilege has been waived as to disclosed information
and all information on same subject. Fox v California Sierra Financial Services (1988, ND Cal) 120 FRD 520.
144. Taxation
In action for tax refund by taxpayer under investigation for tax fraud, taxpayer was not entitled to production of
agents' reports as to examination of his tax returns, in view of such elements against disclosure as fact that if discovery
were allowed it would give taxpayer possession of reports which would be denied him in criminal proceedings, and fact
that government was not claiming an absolute privilege against disclosure but was asking only for a reasonable delay
until the criminal charge was resolved. Campbell v Eastland (1962, CA5 Tex) 307 F2d 478, 62-2 USTC P 9637, 6 FR
Serv 2d 641, 10 AFTR 2d 5279, cert den (1963) 371 US 955, 9 L Ed 2d 502, 83 S Ct 502.
With respect to action brought under federal and state securities laws for alleged sales of securities and real estate by
improper, fraudulent, and unlawful means, where defendants sought vacating of District Court order requiring their
accountants to deliver to plaintiffs copies of income tax returns together with accounting materials prepared for use in
making returns, relief would not be granted where, contrary to contention of defendants, 26 USCS § 6103(a)(2) did not
make copies of tax returns privileged, where contentions of defendants that discovery of copies of tax returns violated
right of privacy and right to be free from unreasonable searches and seizures was unsupported by authority, and where
case was not unusual one in which court would consider reviewing decision on question of relevance by means of
extraordinary writ. Heathman v United States Dist. Court for Cent. Dist. (1974, CA9) 503 F2d 1032, 19 FR Serv 2d
157.
When considering taxpayer discovery requests, court must determine whether information sought is relevant to
issues in contention and should limit discovery to issues relevant to validity of summons. United States v Security
Bank & Trust Co. (1981, CA10 Okla) 661 F2d 847, 81-2 USTC P 9711, 32 FR Serv 2d 925, 48 AFTR 2d 81-5991.
The law prohibiting government officers and employees from disclosing income tax returns does not render copies of
such returns privileged so as to preclude their disclosure by the taxpayer in civil actions to which he is a party.
Connecticut Importing Co. v Continental Distilling Corp. (1940, DC Conn) 1 FRD 190.
Information obtained by internal revenue agent, not involving files made confidential by statute or regulations, is not
privileged. Brewer v Hassett (1942, DC Mass) 2 FRD 222, 42-1 USTC P 9280, 29 AFTR 647.
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In action for tax refund, defendant was required to produce revenue agents' reports of examination of plaintiffs'
income-tax returns, as against claim of "government files privilege" and that disclosure would enable plaintiffs to obtain
information intended for use in pending criminal action. Frazier v Phinney (1959, SD Tex) 24 FRD 406, 60-1 USTC P
9168, 2 FR Serv 2d 599, 5 AFTR 2d 424.
In suit by government to collect tax refund allegedly erroneously made, government was ordered to produce for
inspection and copying certain intra-office reports, memoranda, and other documents of the internal revenue service;
neither governmental or attorney-client privilege, nor the attorney's work-product doctrine are applicable. United
States v San Antonio Portland Cement Co. (1963, WD Tex) 33 FRD 513, 8 FR Serv 2d 34.42, Case 1, 12 AFTR 2d 5829.
United States, in action by taxpayer to recover alleged overpayment of internal revenue taxes, was required to
produce documents which presumably would disclose criteria upon which commissioner based claimed deficiency,
there being no absolute executive privilege from disclosure and qualified privilege was not applicable. Timken Roller
Bearing Co. v United States (1964, ND Ohio) 38 FRD 57, 66-1 USTC P 9151, 10 FR Serv 2d 933, 17 AFTR 2d 322.
Taxpayer seeks production of the documents in the Internal Revenue Service administrative file upon it and, since
there is a qualified right of nondisclosure in respect to interagency communication containing opinions, conclusions,
and reasonings reached by the government officials in connection with their official duties after examination of the
entire file in camera and considering the respective positions of the parties and the balancing of interests between them,
there should be a disclosure to taxpayer of all computations and facts revealed objectively in the file; court will specify
that portion of the file which need not be produced. Simons-Eastern Co. v United States (1972, ND Ga) 55 FRD 88, 16
FR Serv 2d 447.
On appeal from order compelling Internal Revenue Service (1) to state names and addresses of all taxpayers with
whom IRS had, during certain time, approved settlement allowing depreciation deductions of purchase price or other
cost of insurance accounts or expirations, (2) to produce all memoranda containing instructions to staff, statements of
policy and interpretations of policy in possession of IRS concerning depreciation allowances for cost of insurance
accounts or expirations, which included private letter rulings and technical advice memoranda, and (3) to permit
plaintiff or attorney to examine IRS index system on letter rulings and technical advice memoranda for any such
documents relating to depreciation issue, disclosure by defendant of name and address of only taxpayer whose claim
concerned depreciation deduction on expiration lists and whose claim was publicly settled by government was sufficient
to comply with first part of order, and copies of abstract and statement for each offer in compromise accepted by IRS
during particular time allowing depreciation deduction for purchase price of insurance accounts or expirations were to
be made available by defendant, if they existed, since such documents were matter of public record, but portions of
discovery order compelling defendant to produce private letter rulings, personal technical advice memoranda, and
examination of IRS index system would be reversed since there had been failure to show relevancy, materiality,
reasonable specificity, and no reasonable expectation that searching of such documents could be reasonably expected to
led to admissible evidence. Robins & Weill, Inc. v United States (1974, MD NC) 63 FRD 73, 19 FR Serv 2d 325.
As general rule, federal income tax returns are subject to discovery in civil suits where litigant tenders issue as to
amount of his income; federal returns are not absolutely privileged from discovery, but because they always have some
character of confidentiality, their production should not be routinely required, and despite such restricting principle,
showing of good cause for production of federal tax return is not required. Shaver v Yacht Outward Bound (1976, ND
Ill) 71 FRD 561, 22 FR Serv 2d 1440.
In Jones Act (46 USCS § 688) action brought to recover for suffering and death of husband who was drowned while
serving aboard yacht, federal income tax returns of defendant individual for three years were subject to discovery, even
though such defendant's income was not directly in issue, where critical question was whether at time husband was
drowned yacht of defendant was being used for business purpose or for pleasure voyage and extent to which vessel had
been used for business purposes could be revealed by business deductions shown on federal tax returns. Shaver v
Yacht Outward Bound (1976, ND Ill) 71 FRD 561, 22 FR Serv 2d 1440.
Plaintiff in tort action against Internal Revenue Service alleging that he was selected for audits not because of
legitimate tax collection motive but because of his political activities and beliefs as reflected in Special Service Staff file
kept on him is allowed only such discovery relevant to issue of whether that file triggered contested audits. Miller v
Alexander (1977, DC Dist Col) 25 FR Serv 2d 1040.
In action brought to recover proceeds from various insurance policies covering certain horses and for alleged slander
of plaintiff by insurance agent, production of tax returns of plaintiff were subject to discovery and not privileged, where
plaintiff alleged serious damage by slanderous statements to his person and his business entitling him to judgment
against defendants for damages, thus making his income issue in litigation and legitimate subject of inquiry. Biliske v
American Live Stock Ins. Co. (1977, WD Okla) 73 FRD 124, 24 FR Serv 2d 691.
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USCS Fed Rules Civ Proc R 26
In action for refund of federal income taxes challenging reallocation of income and for assessment of taxes for
transfer of overseas branches of plaintiff to its parent bank in which applicability of relevant Internal Revenue Service
regulations are not clear on their face, historical files of treasury regulations relating to factual bases, intended scope,
and interpretation of relevant regulations do not seem to fall within category of intra-agency deliberations afforded
protection from discovery and even if materials sought could be characterized as privileged communications, need to
protect decision-making process of Internal Revenue Service may be overridden by policy favoring broad discovery,
together with particularized need of plaintiff. Bank of America v United States (1978, ND Cal) 25 FR Serv 2d 1297.
Although tax returns are not privileged, sound public policy considerations militate against their unnecessary
disclosure, and where relevant information can be obtained from alternative sources and where plaintiff has not made
issue of amount of his past income, there is no need to require plaintiff to disclose fully contents of his past income tax
returns. Maldonado v St. Croix Discount, Inc. (1978, DC VI) 77 FRD 501, 26 FR Serv 2d 131.
Disclosure of tax returns should not be ordered routinely when information sought is available from other less
intrusive sources and there is no allegation that information supplied by plaintiff contains "many irregularities and
inconsistencies;" defendant in antitrust action seeking damages representing lost income and profits resulting from
defendant's allegedly illegal activities is not entitled to discover plaintiff's tax returns where plaintiff has provided
information detailing net sales, gross profit on sales, net income before taxes, and net income retained. Feld & Sons,
Inc. v Pierre Cardin (1979, ED Pa) 27 FR Serv 2d 1054.
145. Veterans Administration
Administratrix of decedent who committed suicide by immolating himself in veterans hospital seeks discovery and
production of report of board of inquiry of the Veterans Administration, report of the director of the hospital and
statements obtained by members of the board of inquiry from various named personnel; reports of the board of inquiry
and the director should not be available to the plaintiff, but held confidential because it is essential to continued
improvement and care in the care and treatment of patients; however, the factual statements made by witnesses should
be made available and portions of such statements which are directed to suggestions or comments on future hospital
procedure should be deleted. Gillman v United States (1971, DC NY) 53 FRD 316, 15 FR Serv 2d 962.
In action brought by United States to recover on fire insurance policy issued by defendant insurer, where plaintiff
asserts that Postal Inspection and Secret Service files are privileged as investigatory records compiled for law
enforcement purposes, claim of privilege must be sustained unless litigants need for such kind of information outweighs
government's need for secrecy. United States v Illinois Fair Plan Asso. (1975, ND Ill) 67 FRD 659, 20 FR Serv 2d
1410.
Memorandum from Chairman of Board of Investigation of Veterans Administration addressed to VA Medical Center
Director concerning surgery which was performed as well as conclusions of committee as to where responsibilities lay
was confidential and not subject to disclosure in medical malpractice action since 38 USCS § 3305 established
confidentiality of Veterans Administration documents as part of medical quality assurance program and made no
exception for disclosure in action for medical malpractice. Utterback v United States (1987, WD Ky) 121 FRD 297.
146. Others
Where the government is a defendant, matters involving its regulatory function are not subject to blanket
examinations; facts found by Coast Guard investigating officer are available to the adversary under general principles of
discovery, but his opinions and recommendations are not. Reliable Transfer Co. v United States (1971, ED NY) 53
FRD 24, 15 FR Serv 2d 189.
Privilege traditionally given to agency decision makers is outweighed by need for information sought in action to
discover and prove, through testimony of agency decision makers, purpose and interpretation of term "transaction" in
Federal Energy Administration Petroleum Price Regulations where only means by which court may review challenged
FEA Ruling 1977-5 and its relationship to original Cost of Living Council Regulation (10212.31) is through testimony
of agency officials responsible for formulating and interpreting regulation at issue; 10202.21 et seq., based on 5 USCS §
301, does not apply to former employees of government agencies and departments and does not preclude their
testimony. Gulf Oil Corp. v Schlesinger (1979, ED Pa) 465 F Supp 913, 26 FR Serv 2d 1283.
Records and information of Commissioner of Savings and Loans gathered in course of official examination are
privileged under state law; materials gathered "in course of examination", include materials produced in activities
before, during and after actual inspection of records which relate to statutory examination duties of Commissioner.
National Sav. & Loan Asso. v St. Paul Fire & Marine Ins. Co. (1981, ED Wis) 515 F Supp 12, 31 FR Serv 2d 1223.
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USCS Fed Rules Civ Proc R 26
Privilege against discovery afforded to Government agencies does not extend to statements given to National
Association of Securities Dealers by its members during course of investigation into activities of one of its members.
Ross v Bolton (1984, SD NY) 106 FRD 315, 40 FR Serv 2d 1410.
District Court properly denies motion to compel officer of Federal Land Bank and Federal Intermediate Credit Bank
to produce documents relating to reviews, audits, examinations, and investigations of defendant, since federal
regulations establish privilege against discovery of contents of such records. Huey v Deloitte, Haskins & Sells (1985,
WD Ky) 107 FRD 623, 3 FR Serv 3d 721.
In action by alien seeking judicial review of government's decision denying his application for adjustment of status to
that of lawful permanent resident, probable cause was established for discovery of documents upon which government
relied in reaching decision that alien was excludible as person whom it believed would engage in activities prejudicial to
public interest, welfare, safety, or security, where decision was based on documents withheld from alien on ground that
they were classified and which alien had no opportunity to rebut, and government made only bare assertion that
documents were classified without affidavits explaining basis for determination and without applying for protective
order. Naji v Nelson (1986, ND Ill) 113 FRD 548.
Amtrak employee suing for personal injuries sustained on job was not entitled to discovery of portions of Amtrak
accident report entitled "Accident Analysis" and "Committee Recommendations" because, under critical self-analysis
doctrine, production of those portions would hamper candid self-evaluation geared toward prevention of future
accidents, but was entitled to discovery of those portions entitled "Cause" and "Contributing Factors" since these related
to heart of accident in question. Granger v National R. Passenger Corp. (1987, ED Pa) 116 FRD 507, 8 FR Serv 3d
746.
Resolution Trust Corporation could not seek declaration that it complied with federal statutory requirements when it
adopted its policy statement concerning disposition of residential units and at same time be allowed to shield from
discovery huge bulk of information it considered or failed to consider before adopting policy statement. Resolution
Trust Corp. v Diamond (1991, SD NY) 137 FRD 634.
Defendant airlines in anti-trust litigation would be required to disclose all government documents relevant to civil
investigative demand interrogatories and defendants' answers to them; relevant statute restricted disclosure only by
officer to whom report is made, hence "required-reports" doctrine would not protect them from discovery. In re
Domestic Air Transp. Antitrust Litigation (1992, ND Ga) 141 FRD 556, 1992-1 CCH Trade Cases P 69732, 35 Fed
Rules Evid Serv 207.
Report containing facts known and opinions held by expert retained by government's counsel for purpose of
examining certain alleged gambling machines seized as part of inventory of piece of real property which was subject to
instant forfeiture action was not protected by deliberative process privilege since report made no recommendations nor
expressed any opinion on legal or policy matters and nothing in it shed any light on why government chose to initiate
civil forfeiture actions. United States v Real Property Known & Numbered as 2847 Chartiers Ave. (1992, WD Pa) 142
FRD 431.
To extent inmate in civil rights action sought discovery of factual statements concerning underlying incident,
governmental privilege did not protect prison's internal investigation files. Castle v Jallah (1992, ED Va) 142 FRD
618.
Resolution Trust Corporation documents bearing directly on its allegation that project in question was total loss were
discoverable and RTC could redact any privileged portion. Resolution Trust Corp. v Bright (1994, ND Tex) 157 FRD
397 (criticized in FDIC v Schreiner (1995, WD Tex) 892 F Supp 848).
Under FRCP 26(b)(2), public interest group was entitled to redepose Department of Commerce officials in
freedom-of-information action, where officials' own behavior necessitated second round of depositions, but second
depositions would be limited to information discoverable in context of unlawful destruction or removal of documents.
Judicial Watch, Inc. v United States DOC (1998, DC Dist Col) 34 F Supp 2d 47.
Where plaintiff corporation has moved for access to confidential business information in administrative record which
is under judicial review in action, it is appropriate for court to order that such information be accessible in its entirety to
plaintiff's retained counsel on terms which insure its security if such material is necessary for proper prosecution of
action, but that additional increment of benefit which plaintiff might receive from access to information by its corporate
counsel is not sufficient to overcome dangers of inadvertent disclosure. Bethlehem Steel Corp. v United States (1983) 6
CIT 194, 585 F Supp 636.
4. Statements or Identity of Informers
a. In General
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USCS Fed Rules Civ Proc R 26
147. Generally
The informer's privilege is established in law of evidence, and it will in appropriate circumstances and on broad
grounds of public policy entitle the government, in a civil action, to refuse to produce statements taken from its
informers. Mitchell v Bass (1958, CA8 Ark) 252 F2d 513, 34 CCH LC P 71318; Walling v Richmond Screw Anchor
Co. (1943, DC NY) 4 FRD 265; United States v Lorain Journal Co. (1950, DC Ohio) 10 FRD 487; Durkin v Pet Milk
Co. (1953, DC Ark) 14 FRD 385.
Informer's privilege will ordinarily be held applicable to preclude pretrial discovery of informer's communications or
statements, or contents thereof, in civil action in federal court. Campbell v Eastland (1962, CA5 Tex) 307 F2d 478,
62-2 USTC P 9637, 6 FR Serv 2d 641, 10 AFTR 2d 5279, cert den (1963) 371 US 955, 9 L Ed 2d 502, 83 S Ct 502;
Timken Roller Bearing Co. v United States (1964, ND Ohio) 38 FRD 57, 66-1 USTC P 9151, 10 FR Serv 2d 933, 17
AFTR 2d 322; Shultz v Farino Excavating Co. (1972, ED Mich) 55 FRD 346, 15 FR Serv 2d 1428.
Even apart from informer's privilege, the government in civil proceedings may not be compelled to disclose names of
its witnesses as part of the discovery process long before trial, as distinguished from such disclosure at or after a pretrial
hearing. Wirtz v B. A. C. Steel Products, Inc. (1962, CA4 SC) 312 F2d 14, 46 CCH LC P 31371, 6 FR Serv 2d 722;
Wirtz v Continental Finance & Loan Co. (1964, CA5 Ga) 326 F2d 561, 48 CCH LC P 31521, 8 FR Serv 2d 33.316,
Case 1.
There is privilege in Fair Labor Standards Act enforcement actions, frequently referred to as an "informer's
privilege," which permits the Secretary of Labor to withhold names of people who have given statements as well as
statements themselves, and rationale behind privilege is that enforcement of Act is highly dependent on co-operation of,
and statements given by, employees. Brennan v Engineered Products, Inc. (1974, CA8 Mo) 506 F2d 299, 9 BNA FEP
Cas 987, 8 CCH EPD P 9781, 75 CCH LC P 33164, 19 FR Serv 2d 433.
Written statements taken from present or former employees of defendant and memoranda of interviews with them
came under informer's privilege. Wirtz v Security Nat'l Bank (1968, ND Iowa) 288 F Supp 91, 12 FR Serv 2d 882.
Essence of protection under informer's privilege is nondisclosure of identity of an informer, not the contents of his
communication. United States v Julius Doochin Enterprises, Inc. (1973, MD Tenn) 370 F Supp 942, 75 CCH LC P
33163.
Plaintiff need not disclose to defendant names or statements of persons who are interviewed by plaintiff or his agents
where plaintiff has provided to defendants names and addresses of all persons who have knowledge of facts of the case
but asserts "informer's privilege" with regard to specific interrogatories seeking names and actual statements of those
who provided information to plaintiff. Marshall v Sunshine & Leisure, Inc. (1980, MD Fla) 496 F Supp 354, 25 BNA
WH Cas 80, 89 CCH LC P 33934, 7 Fed Rules Evid Serv 1638, 31 FR Serv 2d 765.
Informer's privilege is applicable in civil as well as in criminal litigation, although its strength is greater in former.
Michelson v Daly (1984, ND NY) 590 F Supp 261, 16 Fed Rules Evid Serv 866, 40 FR Serv 2d 620, dismd without op
(1985, CA2 NY) 755 F2d 913.
Decision whether or not to require disclosure of confidential informant lies within sound discretion of district court.
United States v Brown (1998, WD Va) 178 FRD 88.
Purpose of informer's privilege, which is actually prosecutor's privilege to withhold disclosure of identity of persons
who supply law enforcement officers with information concerning violations of law, is to further and protect public
interest in effective law enforcement; privilege recognizes citizen's duty to communicate knowledge of commission of
crime to proper authorities and that performance of that duty is encouraged by not disclosing identity of informer. James
v Tilghman (1999, DC Conn) 194 FRD 398.
148. Limitations on, and loss of, privilege
The informer's privilege does not preclude an order to produce informer's statements after the identity of the informer
has been voluntarily disclosed by the party asserting the privilege. Mitchell v Bass (1958, CA8 Ark) 252 F2d 513, 34
CCH LC P 71318; Tobin v Gibe (1952, DC Del) 13 FRD 16, 22 CCH LC P 67106; Durkin v Pet Milk Co. (1953, DC
Ark) 14 FRD 385.
Names of informers and contents of informers' reports are privileged and such privilege need give way only when
relevant or helpful to the defense of an accused. Mitchell v Roma (1959, CA3 Pa) 265 F2d 633, 36 CCH LC P 65361,
2 FR Serv 2d 513.
Government's assertion of privilege in opposition to defendants' motions for production of informers' statements in
form of answers to government questionnaire which had been sent to defendants' former dealers is upheld; fact some of
the former dealers who had answered the questionnaire might be called as witnesses and thus be required to publicly
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USCS Fed Rules Civ Proc R 26
divulge in substance all or a part of the information imparted in their answers did not mean that the privilege was
waived insofar as discovery was concerned. United States v Deere & Co. (1949, DC Minn) 9 FRD 523.
Only the informer's identity is protected by the informer's privilege, and once his identity is disclosed that privilege is
not preserved as to the content of his communication. Henrik Mannerfrid, Inc. v Teegarden (1959, SD NY) 23 FRD
173, 2 FR Serv 2d 593.
Court sustained government's objections to interrogatories calling for identity of informers who might have furnished
government with information relating to charges asserted against defendants, except as to names and locations of such
informers, if any, who were to be used by government as witnesses in the proceeding. United States v First Nat'l Bank
& Trust Co. (1961, ED Ky) 4 FR Serv 2d 543.
Government's objection to interrogatories on the ground of informer privilege was sustained, except as to those
persons whom the government would use as witnesses in action, if information sought would lead directly or indirectly
to the identity of the informer. United States v Grinnell Corp. (1962, DC RI) 30 FRD 358, 5 FR Serv 2d 564.
Informer's privilege is not applicable where either identity of the person giving the information has already been
disclosed or he is to be called as a witness by government at the trial. United States v Julius Doochin Enterprises, Inc.
(1973, MD Tenn) 370 F Supp 942, 75 CCH LC P 33163.
Informant privilege applies only to identity of informant and where disclosure of communication will not reveal
identity of informer, contents of communication are not privileged; also if identity of informant is revealed, privilege is
destroyed; such privilege may be overcome where informant's identity or communications are relevant and helpful to
defense or essential to fair determination of cause of action. United States v Capitol Service, Inc. (1981, ED Wis) 89
FRD 578, 1981-1 CCH Trade Cases P 63972.
Informants' privilege is not absolute, and it protects identity of individuals only when their identity is unknown;
courts must weigh informants' privilege against significance of information sought and overall importance of litigation.
Dowd v Calabrese (1984, DC Dist Col) 101 FRD 427.
In civil action against United States for review of decision of Food and Nutrition Service withdrawing plaintiff's
authorization to participate in Federal Food Stamp Program, plaintiff is entitled to discovery of identity of private
citizens who purchased ineligible items with food stamps in plaintiff's store in order that plaintiff may adequately
prepare his case and respond to defendant's requests for admissions. Han v Food & Nutrition Serv. of United States
Dep't of Agric. (1984, DC NJ) 580 F Supp 1564, 39 FR Serv 2d 318.
Burden is on party seeking discovery to demonstrate that its need for information outweighs government's claim of
privilege with respect to identity of informer; privilege will be unavailing where disclosure would be relevant and
helpful to accused in criminal case, and it will also yield when it is essential to fair determination of issues in civil
action. Michelson v Daly (1984, ND NY) 590 F Supp 261, 16 Fed Rules Evid Serv 866, 40 FR Serv 2d 620, dismd
without op (1985, CA2 NY) 755 F2d 913.
b. Availability of Privilege in Particular Cases
149. Antitrust
In antitrust actions the government is protected by informer's privilege from identifying informers or producing their
statements at discovery stages of the proceedings, even though some of the informers might be later used as witnesses at
the trial. United States v Lorain Journal Co. (1950, DC Ohio) 10 FRD 487; United States v Kelsey-Hayes Wheel Co.
(1954, DC Mich) 15 FRD 461.
In a suit wherein the government alleged that defendants had conspired to monopolize the legitimate theater industry
in violation of the Sherman Antitrust Act, government need not disclose documents which would reveal the identity of
informants "and which are not to be offered by the government at the trial," but various information sought by
defendants through interrogatories, relating to identity of persons allegedly harassed or forced out of business by
defendants must be furnished if such persons will be witnesses for government at trial or if government intends to offer
evidence as to their experiences at trial. United States v Shubert (1951, DC NY) 11 FRD 528.
Government, in civil antitrust action, is required to answer certain interrogatories submitted by defendants, including
those seeking identification of documents, names and addresses of persons having knowledge of certain relevant facts,
and identification of coconspirators who were not made defendants; however, qualification is to be applied to each
direction "to which it is appropriate," namely, that government need not disclose identity of persons who furnished
information of violations of law to officers charged with enforcement of the law, except in cases where the government
would call such persons as witnesses. United States v Renault, Inc. (1960, SD NY) 27 FRD 23, 3 FR Serv 2d 571.
In civil antitrust action where the government asserts informer's privilege as to certain (undescribed) interrogatories
submitted by defendants, objections to interrogatories will be sustained--except as to those persons whom the
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USCS Fed Rules Civ Proc R 26
government would use as witnesses in the proceeding--if the information sought would lead directly or indirectly to the
identity of an informer; however, objections will be overruled as to those persons whom the government plans to call as
witnesses, since court has right to reject any or all testimony offered at trial in which it finds that government exceeded
proper limits in claiming informer's privilege. United States v Grinnell Corp. (1962, DC RI) 30 FRD 358, 5 FR Serv
2d 564.
Where defendant's interrogatories sought identification of persons who had submitted information to, or been
interviewed by, the government with regard to matters involved in the antitrust action, the government was ordered to
answer only as to those persons whom it intended to call as witnesses at the trial, the assertion of the informer's
privilege being otherwise sustained. United States v Aluminium, Ltd. (1966, DC NJ) 268 F Supp 758, 1967 CCH Trade
Cases P 72196, 11 FR Serv 2d 829.
150. Labor
In action to enjoin violations of the Fair Labor Standards Act [29 USCS § § 201 et seq.], government was not
required to disclose names of informers who had reported the violations. Wirtz v Continental Finance & Loan Co.
(1964, CA5 Ga) 326 F2d 561, 48 CCH LC P 31521, 8 FR Serv 2d 33.316, Case 1.
Informer's privilege does not preclude discovery of pretrial statements of expected witnesses for National Labor
Relations Board in contempt proceedings against an employer. NLRB v Schill Steel Products, Inc. (1969, CA5) 408
F2d 803, 70 BNA LRRM 2778, 70 BNA LRRM 3280, 59 CCH LC P 13298, 59 CCH LC P 13382, 4 ALR Fed 483.
Secretary of Labor was entitled to assert informer's privilege and refuse to produce certain statements taken from
both former and present employees of employer charged with minimum-wage, overtime, and recordkeeping provisions
of Fair Labor Standards Act where danger of disclosure and reprisal existed and Secretary's answers to interrogatories
had given defendant all information reasonably needed to prepare defense, and where dispute concerned facts as much
within knowledge of defendant as its employees. Hodgson v Charles Martin Inspectors of Petroleum, Inc. (1972, CA5
Tex) 459 F2d 303, 15 FR Serv 2d 1487.
Secretary of Labor was entitled to assert informer's privilege, in suit for violation of Fair Labor Standards Act, to
refuse to produce certain statements taken from employer's former employees who were still subject to retaliation in that
employees' efforts to find new jobs could be handicapped if former employer should brand them as "informers" when
references are sought; former employee may be subjected to retaliation by new employer if that employer finds out that
employee has in past co-operated with Secretary, and former employee might find it desirable or necessary to seek
reemployment with original employer and would then stand same risk of retaliation as present employee. Hodgson v
Charles Martin Inspectors of Petroleum, Inc. (1972, CA5 Tex) 459 F2d 303, 15 FR Serv 2d 1487.
In an action by the government for violations of the Fair Labor Standards Act [29 USCS § § 201 et seq.], the names
of employees alleged to have been paid substandard wages are not privileged. Fleming v Enterprise Box Co. (1940,
DC Fla) 36 F Supp 606, 3 CCH LC P 60040; Fleming v Bernardi (1941, DC Ohio) 1 FRD 624.
Where defendant, Secretary of Labor, failed to make timely, formal assertion of informer's privilege, it was not
available to him, and since due to his delay in complying with certain orders and his failure to answer interrogatories
promptly, plaintiff would have been unable to complete discovery within the time limit set by the court and had been
hindered in obtaining statements from possible witnesses, court ordered defendant to produce written statements of such
witnesses sought by plaintiff, but defendant could delete therefrom names of the persons giving them. Fowler v Wirtz
(1963, SD Fla) 34 FRD 20, 50 CCH LC P 19236, 8 FR Serv 2d 34.42, Case 2.
In action by Secretary of Labor seeking to enjoin defendant from violating equal pay provisions of Fair Labor
Standards Act, government agent is not required to answer questions at deposition which were aimed solely at
discovering identity of employees who supplied information because government has privilege of maintaining
anonymity of informers to further effective enforcement. Carlson v National Biscuit Co. (1968, ND Ill) 12 FR Serv 2d
711.
Employer cannot by use of discovery obtain names of its employees who have given information or written
statements to Secretary of Labor of alleged violations of Fair Labor Standards Act in view of informer's privilege.
Shultz v Farino Excavating Co. (1972, ED Mich) 55 FRD 346, 15 FR Serv 2d 1428.
"Informer's privilege" in Fair Labor Standards Act (29 USCS § § 201 et seq.) enforcement action which permits
plaintiff to withhold names of those who have given statements to Department of Labor is widely recognized; defendant
employer is not entitled to discovery of documents showing names and addresses of domestic workers who might have
complained to plaintiff Secretary of Department of Labor of alleged violations. Marshall v Domestic Employment
Service, Inc. (1977, WD Mo) 26 FR Serv 2d 1027.
Pursuant to privilege for communications by informers to government, defendant in Fair Labor Standards Act case is
not entitled to order directing Secretary of Labor to produce names, addresses, and statements of defendant's present and
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former employees that Secretary expects to call as witnesses; nor is it entitled to order directing Secretary to produce all
documents relating to investigation of defendant's present and former employees. Secretary of Labor v Superior Care,
Inc. (1985, ED NY) 107 FRD 395, 27 BNA WH Cas 671, 105 CCH LC P 34839, 3 FR Serv 3d 13.
Informant's privilege protected OSHA documents regarding investigation of workplace fire that killed employee
from discovery by manufacturer of products installed at workplace which were alleged cause of fire; manufacturer
could obtain same type of information from other readily available witnesses and sources. Culinary Foods v Raychem
Corp. (1993, ND Ill) 150 FRD 122.
151. Miscellaneous
Police officer sued for shooting burglar was not required to provide informer's identity since informant was neither
witness to nor active participant in conduct which gave rise to civil action and burglar failed to make compelling
demonstration that informant's name was relevant to outcome of his civil rights action. Holman v Cayce (1989, CA6
Tenn) 873 F2d 944, 27 Fed Rules Evid Serv 999.
In an action to revoke defendant's citizenship and to cancel his certificate of naturalization on basis of membership in
Communist Party, defendant submitted interrogatories seeking names and addresses of witnesses who would testify for
the government as to allegedly fraudulently procured naturalization certificate of the defendant and as to his alleged
membership in the Communist Party; government's motion in effect excepting to interrogatories is granted where
motion was supported by affidavit stating that majority of the witnesses would be persons who were confidential
informants to the government and who might be submitted to considerable economic and other pressures to persuade
them not to testify. United States v Matles (1956, DC NY) 19 FRD 319.
In action by government to enjoin alleged violations of Longshoremen's and Harbor Workers' Compensation Act,
objection to interrogatories of defendant seeking names of all persons interviewed by government's investigator and
names of persons from whom written statements were taken was, in view of so-called "informer's privilege," sustained,
without prejudice to defendant's right to submit narrower interrogatories based upon a showing of substantial need.
United States v Maryland Shipbuilding & Drydock Co. (1970, DC Md) 51 FRD 159, 14 FR Serv 2d 876.
In action to recover agreed upon compensation for sale of business, defendant is required to disclose letter in which
he brought to attention of Judge Advocate General that bribery on large scale had been one of techniques heavily relied
upon by business; defendant's reliance on informer's privilege to avoid disclosure is misplaced, because privilege is no
longer applicable once identity of informer has been disclosed to those who would have cause to resent communication
and because privilege belongs to law enforcement officials rather than to informer. Tepfer v Susquehanna Corp. (1971,
ED NY) 15 FR Serv 2d 509.
In actions against FBI agents and others in which plaintiffs allege violations of constitutional rights stemming from
their arrest, detention, and prosecution and from search of apartment and seizure of certain items located there, court
must, in considering defendant's motion for protective order directing that no party or witness disclose identity of
confidential informant, take into account Government's contention that safety of informant, public interest in
confidentiality, needs of effective law enforcement, and plaintiffs' lack of need for information outweigh any
considerations militating in favor of disclosure; also to be weighed are countervailing arguments of plaintiffs that
disclosure is essential to establish that defendants lacked probable cause to believe that there were armaments in
apartment, that search warrant application contained false and fraudulent statements, and that defendants distributed
untrue and unfounded information relating to planned violence. Michelson v Daly (1984, ND NY) 590 F Supp 261, 16
Fed Rules Evid Serv 866, 40 FR Serv 2d 620, dismd without op (1985, CA2 NY) 755 F2d 913.
In antitrust case alleging bid rigging on construction contracts, defendants were entitled to discovery regarding what
Attorney General knew during relevant time period since by pleading fraudulent concealment in order to defeat statute
of limitations, state placed in issue question of when Attorney General acquired actual knowledge of state's claims, and
state failed to provide adequate support for its assertion of informer's privilege and affirmatively misrepresented facts
regarding crucial factor of assurances of confidentiality. New York v Cedar Park Concrete Corp. (1990, SD NY) 130
FRD 16.
Special prosecutor's motion to compel investigative reporter to answer questions posed to him at deposition
concerning his source for videotape that was subject of protective order was granted where identity of reporter's source
was clearly relevant to special prosecutor's good faith criminal investigation into violation of protective order, special
prosecutor demonstrated compelling need for information in that information sought would provide only means for
determining who, if anyone, should be charged with criminal contempt, and there was strong public interest in seeing
that court orders were enforced and that criminal acts that threatened to compromise grand jury investigations and to
deprive defendants of their constitutional right to fair trial were punished. In re Special Proceedings (2003, DC RI) 291
F Supp 2d 44, 32 Media L R 1075.
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5. Privilege Against Self-Incrimination
152. Generally
The right to assert one's privilege against self-incrimination does not depend upon likelihood, but upon possibility of
prosecution. In re Master Key Litigation (1974, CA9 Cal) 507 F2d 292, 1974-2 CCH Trade Cases P 75395.
Granting defendants' motion to compel discovery in no way strips plaintiff in civil rights action of his privilege
against self-incrimination, but rather is merely requiring him to make choice: he must either answer questions posed to
him in deposition or, by invoking his Fifth Amendment privilege, subject himself to all appropriate sanctions short of
contempt; although Fifth Amendment privilege against self-incrimination is applicable to civil proceedings, that
privilege cannot be used by plaintiff as offensive weapon to frustrate defendants' efforts to defend charges brought
against them. Tomko v Lees (1977, WD Pa) 24 FR Serv 2d 407.
153. Corporations and corporate personnel
Corporation cannot refuse to answer interrogatories on any claimed ground of privilege against self-incrimination,
since such privilege is a personal one and cannot be asserted by a corporation. United States v 42 Jars (1959, CA3 NJ)
264 F2d 666, 1 FR Serv 2d 537; United States v 3963 Bottles, etc. (1959, CA7 Ill) 265 F2d 332, 2 FR Serv 2d 503, cert
den (1959) 360 US 931, 3 L Ed 2d 1544, 79 S Ct 1448.
Only in extreme cases, where no corporate agent can answer propounded interrogatories without being subject to real
and appreciable risk of self-incrimination, should protective order, pursuant to Rule 26(c), be issued. General
Dynamics Corp. v Selb Mfg. Co. (1973, CA8 Mo) 481 F2d 1204, 17 FR Serv 2d 1221, cert den (1974) 414 US 1162, 39
L Ed 2d 116, 94 S Ct 926.
In antitrust action brought against four manufacturers of contract hardware, wherein it was alleged that defendants
illegally conspired to fix prices at inflated levels, District Court's order denying motion to compel testimony of national
sales manager and vice-president of sales for division of one of defendants, which motion had been made when
individual refused, on grounds of self-incrimination, to answer questions upon oral deposition, would be affirmed,
where testimony sought, dealing with individual's knowledge and intent and with specific instances of attempted
restraint on competition, could provide link in chain of evidence needed in subsequent prosecution, and where
individual had not received grant of immunity or even informal assurances that he would not be prosecuted by federal or
state governments. In re Master Key Litigation (1974, CA9 Cal) 507 F2d 292, 1974-2 CCH Trade Cases P 75395.
Where plaintiffs filed motion for order to stay taking by defendants a deposition of vice president of one of plaintiff
corporations on grounds vice president was under indictment and to require him to appear for depositions at time would
be oppressive and violate privilege against self-incrimination, court ordered that defendants be permitted to complete
discovery by examination of books and records and interrogation of any of corporation's officers, agents, or employees
other than vice president, then plaintiffs could go forward and conduct their discovery, and after that was completed
defendants could interrogate vice president even if criminal trial had not been held by time plaintiffs had completed
their discovery, since corporation could not claim privilege of Fifth Amendment for self and, while anxiety of defendant
facing criminal trial did not rise to legally adequate plea, it was element which could be taken into consideration in
arranging timetable of depositions among parties. Kaeppler v Jas. H. Matthews & Co. (1961, ED Pa) 200 F Supp 229,
5 FR Serv 2d 492.
154. Waiver or loss of privilege
A plaintiff may not refuse to submit to a discovery proceeding by asserting a Fifth Amendment privilege against any
interrogation and them demand that he nevertheless be permitted to continue with the lawsuit. Lyons v Johnson (1969,
CA9 Cal) 415 F2d 540, 13 FR Serv 2d 774, cert den (1970) 397 US 1027, 25 L Ed 2d 538, 90 S Ct 1273.
Whatever may be rule with respect to waiver of privilege against self-incrimination by criminal defendant who elects
to take stand in his own behalf, ordinary witness may pick point beyond which he will not go and refuse to answer any
questions about matter already discussed, even if facts already revealed are incriminating, as long as answers sought
may tend to further incriminate him. In re Master Key Litigation (1974, CA9 Cal) 507 F2d 292, 1974-2 CCH Trade
Cases P 75395.
Where government moved for order compelling claimant in action charging misbranding of drugs to answer
interrogatories which claimant had refused to answer as privileged under Fifth Amendment, assertion of affirmative
defense by claimant did not waive right to refuse to answer interrogatories on grounds of constitutional privilege.
United States v 47 Bottles, More or Less (1960, DC NJ) 26 FRD 4, 3 FR Serv 2d 580.
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USCS Fed Rules Civ Proc R 26
Government was not entitled to depositions which were subject of pretrial protective order in prior civil action to aid
its criminal investigation of three deponents who gave their testimony in reliance upon confidentiality of discovery and
who could not be said to have foregone exercise of their Fifth Amendment privilege when assertion of privilege was
unnecessary. Martindell v International Tel. & Tel. Corp. (1978, SD NY) 25 FR Serv 2d 1283.
Plaintiff who is voluntarily using court process to assert securities fraud against defendant cannot use Fifth
Amendment privilege to bar defendants from access to evidence relevant to their defense. Sindona v Tisch (1979, SD
NY) CCH Fed Secur L Rep P 96839, 27 FR Serv 2d 404, affd without op (1979, CA2 NY) 610 F2d 807, cert den
(1980) 446 US 909, 64 L Ed 2d 262, 100 S Ct 1837.
Once incriminating facts have been voluntarily revealed, privilege cannot be invoked to avoid disclosure of detail;
however, witness may refuse to answer any questions about matter already discussed, even if facts already revealed are
incriminating, as long as answers sought may tend to further incriminate him. Usery v Brandel (1980, WD Mich) 87
FRD 670, 91 CCH LC P 33991, 30 FR Serv 2d 1537.
155. Miscellaneous
Defendant in libel action, who has been precluded from discovery of potentially incriminating matters while plaintiff
faces possibility of criminal indictment, is not precluded from discovery of other matters nor precluded from proceeding
to trial without discovery where invocation of Fifth Amendment by defendant would be subject to adverse inference by
trier of fact. Wehling v Columbia Broadcasting System (1980, CA5 Tex) 611 F2d 1026, 5 Media L R 2468, 5 Fed Rules
Evid Serv 861, 28 FR Serv 2d 1215.
Defendant's objections to interrogatories filed by plaintiff in action seeking to recover gambling losses under a
Kentucky statute, on ground that his answers would tend to incriminate him, were upheld where statute granted no
immunity to defendant. Hope v Burns (1947, DC Ky) 6 FRD 556.
Notice by plaintiff in civil action brought to recover statutory penalty of $ 5,000 under Wool Products Labelling Act
that plaintiff would take defendants' oral depositions is vacated since defendants cannot be compelled to testify against
themselves in suit to recover penalty or forfeiture which is quasi-criminal in nature. United States v Fishman (1952,
DC NY) 15 FRD 124.
In view of constitutional privilege against self-incrimination, person cannot be required to make discovery of
information that would subject him to prosecution for criminal conspiracy to violate antitrust laws. Paul Harrigan &
Sons, Inc. v Enterprise Animal Oil Co. (1953, DC Pa) 14 FRD 333.
Contention that government has no right to take deposition of defendant in action to revoke citizenship, on ground
that such deposition would invade defendant's privilege against self-incrimination, is rejected since such assertion is
premature and furnishes no ground to vacate proposed examination; time to assert such plea is when specific questions
have been put to defendant during course of examination. United States v Lustig (1954, DC NY) 16 FRD 138.
Order that deposition not be taken was granted where defendants were codefendants in criminal prosecution
involving same transaction not yet tried. Perry v McGuire (1964, SD NY) 36 FRD 272, 8 FR Serv 2d 30B.31, Case 4.
The privilege against self-incrimination applies to the production of documents as well as oral statements sought
from a witness, and subpoena duces tecum requiring plaintiff's former wife to produce at taking of her deposition a
United States passport was quashed, where the plaintiff undoubtedly sought the passport because it would indicate that
she had traveled with the defendant from country to country while still plaintiff's wife. De Antonio v Solomon (1967,
DC Mass) 42 FRD 320, 11 FR Serv 2d 1204.
Motion for protective order staying depositions of defendants in civil action alleging a violation of Securities
Exchange Act of 1934, until disposition of criminal case pending in federal court in which defendants were named as
defendants and that was based on same acts and transactions as instant action, would be granted since, if depositions
were not stayed, defendants would be compelled to assert their Fifth Amendment privilege in order to avoid revealing
defenses in the criminal case or otherwise incriminating themselves. Dienstag v Bronsen (1970, SD NY) 49 FRD 327,
13 FR Serv 2d 806.
Motion of class action defendant for protective order to prevent his being required to answer interrogatories on
ground that he was under investigation by grand jury for same series of transactions involved in class action and that
compelling answers to interrogatories would violate his constitutional right against self-incrimination was premature
and would be denied; proper procedure was for defendant to make answers to interrogatories and claim privilege with
specificity by refusing to answer particular questions whereupon court, on motion to compel discovery, would
determine whether refusal was justifiable. Guy v Abdulla (1973, ND Ohio) 58 FRD 1, 16 FR Serv 2d 1328.
In civil action arising out of construction of apartment project, custodian of records of developer of project who had
been previously put on notice that criminal investigation was being conducted regarding development project had
rational basis for invoking right to remain silent at taking of his deposition in response to questions regarding his
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involvement with development project. Capitol Indem. Corp. v First Minnesota Constr. Co. (1975, DC Mass) 405 F
Supp 929, 21 FR Serv 2d 782.
6. Other Particular Privileges
156. Academic freedom privilege
Qualified academic freedom privilege exists for protection of academic institutions against disclosure of names and
identities of persons participating in peer review process. EEOC v University of Notre Dame Du Lac (1983, CA7 Ind)
715 F2d 331, 32 BNA FEP Cas 1057, 32 CCH EPD P 33787, 13 Fed Rules Evid Serv 1336, 37 FR Serv 2d 1.
Academic freedom privilege does not prevent disclosure of information contained in minutes of tenure committee
meeting that formed basis of denial of tenure for plaintiff who alleged discrimination; votes, minutes and deliberations
of tenure reviewing body may be discovered in employment discrimination actions in which proof of intent to
discriminate is necessary to establish element of claim or to rebut proof offered by defendant. Rollins v Farris (1985,
ED Ark) 108 FRD 714, 39 BNA FEP Cas 1102, 3 FR Serv 3d 1191.
157. Accident reports and statements
Statements and reports respecting tractor-trailer collision made, pursuant to Interstate Commerce Commission
regulations, to driver's immediate employers and to the carrier using his services at the time were not privileged and
were not inadmissible as lawyer's work product. Goosman v A. Duie Pyle, Inc. (1963, CA4 Md) 320 F2d 45, 7 FR Serv
2d 694.
Fact of statements being taken by an employer from its employees for purpose of defending prospective or pending
accident litigation does not render statements privileged against production. Kirshner v Palmer (1945, DC NY) 7 FRD
252.
Statements of employees and other witnesses taken by party or his claim agent in regular or routine course, in
conformity to party's established practice in such cases, are not privileged against production or disclosure in accident
litigation under the federal rules. Herbst v Chicago, R. I. & P. R. Co. (1950, DC Iowa) 10 FRD 14; Viront v Wheeling
& L. E. R. Co. (1950, DC Ohio) 10 FRD 45; Pennsylvania R. Co. v Julian (1950, DC Del) 10 FRD 452; Bifferato v
States Marine Corp. (1951, DC NY) 11 FRD 44.
Statements of employees made by way of reporting to their employer, in ordinary or regular course of business, the
facts of an accident, are not privileged against production under the federal rules. Pennsylvania R. Co. v Julian (1950,
DC Del) 10 FRD 452; Panella v Baltimore & O. R. Co. (1951, DC Ohio) 14 FRD 196; Humphries v Pennsylvania R.
Co. (1953, DC Ohio) 14 FRD 177; Scourtes v Fred W. Albrecht Grocery Co. (1953, DC Ohio) 15 FRD 55.
158. Accountant-client communications
State accountant privilege providing accountant with protection from disclosure of information or evidence which
has been obtained by him in his confidential capacity as accountant does not preclude disclosure of document sought
from nonparty accountant by means of subpoena duces tecum where all of audits concerned are performed in foreign
country by accountant's employees not registered as accountants in state from which privilege is sought, none of
materials requested are in such state at time of subpoena, only connection of accountant's office in state with case occurs
in service of subpoena on office, and accountant fails to establish any reliance on state law in connection with auditing
services performed in foreign country. Armour International Co. v Worldwide Cosmetics, Inc. (1982, CA7 Ill) 689 F2d
134, 11 Fed Rules Evid Serv 1107, 34 FR Serv 2d 1479.
On plaintiff's motion for protective order contending that defendant's attempt to depose plaintiff's accountant was in
violation of Pennsylvania's accountant-client privilege statute, court would first require plaintiff to elect whether or not
it intended to call accountant as witness, since calling such witness in trial of case in any capacity would constitute
waiver of any privileged communications relating to matters at issue. Nick Istock, Inc. v Research-Cottrell, Inc. (1977,
WD Pa) 74 FRD 150.
In federal question case state privilege need not be honored if it is broader than those recognized at common law;
accountant's privilege invoked pursuant to state statutory law will not be recognized in case based almost totally on
federal securities laws. Osterneck v E. T. Barwick Industries, Inc. (1979, ND Ga) 82 FRD 81, CCH Fed Secur L Rep P
96819, 28 FR Serv 2d 122.
In suit based on pendent jurisdiction and where information sought is relative to federal claim, state accountant
privilege will not be recognized in federal court notwithstanding that information is also relevant to state claim.
Federal Deposit Ins. Corp. v Mercantile Nat'l Bank (1979, ND Ill) 84 FRD 345, 5 Fed Rules Evid Serv 857, 28 FR Serv
2d 972.
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USCS Fed Rules Civ Proc R 26
While there is no federal accountant-client privilege, certain material produced by accountant either for party directly
or for party's attorney, may be immune from discovery if done in anticipation of litigation. Re International Systems &
Controls Corp. etc. In re International Sys. & Controls Corp. (1981, SD Tex) 91 FRD 552, CCH Fed Secur L Rep P
98770, 9 Fed Rules Evid Serv 657, 32 FR Serv 2d 1473, vacated on other grounds, remanded (1982, CA5 Tex) 693 F2d
1235, CCH Fed Secur L Rep P 99036, 12 Fed Rules Evid Serv 784, 35 FR Serv 2d 732.
Accountant-client privilege does not exist under federal law. American Elec. Power Co. v United States (1999, SD
Ohio) 191 FRD 132, 85 AFTR 2d 345.
Although there is no traditional accountant-client privilege, under limited circumstances, communications made to
accountant may still be privileged; privilege extends to communications made by client to certain agents of attorney,
including accountant, hired to assist attorney in providing legal advice. United States v Randall (1999, DC Mass) 194
FRD 369, 99-2 USTC P 50596, 83 AFTR 2d 2795.
159. Bank-customer privilege
A confidential relationship may exist between banker and customer but it does not give rise to a privilege against
disclosure; no protective order will issue against production of bank records in an action against customer, in which it,
the bank, is not a party. Rosenblatt v Northwest Airlines, Inc. (1971, DC NY) 54 FRD 21, 15 FR Serv 2d 1429.
There is no merit to plaintiff's claim that bank's records of transactions with plaintiff are protected by privilege
pursuant to federal public policy. Sneirson v Chemical Bank (1985, DC Del) 108 FRD 159, 19 Fed Rules Evid Serv
1004, 3 FR Serv 3d 1044.
Banker-client privilege does not exist under federal law. American Elec. Power Co. v United States (1999, SD Ohio)
191 FRD 132, 85 AFTR 2d 345.
160. First Amendment privilege
Good faith interjection of First Amendment privilege to discovery request mandates comprehensive balancing of
party's need for information sought against opposing party's constitutional interests in claiming privilege. Adolph
Coors Co. v Wallace (1983, ND Cal) 570 F Supp 202, 37 FR Serv 2d 752.
161. --Membership lists
Membership lists of organizations which are voluntary plaintiffs in civil litigation are privileged under First
Amendment absent showing of overriding and compelling need for them; accordingly, confidentiality of membership
list of plaintiff-intervenors in action challenging state's unemployment benefits to striking workers was protected by
First Amendment where there were other privileged sources available to defendants from which they could obtain
information sought. Grinnell Corp. v Hackett (1976, DC RI) 22 FR Serv 2d 482.
162. Grand jury minutes and proceedings
There is no absolute bar to discovery of grand jury minutes by private plaintiff in aid of recovery in civil action.
Atlantic City Electric Co. v A. B. Chance Co. (1963, CA2 NY) 313 F2d 431, 6 FR Serv 2d 560; U. S. Industries, Inc. v
United States Dist. Court (1965, CA9) 345 F2d 18, 1965 CCH Trade Cases P 71429, cert den (1965) 382 US 814, 15 L
Ed 2d 62, 86 S Ct 32.
One of the recognized privileges with which discovery under the federal rules must be concerned is that of the grand
jury as a public institution, as well as of witnesses that appear before it. United States v Ben Grunstein & Sons Co.
(1955, DC NJ) 137 F Supp 197.
Where only reason advanced by plaintiff for disclosure of pre-sentencing grand jury memoranda was avoidance of
additional expense and work in subsequent civil action, and memoranda contained confidential probation report,
plaintiff was not entitled to disclosure. Hancock Bros., Inc. v Jones (1968, ND Cal) 293 F Supp 1229, 1969 CCH
Trade Cases P 72677.
In action arising out of shooting of college students by National Guardsmen, documents relating to grand jury
inquiry into shooting incident could be discovered in view of facts that overriding importance of having every possible
scrap of evidence available to all of numerous parties overwhelmed any reason for secrecy, except as to actual
deliberations and reasoning of grand jury. Krause v Rhodes (1975, ND Ohio) 390 F Supp 1072.
Disclosure of grand jury documents is ordered, where city requested release of documents, presented to grand jury in
prior criminal case, for use in civil action against former official indicted by grand jury, because such disclosure would
not convey otherwise unavailable information about nature of grand jury proceedings. United States v Liberman (1988,
ED NY) 687 F Supp 775.
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163. Hospital peer review privilege
Privilege which protects hospital peer review records from disclosure during discovery was waived by defendant
physician's testimony at deposition informing plaintiffs of individuals present at peer review hearing and opinion
expressed there by expert on procedure used during operation. Whitman v United States (1985, DC NH) 108 FRD 5,
18 Fed Rules Evid Serv 234, 2 FR Serv 3d 763.
164. Insurer-insured privilege
Insurer-insured privilege could not be asserted against plaintiff who was subrogee of insured to insured's claim
against insurer where central issue was plaintiff's subrogation rights. Dome Petroleum v Employers Mut. Liab. Ins. Co.
(1990, DC NJ) 131 FRD 63, summary judgment gr, dismd (1991, DC NJ) 776 F Supp 970.
165. Marital privilege
There is no merit to contention that privilege for confidential marital communications occupies disfavored position in
common law scheme of evidentiary privileges. In re Grand Jury Investigation of Hugle (1985, CA9 Cal) 754 F2d 863,
17 Fed Rules Evid Serv 558.
Marital communications privilege is available to partner in existing, albeit disharmonious, marriage. In re Grand
Jury Investigation of Hugle (1985, CA9 Cal) 754 F2d 863, 17 Fed Rules Evid Serv 558.
Marital privilege is not subject to exception for cases in which spouses are joint participants in criminal enterprise to
which questions relate. In re Grand Jury Subpoena United States (1985, CA2 NY) 755 F2d 1022, 17 Fed Rules Evid
Serv 540, vacated on other grounds, remanded (1986) 475 US 133, 89 L Ed 2d 103, 106 S Ct 1253.
Common-law wife of target of grand jury investigation cannot invoke marital privilege to avoid compliance with
grand jury subpoena since public's right to evidence in criminal investigation outweighs growing policy behind
promoting marital accord in nonmarital settings. In re Ms. X (1983, ND Cal) 562 F Supp 486, 13 Fed Rules Evid Serv
205.
Wife would not be compelled to answer plaintiff's deposition questions concerning communications with and
knowledge or awareness derived from her husband about business matters involved in case, where plaintiff asserted in
conclusory fashion that wife's conversations were not privileged because they concerned ordinary business matters, but
failed to show that information sought did not involve communications made in confidentiality of marital relationship,
or even to submit deposition questions for which answers were sought. Atlantic Richfield Co. v Triad Petroleum, Inc.
(1987, SD NY) 113 FRD 686, 7 FR Serv 3d 82.
There is no protection for spousal communications which, by their nature, are not intended to be confidential because
third party is present. Hanger Orthopedic Group v McMurray (1998, MD Fla) 181 FRD 525.
In civil cases, spousal communications are not intended to be confidential if they relate to business matters (i.e.
matters which are inherently subject to conveyance to third parties). Hanger Orthopedic Group v McMurray (1998, MD
Fla) 181 FRD 525.
166. Newsmedia privilege
Plaintiff suing member of press for injury to his reputation is not barred by First Amendment from inquiring into
editorial processes of those responsible for alleged defamatory material. Herbert v Lando (1979) 441 US 153, 60 L Ed
2d 115, 99 S Ct 1635, 4 Media L R 2575, 3 Fed Rules Evid Serv 822, 27 FR Serv 2d 1.
Newspaper columnist is not protected by any evidentiary privilege, in absence of statute creating one, from
disclosing in discovery proceedings confidential sources of news or information; where libel action was brought by an
actress because of statements attributed to an unnamed "network executive," right of a newspaper columnist to refuse
disclosure of source of information published, when questioned with regard to such source in a deposition, is denied.
Garland v Torre (1958, CA2 NY) 259 F2d 545, 1 Media L R 2541, 1 FR Serv 2d 489, cert den (1958) 358 US 910, 3 L
Ed 2d 231, 79 S Ct 237.
When, in connection with taking of deposition in civil case, witness-newspaperman, refuses to identify confidential
source of news, trial court has wide discretion as to whether to require witness to answer; there are circumstances, at
very least in civil cases, in which public interest in non-disclosure of journalists' confidential sources outweighs public
and private interest in compelling testimony. Baker v F & F Inv. (1972, CA2 NY) 470 F2d 778, 1 Media L R 2551, 16
FR Serv 2d 945, cert den (1973) 411 US 966, 36 L Ed 2d 686, 93 S Ct 2147.
To entitle one to invoke journalist privilege, witness must intend to disseminate information to public at time
gathering of information commences as opposed to determining at some later date to disseminate information to public;
for journalist privilege to be available to witness, witness must be involved actively in gathering and dissemination of
news; journalist privilege is not available to witness in contempt proceeding based upon failure of witness to produce
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certain documents and partial manuscript, where witness is not member of class entitled to claim privilege, where
person is not involved in activities traditionally associated with gathering and dissemination of news, where witness
never published any writing under her own signature, and where manuscript in question was not prepared under
contract. Von Bulow v Von Bulow (1987, CA2 NY) 811 F2d 136, 13 Media L R 2041, 22 Fed Rules Evid Serv 737, 7
FR Serv 3d 389, cert den (1987) 481 US 1015, 95 L Ed 2d 498, 107 S Ct 1891.
Investigative book author had standing to invoke journalist's privilege, and privilege protected information and
materials obtained from party who became defendant in defamation suit even though it was provided without any
promise of confidentiality, but absence of confidentiality may be considered in balance of competing interests; however,
defamation plaintiffs failed to demonstrate sufficiently compelling need for materials since they had not taken
defendant's deposition before trying to penetrate journalist's shield. Shoen v Shoen (1993, CA9 Ariz) 5 F3d 1289, 93
CDOS 7213, 93 Daily Journal DAR 12263, 21 Media L R 1961, 26 FR Serv 3d 1117, appeal after remand, remanded
(1995, CA9 Ariz) 48 F3d 412, 95 CDOS 1120, 31 FR Serv 3d 407 and (criticized in In re Grand Jury Subpoena Duces
Tecum (1997, CA8 Ark) 112 F3d 910, 46 Fed Rules Evid Serv 610, 37 FR Serv 3d 309).
Witness-newspaper reporter was ordered to answer question in deposition disclosing source of certain information
upon which he based news release alleged to be libelous. Adams v Associated Press (1969, DC Tex) 46 FRD 439, cert
den (1971) 402 US 901, 28 L Ed 2d 642, 91 S Ct 1266.
No absolute rule of privilege protects newsmen, but policy protecting newsreporters' sources is sufficiently close to
privilege to warrant exclusion from discovery in some instances. Apicella v McNeil Laboratories, Inc. (1975, ED NY)
66 FRD 78, 19 FR Serv 2d 1360.
In action on claim by individual plaintiffs against defendant for personal injuries allegedly suffered as result of
contact with chemical substance produced by defendants, wherein operator of radio and television stations, non-party to
litigation, moved to quash subpoena to produce broadcasting materials concerning chemical substance, on grounds that
disclosure would expose reporter's slant on story, perhaps leading to information received from confidential source,
there was no basis in First Amendment for privilege relating to reporter's or editorialist's slant on news story or editorial;
only where material requested directly led to disclosure of confidence did privilege attach, and vague allegations of
potential indication of confidential sources would not suffice. Gilbert v Allied Chemical Corp. (1976, ED Va) 411 F
Supp 505, 21 FR Serv 2d 1120 (criticized in Penland v Long (1995, WD NC) 922 F Supp 1080, 24 Media L R 1410).
Minor plaintiff in action for severe injury sustained from ingestion of drain cleaner produced by defendant
corporation is not entitled to discovery of documents relating to consumer magazine article on drain cleaners published
by nonparty where plaintiff's interest in material sought is outweighed by publisher's First Amendment interest,
particularly where plaintiff has neither justified breadth of subpoena nor met its burden of establishing information
sought was unavailable in prior discovery or from alternative sources. In re Application of Consumers Union, Inc.
(1978, SD NY) 26 FR Serv 2d 1028.
Paramount interest in protecting newspaper's function of disseminating information outweighs subordinate interest
served by liberal discovery provisions of Rule 26. Maughan v NL Industries (1981, DC Dist Col) 524 F Supp 93, 7
Media L R 2129, 9 Fed Rules Evid Serv 964, 33 FR Serv 2d 186.
Qualified privilege provided journalists under First Amendment to refuse disclosure of confidential sources when
requested in civil litigation does not permit journalist to deprive opponent and court of relevant information to
determine whether qualified privilege is being properly invoked or whether case is exceptional in which disclosure of
source is critically necessary as going to heart of plaintiff's case. Liberty Lobby, Inc. v Anderson (1982, DC Dist Col)
96 FRD 10, 9 Media L R 1243, 12 Fed Rules Evid Serv 583, 35 FR Serv 2d 1364.
Plaintiff, claiming his character was defamed by defendant, is not entitled to order compelling discovery of reporter's
notes since notes may reveal secondary sources and state newsreporter shield statute's protection against compelled
disclosure of possible secondary sources remains even after identity of primary source is revealed and mere possibility
that compelled discovery may lead to disclosure of secondary source is sufficient to invoke protection of statute. Lal v
CBS, Inc. (1982, ED Pa) 551 F Supp 364, 35 FR Serv 2d 1592.
Relevance of sources' identities to plaintiff's libel suit, particularly to his burden of proof, and availability of
unexhausted, alternative means of obtaining sources' identities are primary factors to be considered in evaluating
whether reporter's claim of privilege should be overridden. Dowd v Calabrese (1983, DC Dist Col) 577 F Supp 238,
10 Media L R 1208, 37 FR Serv 2d 912.
For purposes of discovery, reporter's privilege is defeated only where information sought is critical to maintenance or
heart of claim, is highly material and relevant, and is unobtainable from other sources. J.J.C. v Fridell (1995, DC Minn)
165 FRD 513.
Information obtained by journalist in course of gathering news may be protected from disclosure by qualified
reporter's privilege; when party seeks disclosure of information that is protected by privilege, court should consider
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whether information is available from other sources and whether it is highly relevant to case at bar. Warnell v Ford
Motor Co. (1998, ND Ill) 183 FRD 624, 78 BNA FEP Cas 1500.
Even when information is crucial to litigant's case, reporters should be compelled to disclose their sources only after
litigant has shown that he has exhausted every reasonable alternative source of information. Alexander v FBI (1998, DC
Dist Col) 186 FRD 21.
For purposes of journalistic privilege, distinction can be drawn between civil cases in which reporter is party, as in
libel action, and cases in which reporter is not party. Alexander v FBI (1998, DC Dist Col) 186 FRD 21.
Whether person is journalist, and thus protected by journalistic privilege, must be determined by person's intent at
inception of information-gathering process. Alexander v FBI (1998, DC Dist Col) 186 FRD 21.
Because sources gave information to reporters with explicit understanding that use of any unpublished material
would be restricted, reporters were not compelled to disclose that material. In re Daimler Chrysler Ag Secs. Litig. (2003,
ED Mich) 216 FRD 395.
167. Patents and trade secrets
Motion to vacate notice requiring corporate defendant, by its president, to appear for oral examination was denied
without prejudice where plaintiff, an informer, alleged conspiracy to defraud the government, and defendant pointed out
that it was engaged in confidential work under contract which precluded divulging any information, and that unlimited
examination into its confidential business was improper. United States ex rel. Edelstein v Brussell Sewing Mach. Co.
(1943, DC NY) 3 FRD 87.
In action for declaratory judgment that certain of defendant's patents relating to air gauges be declared invalid and
not infringed by plaintiff, defendant's objections to plaintiff's interrogatories calling for opinions, conclusions, or
contentions were sustained; defendant's interrogatories calling for information relating to plaintiff's products within
plaintiff's knowledge were proper; plaintiff's objections to defendant's interrogatories calling for independent research of
broad magnitude and seeking to elicit privileged information were proper. Fischer & Porter Co. v Sheffield Corp.
(1962, DC Del) 31 FRD 534, 135 USPQ 389, 6 FR Serv 2d 603.
In action for declaratory judgment by plaintiff that it had complied with patent license agreements with defendant
and that plaintiff owed defendant no money, plaintiff could not by interrogatory obtain correspondence concerning
agreements had between defendant and other licensees; such correspondence was privileged and not subject to
discovery under Rule 26(b). Cone Mills Corp. v Joseph Bancroft & Sons Co. (1963, DC Del) 33 FRD 318, 139 USPQ
115, 7 FR Serv 2d 640.
Trade secrets and other confidential commercial information enjoy no privilege from disclosure, although courts may
choose to protect such information. United States v International Business Machines Corp. (1975, SD NY) 67 FRD 40,
1975-1 CCH Trade Cases P 60311, 20 FR Serv 2d 227.
In action by plaintiffs alleging that they were induced by defendants' fraudulent misrepresentations to spend time and
money on defendants' courses of instruction in transcendental meditation and self-realization techniques, where
defendants sought blanket protective order pursuant to Rule 26(c) that would place severe restrictions on discovery
process, court refused to grant blanket protection of proprietary business information since defendants claimed that their
meditation programs consisted of unique and valuable body of knowledge but failed to specifically demonstrate
existence of proprietary information; but court would consider request for limited protective orders concerning specific
written, visual, or audio materials compiled by defendants and not sufficiently protected by copyright or trademark law.
John Does I-VI v Yogi (1986, DC Dist Col) 110 FRD 629.
In action by plaintiffs alleging breach of contract and appropriation of trade secrets, where plaintiffs requested
production of documents and intangible things pursuant to Rule 34 involving disclosure of trade secret information,
District Court denied plaintiff's motion since in action alleging misappropriation of trade secrets plaintiff must not only
prove that requested discovery is relevant, but must also demonstrate that there is factual basis for underlying claim; and
while there was possibly factual basis for plaintiff's fears and suspicions that defendant misappropriated trade secrets,
plaintiff failed to show any additional evidence obtained through discovery that provided substantial factual basis for its
claim. Microwave Research Corp. v Sanders Associates, Inc. (1986, DC Mass) 110 FRD 669.
Although both FRCP 26 and 45 protect trade secrets, that protection is not absolute; court, using its common sense,
must balance one party's legitimate desire for discovery with other party's legitimate fear of financial ruin arising out of
that disclosure. Mycogen Plant Science v Monsanto Co. (1996, ED Pa) 164 FRD 623.
There is no absolute discovery privilege for trade secrets and similar confidential information. Paulsen v Case Corp.
(1996, CD Cal) 168 FRD 285.
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USCS Fed Rules Civ Proc R 26
There is no per se privilege exempting trade secrets from discovery, but courts must exercise discretion to avoid
unnecessary disclosure of trade secret information. Hamilton v State Farm Mut. Auto. Ins. Co. (2001, SD Ind) 204 FRD
420.
In case involving price discrimination, corporation's motion to compel non-party competitor to disclose trade secrets
was denied by magistrate because there was no showing that need for information outweighed potential for harm.
Cytodyne Techs., Inc. v Biogenic Techs., Inc. (2003, MD Fla) 216 FRD 533, 16 FLW Fed D 652.
168. Physician-patient privilege; hospital reports
Physician-patient privilege continues after commencement of the action and is immune to pre-trial discovery, and is
not waived, unless or until, the plaintiff elects to submit his attending physicians as witnesses in the trial of the case.
Boyd v Wrisley (1964, WD Mich) 228 F Supp 9, 8 FR Serv 2d 26B.45, Case 1.
Physician-patient privilege regarding medical records of treatment and diagnosis by company physician is governed
by state law rules in diversity products liability action. Pollitt v Mobay Chemical Corp. (1982, SD Ohio) 95 FRD 101,
34 FR Serv 2d 1272.
Physician-patient privilege is not recognized by federal common law, and District Court will not recognize
state-created expectation of privacy on part of patient in circumstances where any intrusions into such expectation are
outweighed by federal policies supporting free and full discovery. Schachar v American Academy of Opthalmology,
Inc. (1985, ND Ill) 106 FRD 187, 1985-2 CCH Trade Cases P 66681, 1 FR Serv 3d 584.
Public interest behind enforcing Sherman Act clearly outweighs interest of giving full effect to New Jersey's
statutory physician-patient privilege, since if all patient-physician communications were considered privileged,
plaintiff-physician would have virtually no chance of successfully bringing suit. Wei v Bodner (1989, DC NJ) 127
FRD 91, 1989-2 CCH Trade Cases P 68854.
169. --Particular circumstances
Limiting examination upon deposition of two doctors as to information given to them by the two plaintiffs when
doctors were consulted for treatment is proper where plaintiffs disclosed in their depositions that doctors had been
consulted by them since such answers did not reveal either an express or implied waiver of plaintiffs' privilege under
law of Oregon. Reynolds Metals Co. v Yturbide (1958, CA9 Or) 258 F2d 321, cert den (1958) 358 US 840, 3 L Ed 2d
76, 79 S Ct 66.
In an action for personal injuries alleged to have resulted in insanity, plaintiff's motion to quash a subpoena duces
tecum for the production of hospital records of prior treatments for insanity, on the ground that such records were
privileged under a state statute, was denied, such privilege having been waived by answers, without objection, to
interrogatories concerning such prior treatments. Munzer v Swedish American Line (1940, DC NY) 35 F Supp 493.
Failure to file objections to interrogatories did not constitute a waiver of either the privilege which plaintiff may have
had as to reports of his own physician or as to statements of witnesses obtained by his counsel in course of preparation
for the trial to which defendant would not otherwise have been entitled. Bohlin v Brass Rail, Inc. (1957, DC NY) 20
FRD 224.
In action for medical malpractice brought under Federal Tort Claims Act, in which defendant claimed that under
federal law the mere bringing of an action which places in issue the physical condition of plaintiff waives
physician-patient privilege, whether or not a waiver rule was applicable under either federal or New York law, plaintiff
would not be permitted to continue his action and at same time successfully assert his privilege so as to prevent
defendant from pursuing pretrial discovery remedies material and necessary to the defense. Awtry v United States
(1961, SD NY) 27 FRD 399, 4 FR Serv 2d 544.
In action for personal injuries plaintiff was required to make available to defendant records of plaintiff's examination
in hospital and physician's report showing history given and details of plaintiff's examination, but not that part of report
showing physician's diagnosis, impressions, or prognosis. Leszynski v Russ (1961, DC Md) 29 FRD 10, 5 FR Serv 2d
570.
The defendant's motion for an order requiring the plaintiff to produce and to permit inspection and copying of "all
records, including statements and reports" of doctors who had examined and treated plaintiff at different times was
granted to the extent the plaintiff contemplated waiver of her Ohio physician-patient communication privilege. Greene
v Sears, Roebuck & Co. (1966, ND Ohio) 40 FRD 14, 10 FR Serv 2d 993.
Motion of defendant in personal injury action to take depositions of two medical doctors and chiropractor who had
examined plaintiff, is sustained over plaintiff's objection that results of examinations are privileged and defendant has
other means of determining plaintiff's physical condition available, since it is clear that plaintiff will have to waive
privilege at trial to prove his damages; since the information will be required to be disclosed eventually, there is no
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reason for delaying disclosure until trial; rules of discovery contemplate fullest possible early disclosure of facts to aid
in trial preparation and discovery of privileged matter should be allowed when waiver of privilege at trial seems
reasonably probable. Burlage v Haudenshield (1967, ND Iowa) 42 FRD 397, 11 FR Serv 2d 775.
In an action under the Jones Act for wrongful death of a seaman, the availability of a physician-patient privilege is
governed by admiralty law, and in the absence of a statute creating the privilege, there is none that can be invoked in the
action. Reid v Moore-McCormack Lines, Inc. (1970, SD NY) 49 FRD 91, 14 FR Serv 2d 112.
In a medical malpractice suit, minutes and reports of the boards or committees of the defendant hospital were entitled
to qualified privilege on the basis of overwhelming public interest in their confidentiality. Bredice v Doctors Hospital,
Inc. (1970, DC Dist Col) 50 FRD 249, 14 FR Serv 2d 759.
Once a determination has been made that, under state law, physician-patient privilege has been waived, state law
does not control procedural aspects of discovery in federal court, and defendant should be allowed to use conventional
discovery devices authorized under the federal rules, but private conferences with all of plaintiffs' attending physicians
in action for injuries sustained in automobile accident need not be ordered. Garner v Ford Motor Co. (1973, DC
Alaska) 61 FRD 22, 17 FR Serv 2d 1398.
In medical malpractice diversity action seeking recovery for hospital death of plaintiff's decedent, name and address
of patient-roommate who might have knowledge of discoverable matter was not privileged from disclosure by state
privacy law as such information did not constitute unreasonable, substantial or serious interference with patient's
privacy. Guilloz v Falmouth Hospital Asso. (1977, DC Mass) 23 FR Serv 2d 856.
Hospital's infection control report prepared by infection control committee following discovery of infected and
gangrenous condition of plaintiff-patient's leg was discoverable in malpractice action against hospital because, though
its function necessarily involves evaluation of clinical practices, committee exists to implement hospital policy with
regard to specific problem, not to formulate or review hospital policies generally, and report dealt primarily with care of
particular patient. Davidson v Light (1978, DC Colo) 79 FRD 137, 25 FR Serv 2d 1494.
Defendant educational institution is entitled to discover former instructor's army medical file consisting of notes and
conclusions of voluntary interview plaintiff had with army psychiatrist in 1960, in action by plaintiff for termination of
employment in violation of First Amendment rights where relevant issue in case is plaintiff's fitness for and ability to
perform as administrator and instructor, and where case involves very serious charges against defendant, charges which
at least implicitly raise issue of plaintiff's ability to work in structured institution. Flora v Hamilton (1978, MD NC) 81
FRD 576, 3 Fed Rules Evid Serv 1425, 26 FR Serv 2d 783.
Pronouncement of state supreme court concerning constitutional right of privacy based on U. S. Constitution and
state constitution is not binding on Federal District Court in suit by doctor for denial of hospital staff privileges wherein
plaintiff seeks to compel nonparty hospital to produce relevant documents; physician-patient privilege does not bar
plaintiff's request for production of documents of non-party hospital in suit for denial of staff privileges against
defendant on antitrust grounds, where plaintiff, as part of his burden, is required to establish relevant product in
geographic market in field of open heart surgery, and demands zip codes of patients, procedure performed, operating
physician, assisting physician, and referring physician. Robinson v Magovern (1979, WD Pa) 83 FRD 79, 1979-1 CCH
Trade Cases P 62658, 4 Fed Rules Evid Serv 573, 27 FR Serv 2d 810, 27 FR Serv 2d 1372.
Although there is "powerful interest in confidentiality" of information from hospital staff meetings reviewing care
and treatment of patients, need for relevant evidence in antitrust action for denial of hospital staff privileges requires
disclosure. Robinson v Magovern (1979, WD Pa) 83 FRD 79, 1979-1 CCH Trade Cases P 62658, 4 Fed Rules Evid
Serv 573, 27 FR Serv 2d 810, 27 FR Serv 2d 1372.
If plaintiff who brings job discrimination suit under 42 USCS § 1981 asserts that she has suffered severe physical
and emotional distress and harm, and seeks to prove this through her own testimony and that of physicians and
psychiatrists, defense counsel has clear right to make searching inquiry into plaintiff's past for purpose, among others, of
showing that her emotional and physical distress was caused, at least in part, if not in whole, by events and
circumstances that were not job related. Lowe v Philadelphia Newspapers, Inc. (1983, ED Pa) 101 FRD 296, 44 BNA
FEP Cas 1224, 37 FR Serv 2d 1154 (criticized in Shirsat v Mutual Pharm. Co. (1996, ED Pa) 1996 US Dist LEXIS
15273).
Absent showing of extraordinary necessity to have opinions or evaluation of peer review committee or other medical
evaluation committee, such committees' reports should not be produced, especially where party seeking discovery is
provided all raw factual data available; thus, plaintiff, personal representative of individual who committed suicide after
being found not guilty of criminal charges by reason of insanity and following commitment to hospital, is not entitled to
discovery of minutes of medical utilization review committee which was called to review decedent's case after his
death, or report to superintendent of hospital containing review of decedent's case as well as discussion of possible
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self-improvement by hospital, notwithstanding plaintiff's claim that decedent was in prison and not hospital. Mewborn
v Heckler (1984, DC Dist Col) 101 FRD 691, 39 FR Serv 2d 257.
Personal representative of pilot killed in airplane crash was entitled to discovery of names of cases on which aircraft
manufacturer's expert medical witness had previously consulted; while any physician-patient relationship between
expert witness and private parties might prevent expert's testimony with regard to medical findings and diagnoses,
expert could properly testify that he treated or consulted with such parties. Schuler v United States (1986, WD Mich)
113 FRD 518.
Personal representative of pilot killed in airplane crash waived pilot's physician-patient privilege by voluntarily
producing medical records on several occasions without asserting privilege in writing as required by controlling state
court rule, so that defendant airplane manufacturer was entitled to depose pilot's physicians regarding their treatment of
pilot for medical conditions allegedly affecting his judgment and causing crash. Schuler v United States (1986, WD
Mich) 113 FRD 518.
In suit by parents of brain damaged infant alleging that damage was caused by vaccine manufactured by defendants,
mother's pregnancy and birth records for 5 children born prior to infant were discoverable to extent necessary to explore
defense that mother's blood condition caused infant's brain damage, since mother's claim was derivative and she
therefore placed her physical condition and medical history in issue. Vincent v Connaught Lab. (1990, ED Mo) 131
FRD 156.
In physician's action against hospital and other physicians alleging antitrust violations and violations of Health Care
Quality Improvement Act, California physician-patient privilege was not applicable to physician's discovery requests
since case was controlled by federal law which does not recognize such privilege, and there is no clearly recognized
federal peer review privilege that would preclude requested discovery. Pagano v Oroville Hosp. (1993, ED Cal) 145
FRD 683, 93 Daily Journal DAR 2776, 1993-1 CCH Trade Cases P 70233.
170. Psychiatrist-patient privilege
State psychiatrist-patient privilege does not prevent disclosure of former instructor's army medical file consisting of
notes and conclusions of voluntary interview instructor had with army psychiatrist in 1960, in action by instructor for
termination in violation of First Amendment rights; only strongest countervailing public policy should prevent
disclosure in use of party charged with violation of rights protected by First Amendment. Flora v Hamilton (1978, MD
NC) 81 FRD 576, 3 Fed Rules Evid Serv 1425, 26 FR Serv 2d 783.
If plaintiff who brings job discrimination suit under 42 USCS § 1981 asserts that she has suffered severe physical
and emotional distress and harm, and seeks to prove this through her own testimony and that of physicians and
psychiatrists, defense counsel has clear right to make searching inquiry into plaintiff's past for purpose, among others, of
showing that her emotional and physical distress was caused, at least in part, if not in whole, by events and
circumstances that were not job related. Lowe v Philadelphia Newspapers, Inc. (1983, ED Pa) 101 FRD 296, 44 BNA
FEP Cas 1224, 37 FR Serv 2d 1154 (criticized in Shirsat v Mutual Pharm. Co. (1996, ED Pa) 1996 US Dist LEXIS
15273).
Psychotherapist-patient privilege would be applied in suit by worker suing union for unlawfully denying him
membership because he was black to bar disclosure of psychotherapist's records where worker claimed only
"garden-variety" emotional distress, not resulting psychic injury or psychiatric disorder, since his privacy interests
overwhelmingly outweighed any benefits to union if disclosure were compelled. Sabree v United Brotherhood of
Carpenters & Joiners, Local No. 33 (1989, DC Mass) 126 FRD 422.
Gun manufacturer is entitled to production of portion of notes of psychologist supervising treatment of decedent's
son who witnessed accidental discharge of gun which killed decedent, along with release form and transmittal letter
allowing notes to be seen by plaintiffs' attorney, where plaintiffs previously waived psychologist-client privilege over
subject of shooting by producing report from other psychologist who treated son, because notes--inspected in
camera--are relevant to products liability action in that they describe shooting, and are discoverable under FRCP 26(b).
Mitchell v Sturm, Ruger & Co. (1994, ED Pa) 842 F Supp 158, 28 FR Serv 3d 584.
Although communications between psychotherapist and patient may be relevant to particular issue in case or
significant to party opposing privilege, that alone is not enough to deprive party of privilege. Santelli v Electro-Motive
(1999, ND Ill) 188 FRD 306.
For purpose of determining whether party has waived psychotherapist-patient privilege by putting his emotional
condition at issue, party, by merely seeking incidental, garden-variety emotional distress damages, without more, does
not put his emotional condition at issue. Ruhlmann v Ulster County Dep't of Social Servs. (2000, ND NY) 194 FRD 445.
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USCS Fed Rules Civ Proc R 26
Party could discover information that psychologist learned from opposing party when psychologist evaluated
opponent at behest of his employer, since psychologist had subsequently disclosed such information to opponent's
employer. Phelps v Coy (2000, SD Ohio) 194 FRD 606.
Given importance of interests advanced by psychotherapist-patient privilege, it is not proper to find waiver of
privilege based solely upon inclusion of request for damages based on emotional distress. Adams v Ardcor Div. of Am.
Roll Tooling, Inc. (2000, ED Wis) 196 FRD 339, affd, motion gr, request den (2000, ED Wis) 196 FRD 345.
Federal psychotherapist privilege extends to licensed professional counselors. Student 1 v Williams (2002, SD Ala)
206 FRD 306.
Federal psychotherapist privilege does not extend to unlicensed social workers or unlicensed professional counselors.
Student 1 v Williams (2002, SD Ala) 206 FRD 306.
171. Self-critical analysis privilege
"Self-critical analysis" defense to discovery in employment discrimination class action is generally, but not always,
recognized in cases where plaintiff has requested production of reports which are required to be filed with government,
such as EEO-1 Reports; only subjective, evaluative materials are protected; objective data contained in same reports is
not protected; courts are sensitive to need of plaintiffs for such materials and deny discovery only where policy favoring
exclusion of material clearly outweighs plaintiff's need. Webb v Westinghouse Electric Corp. (1978, ED Pa) 81 FRD
431, 20 BNA FEP Cas 1231, 20 CCH EPD P 30145, 27 FR Serv 2d 589.
In sex discrimination case, self-evaluative portions of Affirmative Action Program are discoverable to extent that
recitations combining statements of fact with critical self-evaluation place burden on defendant of preparing and
disclosing substitute statement which includes all express or implied recitations of fact while omitting part or all of
self-evaluative statements. O'Connor v Chrysler Corp. (1980, DC Mass) 86 FRD 211, 26 BNA FEP Cas 459, 22 CCH
EPD P 30855.
Court recognizes qualified privilege to protect "self-critical analysis" of employers' equal opportunity goals and
evaluation of whether goals are being achieved; statistics and data included in report or available at time reports were
made are not protected by privilege. Roberts v National Detroit Corp. (1980, ED Mich) 87 FRD 30, 25 BNA FEP Cas
697, 26 CCH EPD P 31861, 30 FR Serv 2d 780.
Defendant is not entitled to claim "critical self-examination report privilege" to preclude discovery of relevant
portions of task force report prepared by defunct investigative body concerning activities of FBI informant since such
information is not otherwise obtainable by plaintiff, specific need for such evidence is apparent, all information relative
to actions of FBI informant is in hands of party defendant, and information will contribute to full and fair determination
of all facts relevant to plaintiffs' claims. Bergman v Kemp (1983, WD Mich) 97 FRD 413, 12 Fed Rules Evid Serv
1287.
With respect to defendant employer's contention that disclosure of documents containing self-evaluation or
self-criticism will have substantial chilling effect on ongoing effort to voluntarily comply with employment
discrimination laws, court would accept defendant's argument with respect to reports that defendant is required by law
to file but would decline to extend that protection to other affirmative action documents in absence of clear support in
case law for such position. Penk v Oregon State Bd. of Higher Education (1983, DC Or) 99 FRD 511, 48 BNA FEP
Cas 1692, 13 Fed Rules Evid Serv 1419, 36 FR Serv 2d 961, 36 FR Serv 2d 965.
Common-law privilege against disclosure of critical self-analysis does not extend to evaluations not required by law
or to objective data in documents. Roberts v Carrier Corp. (1985, ND Ind) 107 FRD 678.
In order to assert self-critical analysis privilege, information must result from self-critical analysis undertaken by
party seeking protection, public must have strong interest in preserving free flow of type of information sought, and
information must be of type whose flow would be curtailed if discovery were allowed. Hickman v Whirlpool Corp.
(1999, ND Ohio) 186 FRD 362.
No document should be accorded self-critical analysis privilege unless it was prepared with expectation that it would
be kept confidential. Hickman v Whirlpool Corp. (1999, ND Ohio) 186 FRD 362.
Self-critical analysis privilege will not extend to reports, analyses, surveys and the like which are not mandated by
government. Paladino v Woodloch Pines, Inc. (1999, MD Pa) 188 FRD 224.
To extent that self-critical analysis privilege is recognized by federal courts, it is, at best, qualified privilege, so that
court must weigh need of party requesting disclosure against interest in confidentiality which privilege protects.
Franzon v Massena Mem'l Hosp. (1999, ND NY) 189 FRD 220.
Because self-critical analysis privilege is grounded on premise that disclosure of documents reflecting candid
self-examination will deter or suppress socially useful investigations and evaluations or compliance with law, court
must balance public interest in protecting candid corporate self-assessments against private interest of litigant in
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obtaining all relevant documents through discovery. Tice v American Airlines, Inc. (2000, ND Ill) 192 FRD 270, 82
BNA FEP Cas 897.
If self-critical analysis privilege exists, justifications for it do not support its application to voluntary, routine
reviews. United States ex rel. Sanders v Allison Engine Co. (2000, SD Ohio) 196 FRD 310.
Self-critical analysis privilege may apply in Title VII (42 USCS § § 2000e et seq.) cases. Reid v Lockheed Martin
Aero. Co. (2001, ND Ga) 199 FRD 379.
172. Settlement privilege
In federal question suit, federal court recognizes those privileges which were recognized at common law, and while
offers of settlement, and presumably also negotiations which led to such offers, are not admissible at trial for number of
public policy reasons, such negotiations do not fall within confines of privileges recognized at common law;
accordingly, negotiations of non-party witness which led to settlement of another case were not privileged
communications. Oliver v Committee for Re-Election of President (1975, DC Dist Col) 66 FRD 553, 19 FR Serv 2d
1517.
In action brought by plaintiff Minnesota seeking order imposing penalties on defendants for violation of state
pollution control laws and, with other plaintiffs, for order assessing litigation costs against mining company defendant
as sanction for claimed violations of discovery rules, court orders, and other misconduct, mining company's claim that
documents in question were part of offer of compromise was frivolous since many of documents were never included in
compromise offer; accepting defendant's argument would mean that company could shield all documents relating to
economic and technological feasibility of alternative discharge systems because at some later date they might be used in
compromise negotiation; purpose for privilege surrounding offers of compromise was to encourage free and frank
discussion with view toward settling dispute, and privilege was not designed to shield otherwise discoverable
documents merely because those documents represent factual matters that might be or are incorporated in settlement
proposal. United States v Reserve Mining Co. (1976, DC Minn) 412 F Supp 705, 8 Envt Rep Cas 1978, 21 FR Serv 2d
796, 6 ELR 20481.
Federal Rules of Evidence Rule 408 creates no "settlement privilege" for purposes of discovery, rather party seeking
settlement-related materials must establish that they are reasonably calculated to lead to discovery of admissible
evidence. Morse/Diesel, Inc. v Trinity Indus. (1992, SD NY) 142 FRD 80, request den (1993, SD NY) 1993 US Dist
LEXIS 9190.
173. Privilege as to other particular matters
In actions filed by distributors of motion pictures against exhibitors of motion pictures to recover damages for
alleged conspiracy of defendants for false report of film rentals, plaintiffs were entitled to production of papers, books,
accounts, tax reports, bank account records, and tally sheets, since same were not privileged and constituted evidence
relative to the subject matter. Paramount Film Distributing Corp. v Ram (1950, DC SC) 91 F Supp 778.
Where interrogatories inquired only as to existence of documents, and not their contents, no privilege was involved,
but the portions thereof calling for the production of documents was objectionable. Lee v Electric Products Co. (1963,
ND Ohio) 37 FRD 42, 9 FR Serv 2d 33.319, Case 3.
46 USCS § 819, which prohibits disclosure of certain confidential information by a common carrier by water, does
not create a privilege which would preclude discovery under the federal rules. Delta S.S. Lines, Inc. v National
Maritime Union (1967, ED La) 265 F Supp 654, 10 FR Serv 2d 1007.
Although certain state statutes clearly effect a legislative policy favoring confidentiality of stockholder lists and
records and prohibiting the general disclosure of such information except under certain limited circumstances, they do
not give such information privileged status in the sense contemplated by the Federal Rules. Lincoln American Corp. v
Victory Life Ins. Co. (1974, DC Kan) 375 F Supp 112.
In breach of contract action brought against association of labor unions, defendant association may not depose
mediation officers who had mediated labor controversy initially because parties to mediation are bound by 291401.2
which explicitly bars disclosure from mediators by means such as deposition here being sought unless unusual
circumstances are shown. National Airlines, Inc. v Air Line Pilots Asso. (1976, DC Dist Col) 79 CCH LC P 11596, 21
FR Serv 2d 1367.
Affirmative action plans are not discoverable in Title VII cases; names of employees who filed complaints with
employer and various governmental agencies are not discoverable where they are of minimal relevance to Title VII
litigation and would destroy confidentiality and efficacy of employer's Minority Relations System. Stevenson v
General Electric Co. (1978, SD Ohio) 26 FR Serv 2d 574.
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Generally, affirmative action plans are not discoverable in racial discrimination employment cases on ground that
plans are not relevant to subject matter of suit or constitute confidential, privileged information. McClain v Mack
Trucks, Inc. (1979, ED Pa) 85 FRD 53, 25 BNA FEP Cas 1040, 29 FR Serv 2d 154.
There was no recognition by applicable state law or federal law of privilege of employees' rights of privacy, asserted
by defendants opposing motion to compel discovery of information on annual and guaranteed income of railroad
employees, in suit seeking declaratory, injunctive and punitive and compensatory monetary relief against railroads and
unions, for breach of labor contracts and labor laws and breach by union of fair representation of members, arising out
of integration of employees at particular railroad yard through consolidation of two railroad systems. Smith v B & O R.
Co. (1979, DC Md) 473 F Supp 572, 102 BNA LRRM 2109, 87 CCH LC P 11675, 4 Fed Rules Evid Serv 816, 27 FR
Serv 2d 1284.
Employer does not have privilege to refuse to disclose employees' income information. Smith v B & O R. Co.
(1979, DC Md) 473 F Supp 572, 102 BNA LRRM 2109, 87 CCH LC P 11675, 4 Fed Rules Evid Serv 816, 27 FR Serv
2d 1284.
Arbitrator may not be deposed in order to a certain bases of award or to impeach such award but where deposition is
requesting information in possession of arbitrator which has directly relevant and probative evidence concerning some
unrelated matter which does not impeach correctness of his decision, arbitrator may be deposed. Bliznik v
International Harvester Co. (1980, ND Ill) 87 FRD 490, 31 FR Serv 2d 151.
Financial information concerning non-parties is not privileged matter, however when such information is sought
better approach is to permit discovery prior to trial under appropriate protective orders. Hoffman v Delta Dental Plan
(1981, DC Minn) 517 F Supp 574, 1981-1 CCH Trade Cases P 64139, 32 FR Serv 2d 277.
In shareholders' derivative action charging that defendants defrauded stockholders, mismanaged and wasted assets of
corporation, and violated federal securities laws and Racketeer Influenced and Corrupt Organizations Act, (1) report of
counsel to special review committee of board of directors of corporation is not subject to discovery by plaintiffs, where
information contained in report is otherwise available to plaintiffs' counsel and where plaintiffs have not met undue
hardship/particularized or substantial need test to justify production of report, (2) documents characterized by
defendants as witness interview notes and other materials which clearly fall under either attorney-client privilege or
work product immunity are not discoverable, at least without showing of particularized need under Rule 26(b)(3), and
(3) documents prepared by accounting firm for corporation's board of directors are discoverable to extent they are
relevant, since "joint defense privilege" is inapplicable where there is no indication that accounting firm conducted joint
defense with corporation or anticipated litigation itself, and where accounting firm is not in fact currently party
defendant to litigation. In re Dayco Corp. Derivative Sec. Litigation (1983, SD Ohio) 99 FRD 616, CCH Fed Secur L
Rep P 99619, 38 FR Serv 2d 537.
Handwritten notes on privileged Department of Energy document are protected from disclosure by predecisional
privilege, since documents and notes are inseparable and both must either be protected or exposed. Mobil Oil Corp. v
Department of Energy (1983, ND NY) 102 FRD 1.
In conflict over union organizing campaign, union authorization cards are privileged communication protected from
discovery, where employees signed cards under promise of confidentiality, and where that confidentiality is more
important to federal labor policies than protection of employer's labor interests. International Union v Garner (1984,
MD Tenn) 102 FRD 108, 122 BNA LRRM 2789, 39 FR Serv 2d 454.
Although professional organizations engaged in medical research may in some circumstances be entitled to assert
privilege with respect to medical records, any such privilege is inapplicable where identities of patients are not to be
disclosed in records sought and records do not include patients' intimate histories. Schachar v American Academy of
Opthalmology, Inc. (1985, ND Ill) 106 FRD 187, 1985-2 CCH Trade Cases P 66681, 1 FR Serv 3d 584.
Consumer Product Safety Act does not prevent disclosure of information submitted to Consumer Products Safety
Commission in context of civil discovery request by private litigant. Roberts v Carrier Corp. (1985, ND Ind) 107 FRD
678.
Employer which is defendant in action under Fair Labor Standards Act is not entitled to production of questionnaires
filled out by its employees, to extent that such disclosure would reveal identity of employees who approached plaintiff
Secretary of Labor, since production would violate informer's privilege as well as attorney work-product rule.
Donovan v Forbes (1985, DC Vt) 614 F Supp 124, 27 BNA WH Cas 669, 103 CCH LC P 34721.
District Court will recognize qualified privilege with respect to communications to social worker, in his or her
professional capacity, whether they were acquired from specific client or third party. In re Production of Records to
Grand Jury (1985, DC Mass) 618 F Supp 440.
In civil rights action brought by inpatients of state mental health facilities against various state officials, plaintiffs
were not permitted to videotape and photograph non-party patients who did not consent to such filming where matter to
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be filmed was considered to be privileged, and thus not discoverable under Rule 26(b)(1), since state recognized privacy
rights of mentally ill patients in state mental hospitals and alternative methods were available to enable plaintiffs'
counsel and experts to assess care and treatment provided by facilities in question. N.O. v Callahan (1986, DC Mass)
110 FRD 637.
Documents sought in employment discrimination action containing employer's analysis of minority utilization and
comparisons between minority composition of work force and various labor pools in economy, together with other
documents pertaining to development of affirmative action plan, were subject to discovery despite claim of self-critical
analysis privilege, where plaintiffs' interest in gathering information necessary to prove case, particularly as to element
of discriminatory intent, outweighed any interest in fostering self-analysis because threat of disclosure would have
insignificant deterrent effect upon preparation of such documents. Hardy v New York News, Inc. (1987, SD NY) 114
FRD 633, 46 BNA FEP Cas 1199, 43 CCH EPD P 37281.
Plaintiffs alleging misrepresentation by registered representative of stock brokerage firm were entitled to order
compelling firm to respond to questions requesting names of other customers, since understandably confidential
communications between stockbroker and customer were not, however, privileged; protective orders could be issued if
necessary. King v E.F. Hutton & Co. (1987, DC Dist Col) 117 FRD 2, 9 FR Serv 3d 337.
Privilege concerning communications between applicants or licensees and professional registration authorities does
not exist and court was unwilling to create one since none of concerns for protecting interpersonal relationships highly
evolved by society and peculiarly vulnerable to deterioration in absence of protection were present. Scott v Lewis
(1991, ND Ill) 139 FRD 353, 34 Fed Rules Evid Serv 297.
Defendants as general partners owed fiduciary obligation to limited partners but limited partners were not entitled to
disclosure of information otherwise protected by attorney-client privilege in absence of showing good cause. Ferguson
v Lurie (1991, ND Ill) 139 FRD 362 (criticized in Jumper v Yellow Corp. (1997, ND Ill) 176 FRD 282).
Defendant police officers in civil rights action alleging use of excessive force in connection with arrest failed to
make threshold showing for invoking official government privilege to protect from disclosure their personnel files and
government tort claims and internal investigation documents involving them where they raised general "harm to public
interest" objections without describing how disclosure would harm significant government interest and how much harm
would be done to those interests by disclosure in this case. Miller v Pancucci (1992, CD Cal) 141 FRD 292.
Products liability plaintiff waived any claim of confidentiality relating to his testing positive for HIV virus by filing
suit which included claims for future pain and suffering and permanent lost earning capacity. Agosto v Trusswal
Systems Corp. (1992, ED Pa) 142 FRD 118.
Federal law enforcement investigatory privilege is qualified privilege designed to prevent disclosure of information
that would be contrary to public interest in effective functioning of law enforcement; privilege serves to preserve
integrity of law enforcement techniques and confidential sources, protects witnesses and law enforcement personnel,
safeguards privacy of individuals under investigation, and prevents interference with investigations. Tuite v Henry
(1998, DC Dist Col) 181 FRD 175.
Law enforcement investigatory privilege is based primarily on harm to law enforcement efforts which might arise
from public disclosure of investigatory files; purpose of privilege is to prevent disclosure of law enforcement techniques
and procedures, to preserve confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard
privacy of individuals involved in investigation, and otherwise prevent interference in investigation. In re
Polypropylene Carpet Antitrust Litig. (1998, ND Ga) 181 FRD 680.
Self-evaluative privilege is not available under federal law. Roberts v Hunt (1999, WD NY) 187 FRD 71, 80 BNA
FEP Cas 607.
Plaintiff, debtor's liquidating agent, was entitled to claim mediation privilege to documents utilized in two prior
mediations against other companies that involved similar issues as those alleged against defendants in agent's action
against defendants for causing debtor's financial demise, as encouragement of settlement negotiations and alternative
dispute resolution was compelling interest sufficient to justify recognition of mediation privilege under FRCivP
26(b)(1) and FRE 501. RDM Holdings v Equitex (In re Rdm Sports Group) (2002, BC ND Ga) 277 BR 415.
D. Particular Matters Discoverable
1. Identity and Location of Witnesses
174. Generally
In accordance with explicit language of Rule 26(b)(1), party may obtain discovery of identity and location of persons
having knowledge of relevant facts or any discoverable matter. Atlantic Greyhound Corp. v Lauritzen (1950, CA6
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USCS Fed Rules Civ Proc R 26
Tenn) 182 F2d 540; Edgar v Finley (1963, CA8 Mo) 312 F2d 533, 6 FR Serv 2d 591; Sunday v Gas Service Co. (1950,
DC Mo) 10 FRD 185; Magelssen v Operative Plasterers' & Cement Masons' International Asso. (1963, WD Mo) 32
FRD 464, 7 FR Serv 2d 632.
Although a defendant is not required to state the names and addresses of witnesses he proposes to introduce at trial,
he is required to disclose the names and addresses of persons having knowledge of relevant facts. Bell v Swift & Co.
(1960, CA5 Ala) 283 F2d 407, 3 FR Serv 2d 567.
Disclosure of witness whom plaintiff argues has knowledge of relevant facts or of facts which might lead to
discovery of admissible evidence may be ordered where it is impossible to resolve issue by means of ex parte, in camera
review; court is not obliged to accept mere assertion that unnamed individual has no connection with case and need not
accord evidentiary privilege to promise to protect identity; such disclosure is within broad and liberal treatment
generally accorded Rule 26. Soobzokov v CBS, Inc. (1981, CA2 NY) 642 F2d 28, 7 Media L R 1064, 30 FR Serv 2d
1584.
Interrogatories requesting names and addresses of persons having information or knowledge supporting the case of
the adverse party are proper. Penn v Automobile Ins. Co. (1939, DC Or) 27 F Supp 336; Teller v Montgomery Ward &
Co. (1939, DC Pa) 27 F Supp 938, 41 USPQ 651; Whitkop v Baldwin (1939, DC Mass) 1 FRD 169.
A party may require disclosure of the names of all persons having knowledge of the facts pertaining to the
occurrence out of which the action arose. Griffin v Memphis Sales & Mfg. Co. (1965, ND Miss) 38 FRD 54, 9 FR Serv
2d 33.321, Case 3.
Witnesses of particular events in question, that is, so-called "occurrence witnesses" may always be discovered under
Rule 26(b)(1), even though they will not be used at trial. Lloyd v Cessna Aircraft Co. (1976, ED Tenn) 434 F Supp 4.
Discovery of identity of persons having knowledge or custody of discoverable material may be obtained. Brown v
United States (1998, WD NY) 179 FRD 101.
Rule 26 did not protect identity of witnesses who had been interviewed by stockholders' attorneys in developing facts
for second amended complaint. In re Theragenics Corp. Secs. Litig. (2002, ND Ga) 205 FRD 631.
175. Witnesses whom adverse party plans to call
Interrogatories brought under the applicable Federal Rule of Civil Procedure, seeking the names and addresses of
opposing party's trial witnesses, are improper at any early stage of the pretrial discovery proceedings. Bell v Swift &
Co. (1960, CA5 Ala) 283 F2d 407, 3 FR Serv 2d 567; Wirtz v B. A. C. Steel Products, Inc. (1962, CA4 SC) 312 F2d 14,
46 CCH LC P 31371, 6 FR Serv 2d 722; Reddick v White Consol. Industries, Inc. (1968, SD Ga) 295 F Supp 243, 13
FR Serv 2d 854, 6 UCCRS 303; St. Paul Fire & Marine Ins. Co. v King (1968, WD Okla) 45 FRD 521, 12 FR Serv 2d
814; Jackson v Kroblin Refrigerated Xpress, Inc. (1970, ND W Va) 49 FRD 134, 13 FR Serv 2d 839.
Party in civil action can ordinarily discover from his opponent names of persons known to have information relevant
to lawsuit, but discovery is not ordinarily proper stage in litigation to compel from opponent names of his prospective
witnesses. Brennan v Engineered Products, Inc. (1974, CA8 Mo) 506 F2d 299, 9 BNA FEP Cas 987, 8 CCH EPD P
9781, 75 CCH LC P 33164, 19 FR Serv 2d 433.
In inmate's action for prison officials' denying him approval for kosher diet, district court did not abuse its discretion
in precluding defendants from calling two witnesses for failure to identify them before trial and noting, that if their
testimony was only for impeachment, it was inadmissible under Evidence Rule 608(b); witnesses purportedly would
have testified to having seen plaintiff eating non-kosher food and to having heard announcements for Jewish call-out,
where plaintiff had testified that he sincerely wished to obey kosher dietary laws as he understood them and he was
unaware that this particular prison had Jewish group, and thus went to issue which had been identified in pretrial order,
while if it were offered merely for impeachment, it was inadmissible as extrinsic evidence of specific instances of
plaintiff's conduct. Searles v Van Bebber (2001, CA10 Kan) 251 F3d 869, 2001 Colo J C A R 2447.
An interrogatory requesting the names and addresses of all witnesses whom the defendants intended to use at the trial
of the case was objectionable in an action to recover damages resulting from an automobile accident, on the ground that
such an interrogatory, if it asked the defendants to commit themselves in advance to use certain designated witnesses,
all of them and none other, would call for an act of dangerous imprudence, and it would not be fair to impose such a
handicap. Cogdill v Tennessee Valley Authority (1947, DC Tenn) 7 FRD 411.
Whether or not a party should be required, by interrogatory, to disclose names of witnesses to be called, is
discretionary with the court. Moorman v Simon (1947, DC Mo) 8 FRD 328.
Plaintiff was required to furnish defendant with names and addresses of witnesses whom she proposed to introduce at
trial. Kling v Southern Bell Tel. & Tel. Co. (1949, DC Fla) 9 FRD 604.
In an action under the Sherman Antitrust Act, court took the position that plaintiff's answer, in its objection to
interrogatories seeking names and addresses of all witnesses plaintiff intended to call to prove the alleged conspiracy
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and alleged attempt to monopolize the industry, and in its allegation that plaintiff did not know what witnesses it
expected to call, and its further statement that plaintiff agreed to furnish such information to the defendants prior to trial,
was unsatisfactory, since plaintiff must have known at that time the names of certain witnesses who would be called,
which list the court ordered furnished at that time, to be supplemented later. United States v Shubert (1951, DC NY) 11
FRD 528.
Exception to interrogatory seeking names and addresses of trial witnesses is, sustained since if party is compelled to
state in advance those witnesses he intends to call, he might be placed in the position of explaining away his failure to
call an announced witness when, due to events subsequent to service of the list, the calling of said witness became
undesirable. Fidelis Fisheries, Ltd. v Thorden (1952, DC NY) 12 FRD 179.
In an action for negligence resulting in death, an objection to an interrogatory directed to defendants, requiring list of
the names and addresses of the persons by whom defendants proposed to introduce proof in support of certain claims,
was sustained, as defendants should not be required to turn over to plaintiff in advance of trial the evidence that they
expected to rely upon as a defense to the suit, since this would place too great a burden upon the adversary party.
Kyker v Malone Freight Lines, Inc. (1955, DC Tenn) 17 FRD 393.
Liberal though the discovery rules are, a party should not be compelled to state at an early stage the trial witnesses to
be later examined. Central Hide & Rendering Co. v B-M-K Corp. (1956, DC Del) 19 FRD 294.
Interrogatory requesting plaintiff to state "names and addresses of every witness you expect to use" in trial of case
was improper in form, proper form being interrogatory requesting identity and location of persons having knowledge of
relevant facts. Magelssen v Operative Plasterers' & Cement Masons' International Asso. (1963, WD Mo) 32 FRD 464,
7 FR Serv 2d 632.
Interrogatories which sought the identification of all witnesses who would be called to testify, and the identity and
description of each document which would be offered in support of defendant's case, were improper. Wedding v
Tallant Transfer Co. (1963, ND Ohio) 37 FRD 8, 9 FR Serv 2d 36A.13, Case 2, 9 FR Serv 2d 36A.21, Case 5.
In a libel brought by Federal Government under Federal Food, Drug, and Cosmetic Act, intervening claimant was
required to answer interrogatory seeking names and addresses of claimant's witnesses and identity of experts, to which
objection had been made on ground that the demand was premature and at present impossible of complete fulfillment; if
the claimant was unable to determine at time of interrogatory the identity of all witnesses it would call at trial, it could
later expand or retract this list at pretrial without prejudice. United States v 216 Bottles (1965, ED NY) 36 FRD 695, 9
FR Serv 2d 33.321, Case 2.
An interrogatory which required plaintiff to state names and addresses of all witnesses he expected to use in the trial
of the cause need not be answered, as defendants could not use the interrogatory procedure to limit plaintiff this far in
advance of trial in selection of witnesses to be called. Griffin v Memphis Sales & Mfg. Co. (1965, ND Miss) 38 FRD
54, 9 FR Serv 2d 33.321, Case 3.
Defendant is entitled to obtain answers to interrogatories seeking names and addresses of all persons plaintiffs intend
to call as witnesses and nature of testimony given by such witnesses; plaintiffs' contention that they have not made
definite decision as to which witnesses will be called is not sufficient ground to preclude discovery because plaintiffs
should know by now who will be called as witness, and if they do not know, answers to interrogatories will assist them
in preparation of case. Lewis v J. P. Stevens & Co. (1975, DC SC) 20 FR Serv 2d 1091.
176. Identity of expert witnesses
In a libel brought by Federal Government under Federal Food, Drug, and Cosmetic Act, intervening claimant was
required to answer interrogatory seeking names and addresses of claimant's witnesses and identity of experts, to which
objection had been made on ground that the demand was premature and at present impossible of complete fulfillment; if
the claimant was unable to determine at time of interrogatory the identity of all witnesses it would call at trial, it could
later expand or retract this list at pretrial without prejudice. United States v 216 Bottles (1965, ED NY) 36 FRD 695, 9
FR Serv 2d 33.321, Case 2.
In medical malpractice action in which defendants wanted names of any medical experts whom plaintiffs had
consulted informally with respect to case, but who would not be witnesses, names and addresses were not discoverable
since information sought would not at least lead to admissible evidence. Nemetz v Aye (1974, WD Pa) 63 FRD 66, 19
FR Serv 2d 354.
Defendant in wrongful death action who could not specify identity of any expert witness it planned to call at trial in
response to plaintiff's interrogatory may be precluded from calling expert witness at trial if discovery called for is not
provided sufficiently in advance to enable plaintiff to prepare for effective cross-examination. Wallace v Shade
Tobacco Growers Agricultural Ass'n (1975, DC Mass) 21 FR Serv 2d 1130.
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USCS Fed Rules Civ Proc R 26
Provision of Rule 26(b)(1), providing for discovery of identity and location of persons having knowledge of any
discoverable matter, is not by its terms limited to identity and location of non-experts, but expressly allows such
information to be obtained as to any persons having knowledge of discoverable matter, and such encompasses category
of experts who have been retained or specially employed in anticipation of litigation or preparation for trial and who are
not expected to be called as witnesses at trial, since they may have knowledge of matter discoverable or potentially
discoverable under provisions and requirements of Rule 26(b)(4)(B). Baki v B. F. Diamond Constr. Co. (1976, DC
Md) 71 FRD 179, 23 FR Serv 2d 188.
177. Witnesses to accident
In absence of circumstances making the discovery unnecessary or inadvisable, disclosure of names and addresses of
witnesses to an accident may be required in pretrial discovery proceeding. Atlantic Greyhound Corp. v Lauritzen
(1950, CA6 Tenn) 182 F2d 540; Taylor v Sound S.S. Lines, Inc. (1951, DC Conn) 100 F Supp 388; Anderson v United
Air Lines, Inc. (1969, SD NY) 49 FRD 144, 14 FR Serv 2d 515; Rogers v Tri-State Materials Corp. (1970, ND W Va) 51
FRD 234, 14 FR Serv 2d 1563.
Defendant was, as a matter of right, entitled through discovery proceedings to be informed of the names of witnesses
to accident, which names were known to the plaintiff. Edgar v Finley (1963, CA8 Mo) 312 F2d 533, 6 FR Serv 2d 591.
In an action against a steamship company, witness at pretrial proceeding is not required to answer question as to
names of any of ship's officers or petty officers or members of the crew that knew anything about how the accident
happened; Rule 26 did not contemplate any such general question. Barter v Eastern S.S. Lines, Inc. (1939, DC NY) 1
FRD 65.
In a personal injury action, plaintiff's motion that defendant's examination of the plaintiff before trial be restricted to
the manner of the happening of the accident and exclude inquiry as to the names and addresses of any of the witnesses
thereto should be denied in the absence of any showing that the examination is being conducted in bad faith or in such a
manner as to annoy, harass, or oppress the plaintiff. Stankewicz v Pillsbury Flour Mills Co. (1939, DC NY) 26 F Supp
1003.
In an action to recover for injury and death of stevedore who was struck by falling hatch boards, plaintiff was entitled
to be told, in authoritative form, names and addresses of members of the gang of which decedent was a member, and of
foreman in charge at time of the occurrence, since with that information plaintiff could learn from them where each was
working, and what he saw of the happening, that is, the dislodgment of the hatch boards, the position of decedent at the
time, and which of the boards struck him. Silvetti v United States (1949, DC NY) 8 FRD 558.
In an action to recover for injuries sustained by plaintiff in fall while riding on train, it was inescapably clear that
plaintiff had set up the claim that she was riding alone aboard the train, that she was unconscious for a time after the
accident, and that she was severely ill during remainder of her trip, and, in light of these circumstances, defendant
should furnish plaintiff with names of witnesses required by interrogatories. Walsh v Pullman Co. (1949, DC Mass) 9
FRD 107.
Objection that interrogatories calling for names or identities and addresses or location of occupants of bus involved
in accident under consideration relate to confidential matters in possession of defendant's attorney and that information
is too broad and the need therefor is not justified, is rejected since such interrogatories do not call directly for
information from defendant's counsel, but in effect only for names and addresses of witnesses. Johnson v Queen City
Coach Co. (1950, DC Tenn) 9 FRD 686.
In personal injury action in which one of defendants alleged in its answer that plaintiff was operating his motorcycle
while under influence of intoxicating liquor, interrogatories by plaintiff requesting names and addresses of persons from
whom defendant obtained such information were allowed. Shank v Associated Transport, Inc. (1950, DC Pa) 10 FRD
472.
In personal injury action, names and addresses of witnesses to an accident might be subject of pretrial discovery and
investigator for defendant should furnish names and addresses of all witnesses discovered, seen, or interviewed by him.
Floe v Plowden (1950, DC SC) 10 FRD 504.
Furnishing list of the passengers and their addresses, but not indicating which of them had knowledge of happening
of accident in question, was not sufficient compliance with plaintiffs' requested information as to names of passengers
who had knowledge of the accident; in interest of full discovery defendant should reveal to plaintiffs the names of those
from whom defendant had statements, either oral or written, that they witnessed all or any part of the accident, and a
brief statement of factual matters known to such witnesses, and plaintiffs were entitled to know which passengers had
knowledge of facts of accident in order to determine whether their presence was required at the trial. Irvine v Safeway
Trails, Inc. (1950, DC Pa) 10 FRD 586.
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USCS Fed Rules Civ Proc R 26
Elderly woman suing for damages for injuries sustained while traveling as paying passenger on defendant's train is
entitled to information sought by interrogatories requesting names and addresses of persons other than defendant's
employees and agents, who were in the room in which the plaintiff was when injured or in the car in which she was as a
passenger, and who had some knowledge of the accident since she was traveling alone and her injuries were so severe
that she was unable to care for her own affairs in obtaining of witnesses. Grogan v Pennsylvania R. Co. (1950, DC NY)
11 FRD 186.
In action under Jones Act to recover for injuries to a member of the crew on one of the defendant's ships, objection to
interrogatories requesting defendant to state full name, capacity, and address of each of officers and crew members who
served on defendant's vessel for voyage during which plaintiff sustained his alleged injuries, and which of such officers
and crew members were still in defendant's employ, was overruled. Vermilyea v Chesapeake & O. R. Co. (1951, DC
Mich) 11 FRD 255.
Interrogatory requesting complete name and last-known address of witnesses to accident was proper under Rule
26(b). Butler v United States (1964, WD Mo) 226 F Supp 341, 8 FR Serv 2d 34.411, Case 1.
Defendant was entitled to names and addresses of prospective witnesses in personal injury action after plaintiff
declined to divulge their names at deposition and stated their names were known to plaintiff's attorney. Roberson v
Ryder Truck Lines, Inc. (1966, ND Miss) 41 FRD 166, 10 FR Serv 2d 920.
In malpractice actions by former patients against a hospital, plaintiffs were entitled to discovery of the names of
other patients who might be able to provide information relevant to the issues in the action, provided that precautions be
taken to protect the legitimate interests of those patients in freedom from public disclosure of essentially private matters.
Connell v Washington Hospital Center (1970, DC Dist Col) 50 FRD 360, 14 FR Serv 2d 592.
178. Identity of complaining witness in government action
In action brought by Secretary of Labor under § 17 of Fair Labor Standards Act (29 USCS § § 201 et seq.) to
enjoin defendant from violating equal pay provisions of Act, government's interest in confidentiality outweighed
defendant's need for statements of proposed government witnesses, at least at discovery stage, and order dismissing
action with prejudice would be vacated, where order was grounded upon failure of Secretary to comply with court
orders having effect of compelling Secretary to decide who his witnesses would be and to turn over to defendant those
portions of statements in his possession which would be testified to at trial. Brennan v Engineered Products, Inc.
(1974, CA8 Mo) 506 F2d 299, 9 BNA FEP Cas 987, 8 CCH EPD P 9781, 75 CCH LC P 33164, 19 FR Serv 2d 433.
In an action to enjoin violation of the Fair Labor Standards Act [29 USCS § § 201 et seq.], interrogatories are
proper which seek the names of employees alleged to have been paid substandard wages. Fleming v Bernardi (1941,
DC Ohio) 1 FRD 624; Fleming v Bernardi (1941, DC Ohio) 4 FRD 270.
In an action under the Fair Labor Standards Act [29 USCS § § 201 et seq.], information as to employees involved,
their occupations, and alleged inadequacy of records may be obtained by pre-trial procedure or discovery. Walling v
Bay State Dredging & Contracting Co. (1942, DC Mass) 3 FRD 241, 7 CCH LC P 61696.
In action to enjoin violations of the Fair Labor Standards Act [29 USCS § § 201 et seq.], disclosure of wage and
hour administrator's statements by or reports concerning said employees would not be required; but records of names of
defendant's employees whom plaintiff claims defendant underpaid would be ordered disclosed. Walling v Richmond
Screw Anchor Co. (1943, DC NY) 4 FRD 265.
In action to enjoin defendants from violating Fair Labor Standards Act, Secretary of Labor is not required to disclose
identity of all current and former employees of defendants from whom Secretary may have taken statements because
qualified privilege exists concerning names and statements of witnesses, and because defendants have made no showing
that public interest in favor of protecting flow of information to government concerning possible violations of Act is
outweighed by defendants' right to prepare their defense. Schultz v Luxuary Lodges, Inc. (1970, SD Tex) 14 FR Serv 2d
360.
In sex discrimination action brought under Fair Labor Standards Act in which plaintiff, in response to defendant's
first set of interrogatories, supplied names of 18 persons allegedly discriminated against by defendants plus 36 others
with knowledge of discrimination, and defendant thereafter served second set of interrogatories requesting plaintiff to
supply information about any statement or statements made by any of persons named by plaintiff in first set of
interrogatories, information sought in second set of interrogatories was protected by informers privilege where
defendant had opportunity to interview and depose people whose names had been supplied by government and where
defendant did not know whether people whose names had been supplied by plaintiff on grounds that they had
knowledge of discrimination were also informants within meaning of privilege. Dunlop v J.D.C.N., Inc. (1975, ED
Mich) 67 FRD 505, 11 BNA FEP Cas 614, 10 CCH EPD P 10475, 20 FR Serv 2d 1407.
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USCS Fed Rules Civ Proc R 26
Defendant in employment race and sex discrimination action under Title VII and 42 USCS § 1981 is entitled to
discover from plaintiff and Equal Employment Opportunity Commission identities of employees allegedly
discriminated against by defendant and specific dates and acts of discrimination where plaintiffs intend to prove
discrimination not only by statistical evidence, but also by evidence of individual acts of discrimination. Local 194,
Retail, Wholesale and Department Store Union v Standard Brands, Inc. (1979, DC Ill) 27 Fed Rules Serv 2d 588.
Defendant in Fair Labor Standards Act (29 USCS § § 201 et seq.) action by Secretary of Labor to recover alleged
unpaid minimum wages and overtime compensation, is not entitled to discover identity and statements of employees
and former employees who provided information to government relating to alleged violations; government is entitled to
withhold information on basis of government privilege in FLSA enforcement actions; privilege seeks to protect
employees with legitimate complaints who seek to exercise their constitutional and statutory right to present their
grievances to government. Marshall v L & H Service Corp. (1979, ED Mo) 27 FR Serv 2d 596.
179. Miscellaneous
Reporter was not required to disclose the names of government personnel who supplied him with key information
against plaintiff-mayor in a libel suit, where there was no evidence other than self-serving assertions by plaintiff that he
acted with knowing or reckless disregard of truth in preparation of magazine articles. Cervantes v Time, Inc. (1972,
CA8 Mo) 464 F2d 986, 1 Media L R 1751, cert den (1973) 409 US 1125, 35 L Ed 2d 257, 93 S Ct 939.
Party convicted of endeavoring to influence juror in highly publicized federal criminal trial should have been
provided names and addresses of other petit jurors in case to provide accused opportunity to prepare her defense by
interviewing other jurors as to their perceptions of character and credibility of accusing juror to learn of any remarks
suggestive of juror's desire to find way to quit jury or indicative of motive or disposition to fabricate accusations of jury
tampering against someone; although such evidence might not be admissible in direct testimony, it might have led to
other admissible evidence, as discovery evidence sometimes does. United States v Bailey (1987, CA1 Mass) 834 F2d
218, 24 Fed Rules Evid Serv 90.
In an action for damages for breach of warranty in purchase of goods, defendant should be required to answer an
interrogatory calling for the name of defendant's representative who engaged in the negotiations leading up to the sale;
fact that such an answer may disclose the name of a witness is no objection. F. & M. Skirt Co. v A. Wimpfheimer &
Bro., Inc. (1939, DC Mass) 25 F Supp 898.
During the taking of a deposition under this rule in an action to recover for the wrongful taking of property, a
witness, who had denied that defendants had taken any such property, should, nevertheless, be required to furnish the
names of persons to whom other similar property was sold by defendants. Thompson v Oil Refineries, Inc. (1939, DC
La) 27 F Supp 123.
In an action on fire insurance policies, in which the answer alleges arson as a defense, plaintiff's motion for an order
directing defendant to supply the names of all persons having knowledge to support the defense, to enable plaintiff to
examine the witnesses before trial, should be denied if it appears that to permit such procedure would interfere with
impending criminal prosecution of plaintiff on the charge of arson. Penn v Automobile Ins. Co. (1939, DC Or) 27 F
Supp 336.
In an action by a motion-picture exhibitor against a competitor and certain motion-picture distributors for creating a
monopoly, interrogatories are proper which call for the names of defendants' agents having knowledge of the alleged
monopolistic transactions. Byers Theaters, Inc. v Murphy (1940, DC Va) 1 FRD 286.
In an action on a contract in which the defense was impossibility of performance as a result of governmental action,
interrogatories were proper which sought the names of persons who conducted the negotiations with the agency of the
government. Compagnie Continentale D'Importation v Pacific Argentine Brazil Line, Inc. (1940, DC NY) 1 FRD 388.
In action by insurers to recover damages from defendants, who were charged with having negligently caused a fire,
the court, in its discretion, sustained objections to interrogatories as to names and addresses of persons involved in
starting of the fire, and name and address of person who discovered the fire. American & Foreign Ins. Co. v Richard
Gibson & Sons, Inc. (1940, DC Mass) 1 FRD 501.
In an antitrust action, in which government objected to interrogatories served by defendants requesting that
government furnish names and addresses of all persons known to plaintiff to have knowledge of any facts or documents
tending to prove existence or circumstances of certain oral contracts, objections to such interrogatories would be
sustained, since answering of such interrogatories would impose an impossible burden upon the government, and would
call for revealing of what in fact is the work product of the lawyers. United States v Loew's, Inc. (1959, SD NY) 23
FRD 178, 2 FR Serv 2d 540.
Objection to interrogatories seeking location of witnesses on the ground of irrelevancy was overruled where location
of witnesses, for taking their depositions, was reasonably calculated to lead to discovery of admissible evidence.
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McKeon v Highway Truck Drivers & Helpers, etc. (1961, DC Del) 28 FRD 592, 49 BNA LRRM 2009, 43 CCH LC P
17249, 5 FR Serv 2d 560.
In action by Secretary of Labor to set aside union election, plaintiff is not required to answer defendant's
interrogatories seeking identity of each person known to have been witness to event because defendant is entitled to
disclosure of only names and addresses of witnesses plaintiff expects to call at trial. Shultz v United Steelworkers of
America (1970, WD Pa) 14 FR Serv 2d 358.
Interrogatory to defendants in private antitrust action to "identify any and all persons who helped prepare the answers
to these Interrogatories or were consulted in connection therewith" was too broad and court therefore ordered
defendants to respond simply by naming those persons consulted in preparation of their answers having knowledge of
the relevant facts. Maritime Cinema Service Corp. v Movies En Route, Inc. (1973, SD NY) 60 FRD 587, 1973-2 CCH
Trade Cases P 74782, 18 FR Serv 2d 569.
In products liability case alleging negligent design in manufacture of stove, plaintiff is entitled to discover name of
person in defendant's company who is presently in charge of design because such person may have knowledge of
discoverable matter. Clark v General Motors Corp. (1975, DC Mass) 20 FR Serv 2d 679.
In action brought against drug manufacturer which allegedly failed to adequately investigate, test, and provide
warning of hazards known about drug, where both plaintiffs and defendant moved to compel publisher of newsletter
containing article written about drug to disclose name of person who wrote preliminary draft of article, names of
consultants to whom draft was sent, and related correspondence and documents, court could not apply per se rule since
information sought was relevant, but not essential to resolution of judicial controversy, and court had to balance
competing interests in determining whether discovery was allowable. Apicella v McNeil Laboratories, Inc. (1975, ED
NY) 66 FRD 78, 19 FR Serv 2d 1360.
Defendant in patent infringement suit was not entitled to discover identity of person who reviewed manuscript for
scholarly journal to determine whether reviewer so disseminated manuscripts as to constitute prior printed publication
or prior art, since publisher of journal had demonstrated strong interest in preserving confidentiality of reviewer's
identity and values it seeks to foster in resisting this disclosure have traditionally been accorded substantial weight in
assessing competing needs and hardships involved in pretrial discovery, defendant by contrast had shown little, if
anything, to tip scales in its favor, and publisher's status as nonparty was significant in determining whether compliance
with discovery would constitute undue burden. Solarex Corp. v Arco Solar, Inc. (1988, ED NY) 121 FRD 163.
Plaintiffs alleging that defendant was negligent in screening and testing its blood donors was entitled to identity of
blood donor in order to question him concerning defendant's screening procedures; donor's right to privacy was
outweighed by plaintiff's need for controlled access to donor to determine whether procedure for screening
HIV-carrying donors were adequate. Boutte v Blood Systems, Inc. (1989, WD La) 127 FRD 122, 14 FR Serv 3d 169.
2. Content and Information Contained In Documents
180. Generally
If the documents called for are reasonably probable to be material in the case, the production and inspection of them
should be allowed. June v George C. Peterson Co. (1946, CA7 Ill) 155 F2d 963; Beler v Savarona Ship Corp. (1939,
DC NY) 26 F Supp 599, 13 Ohio Ops 516; Quemos Theatre Co. v Warner Bros. Pictures, Inc. (1940, DC NJ) 35 F Supp
949.
Stipulation by the parties requiring the production, and permitting the inspection, of certain books, records, and
documents constitutes a waiver of the requirement of showing reasonable probability of materiality. Beler v Savarona
Ship Corp. (1939, DC NY) 26 F Supp 599, 13 Ohio Ops 516.
Documents produced by defendant in response to subpoena duces tecum may not be inspected by plaintiff in advance
of an inspection and determination by the court that they contain evidence material to the issues; question of materiality
is not to be determined by mere examination of the subpoena. United States v Aluminum Co. of America (1939, DC
NY) 26 F Supp 711.
A party may not compel his adversary to produce documents showing whether another person is participating in the
defense to a degree that the judgment would be binding against him since this matter is not an issue involved in the
action. Lip Lure, Inc. v Bloomingdale, Inc. (1939, DC NY) 27 F Supp 811, 51 USPQ 410.
A party is entitled to the production of documents which appear to be material to issues, even though he states that he
seeks them for the purpose of enabling him to amend his pleading. United States v Doudera (1939, ED NY) 28 F Supp
223, 39-2 USTC P 9696, 23 AFTR 579.
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A motion for the production of documents will be denied unless supported by an affidavit showing with particularity
the relevancy and materiality of such documents to the issues of the action. Gill v Col-Tex Refining Co. (1940, DC
Tex) 1 FRD 255.
The standard of materiality for purposes of inspection before trial is broader than at the trial and some latitude should
be allowed. Quemos Theatre Co. v Warner Bros. Pictures, Inc. (1940, DC NJ) 35 F Supp 949.
If parties do not agree as to the materiality of documents sought to be inspected, the documents should first be
inspected by the court. United Mercantile Agencies v Silver Fleet Motor Express, Inc. (1941, DC Ky) 1 FRD 709.
Discovery may not be had to seek information which is immaterial and irrelevant to the issues of the action.
Campbell v American Fabrics Co. (1942, DC NY) 2 FRD 204.
Depositions should be limited to the extent of the knowledge of the examined party and should not be used as a
means to obtain inspection of papers and records; inspection of relevant papers and records should be obtained under
Rule 34. Heiner v North American Coal Corp. (1942, DC Pa) 3 FRD 64.
Rule 34 and Rule 26(b) must be read together. Fahey v United States (1955, DC NY) 18 FRD 231.
Rule 26(b) and Rule 45(d) were not intended as a substitute for the discovery and production of documents and
things for inspection, copying, or photographing under Rule 34. Joseph L. Lee, Inc. v Margon Corp. (1956, DC NY) 18
FRD 390.
With respect to third parties, discovery is more limited in order to protect them from harassment, inconvenience or
disclosure of confidential documents; therefore the court will not issue an order for the production of the documents
without some further showing of their nature and relevance. Collins & Aikman Corp. v J. P. Stevens & Co. (1971, DC
SC) 51 FRD 219, 169 USPQ 296.
Merely because document is dated after last act complained of, does not immunize it from discovery if it relates to
relevant discoverable information. Midland Inv. Co. v Van Alstyne, Noel & Co. (1973, SD NY) 59 FRD 134, CCH Fed
Secur L Rep P 93906, 17 FR Serv 2d 345.
181. Accident reports
Pursuant to a motion made under Rule 34, plaintiff's attorney might inspect and copy any and all reports made by the
captain or other officers of the tug to the defendant prior to the commencement of the action relative to plaintiff's
accident. Revheim v Merritt-Chapman & Scott Corp. (1942, DC NY) 2 FRD 361.
Worker suing equipment manufacturer was entitled to discovery of investigative report of manufacturer's area
marketing manager, since report was apparently sent to non-attorney staff and later forwarded to in-house counsel and
there was no indication that it was intended to be confidential or prepared to facilitate rendition of legal services.
McFadden v Norton Co. (1988, DC Neb) 118 FRD 625, 9 FR Serv 3d 1297.
182. Bank records
If the defendant by its defense put plaintiff in a position of being required to show that defendant had a real interest
in the contract involved and to do so it might be necessary to show that the business relations between defendant and
another, both as depositor and borrower, were profitable to defendant, the defendant was not required to testify as to
details of every transaction, but only as to the date when the other's relations with defendant as depositor or borrower or
both commenced, the total amount borrowed, the total amount of interest received by defendant on such borrowing, the
depositor's average balance on deposit with the bank, and other fundamental facts. Grinnell Co. v National Bank of
Far Rockaway (1941, DC NY) 1 FRD 767.
In action against bank for allegedly misstating amount of credit card account to consumer reporting agency, bank
was entitled to discovery of plaintiff's relevant financial records, notwithstanding plaintiff's claim of privilege; there is
no federal constitutional or public policy privilege against discovery of bank records, and state privileges did not
preclude discovery of relevant information in federal court suit. Sneirson v Chemical Bank (1985, DC Del) 108 FRD
159, 19 Fed Rules Evid Serv 1004, 3 FR Serv 3d 1044.
Documents prepared by bank in connection with investigation of fraud by bank employee were covered by
attorney-client privilege since they were prepared at counsel's request so that it could render legal opinion. First
Chicago International v United Exchange Co. (1989, SD NY) 125 FRD 55.
In FDIC-Corporate's action against accounting firm for accounting malpractice in connection with failed bank,
accounting firm was entitled to discover all non-privileged documents in post-closing loan files at issue since FDIC
acknowledged that damages sought were continuing and that post-closing loan files would reflect whether damages
calculations provided to defendant were accurate. FDIC v Cherry, Bekaert & Holland (1990, MD Fla) 131 FRD 202.
183. Computer printouts
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Party may be ordered to produce as documents computer printouts and computer input information such as computer
cards or tapes; because of the accuracy and inexpensiveness of producing the documents there is no reason why the
defendant should not be required to produce them. Adams v Dan River Mills, Inc. (1972, WD Va) 54 FRD 220, 4 BNA
FEP Cas 523, 4 CCH EPD P 7754, 15 FR Serv 2d 1275.
184. Corporate documents
In action for a decree requiring defendants to continue to purchase from plaintiff their requirements of shipping
containers as provided by certain contracts, interrogatories directed to shipping containers purchased by defendants
were material to the extent of disclosing the volume of containers purchased by defendants from others than plaintiff,
but not to the extent of disclosing the price paid or the name of the seller. Ft. Wayne Corrugated Paper Co. v Anchor
Hocking Glass Corp. (1940, DC Pa) 4 FRD 328.
In action for a decree requiring defendants to continue to purchase from plaintiff their requirements of shipping
containers as provided by certain contracts, plaintiff's motion calling for all minutes of defendant corporations relating
to the formation of a new corporation, all correspondence between defendant corporation or its officers and other certain
persons and corporations relating to the formation of the new corporation was denied as none of such items had any
material bearing upon the contract relations involved in the action. Ft. Wayne Corrugated Paper Co. v Anchor
Hocking Glass Corp. (1940, DC Pa) 4 FRD 328.
Where, in action to wind up defendant corporation and for appointment of a receiver, the complaint charged
negligent and unlawful acts on the part of the management, information sought with relation to the alleged
mismanagement was not clearly privileged or irrelevant. Bloomer v Sirian Lamp Co. (1944, DC Del) 4 FRD 167.
Where plaintiffs sought an accounting of production from an oil and gas well in which they were interested with
defendant, alleging that the defendants kept separate books and records which were not accessible to plaintiffs, and that
such records as were available to the plaintiffs did not show the true production of the well and that plaintiffs were
purposely deceived by reason thereof, plaintiffs were not required to disclose information as to the production of wells
and sale of oil from all the other wells owned by defendant in the area in the field. Diffie v H. F. Wilcox Oil & Gas Co.
(1944, DC Okla) 4 FRD 240.
Interrogatories were not unduly burdensome or oppressive on the defendants, since plaintiff had offered the services
of an investigator to audit the corporate defendant's records and take off the necessary figures and furnish the
defendant's counsel with a full recapitulation of all information obtained by the investigator in order to relieve the
defendants of this burden. Wirtz v Capitol Air Service, Inc. (1967, DC Kan) 42 FRD 641, 11 FR Serv 2d 820.
In action against government officials in their individual capacities for acts connected with their official duties,
defendants were entitled to production of documents, such as corporate shareholder transfer records, which were
relevant to plaintiffs' claim of harassment or defendants' defense to it. White v Jaegerman (1970, SD NY) 51 FRD 161,
CCH Fed Secur L Rep P 92854, 14 FR Serv 2d 874.
Non-party witness cannot object to production of evidence if it has any possible bearing upon issues; in action for
damages for alleged price discrimination, non-party witness may be required to produce documents relating to sales and
re-sales because such documents are relevant, and because production of requested records will not impose any undue
burden on witness. D & H Auto Parts, Inc. v Ford Marketing Corp. (1971, ED NY) 341 F Supp 989, 1971 CCH Trade
Cases P 73720, 15 FR Serv 2d 831.
Documents, files, records, and books of corporation, when relevant, may be required by court order to be produced,
inspected, or copied. Duplan Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
In civil rights action in which plaintiff's claim that building and loan company refused to lend money for home
purchase because their neighborhood was racially integrated, information about defendants' loan application and
appraisal process is relevant and thus discoverable under rule 26(b) since it might tend to prove allegation that
company's stated criteria are sham and might establish pattern of conduct by defendant, but information as to
defendant's mergers is not relevant. Laufman v Oakley Bldg. & Loan Co. (1976, SD Ohio) 72 FRD 116, 23 FR Serv 2d
849.
Documents relating to tests and analyses which corporation performed on samples of its customers' products to
detect patent infringement are relevant to patent infringement action and are discoverable. Loctite Corp. v Fel-Pro,
Inc. (1978, ND Ill) 203 USPQ 184, 28 FR Serv 2d 99.
Plaintiffs in action against employer for failure to fund pension plan required by labor contract are entitled to Rule
26(b)(1) discovery of payroll records and other related items. Central States Southeast & Southwest Areas Pension
Fund v Fairway Transit, Inc. (1979, ED Wis) 28 FR Serv 2d 792.
In suit against defendant company for asbestos poisoning of plaintiff's decedent, as result of decedent's residency
proximate to defendant's plant, and against Canadian distributor of asbestos, documents concerning Canadian
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USCS Fed Rules Civ Proc R 26
employees and defendants' knowledge of danger to their employees are relevant and must be produced, although
plaintiff's claim is not work-related impairment. Petruska v Johns-Manville (1979, ED Pa) 83 FRD 32, 5 Fed Rules
Evid Serv 595, 28 FR Serv 2d 966.
Corporate officer can be compelled to produce corporate records and documents created after corporation's charter
has been annulled and its de jure status has been terminated, if in fact it continues to operate as corporation and is held
out to public as separate distinct institutional entity. Dembinski v Walsh (1983, DC Dist Col) 13 Fed Rules Evid Serv
1752, 37 FR Serv 2d 176.
In wrongful death action stemming from death of employee of welding contractor while he was working on premises
owned by defendant corporation, plaintiff is entitled to discovery pertaining to corporation's asserted immunity, as well
as existence of claim against building architect or employee of corporation, notwithstanding corporation's contentions
that (1) it enjoys complete immunity from tort liability as owner of premises on which employee of contractor was
injured, and (2) it should not be required to respond to discovery requests until threshold issue of tort immunity is
disposed of; thus, plaintiff may make good faith examination of copy of corporation's contract with welding contractor
and accident reports prepared by corporation's regional safety manager, and upon plaintiff's good faith determination
that such materials do not enable her to sufficiently exhaust alternative avenues to cause of action, plaintiff may depose
corporation's regional safety manager. Owens v American Cyanamid Co. (1983, SD Ga) 38 FR Serv 2d 1142.
If circumstances exist that indicate some form of control by subsidiary over documents and information sought--even
if documents or other information are in possession of parent--subsidiary may be required to produce requested data or
at least to make good-faith effort to do so; this is so if subsidiary and parent have worked sufficiently closely in
particular field of endeavor that is subject of lawsuit to suggest that subsidiary could be deemed to have constructive
control of information sought (i.e., ready ability to obtain it), even if not actual possession. Ferber v Sharp Electronics
Corp. (1984, SD NY) 40 FR Serv 2d 950.
In response to interrogatory requesting rail corporation to list and identify any studies performed by it or known to it
pertaining to (1) existing protection or possibility of upgrading protection at particular grade crossing, prior to or after
subject collision, and (2) relative effectiveness of various types of crossing warning devices, rail corporation must
indicate, inter alia, any studies done subsequent to accident, since information as to subsequent repairs is relevant to
show feasibility of precautionary measures, and it must indicate studies on relative effectiveness of various devices,
since information is relevant to defendant's knowledge of more adequate safety and warning devices. Weddington v
Consolidated Rail Corp. (1984, ND Ind) 101 FRD 71.
In action against railroad stemming from collision at grade crossing, defendant must provide information concerning
improvement of warning devices at crossings generally, and at subject crossing specifically, as well as information as to
when it re-evaluates crossing protection devices, since such information is directly related to issue of reasonable care.
Weddington v Consolidated Rail Corp. (1984, ND Ind) 101 FRD 71.
Infant suing drug company was entitled to discovery of certain corporate documents, despite company's contention
that they related to matters of confidential cost data, marketing and financial strategies, financial information, and trade
secrets, since material was relevant, might lead to admissible evidence, and parties themselves had implemented
mechanism limiting risk of disclosure to others by entering into stipulation of confidentiality. Henson v Wyeth
Laboratories, Inc. (1987, WD Va) 118 FRD 584.
Under business strategy doctrine, discovery relating to target company's strategies, alternatives, or proposals under
consideration is protected from disclosure in litigation arising out of takeover attempt. Temple Holdings v Sea
Containers (1989, DC Dist Col) 131 FRD 360.
Corporation may not withhold, under either attorney-client or work-product privilege, from corporate director or
officer who is now in adverse relationship to corporation, those corporate documents generated during director's or
officer's tenure. Gottlieb v Wiles (1992, DC Colo) 143 FRD 241.
Defendant's documents were not protected by either attorney-client or work-product privilege since each was
essentially business communication among defendant's employees, did not contain communications between defendant
and its attorneys, nor seek or reflect legal advice from defendant's attorneys, and none was prepared in anticipation of
litigation. North Shore Gas Co. v Elgin, J. & E. Ry. (1995, ND Ill) 164 FRD 59.
Corporation that was named as defendant in action by United States for violations of Clean Air Act was not required
to produce documents that contained emissions calculations that were made after corporation received notice of alleged
violation; except that corporation was required to produce any such documents that might be otherwise protected by
attorney client privilege or as work product if corporation intended to use them as part of its defense at trial. United
States v Duke Energy Corp. (2002, MD NC) 208 FRD 553.
185. --Antitrust
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Because discovery obtainable under Rule 56(f) to oppose a motion for summary judgment would normally be less
extensive in scope than the general discovery obtainable under Rule 26, trial court, in treble-damage action for
conspiracy to boycott plaintiff's sale of Iranian oil, in violation of federal antitrust laws, properly refused to give
plaintiff general access to defendant's files for all documents in connection with defendant's activities in Iranian oil prior
to time defendant allegedly became a member of the conspiracy, and broader access to defendant's files for period
within which plaintiff had already had discovery, where plaintiff was attempting, in effect, to obtain discovery of
peripheral aspects of defendant's alleged participation in the conspiracy, after having failed, despite already substantial
discovery, to obtain any significant evidence of conspiracy for period during which it was alleged to have directly
injured plaintiff. First Nat'l Bank v Cities Service Co. (1968) 391 US 253, 20 L Ed 2d 569, 88 S Ct 1575, 1968 CCH
Trade Cases P 72458, 12 FR Serv 2d 1179, reh den (1968) 393 US 901, 21 L Ed 2d 188, 89 S Ct 63.
In antitrust action brought by government to force defendant to divest itself of certain corporate acquisitions,
investigatory inquiries made by government with regard to acquisitions made by other corporations within same
industry, are relevant and therefore discoverable under Rule 26(b)(1), to the extent they contain factual materials, such
as surveys, economic analyses of industry and government analyses. United States v Leggett & Platt (1976, CA6 Ohio)
542 F2d 655, 1976-2 CCH Trade Cases P 61124, 22 FR Serv 2d 493, cert den (1977) 430 US 945, 51 L Ed 2d 792, 97 S
Ct 1579.
In an action by a motion-picture exhibitor against a competitor and certain motion-picture distributors for violation
of the Antitrust Laws [15 USCS § § 1 et seq.], the court ordered the production of film rental contracts between
defendants for a certain number of years prior to that in which the loss was alleged to have occurred since the
information contained therein might be admissible to show intent. Byers Theaters, Inc. v Murphy (1940, DC Va) 1
FRD 286.
In private treble damage antitrust action by motion picture sublicensor against other sublicensors and motion picture
distributors, alleging that defendants conspired by various means to drive plaintiff out of business, plaintiff's
interrogatory to certain defendants requesting parties, dates, and substance of any oral agreement to render services to
the other defendants within or outside the United States was relevant to subject matter of litigation in that it might elicit
preferential terms granted to some customers and tend to support plaintiff's allegation of a conspiracy in restraint of
trade. Maritime Cinema Service Corp. v Movies En Route, Inc. (1973, SD NY) 60 FRD 587, 1973-2 CCH Trade Cases
P 74782, 18 FR Serv 2d 569.
In anti-trust actions, request for estimate by plaintiffs of their share of market denied where defendant gave no
indication of need for or significance of such information and court could not fathom how such estimate would in any
way lead to possible other information that would be of use to defendant or to narrowing of the issues. Carlson Cos. v
Sperry & Hutchinson Co. (1973, DC Minn) 374 F Supp 1080, 1974-2 CCH Trade Cases P 75144, 19 FR Serv 2d 696.
Wine supplier would not be compelled, in suit by alcoholic beverage distributor alleging unlawful tying
arrangements, to produce corporate documents detailing its costs and desired profit margin because request was too
sweeping, jury was likely to be confused, and plaintiff's method of calculating damages, for which information was
sought, was unnecessarily unwieldy. L. Knife & Son, Inc. v Banfi Products Corp. (1987, DC Mass) 118 FRD 269,
1987-1 CCH Trade Cases P 67486.
Plaintiff shipbuilder in antitrust suit was entitled to discovery from nonparty shipbuilder of certain documents
relevant to plaintiff's lost profit claims but not documents whose disclosure would provide competitor with unfair
advantage and harm present customer relationships. Litton Industries, Inc. v Chesapeake & O. R. Co. (1990, ED Wis)
129 FRD 528, 1990-1 CCH Trade Cases P 69037, 16 FR Serv 3d 646.
186. --Employment discrimination
Defendant corporation's payroll records were clearly relevant where defendant claimed it was not employer within
meaning of Title VII, which applies only to entities with 15 or more employees, since payroll records are evidence of
number of employees. Scott v Arex, Inc. (1989, DC Conn) 124 FRD 39.
Successor corporation was required to produce requested documents where it had full knowledge that EEOC alleged
company-wide discrimination, in order to establish successor liability and because successor corporation had custody
and control of former corporation's records. EEOC v Thurston Motor Lines, Inc. (1989, MD NC) 124 FRD 110, 50
BNA FEP Cas 1759, 54 CCH EPD P 40086.
Defendant insurer's documents were not protected by work-product privilege to extent they related to disputed issue
of insurance coverage. Blockbuster Entertainment Corp. v McComb Video, Inc. (1992, MD La) 145 FRD 402.
187. --Securities litigation
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In action for alleged damages suffered when defendant sold its own stock pledged with it by plaintiff, denial of
plaintiff's motion for an order requiring defendant to produce and permit inspection of its stock record books, copies of
its income tax return, and its latest balance sheet was error, since the documents called for were material to the
allegations of the complaint. June v George C. Peterson Co. (1946, CA7 Ill) 155 F2d 963.
Plaintiffs' requests for discovery of documents, including all documents which in any way related to any trading of
particular stock over certain time and all documents pertaining to market making activities of defendant partnership in
stock over certain time, were denied in action for alleged violation of federal securities law provision and rule of
Securities and Exchange Commission, where requests exceeded permissible discovery because of irrelevancy and
excessive burden on defendants. Midland Inv. Co. v Van Alstyne, Noel & Co. (1973, SD NY) 59 FRD 134, CCH Fed
Secur L Rep P 93906, 17 FR Serv 2d 345.
In view of defendant's counterclaims against stockbroker and brokerage firm for allegedly churning defendant's
account and for fraudulent and manipulative practices, it is inevitable that discovery will probe how account was
handled over period in question in comparison with other accounts handled by stockbroker and that brokerage firm's
records must also be subject of discovery; stockbroker and brokerage firm cannot avoid legitimate scope of discovery
solely by invoking phrases that production or response will be overly burdensome or unduly expensive. Hammerman v
Peacock (1985, DC Dist Col) 108 FRD 66.
188. Financial records
District Court's grant of defendants' motion to compel plaintiffs to produce documents relating to plaintiffs' ability to
finance expenses of purported class litigation and any agreements pertaining to financing of costs of litigation and
payment of attorney fees that might be incurred, on ground that requested documents are relevant to issue of whether
class action is appropriate, is unwarranted extension of Supreme Court decision relating to notice in class actions, and
matters sought through discovery are irrelevant. Sanderson v Winner (1974, CA10 Colo) 507 F2d 477, 1974-2 CCH
Trade Cases P 75369, 19 FR Serv 2d 429, cert den (1975) 421 US 914, 43 L Ed 2d 780, 95 S Ct 1573.
In an action by a salesman of securities on a contract to pay commissions on all business produced through plaintiff
or his customers, defendant was required to state, on an examination before trial, how many shares of stock of certain
corporations defendant bought and sold during the period of plaintiff's employment. Stevenson v Melady (1940, DC
NY) 1 FRD 329.
In action under the Antitrust Laws [15 USCS § § 1 et seq.] interrogatories relating to operations of the defendants
all over the United States and to the financial details of such operations were not material to any possible issues in the
case, where the only questions involved concerned whether or not plaintiff, as owner of a theatre building, was entitled
to the first run of motion-picture films which that theatre enjoyed when it was being operated by defendant under a lease
which had subsequently expired. Ball v Paramount Pictures, Inc. (1944, DC Pa) 4 FRD 194.
In action for conspiracy in violation of Antitrust Statutes [15 USCS § § 13 et seq.] financial data sought by motion
made under Rule 26 come within the "rule of relevancy." Trans World Airlines, Inc. v Hughes (1961, SD NY) 29 FRD
523, 5 FR Serv 2d 494.
Applying standard that discovery should be deemed relevant where there is any possibility that information sought
may be relevant to subject matter of action, demand of plaintiffs for order compelling production of all documents
submitted by defendant to Securities and Exchange Commission in connection with Commission's investigation of
financial collapse of certain company satisfied requirement of relevance under Rule 26(b)(1) as incorporated by
reference in Rule 34(a). Mallinckrodt Chemical Works v Goldman, Sachs & Co. (1973, SD NY) 58 FRD 348, CCH
Fed Secur L Rep P 93793, 16 FR Serv 2d 1517.
In action for alleged violation of various federal securities laws and SEC Rules by individuals who purchased
allegedly highly speculative securities from defendant brokerage firm, plaintiffs were entitled to discovery pertaining to
existence and use of assets of defendant firm and majority shareholder of firm and his wife and to discovery pertaining
to purchase, division, reconveyance, encumbrance, improvement, sale, and disposition of proceeds of sale of land by
majority shareholder and his family, where information and documents sought to be discovered by plaintiffs related to
subject of action, and were reasonably calculated to lead to discovery of admissible evidence, and where court knew of
no general privilege which would protect information. Hawes v C. E. Cook & Co. (1974, WD Mich) 64 FRD 22, 19 FR
Serv 2d 873, vacated without op (1976, CA6 Mich) 538 F2d 329.
In action charging defendant accounting firm with statutory and common law fraud, deceit and negligence in
examination of certain financial statements and its preparation of opinion, plaintiff is entitled to discover certain internal
documents because information sought is relevant to issue whether defendant employed generally accepted auditing
practices. Rosen v Dick (1975, SD NY) 20 FR Serv 2d 471.
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In action by purchasers of common stock allegedly relying on false and misleading statements which appeared in
press releases, newspaper and magazine articles, and advertisements, press releases are subject to discovery since they
relate to essential issue of case and are thus relevant under FRCivP 26(b)(1); plaintiff's investment history is also
discoverable because it is relevant to issue of whether plaintiff reasonably relied on alleged misrepresentations and even
if such information is confidential it is still within scope of Rule 26(b)(1). Zucker v Sable (1975, SD NY) 72 FRD 1, 22
FR Serv 2d 712.
Inquiry into plaintiff's financial status and fee arrangement is relevant to question of plaintiff's ability to protect
interests of potential class members by adequate funding of lawsuit, and question of award of attorneys fees in
settlement or possible judgment. Klein v Henry S. Miller Residential Services, Inc. (1978, ND Tex) 82 FRD 6, 1980-1
CCH Trade Cases P 63087, 27 FR Serv 2d 398.
Inquiry into finances of named plaintiff in class action is irrelevant and not within proper scope of discovery. In re
West Coast Dep't Stores Antitrust Litigation (1979, ND Cal) 28 FR Serv 2d 537.
Budget statements and supporting schedules, and audit statements and supporting schedules requested by defendant
school district of teachers' association were within permissible scope of discovery under Rule 26 as alleged breach of
defendant to deduct dues or service fees from salaries of members of Teacher's Bargaining Unit concerned all members
of bargaining unit, whether they were members of Association or not. Racine Education Asso. v Racine Unified School
Dist. (1979, ED Wis) 82 FRD 461.
In class action brought upon defendants' failure to pay agricultural field workers average hourly minimum wage,
plaintiffs are permitted to inspect itemized individual wage statements retained by defendants embodying number of
hours worked, wages paid, and other deductions, because these documents are relevant to minimum wage claim, create
no undue burden upon defendants, and because plaintiffs' request for discovery listed specific items and requested
documents which spanned period of less than one month. Riojas v Seal Produce, Inc. (1979, SD Tex) 82 FRD 613, 28
FR Serv 2d 101.
Defendants were ordered to produce records of annual income and guaranteed income of railroad employees who
worked at particular yard in suit against railroads and union for conspiracy to violate employees' rights under various
labor agreements and labor laws, and for union's breach of its duty of fair representation of members by entering into
agreement whereby two railroad systems combined their work forces into single unit at railroad yard which caused
displacement of employees. Smith v B & O R. Co. (1979, DC Md) 473 F Supp 572, 102 BNA LRRM 2109, 87 CCH LC
P 11675, 4 Fed Rules Evid Serv 816, 27 FR Serv 2d 1284.
Personnel files are relevant to issue as to whether auditing firm was negligent and reckless, not only in conduct of
audit, but also in selecting and assigning employees to conduct audit. In re Hawaii Corp. (1980, DC Hawaii) 88 FRD
518, 30 FR Serv 2d 761.
Financial information concerning non-parties is not privileged matter, however when such information is sought
better approach is to permit discovery prior to trial under appropriate protective orders. Hoffman v Delta Dental Plan
(1981, DC Minn) 517 F Supp 574, 1981-1 CCH Trade Cases P 64139, 32 FR Serv 2d 277.
In action stemming from traffic accident resulting in damage to large crane, in which plaintiff seek as part of their
damages lost profits resulting from fact that they could not afford to repair crane for some time after damage occurred,
plaintiffs' tax returns and financial statements for relevant period are subject to discovery by defendants,
notwithstanding plaintiffs' contention that other documents, such as bank statements and ledger sheets, would provide
more accurate picture of their financial status. Oregon Machine Erectors, Inc. v Welsh (1983, DC Or) 38 FR Serv 2d
1457.
Defendants may be entitled to limited discovery of books and records of plaintiff attorney which are necessary to
show whether he in fact lost income because of alleged actions of defendants, but plaintiff will not be required to
disclose all telephone records, copies of appointment calendars, and copies of time logs from his law practice for
relevant years. McArthur v Robinson (1983, ED Ark) 98 FRD 672.
In action against railroad stemming from collision at grade crossing, defendant must answer interrogatories
concerning amount of money it spent on crossing and/or warning improvements over 5-year-period, since information
bears on question of notice and economic feasibility of improvements. Weddington v Consolidated Rail Corp. (1984,
ND Ind) 101 FRD 71.
Although information in defendant's accounting firm's records constituted trade secrets, it was discoverable by
plaintiff where it was relevant to plaintiff's defense against counterclaim for continuing economic loss caused by
plaintiff's alleged breach of contract, fraud, concealment, and misrepresentation in sale of production equipment namely
defense that losses were caused by defendant's business decisions, where information sought concerned past audits and
accounting firm made no showing that it could not devise effective strategies and approaches to defendant's future
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audits consistent with audit integrity. Master Palletizer Systems, Inc. v T.S. Ragsdale Co. (1988, DC Colo) 123 FRD
351.
Accountant's report prepared for unindicted coconspirator was discoverable by indicted coconspirator, since
statement was not related to seeking legal advice and was prepared for disclosure to SEC. United States v Rosenthal
(1992, SD NY) 142 FRD 389.
189. --Punitive damages issue
In action in federal court in which plaintiff seeks both actual and punitive damages and where, under South Carolina
law, evidence of defendant's pecuniary condition is admissible on the question of punitive damages, defendant's net
worth is discoverable. Holliman v Redman Dev. Corp. (1973, DC SC) 61 FRD 488, 18 FR Serv 2d 1048.
Defendant's financial condition is relevant to subject matter of action and thus is proper subject of pretrial discovery
where punitive damages are claimed. Miller v Doctor's General Hospital (1977, WD Okla) 76 FRD 136, 18 BNA FEP
Cas 825, 25 FR Serv 2d 412.
Plaintiff seeking certified statement of net worth under Rule 33 must proceed in accordance with Rule 34; net worth
is discoverable by plaintiff where punitive damages are sought. Lackawanna Refuse Removal, Inc. v Proctor &
Gamble Paper Products Co. (1978, MD Pa) 26 FR Serv 2d 375.
Where plaintiff alleges circumstances which demonstrate real possibility that punitive damages will be at issue,
general statement of defendant individuals' net worth is subject to disclosure, but names of defendants' accountants,
copies of 1040 tax forms, defendants' taxable income, and defendants' assets and liabilities are not. Chenoweth v
Schaaf (1983, WD Pa) 98 FRD 587, 37 FR Serv 2d 136.
Financial status of medical malpractice defendants is discoverable where complaint alleges set of circumstances
which demonstrate possibility that punitive damages will be at issue; more is required than conclusory statements.
Chenoweth v Schaaf (1983, WD Pa) 98 FRD 587, 37 FR Serv 2d 136.
Defendant's financial condition is not proper subject of pretrial discovery where nothing in court file indicates even
minimal showing of prima facie case supporting claim for punitive damages; further, even where claim for punitive
damages has some factual support in discovery record, discovery directed to this issue should be limited to net worth,
and production of annual or other periodic balance sheet, distributed to stockholders in regular course of business, or
other financial statement or balance sheet subject to audit or independent CPA verification of accuracy should suffice.
Skinner v Aetna Life Ins. Co. (1984, DC Dist Col) 38 FR Serv 2d 1194.
Information regarding defendants' financial affairs from 1978 to date is not subject to discovery in antitrust action
based on alleged price-fixing and bid-rigging going back to 1956 notwithstanding plaintiffs' contentions (1) that, as
creditors of defendants, they are entitled to remedies available to creditors under state attachment act against debtor who
has undertaken, or is about to undertake, fraudulent conveyance of assets, (2) that defendants' financial condition is
relevant because plaintiffs may be entitled to punitive damages, and (3) that such information is calculated to lead to
discovery of evidence about alleged price-fixing. Board of Education v Admiral Heating & Ventilating, Inc. (1984, ND
Ill) 104 FRD 23, 1985-1 CCH Trade Cases P 66420, 40 FR Serv 2d 638.
Plaintiff need not establish prima facie case on issue of punitive damages before he or she can obtain pretrial
discovery of defendant's financial statements and tax returns; it is sufficient for plaintiff to show that his or her claim is
not spurious in order to be entitled to discovery of defendant's financial condition. Krenning v Hunter Health Clinic
(1996, DC Kan) 166 FRD 33.
190. Government documents
Member of a partnership who sought disclosure of records of General Services Administration from which the
partnership had purchased property, for the purpose of a tax dispute was allowed to discover the records of the agency,
absent establishment of compelling reasons of nondisclosure by the agency. General Services Administration v Benson
(1969, CA9 Wash) 415 F2d 878.
In action seeking refund of excise taxes imposed on firearms alleging that antique guns and replicas are not firearms
within meaning of treasury regulation, district court does not err in denying plaintiff's motion for production of certain
documents relating, inter alia, to treatment of other sellers of antique guns since government is not generally estopped
by failure to impose excise tax on another taxpayer and documents sought are of minimal relevancy. Mars Equipment
Corp. v United States (1978, CA7 Ill) 580 F2d 248, 78-2 USTC P 16292, 25 FR Serv 2d 1296, 42 AFTR 2d 78-6568.
In antitrust action against defendant Board of Trade alleging imposition of minimum commission rates on brokerage
transaction, defendant is entitled to discover documents consisting of intradepartmental memoranda and legal opinions
rendered by Department of Agriculture's Office of General Counsel because such documents reflect government's
position on propriety of defendant's rates and are therefore relevant; discovery is not limited to summary prepared by
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Commodity Exchange Authority because federal rules permit broad and liberal discovery and Rule 26 dictates that
parties may discover all information directly and indirectly related to subject matter of action. United States v Board of
Trade, Inc. (1973, ND Ill) 18 FR Serv 2d 318.
In securities fraud litigation where defendants seek discovery of certain Securities and Exchange Commission
documents to support their argument concerning defense that Commission violated its rules and procedures by failing to
advise defendants of potential liability and right to present views to Commission, documents are not discoverable where
they are protected from disclosure by reason of privilege for internal governmental memoranda containing advice or
opinions, and where defendants' needs are not overriding because none of requested documents are relevant to intent
behind unpublished directive from Commission to its supervisory staff, which rule forms basis for defendants' defense.
SEC v National Student Marketing Corp. (1975, DC Dist Col) 68 FRD 157, CCH Fed Secur L Rep P 95011, 20 FR Serv
2d 216, affd (1976) 176 US App DC 56, 538 F2d 404, 22 FR Serv 2d 335, cert den (1977) 429 US 1073, 50 L Ed 2d
790, 97 S Ct 809 and cert den (1977) 429 US 1073, 50 L Ed 2d 791, 97 S Ct 811.
In preenforcement proceeding to review Federal Trade Commission's annual line-of-business reporting program,
where scope of court's review was limited to determination whether, based on administrative record, Commission's
action was arbitrary or capricious, limited discovery of Commission documents would be appropriate to remedy defect
of lack of contemporaneous administrative findings necessary to effectuate court's review. Smith v Federal Trade
Com. (1975, DC Del) 403 F Supp 1000, 20 FR Serv 2d 1382.
In prosecution for violations of Fair Labor Standards Act concerning "tip pooling" and uniform maintenance
allowance, defendant can not compel disclosure of Department of Labor documents, including field operations
handbook, because handbooks are not published in Federal Register and serve as merely guidelines for government
personnel, and therefore can not be basis for holding defendant liable for violations of Act; thus, discovery of such
documents is irrelevant to issue of whether or not defendant violated Act. Marshall v Krystal Co. (1977, ED Tenn) 24
FR Serv 2d 690.
Government materials requested by defendant which deal with prior government positions and change of
government policy are relevant if such papers could lead to admissible evidence. United States v Capitol Service, Inc.
(1981, ED Wis) 89 FRD 578, 1981-1 CCH Trade Cases P 63972.
Portions of employer's affirmative action reports which are not self-evaluative or subject to another claim of
privilege are discoverable; employer may delete self-evaluative portions of reports, but must turn over those portions
that are merely statistical or descriptive of present conditions or present or future plans. Penk v Oregon State Bd. of
Higher Education (1982, DC Or) 11 Fed Rules Evid Serv 1873.
Court may properly grant preliminary leave to take depositions of probation officers in District Courts in Virginia
and Utah, as well preliminary leave to seek access to presentence reports of defendant, subject to final decision
following receipt of views of District Courts of Utah and Eastern District of Virginia with respect to need, if any, for
continued confidentiality within their jurisdictions. Dowd v Calabrese (1984, DC Dist Col) 101 FRD 427.
In libel action by former Minister of Defense of Israel against magazine publisher, alleging that statement was false
and defamatory in depicting him as having encouraged massacre of Palestinians during meeting and in stating that
commission had made secret finding that he had encouraged or condoned massacre, publisher must be permitted to
discover any unprivileged information about what commission's report stated with respect to details of meeting, and to
develop in full former Minister's version of meeting and of any discussions he may have had relating to need for
revenge to be taken. Sharon v Time, Inc. (1984, SD NY) 103 FRD 86, 11 Media L R 1044, 16 Fed Rules Evid Serv 580,
40 FR Serv 2d 145.
District Court is in no sense prevented from ordering disclosure of otherwise discoverable evidence by provision of
Rule 14a-6(a) of Securities and Exchange Commission to effect that preliminary copies of proxy and other shareholder
solicitation material are non-public. Empire of Carolina, Inc. v Mackle (1985, SD Fla) 108 FRD 319, 4 FR Serv 3d
887.
Plaintiff who alleged violation of his civil rights by arrest for loitering for prostitution was entitled to discover certain
police records since proof of past activities of certain police officers was relevant to plaintiff's claim of existence of
departmental policy of making arrests without probable cause. Johnson v McTigue (1986, SD NY) 122 FRD 9.
Plaintiff in Civil rights action against police officer for assault and battery was not entitled to discover documents in
police officer's personnel file regarding taking of sick leave and absences since these weren't not relevant, but was
entitled to discovery of documents in file relating to complaints filed against officer and internal memoranda and
investigations regarding such complaints, absent showing that confidentiality of supervisory evaluations was vital to
decision-making process of municipality. Scouler v Craig (1987, DC NJ) 116 FRD 494, 8 FR Serv 3d 766.
Parent suing county social services department for civil rights violation arising out of department's alleged
warrantless removal of their child from their custody and placing her in foster care were entitled to production of
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department's complete file on investigation into case regardless of any claim to privilege since state statute provided for
such disclosure. Van Emrik v Chemung County Dep't of Social Services (1988, WD NY) 121 FRD 22.
Police officer suing township for deprivation of civil rights was entitled to discover independent investigative report
prepared at behest of township's board of supervisors since board had waived its claim of executive privilege by
disclosure to news media. Clark v Falls (1988, ED Pa) 124 FRD 91, 13 FR Serv 3d 345.
Plaintiff tire manufacturer is entitled to discovery of papers, transcripts, records of telephone calls, reports,
memoranda, and documents of Treasury Department in action challenging assessment of countervailing duties on tires
where such discovery may reasonably be expected to contain or lead to relevant material concerning possible
connection between illegal payments to presidential campaign and assessment of countervailing duties. Michelin Tire
Corp. v United States (1977, Cust Ct) 24 FR Serv 2d 912.
191. Insurance records
Defendant's insurance carrier should not be required to produce a report of an investigation of the accident made by
one without any personal knowledge of the facts, since such a report is hearsay and not relevant. In re Citizens
Casualty Co. (1942, DC NY) 3 FRD 171.
In action against manufacturer and installer of machinery which plaintiff was using at time he was injured, alleging
negligent design and installation, defendant who seeks report of investigation made by workmen's compensation
insurance carrier who paid plaintiff's claim is entitled to discovery of investigation reports since insurance carrier is not
party to action nor representative or insurer of plaintiff and since information was not gathered for benefit of plaintiff
but was in fact gathered at time when interest of workmen's compensation carrier was adverse to plaintiff. Bunting v
Gainsville Machine Co. (1971, DC Del) 53 FRD 594, 15 FR Serv 2d 1263.
In action on fidelity policy, defendant must answer interrogatories relating to documents and computations upon
which defense of policy exclusions was based. Atlanta Coca-Cola Bottling Co. v Transamerica Ins. Co. (1972, ND
Ga) 61 FRD 115, 18 FR Serv 2d 1053.
Plaintiff's motion to compel production of documents of insurer, in case against insurer for refusal to pay plaintiff for
loss of property covered by contract of fire insurance, required insurer to produce communications by and between any
agent, servant, or employee relative to plaintiff's fire loss, aside from mental impressions or personal evaluations of
insurer's agents or employees, which due to absence of showing of necessity or justification, hardship or injustice, was
not required to be shown. North Georgia Lumber & Hardware v Home Ins. Co. (1979, ND Ga) 82 FRD 678, 27 FR
Serv 2d 1376.
Insurer in insurance coverage case dealing with allegations in underlying tort claims of dioxin contamination causing
bodily injury and property damage would be required only to produce insurance records involving other policyholders
limited to other dioxin claims; before plaintiff petro-chemical company could pursue discovery as to claims involving
other drugs it must make greater showing of relevancy, given substantial scientific question whether all chemicals and
drugs operate in same way in their effect on human beings and real property. Independent Petrochemical Corp. v
Aetna Casualty & Surety Co. (1986, DC Dist Col) 117 FRD 283.
Defendant insurers would be compelled to produce claims files, payment records, as well as underwriting and policy
files of nonparty insureds, since they were relevant to issue of ambiguity of word "asbestosis," but in interests of judicial
economy and expeditious litigation, discovery would be limited to documents relating to policies defendants sold to
nonparty insureds that contained asbestosis or asbestos-related exclusion and which were written or referred to by
underwriters of policies at issue in instant case prior to issuance of policies before the court. Carey-Canada, Inc. v
California Union Ins. Co. (1986, DC Dist Col) 118 FRD 242.
Insured hospital suing insurer for failure to provide adequate legal defense was entitled to insurer's documents
relating to closing of one of its claims offices since it appeared that it might lead to discovery of relevant evidence,
namely insured's office procedures that might support claim of negligence in handling insurance claims. St. Joseph
Hospital v INA Underwriters Ins. Co. (1987, DC Me) 117 FRD 24, 9 FR Serv 3d 485.
Defendant's statement made to his insurer was not protected by attorney-client privilege, notwithstanding insurer's
obligation to defend and defendant's duty to co-operate, where there was no showing that person to whom statement
was made was actually subordinate of attorney or that individual taking statement on behalf of insurance company was
acting as attorney. Pasteris v Robillard (1988, DC Mass) 121 FRD 18.
Communications between attorney and insurance company were protected by attorney-client privilege from
disclosure to malpractice claimant alleging bad faith settlement efforts where attorney served in dual capacity as counsel
for both insurance company and insured. Baker v CNA Ins. Co. (1988, DC Mont) 123 FRD 322.
Insured seeking payment of insurance benefits for elective surgery was not entitled to discovery of prior lawsuits
filed against insurer since case was simple contract case involving small amount of money and did not involve great
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issues of philosophic, social or institutional importance such that information about other lawsuits or claims could be
deemed crucial. Marker v Union Fidelity Life Ins. Co. (1989, MD NC) 125 FRD 121.
Court's standing order concerning discovery in litigation between insured and insurer was appropriate, i.e., discovery
opponents are to produce privilege log listing documents, date, author, recipients and their capacities, document's
subject matter, purpose for its production, and specific explanation why document is privileged or immune from
discovery. Allendale Mut. Ins. Co. v Bull Data Systems, Inc. (1992, ND Ill) 145 FRD 84.
In bad faith denial of coverage action brought by insureds under homeowner's policy, insurer failed to establish that
production of engineering reports prepared over previous five years on home foundation claims should be denied under
Fed. R. Civ. P. 26(b)(2)(i) or (iii); insureds could not obtain information through oral deposition, and insurer offered no
evidence that production of reports would have been unduly burdensome. Hussey v State Farm Lloyds Ins. Co. (2003,
ED Tex) 216 FRD 591.
192. Medical records
Defendant in personal injury action is required to produce for copying and inspection by plaintiff's counsel all
medical reports in possession of defendant's attorney prepared by physician who examined plaintiff because such
medical reports are relevant. Almaguer v Chicago, R. I. & P. R. Co. (1972, DC Neb) 16 FR Serv 2d 587.
Medical, psychological and psychiatric reports are not documents originated by council in preparation of case and
thus are not immune from discovery under attorney's work-product privilege; such reports may be subject to discovery
where they contain evidence as to plaintiff's mental state at time immediately after alleged false arrest and imprisonment
which cannot be obtained by any other discovery method and any independent psychological examination would not
contain equivalent information. Dixon v Cappellini (1980, MD Pa) 88 FRD 1, 30 FR Serv 2d 557.
Medical records of occupational therapist at VA hospital were discoverable by plaintiff alleging emotional distress
and aggravation of post-traumatic stress disorders resulting from sexual involvement with therapist, since
physician-patient privilege is exclusive right of patient, and records were necessary to determine source of herpes.
Oslund v United States (1989, DC Minn) 128 FRD 110, 29 Fed Rules Evid Serv 59.
Denial of discovery request for identity of blood donor from whom plaintiff's decedent allegedly contracted HIV
virus was not abuse of discretion given public interest in protecting nation's blood supply with which disclosure would
potentially interfere. Ellison v American Nat'l Red Cross (1993, DC NH) 151 FRD 8.
193. Police reports
With regard to Rule 34 motion of plaintiff in civil rights action for order requiring city to produce documents of its
police department for inspection and copying, District Court applied guidelines that discovery should generally be
restricted to material in completed investigation, that material of factual nature should be discoverable, and that material
of policy or self-evaluative nature ordinarily remains confidential, and held (1) that documents specified in first item of
plaintiff's motion (arrest reports, follow-up reports, and closing reports concerning plaintiff's arrest) should be disclosed
to extent they contained factual data since investigation regarding them had been completed, and (2) that document
specified in second item of plaintiff's motion (reports prepared in connection with interdepartmental investigation of
complaint filed against city's police department) were not discoverable since investigation regarding them had not yet
been completed. Gaison v Scott (1973, DC Hawaii) 59 FRD 347, 17 FR Serv 2d 1328.
In action alleging that plaintiffs' constitutional and statutory rights were violated by defendant-law enforcement
agencies, not as part of purposeless program of random intrusion into their lives, but because they are members of two
organizations which are objects of government surveillance and investigation, questions propounded with regard to
defendant's activity concerning these groups are relevant to subject matter of pending litigation even though
organizations are not parties. Ghandi v Police Dep't of Detroit (1976, ED Mich) 23 FR Serv 2d 345.
In action alleging that plaintiffs' constitutional and statutory rights were violated by law enforcement agencies
because of their membership in two organizations which were objects of government surveillance in investigation,
plaintiffs would be compelled to produce daily intelligence reports prepared by nonparty organization upon which
plaintiffs relied which were under their control and to respond to inquiries as to who or what organizations had
remaining reports. Ghandi v Police Dep't of Detroit (1977, ED Mich) 23 FR Serv 2d 351.
Plaintiff who alleged violation of his civil rights by arrest for loitering for prostitution was entitled to discover certain
police records since proof of past activities of certain police officers was relevant to plaintiff's claim of existence of
departmental policy of making arrests without probable cause. Johnson v McTigue (1986, SD NY) 122 FRD 9.
Plaintiffs in federal civil rights cases against police officers were entitled to discovery of materials in individual
police officers' personnel files regarding prior complaints, police history, and officers' answers to interrogatories about
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their recollections, with reasonable redactions of names and addresses to protect privacy or informer sources. King v
Conde (1988, ED NY) 121 FRD 180.
Intervenor was not entitled to discover those portions of internal police reports of investigation and evaluation of
unlawful narcotics distribution undercover operation which were part of deliberative process or would disclose
confidential source, but was entitled to those portions of reports that contained only factual findings. Bigelow v District
of Columbia (1988, DC Dist Col) 122 FRD 111, 15 Media L R 2143, 12 FR Serv 3d 470.
Defendant suing city for civil rights violations by police officers was entitled to in camera review of officers'
personnel files for evidence of prior similar acts where state claimed confidentiality based on state law, since court
would comply with procedural requirements of state law but was not necessarily bound by substance of it. Martin v
Lamb (1988, WD NY) 122 FRD 143.
Plaintiff charging use of excessive force in his arrest was entitled to discover documents in police officers' personnel
files relating to alleged incidents of violence or excessive force, documents relating to administrative complaints against
defendant officers regarding present incident or past incidents of violence by defendant officers, and information in
defendant officers' personnel files as to prior incidents of violence and any factual information regarding incident at
issue. Mueller v Walker (1989, DC Or) 124 FRD 654.
In civil rights suit alleging that plaintiff's decedent died from excessive force utilized by police during arrest, records
of 10 prior internal police investigations were not discoverable since none of charges were found to have merit and
defendants herein were either exonerated or charges were not sustained so that record of past incidents would not render
verdict of punitive damages reasonably possible. Martinez v Stockton (1990, ED Cal) 132 FRD 677, affd without op
(1993, CA9 Cal) 12 F3d 1107, reported in full (1993, CA9 Cal) 1993 US App LEXIS 30919.
194. Tax records
Draft of memorandum prepared by corporation's auditor at request of corporate officer who was attorney was not
protected by attorney-client privilege; evidence supported conclusion that corporation, rather than in-house counsel,
consulted accountin United States v Adlman (1995, CA2 NY) 68 F3d 1495, 95-2 USTC P 50579, 33 FR Serv 3d 632, 76
AFTR 2d 95-7188, 95 TNT 218-25.
Draft of memorandum prepared by corporation's auditor at request of corporate officer who was attorney was not
protected by attorney-client privilege; evidence supported conclusion that corporation, rather than in-house counsel,
consulted accounting firm for tax advice, consistent with arrangement which governed rest of work firm performed for
corporation. United States v Adlman (1995, CA2 NY) 68 F3d 1495, 95-2 USTC P 50579, 33 FR Serv 3d 632, 76 AFTR
2d 95-7188, 95 TNT 218-25.
Ordinarily, a party is not entitled to obtain the production of documents in answer to interrogatories under Rule 33,
but must proceed as required by Rule 34, but, after argument of counsel and examination of the interrogatories, it
appeared to the court that the documents requested, including plaintiff's income tax returns for the period of five years
prior to the accident, were sufficiently designated and reasonably calculated to lead to the discovery of admissible
evidence; hence, the defendants' motion to sustain their objections to discovery were denied. Kagan v Langer
Transport Corp. (1967, SD NY) 43 FRD 404, 11 FR Serv 2d 863.
In an action for income tax refund, in which the government claimed that the difference between the market value of
certain stock and the amount directors of the corporation paid for under stock options was taxable as ordinary income,
the amount for which the Department of Internal Revenue had settled a similar assessment against other non-party
directors, was irrelevant and so not discoverable. Peterson v United States (1971, DC Ill) 52 FRD 317, 15 FR Serv 2d
417.
While tax records must be made available under appropriate circumstances, request was denied where the added
benefit to the defendant of more detail to be provided by such records was outweighed by the burden imposed upon the
plaintiffs were they required to make the production. Carlson Cos. v Sperry & Hutchinson Co. (1973, DC Minn) 374 F
Supp 1080, 1974-2 CCH Trade Cases P 75144, 19 FR Serv 2d 696.
In action alleging breach of contract of insurance, defendant is not entitled to discover documents consisting of
plaintiff's individual income tax returns because even if such documents are relevant, income tax returns are
confidential under 26 USCS § § 6103 and 7213(a); only justification for permitting discovery of income tax returns in
civil litigation is when litigant himself tenders issue as to amount of income. Wright v Allstate Ins. Co. (1975, DC
Mass) 21 FR Serv 2d 778.
Plaintiff in suit for refund of federal income taxes is not entitled to discovery of matters relating to tax treatment of
other nonresident aliens where matters are not relevant to issues in suit and where discovery would not lead to relevant
evidence; discovery of evidence to support plaintiff taxpayer's demand for attorney fees, based on 42 USCS § 1988, is
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futile where legislative history leaves little doubt that Allen amendment was intended to benefit only defendant
taxpayers. Sutton v United States (1978, ED Tenn) 78-2 USTC P 9485, 26 FR Serv 2d 348, 42 AFTR 2d 78-5214.
Income tax returns and other financial documents of plaintiff in Rule 23(b)(3) class action are not discoverable where
financial ability of named plaintiffs is generally irrelevant to issue of propriety of class certification. Klein v Checker
Motors Corp. (1979, ND Ill) 87 FRD 5, 1979-1 CCH Trade Cases P 62562, 27 FR Serv 2d 1375.
Plaintiff cannot properly condition response to defendant's request for production of plaintiff's tax returns on
defendant's provision of appropriate forms for completion. Baise v Alewel's, Inc. (1983, WD Mo) 99 FRD 95, 38 FR
Serv 2d 714.
Defendant's income tax returns were discoverable in civil RICO litigation in support of government's contention that
defendant did not have adequate income from legitimate sources to purchase or operate business in question and that
defendant had no legitimate business or commercial dealings with other defendants in instant action. United States v
Bonanno Organized Crime Family of La Cosa Nostra (1988, ED NY) 119 FRD 625.
Defendant-attorney's tax records were discoverable by means of plaintiff posing interrogatories on subject of
attorney's tax treatment of his ownership interest in corporation which he allegedly fraudulently marketed as investment
scheme. Fox v California Sierra Financial Services (1988, ND Cal) 120 FRD 520.
Plaintiff who alleged he was fired in violation of various federal statutes and common law was entitled to production
of tax records from owner and officer of corporate defendant where defendant's answer to interrogatories indicated his
total income from tax records, since tax records were needed to test defendant's contention that other corporations he
apparently owned were in fact separate and distinct. Scott v Arex, Inc. (1989, DC Conn) 124 FRD 39.
Former employer was entitled to defendants' tax returns since they were relevant to merits of employer's claims of
financial impropriety and conversion by defendants and to issue of defendants' ability to mitigate claimed damages.
Shearson Lehman Hutton, Inc. v Lambros (1990, MD Fla) 135 FRD 195.
Fact that 26 USCS § 6103(a) designates tax information as confidential does not obviate need for party to satisfy
requirements of FRCP 26(c); tax returns and other information regarding income are discoverable if relevant to issues in
lawsuit. Yancey v Hooten (1998, DC Conn) 180 FRD 203.
195. Wills
In probate proceedings, documentary evidence of existing prior wills of decedent and carbon copies of prior wills are
subject to the discovery process. Doherty v Fairall (1969) 134 US App DC 107, 413 F2d 381.
196. Miscellaneous
Blacks whose house had been fire bombed were entitled to subpoena Ku Klux Klan membership list to help them
discover who fire bombed their house, where circumstantial evidence of Klan involvement in fire bombing was
extensive. Marshall v Bramer (1987, CA6 Ky) 828 F2d 355, 23 Fed Rules Evid Serv 371, 8 FR Serv 3d 873.
In medical malpractice case, defendants' use of letter written by plaintiff's deceased wife to her sister in Poland
regarding marital discord was in violation of discovery order which had specifically requested disclosure of such
evidence and supplementation requirement, and since letters were in part substantive, they did not fall within "solely for
impeachment" exception. Klonoski v Mahlab (1998, CA1 NH) 156 F3d 255.
In action to have declared unlawful under the Antitrust Laws [15 USCS § § 1 et seq.] and unenforceable certain
agreements between exhibitors and defendant distributors for exhibition of moving pictures, documents which
defendant sought plaintiffs to produce and permit the inspection, copying and photographing thereof contained evidence
material to the issues of whether plaintiff came into court with clean hands and as to damages in defendants'
counterclaim, and defendants' motion for permission should be granted. Roth v Paramount Film Distributing Corp.
(1945, DC Pa) 4 FRD 302.
Defendant is required to produce document which was reviewed by defendant's registered representative for purpose
of refreshing his recollection immediately prior to deposition; if such document was protected by privilege, such
privilege was waived when witness utilized document to refresh his memory prior to taking of deposition. Dubose v
Bache & Co. (1974, WD Tex) 18 FR Serv 2d 1519.
In action brought against drug manufacturer for its alleged failure to adequately investigate, test, and provide
warning of hazards known about drug, where both plaintiffs and defendants sought, from publisher of newsletter in
which appeared article on drug, discovery regarding name of person who wrote preliminary draft of article, names of
consultants to whom draft was sent, and related correspondence and documents, discovery would be denied since
disclosure would probably unfavorably affect ability of newsletter to obtain services of consulting physicians in future,
and since parties requesting disclosure had not been able to show that they were unable to obtain information from
another source. Apicella v McNeil Laboratories, Inc. (1975, ED NY) 66 FRD 78, 19 FR Serv 2d 1360.
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In sex discrimination case, plaintiff will be required to answer more specifically interrogatories dealing with type of
statistical and documentary evidence which she intends to present at trial and experts whom she might call where trial is
approaching and it has been over one year since date initially set for end of discovery; plaintiff's general reference to
630 pages of notebooks which she has maintained and to 2000-page deposition are insufficient responses. Martin v
Easton Pub. Co. (1980, ED Pa) 85 FRD 312.
Request for discovery of documents containing endorsements similar to those on checks allegedly improperly
endorsed and deposited will be granted as it is not established as matter of law that handling of other checks with similar
endorsements is irrelevant to issues regarding questionable checks. Justus Co. v Gary Wheaton Bank (1981, ND Ill)
509 F Supp 103, 30 UCCRS 1364 (superseded by statute on other grounds as stated in Great Lakes Higher Educ. Corp.
v Austin Bank (1993, ND Ill) 837 F Supp 892, 22 UCCRS2d 858).
In products liability action, plaintiff is entitled to production of copies of engineering plans, diagrams, surveys,
manuals, and brochures, notwithstanding defendant manufacturer's contention that production would be oppressive.
Gidlewski v Bettcher Industries, Inc. (1983, ED Pa) 38 FR Serv 2d 664.
In products liability action, trial court properly denies plaintiff's motion to compel compliance with its request for
any and all documents containing name, home, and business address of all individuals contacted as potential witnesses,
since documents generated by counsel are properly classed as work-product, and inclusion of discoverable material
within what is otherwise clearly work-product does not vitiate limited protection afforded these papers; although
defendant will be required to list its potential witnesses, production of documents which fortuitously contain reference
to these witnesses will not be compelled. Gidlewski v Bettcher Industries, Inc. (1983, ED Pa) 38 FR Serv 2d 664.
In securities action alleging violation of § § 10(b), 15(b), and 15(c), of Securities Exchange Act of 1934, and related
rules implementing these provisions, plaintiff's prior and subsequent securities transactions and information pertaining
to his future earning capacity are properly discoverable, where issues of his sophistication and reliance lie at heart of
case, and where plaintiff has alleged that as result of defendants' conduct, he has become paralyzed with fear and
anxiety, rarely ventures from shelter of his home, and has lost all confidence in his ability to cope with his daily life.
Meredith v Bear, Stearns & Co. (1983, DC Dist Col) 99 FRD 629.
In action by plaintiffs, who were black couple living in all white neighborhood when their home was destroyed by
arson, brought under 42 USCS § § 1985(3) and 1986 seeking relief from defendants for alleged conspiracy to burn
plaintiffs' home and violate their civil rights, where plaintiffs sought through discovery procedures to obtain
membership lists for Ku Klux Klan (KKK) and Confederate Officers Patriotic Society (COPS), District Court ruled that
information sought was within scope of discovery under Rule 26(b)(1) since information could lead plaintiffs to identity
of unknown co-conspirators and could be relevant to determination of whether intent of conspirators was to violate
plaintiffs' civil rights; and information was not protected by right to freedom of association under First Amendment
since plaintiffs had very strong interest in obtaining membership lists, they were faced with extreme difficulty in
determining identity of other coconspirators, they submitted strong support for contention that KKK and COPS were
responsible for arson and they had tried a variety of alternative methods to discover information sought; and court
recognized stronger interest in disclosing members of organization engaged in illegal and violent activities as opposed
to disclosing names of those involved in peaceful activities. Marshall v Bramer (1985, WD Ky) 110 FRD 232, affd
(1987, CA6 Ky) 828 F2d 355, 23 Fed Rules Evid Serv 371, 8 FR Serv 3d 873.
Plaintiff in products liability action against manufacturer of intrauterine devise was entitled to discovery of various
corporate documents since bulk of documents sought were over 10 years old and manufacturer did not show that present
harm would result from disclosing them. Deford v Schmid Products Co., Div. of Schmid Laboratories, Inc. (1987, DC
Md) 120 FRD 648.
Investment banker which advised plaintiffs' former employer on public stock offering would be required to disclose
relevant documents where plaintiffs alleged fraudulent concealment in value of company stock at time they retired, prior
to public offering, and were required to sell their shares back. Mercer v Allegheny Ludlum Corp. (1989, SD NY) 125
FRD 43.
Although significant interests are served by employer's policy of conducting confidential investigations into
complaints of sexual harassment, such interests are outweighed by importance of allowing discovery of evidence that
can support plaintiff's claim of sexual harassment; thus, employers cannot preclude discovery of all documentation
relating to previous charges of sexual harassment simply by enacting confidentiality policy, but employer may seek
protective order to extent that it wishes to keep names of complaining employees confidential. Butta-Brinkman v
Financial Collection Agencies Int'l (1995, ND Ill) 164 FRD 475, 69 BNA FEP Cas 1276.
The phrase "except as required by law" in 47 USCS § 222(c)(1) allows courts to compel, under FRCivP 26,
defendant to answer plaintiff's interrogatories and produce documents requested. ICG Communs., Inc. v Allegiance
Telecom (2002, ND Cal) 211 FRD 610.
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3. Statements of Witnesses
197. Generally
Objections to motion to obtain copies of witnesses' statements are to be viewed in light of fact that Rules of Civil
Procedure governing depositions and discovery were "promulgated to aid, facilitate, and expedite the preparation of a
case for trial rather than to impede, retard or delay it." Hayman v Pullman Co. (1948, DC Ohio) 8 FRD 238.
To be subject to an order to produce, statements of witnesses need not be admissible in evidence if they are likely to
lead to discovery of admissible evidence. Herbst v Chicago, R. I. & P. R. Co. (1950, DC Iowa) 10 FRD 14; Vermilyea
v Chesapeake & O. R. Co. (1951, DC Mich) 11 FRD 255; Humphries v Pennsylvania R. Co. (1953, DC Ohio) 14 FRD
177; Thompson v Hoitsma (1956, DC NJ) 19 FRD 112.
A witness' statement of the facts of an accident in suit is "relevant to the subject matter" of the action, under the
language of Rule 26(b), and therefore is, on proper showing, subject to production under Rule 34. Panella v Baltimore
& O. R. Co. (1951, DC Ohio) 14 FRD 196; Humphries v Pennsylvania R. Co. (1953, DC Ohio) 14 FRD 177; Thompson
v Hoitsma (1956, DC NJ) 19 FRD 112.
To be discoverable, statement of witness must be one which "appears reasonably calculated to lead to the discovery
of admissible evidence," by force of the language of Rule 26(b); therefore, if moving party is already acquainted with
contents of the statement there is no need for ordering his opponent to produce it. Thompson v Hoitsma (1956, DC NJ)
19 FRD 112.
Rule 26(b)(3) prevents discovery of statements given by witnesses and opposing parties in absence of showing of
substantial need. Gidlewski v Bettcher Industries, Inc. (1983, ED Pa) 38 FR Serv 2d 664.
Consumers' motion to compel vitamin companies to produce source documents related to companies' witness
statements submitted in lieu of live deposition testimony was granted to extent that court ordered in camera review of
any and all source materials of statements. In re Vitamins Antitrust Litig. (2002, DC Dist Col) 211 FRD 1, 2002-2 CCH
Trade Cases P 73841.
198. Availability of information from other sources
To obtain an order for pretrial production of witnesses' statements in possession of an adverse party the movant must
show that the information he desires is not otherwise available to him in exercise of reasonable diligence. Portman v
American Home Products Corp. (1949, DC NY) 9 FRD 613.
Ordinarily a party is not entitled to order for production of statements of witnesses whose depositions he may obtain.
McDonald v Pennsylvania R. Co. (1951, DC Pa) 15 FRD 145; Thompson v Hoitsma (1956, DC NJ) 19 FRD 112;
Diniero v United States Lines Co. (1957, DC NY) 21 FRD 316.
Production of witnesses' statements in possession or control of adverse party should not be ordered prior to time that
moving party has shown bona fide but unsuccessful attempt to obtain the relevant information by independent
investigation. Meadows v Southern R. Co. (1953, DC Tenn) 14 FRD 164.
An order to produce witnesses' statements is ordinarily to be denied where no showing is made that the witnesses
themselves are not available to moving party. Aetna Life Ins. Co. v Little Rock Basket Co. (1953, DC Ark) 14 FRD
383; Taylor v Central R. Co. (1957, DC NY) 21 FRD 112.
A party is not ordinarily entitled to an order for production of witnesses' statements in possession, custody, or control
of adversary party, if names of the witnesses are known to movant or are readily available to him, or are offered or
supplied, or ordered supplied, to him on hearing of the motion or prior thereto. Watn v Pennsylvania R. Co. (1956, DC
Pa) 19 FRD 358; Tandy & Allen Constr. Co. v Peerless Casualty Co. (1957, DC NY) 20 FRD 223; Wilson v David
(1957, DC Mich) 21 FRD 217.
Plaintiff was entitled to discovery of statements of defendant's truck driver whom plaintiff had been unable to
interview until 2 1/2 years after accident, court noting also that plaintiff was unable to obtain driver's statement from
police. Cairns v Chicago Express, Inc. (1960, ND Ohio) 25 FRD 169, 3 FR Serv 2d 586.
Application for order requiring United States to produce statements of witnesses denied where other party did not
allege that he had been unable to obtain statements from or take depositions of such witnesses. Nickels v United States
(1960, ND Ohio) 25 FRD 210, 3 FR Serv 2d 585.
Discovery of statements given by defendant's employees as to fall of plaintiff in defendant's store granted, on
showing that 2 witnesses stated they did not remember facts concerning accident and another refused to discuss case,
referring plaintiff to defendant's insurance carrier. Sachse v W. T. Grant Co. (1961, DC Conn) 27 FRD 392, 4 FR Serv
2d 620.
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Statements of ship's master, chief officer, and stewards were properly denied plaintiff suing for injury from fall in
cabin where statements were not reports made by crew members in regular course of duties, contained no information as
to happening of accident or as to presence or absence of handholds in cabin, related solely to certain "impeaching
matters" relating to plaintiff, and defendant had agreed to furnish plaintiff with desired information as to whether
handholds were provided in cabin. Herrick v Barber S.S. Lines, Inc. (1966, DC NY) 41 FRD 51.
Production by steamship company of passenger's statement would be denied to plaintiff where passenger's deposition
was available to plaintiff even though passenger lived in Norway. Herrick v Barber S.S. Lines, Inc. (1966, DC NY) 41
FRD 51.
Plaintiff injured while working for defendant railroad was not entitled to discovery of statement given to agent of
railroad by only witness one month after accident where agent took statement as part of routine investigation in
anticipation of possible claim, witness was still available, plaintiff had counsel within