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 2.
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.
Page 34
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.
365. Opinions of persons acting within ordinary scope of employment
Even if in house expert is not within ambit of Rule 26(b)(4), he is still expert whose identity facts and opinions are
subject to discovery under Rule 26(b)(1). Easley v Anheuser-Busch, Inc. (1985, CA8 Mo) 758 F2d 251, 37 BNA FEP
Cas 549, 36 CCH EPD P 35120.
In action for injuries sustained when steel tank manufactured by defendant exploded, where plaintiff, by way of
pretrial deposition, asked defendant's chief engineer for certain opinions as expert on chemical constituency of steel, and
subsequently made motion to compel witness to answer, FRCivP Rule 43(b), while not permitting examination of a
witness hired by adverse party for sole purpose of expressing opinion on state of fact, does permit examination of
employee of adverse party who was qualified to express an expert opinion, and litigant may not be deprived of
examination of such employee as to his knowledge, either by way of deposition or during trial. Moran v
Pittsburgh-Des Moines Steel Co. (1947, DC Pa) 6 FRD 594.
Plaintiff's interrogatory directed to an engineer in regular employ of the defendant was not objectionable because it
called for an expert opinion. Kendall v United Air Lines, Inc. (1949, DC NY) 9 FRD 702.
In action for death allegedly caused by poisonous substances in blood plasma manufactured by defendant, wherein
defendant moved to limit scope of the depositions propounded by plaintiff, to exclude questions calling for expert
knowledge or opinions of certain witnesses who were managing agents of defendant, evidence sought need not be
admissible at trial so long as it was useful in discovering other admissible evidence, and since defendant's methods of
producing blood plasma were solely within its knowledge, plaintiff was entitled to know why certain things were done
or were not done and fact that witnesses possessed expert knowledge would not immunize them from complete
examination. Russo v Merck & Co. (1957, DC RI) 21 FRD 237.
Page 38
USCS Fed Rules Civ Proc R 26
Rule 26(b)(4) limitations upon pretrial discovery of facts known and opinions held by experts were inapplicable to
three of foundation's proposed witnesses who, prior to foundation's decision to institute instant action, had been selected
by their employer to conduct investigation requested by foundation into conditions of greenhouses and representations
made by defendant, as knowledge upon which defendant sought to depose proposed witnesses was acquired by
witnesses as "actors" in connection with subject matter of suit. Duke Gardens Foundation, Inc. v Universal
Restoration, Inc. (1971, DC NY) 52 FRD 365, 15 FR Serv 2d 427.
Experts who examined pump installed on firetruck by corporate defendant, shortly after truck and pump were
involved in a accident in which plaintiff volunteer fireman was injured, were not actors or viewers with respect to
transactions or occurrences that were part of subject matter of lawsuit, and were subject to limitations imposed upon
discovery of experts under Rule 26(b)(4). Perry v W. S. Darley & Co. (1971, DC Wis) 54 FRD 278, 15 FR Serv 2d
1611.
For purposes of Rule 26(b)(4), "specially employed" refers only to manner by which services of expert are obtained;
that is, expert is put on payroll for specific purpose of deriving facts and opinions for use in trial preparation or
anticipated litigation; distinction between "retained" and "specially employed" is difference between hiring expert as
independent contractor and hiring him as employee pro hac vice. Virginia Electric & Power Co. v Sun Shipbuilding &
Dry Dock Co. (1975, ED Va) 68 FRD 397, 20 FR Serv 2d 872.
Although one be expert, if his contact with case is not in his capacity as impartial observer, but is instead as one
going about his duties as loyal employee, he should be treated as ordinary witness; master-servant relationship between
party and his expert was not contemplated within ambit of Rule 26(b)(4). Virginia Electric & Power Co. v Sun
Shipbuilding & Dry Dock Co. (1975, ED Va) 68 FRD 397, 20 FR Serv 2d 872.
City medical examiner who performed autopsy on decedent in wrongful death action did not obtain or develop
information concerning cause of death in anticipation of litigation or trial because his opinion was matter of routine
practice in course of his duties and, therefore, he does not fall within protective provisions of Rule 26(b)(4) and should
be treated as ordinary witness subject to deposition. Harasimowicz v McAllister (1978, ED Pa) 78 FRD 319, 25 FR
Serv 2d 463.
Experts, appointed by defendant government to investigate failure of Teton Dam, are not protected from discovery
because their investigation was not in anticipation of litigation but discovery must be limited to their role as ordinary
witnesses testifying to their firsthand observations, including their knowledge of "the nature of the art" preceding failure
of dam and they cannot be deposed as to expert opinions formulated from expertise acquired while serving on panel nor
as to process of arriving at their opinions. Tahoe Ins. Co. v Morrison-Knudsen Co. (1979, DC Idaho) 84 FRD 362, 28
FR Serv 2d 991.
Proper discovery of party's experts pursuant to Rule 26(b)(4)(A) cannot be foreclosed or limited solely because they
are also party's employees. Kane Gas Light & Heating Co. v Pennzoil Co. (1983, WD Pa) 99 FRD 614, 38 FR Serv 2d
364.
In products liability action brought against stove manufacturer, expert of manufacturer who was also one of
manufacturer's employees was not expert who had been "retained or specially employed in anticipation of litigation or
preparation for trial", and was subject to be deposed by plaintiff on all relevant matters including areas of his expertise.
Branerton Corp. v Commissioner (1975) 64 TC 191, 20 FR Serv 2d 690.
366. Appraisers' opinions and reports
Landowners in condemnation proceedings are entitled to obtain opinion of condemnor's expert appraisers in advance
of trial, and attorney's "work product" doctrine does not extend to such information. United States v Meyer (1968, CA9
Cal) 398 F2d 66, 12 FR Serv 2d 717.
In eminent domain proceedings for acquisition of land by United States, defendant landowner, in taking pretrial
deposition of witness who was Chief of Real Estate Division, Corps of Engineers, United States Army, would not be
permitted to inquire concerning opinions which witness had expressed during course of certain prior negotiations
looking toward acquisition of the land without condemnation, touching the value of such land; deposition of such
witness by oral examination must be restricted to such matters as pertained to fair market value of subject property as of
date of taking. United States v 50.34 Acres of Land (1952, DC NY) 12 FRD 440.
Motion for pretrial discovery of opinion evidence of appraisers in condemnation proceeding is denied since, opinions
were and would remain wholly incompetent and immaterial as evidence unless and until the appraisers were called as
witnesses upon trial and were shown to be experts qualified and prepared to give competent opinion testimony as to
value of property in controversy; although, opinions contained in appraisers' reports might have evidentiary value as
potential impeachment material, only in rare instances will such reports aid pretrial preparation of a defendant's case
other than in this negative way. United States v Certain Parcels of Land (1953, DC Cal) 15 FRD 224.
Page 39
USCS Fed Rules Civ Proc R 26
In condemnation proceedings by United States, court would not allow discovery of opinions of government's expert
appraisers. United States v Certain Acres of Land (1955, DC Ga) 18 FRD 98; United States v Certain Parcels of Land
(1959, ND Cal) 25 FRD 192, 3 FR Serv 2d 617; United States v 19.897 Acres of Land (1961, ED NY) 27 FRD 420, 4
FR Serv 2d 571.
Landowners in condemnation proceedings are not entitled to obtain opinion of condemnor's expert appraisers in
advance of trial, nor are they entitled to see copy of appraisal reports where there is nothing to distinguish case from
ordinary condemnation case. United States v 900.57 Acres of Land (1962, WD Ark) 30 FRD 512, 6 FR Serv 2d 659.
In action by United States to condemn leasehold estate in office space, the opinion of experts in its employ on the
issue of value, as contained in appraisals in the government's possession, were not discoverable. United States v
284,392 Square Feet of Floor Space (1962, ED NY) 203 F Supp 75, 5 FR Serv 2d 457.
In federal land condemnation case where value is basic, if not sole, issue in litigation, and is to be litigated through
expert witnesses, it is not unfair for either party to know in advance of trial what opinions his opponent's experts hold,
method by which those opinions were formulated, and facts upon which they were based, nor is attorney-client privilege
or attorney's work product rule sufficient reason for denying discovery; hence court would direct government's
real-estate appraiser to answer landowner's questions inquiring into facts considered by expert, mental processes of
expert, and expert's opinion on some aspects of value. United States v 23.76 Acres of Land (1963, DC Md) 32 FRD
593, 7 FR Serv 2d 553.
Examination of experts, land appraisers appointed by the United States, for the purpose of cross-examining them
when they should take the stand at the trial of condemnation suit, was allowed. United States v 364.82 Acres of Land
(1965, ND Cal) 38 FRD 411, 9 FR Serv 2d 26B.53, Case 1.
In eminent domain action, Rule 26(b)(4) did not provide for discovery, as matter of course, of expert appraiser's
report nor for location of such report, and did not require that plaintiff disclose prior to trial all comparable land sales on
which their expert appraiser would rely at trial. United States v 145.31 Acres of Land (1972, MD Pa) 54 FRD 359, 15
FR Serv 2d 1433, affd without op (1973, CA3 Pa) 485 F2d 682.
Condemnees are entitled to discovery of 1979 appraisal of their property but only to extent it contains facts that
underlie opinions in current condemnation suit, where government has identified experts making 1979 appraisal as
experts it expects to rely on at trial even though they were not expected to testify when hired to make 1979 appraisal,
because Rule 26(b)(4)(A)(i) requires disclosure of substance of facts and opinions to which expert is expected to testify,
but Rule 26(b)(4)(B) protects remainder of appraisal. United States v 215.7 Acres of Land (1989, DC Del) 719 F Supp
273.
367. Treating physician's opinion or report
Plaintiff's attending physician could be called to testify by defendant where plaintiff had received report from
physician and decided not to call him as witness; Advisory Committee notes that expert witness who was actor or
viewer of occurrence in question should be treated as ordinary witness, and same viewpoint is applicable in trial setting.
Williams v Rene (1995, CA3 VI) 33 VI 297, 72 F3d 1096, 34 FR Serv 3d 106.
In a negligence action, physician who had been employed by plaintiff as an expert would not be ordered to give
expert testimony at the taking of his deposition by defendant. Boynton v R. J. Reynolds Tobacco Co. (1941, DC Mass)
36 F Supp 593.
In view of physician's treatment of plaintiff's back condition for approximately 12 years prior to incident and injury
in issue, it cannot reasonably be said that facts known or opinions developed by him regarding such treatments were
acquired in anticipation of litigation; accordingly, Rule 26(b)(4) does not preclude defendant from deposing physician
with respect to his examinations, finding, diagnoses, and opinions regarding plaintiff's back condition prior to date of
incident in issue. Quarantillo v Consolidated Rail Corp. (1985, WD NY) 106 FRD 435, 2 FR Serv 3d 68.
Where court allowed defendants to depose two of plaintiff's treating physicians, who had been designated by plaintiff
as trial witnesses, such witnesses were entitled to reasonable fee under FRCP 26(b)(4)(C), and were not limited to rate
specified in 28 USCS § 1821(b). Coleman v Dydula (1999, WD NY) 190 FRD 320.
Federal magistrate recommended that district court find that individual's medical exam report, which was performed
by U.S. Postmaster's expert, was in compliance with discovery rules where report redacted all information not related to
individual's exam. Brousseau v Postmaster Gen. (2002, DC Conn) 209 FRD 293.
368. Other particular expert opinions
Expert's opinion testimony that, in absence of defects which he described, auger would not have collapsed, did not
infringe upon product liability defendants' rights to discover content of his intended testimony since testimony was
logical inference drawn from previous recital of grain auger's defects and both defendants were aware that expert
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USCS Fed Rules Civ Proc R 26
intended to identify those defects at trial. Thudium v Allied Prods. Corp. (1994, CA8 Mo) 36 F3d 767, CCH Prod Liab
Rep P 14064, 30 FR Serv 3d 52.
In proceedings for forfeiture of beverage allegedly adulterated and misbranded, claimant's notice of taking of oral
deposition of government's commissioner of food and drugs would be vacated where it appeared that such discovery
was not needed to inform claimant of what the government alleged in the libel, and it was apparent that what claimant
sought by examination of the government's chemists doubtless consisted of expert testimony or opinions on part of such
chemists who had analyzed samples of the commodity seized. United States v 88 Cases, etc., of Bireley's Orange
Beverage (1946, DC NJ) 5 FRD 503.
Where plaintiff sought to take pretrial deposition of an accountant who, having been employed by some of
defendants, had made an examination of plaintiff's books after commencement of the action, but it appeared that
plaintiff had the books in question in its possession and had had an examination thereof made by its own accountants
and the question presented was simply whether plaintiff should be permitted to inquire as to any conclusions arrived at
by defendants' accountants when it had its own accountant, of whom the same inquiry could be made, and had
possession of the books involved in the examination, taking of such deposition would not be permitted. Dipson
Theatres, Inc. v Buffalo Theatres, Inc. (1948, DC NY) 8 FRD 313.
In patent infringement action, plaintiff would not be required to answer interrogatories which sought opinion of an
expert upon comparison of plaintiff's patent with prior art and comparison of patents in prior art with each other.
Stewart Stamping Corp. v Westchester Products Co. (1953, DC NY) 17 FRD 248, 99 USPQ 470.
Factual disclosures rather than opinions, by patent experts on validity of claims in suit for a patent infringement,
should be the aim of pretrial discovery proceedings, and objections to interrogatories seeking such opinions were
sustained. Olsen v St. Anthony Machine Products Co. (1955, DC Minn) 18 FRD 313, 107 USPQ 134.
In a proceeding for seizure and condemnation of allegedly misbranded drug or cosmetic labeled "Tranquilease,"
where the government addressed interrogatories to the claimants, main issue in the case was whether claims made
respecting Tranquilease, were false and misleading, and questions propounded by the libelant directed to tests, if any,
and experts, if any, that would support the position of claimants on the issue whether claims made for the article were
false or misleading were related to matters which were within sole possession or knowledge of the claimants and which
the libelants could not obtain through independent investigation or research are valid and claimants' objections to the
interrogatories must be overruled. United States v 48 Jars (1958, DC Dist Col) 23 FRD 192, 2 FR Serv 2d 506.
In action by federal government under Federal Food, Drug and Cosmetic Act to enjoin defendant from introducing
into interstate commerce a certain allegedly misbranded drug, where defendant objected to interrogatories propounded
to it by plaintiff on general ground that the interrogatories were improper where they sought to secure work performed
by experts or called for experts' opinions, resolution of entire case depended upon medical and expert testimony and
opinion, and, in such case, the necessities of the situation transcended the usual limitations which might otherwise be
imposed upon discovery proceedings and to extent that information concerning medical and scientific facts was within
knowledge or possession of defendant, it should be disclosed. United States v Nysco Laboratories, Inc. (1960, SD NY)
26 FRD 159, 4 FR Serv 2d 550.
In action by the user of meat grinder against manufacturer thereof for damages for personal injuries, plaintiff's theory
being that the injuries resulted from negligent and unsafe design of the grinder, where, after retrial had been granted,
plaintiff informed defendant of names of two new engineering experts whom plaintiff intended to call as witnesses,
defendant's motion that court order counsel for plaintiff to produce such two expert witnesses so that defendant could
take their depositions was denied where it appeared that neither of such witnesses had first-hand information about the
design or manufacture of the meat grinder or circumstances of the accident, and they, presumably, would testify
concerning their opinion of machine's design, after examining plans and photographs and perhaps the machine itself,
whereas information concerning design and manufacture of the machine obviously was easily available to defendant, its
manufacturer, and defendant could present its own experts if and as required. Smith v Hobart Mfg. Co. (1960, ED Pa)
188 F Supp 135, 3 FR Serv 2d 491.
In wrongful death action arising out of explosion in defendant's plant resulting in decedent's death plaintiff was
permitted to take deposition of expert hired by defendant to investigate explosion where plaintiff had no opportunity to
observe the scene of the explosion at least in its original condition, there was reason to believe that defendant's expert
had during the course of his tests moved or modified apparatus believed to be cause of explosion, and defendant's expert
carefully studied the site of the explosion in its original condition; plaintiff would not, however, be permitted to inquire
into expert's opinions or conclusions. Lee v Crown Cent. Petroleum Corp. (1963, SD Tex) 33 FRD 11, 7 FR Serv 2d
558.
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USCS Fed Rules Civ Proc R 26
The government may take depositions of six experts hired by a potential distributor of a product to test it and
determine its effectiveness, since the experts are not working for the producer. 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 dealing with question whether court should order further discovery by other means, namely, depositions, in action
where defendants sought depositions of plaintiff's witnesses who were asserted to be experts expected to testify at trial
and whose depositions, it was argued, could not be obtained without requiring order of court, court would treat such
witnesses as experts and Rule 26(b)(4) would apply without necessity of then requiring that witnesses be qualified,
where proffers of testimony contained solely opinion evidence. Herbst v International Tel. & Tel. Corp. (1975, DC
Conn) 65 FRD 528, 20 FR Serv 2d 483, 33 ALR Fed 398.
Defendant in personal injury action was entitled to depose plaintiff's expert when testimony of expert was focal point
of entire action, allegations were so broad defendant found it impossible to defend its action, and defendant had not
been furnished with sufficient information to permit it to answer plaintiff's interrogatories. Horgan v A. T. O., Inc.
(1977, DC Mass) 23 FR Serv 2d 179.
Defendant in patent infringement action would be entitled to depose expert which plaintiff anticipated using as
witness at trial by limiting scope of deposition to expert's experience in field of office equipment and development prior
to commencement of lawsuit and by restricting use of information obtained by way of discovery to that action. Norfin,
Inc. v International Business Machines Corp. (1977, DC Colo) 74 FRD 529, 24 FR Serv 2d 894.
Plaintiff in technical copyright infringement action is entitled to discover from experts expected to be called at trial
(1) subject matter on which each defense expert is expected to testify, (2) "the substance of the facts and opinions" to
which each such expert is expected to testify, and (3) summary of grounds for each such opinion; defendant's response
did not set forth any sufficient summary of grounds for each opinion held by expert, as required by Rule 26, where
response lacked opinion, factual bases therefor or summaries thereof. Manna Music, Inc. v Smith (1978, MD Pa) 26
FR Serv 2d 595.
Mere designation by party of trial witness as "expert" does not thereby transmute experience that expert witness
acquired as actor into experience he acquired in anticipation of litigation or for trial; in patent infringement action,
deponent who was asked to interpret claims contained in patent application which he swore under oath were
representative of his invention was "actor" who had gathered experience prior to commencement or even impending
threat of lawsuit, and thus, deponent must be treated as "ordinary witness" as to requested interpretation of patent
claims. Nelco Corp. v Slater Electric, Inc. (1978, ED NY) 80 FRD 411, 200 USPQ 534, 24 FR Serv 2d 1333.
In suit involving patent's validity plaintiff was entitled to discovery of drafts of declaration of defendant's expert
which were submitted to Patent Office in reexamination proceeding since expert was expected to testify at trial about
identical matters, expert testimony would be pivotal in technologically dense case, and discovery would serve purpose
of Rule 26(b)(4) to better equip opposing counsel to cross-examine expert. Hewlett-Packard Co. v Bausch & Lomb
(1987, ND Cal) 116 FRD 533, 4 USPQ2d 1676, 8 FR Serv 3d 105.
Discovery period would not be extended to allow defendants in suit alleging civil rights violation by police who
forcibly entered plaintiffs' residence to take deposition of plaintiffs' expert carpenter witness who would testify to cost
of needed repairs, since plaintiffs' answers to interrogatories were sufficient in that respect, but discovery period would
be extended to allow defendant to depose plaintiff's expert who was professor of criminology and who, according to
plaintiffs' answers to interrogatories, would testify that police behavior was negligent and substandard, since such
answers were uninformative as to substance of expert's opinion. Williams v McNamara (1988, DC Mass) 118 FRD
294, 10 FR Serv 3d 277.
Plaintiff's expert in RICO case was required to produce most of documents sought to be protected under
work-product privilege since, despite fact that work-product materials were intertwined with clearly discoverable
materials, redaction of them was not appropriate where level of expert's involvement in direction of case was itself
relevant line of inquiry on question of bias and, even if work-product privilege applied, defendant's need to uncover
facts to effectively cross-examine significant expert witness on his interest in case would constitute showing sufficient
to overcome privilege; plaintiff cannot offer expert as disinterested expert witness and at same time shield from scrutiny
his major role in formulation of case. County of Suffolk v Long Island Lighting Co. (1988, ED NY) 122 FRD 120.
In action involving trade secret dispute concerning catheters, party's answers that each of its experts was prepared to
evaluate opposing party's catheters in relation to offering party's products involved were insufficient; party must at least
identify which of opposing party's catheters would be evaluated, particular aspects of those catheters, and which of
answering party's products would be evaluated in relation to opposing party's catheters. Uresil Corp. v Cook Group,
Inc. (1991, ND Ill) 135 FRD 168.
Art purchaser who claimed artist's signature on print was forgery would be permitted to depose expert witnesses
regarding authenticity of signature, limited to determining witnesses' qualifications to render opinion on authenticity of
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USCS Fed Rules Civ Proc R 26
signature, opinion on authenticity of signature, and description of how each arrived at her conclusion. David Tunick,
Inc. v Kornfeld (1993, SD NY) 151 FRD 534.
Plaintiffs' counsel would not be permitted to attend defendant's litigation testing since decision of what to test and
how is essentially working out of defendant's interpretation of facts and testing of its defenses, involving both attorney's
mental processes and consulting experts' opinions. Shoemaker by Embree v General Motors Corp. (1994, WD Mo) 154
FRD 235, 29 FR Serv 3d 659.
Pharmaceutical manufacturer was not entitled to new trial in products liability suit on ground that plaintiffs' experts
offered testimony beyond that outlined in their designation under FRCP 26, where manufacturer did not request
continuance on basis of surprise or prejudice, manufacturer conducted extensive cross-examination of witnesses on
subject, manufacturer made little or no attempt to cure its alleged prejudice, and testimony was not motivated by bad
faith or ill intent. Tobin v SmithKline Beecham Pharms. (2001, DC Wyo) 164 F Supp 2d 1278.
369. Miscellaneous
In action on several insurance policies for damages caused by explosion in plaintiff's manufacturing plant, wherein
the two defendants were contesting as to what equipment or machinery in the plant exploded, and Hartford company
took pretrial deposition of one Lange, who was an expert apparently retained by plaintiff, in the course of which Lange
had been questioned as to various portions of the plaintiff's manufacturing plant and equipment therein, and had been
questioned at length as to basis of his conclusions as to situs of the explosion, court denied plaintiff's motion that the
entire questioning of Lange so far taken be suppressed and denied alternative motion that all that part of Lange's
examination referring to his conclusions as to cause and situs of the explosion be suppressed. Bergstrom Paper Co. v
Continental Ins. Co. (1947, DC Wis) 7 FRD 548.
Where party offered affidavit of expert witness in opposition to motion for summary judgment, he waived right not
to have deposition of expert taken, and testimony of expert, for all practical purposes, having already been offered in
case, the taking of deposition by party against whom affidavit was used was nothing more than cross-examination. Cox
v Commonwealth Oil Co. (1962, SD Tex) 31 FRD 583, 6 FR Serv 2d 518.
Requiring plaintiff's expert witness to attend deposition without complying with provisions of Rule 26(b)(4) did not
contravene provisions of Federal Rules of Civil Procedure where defendant had clearly indicated that it desired no
information which was obtained in anticipation of litigation, but only sought to question expert on his "experience"
prior to being retained by plaintiff; two-step procedure of Rule 26(b)(4) does not apply to those facts and opinions held
by expert which emanate from his prior experience rather than develop in anticipation of litigation. Norfin, Inc. v
International Business Machines Corp. (1977, DC Colo) 74 FRD 529, 24 FR Serv 2d 894.
Magistrate properly denied defendant's motion to compel plaintiffs to answer interrogatory where proper showing
required to compel discovery of non-testifying expert retained or specially employed in anticipation of litigation
corresponds to showing of exceptional circumstances under which it is impracticable for parties seeking discovery to
obtain facts on same subject by other means, and defendants did not carry burden of demonstrating existence of
exceptional circumstances. Kuster v Harner (1986, DC Minn) 109 FRD 372.
In Love Canal case plaintiff would be allowed to question defendant's expert witnesses about their opinions of
various health, epidemiological, and habitability evidence but not to explore the validity of the underlying evidence
itself since case had been bifurcated into liability and damages phases and such restrictions on discovery were sensible
way of completing discovery in liability phase. United States v Hooker Chemicals & Plastics Corp. (1987, WD NY)
118 FRD 324.
Defendant's argument that expert was not qualified to give opinion which plaintiffs stated he would render was
inadequate ground for striking answer to interrogatory. Brennan v Innovative Dining of Massachusetts, Inc. (1991, DC
Mass) 136 FRD 336.
Party is not prohibited from calling expert who may have consulted with other side; mere payment for consulting
time does not make expert per se "retained" expert. P&G v Haugen (1999, DC Utah) 184 FRD 410.
Absent exceptional circumstances, party may not depose or call at trial adversary's consultative, nontestifying expert
witness. Lehan v Ambassador Programs, Inc. (2000, ED Wash) 190 FRD 670, 82 BNA FEP Cas 1046.
Draft reports prepared by expert witness designated to testify at trial are not covered by work product doctrine. Krisa
v Equitable Life Assur. Soc'y (2000, MD Pa) 196 FRD 254.
VII. PROTECTIVE ORDERS [RULE 26(c)]
A. In General
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USCS Fed Rules Civ Proc R 26
370. Generally
Rule 26(c) was enacted as safeguard for protection of parties and witnesses in view of broad discovery rights
authorized in Rule 26(b). United States v Columbia Broadcasting System, Inc. (1982, CA9 Cal) 666 F2d 364, 1982-1
CCH Trade Cases P 64492, 33 FR Serv 2d 539, cert den (1982) 457 US 1118, 73 L Ed 2d 1329, 102 S Ct 2929.
Court may disregard stipulation that party must consent to any disclosure in setting terms of protective order; court
has power to disapprove, modify, alter, or amend any proposed or existing protective order. TIF Instruments, Inc. v
Colette (1983, CA6 Mich) 713 F2d 197, 37 FR Serv 2d 18.
Absent showing of improvidence in grant of Rule 26(c) protective order or some extraordinary circumstance or
compelling need, witness should be entitled to rely upon enforceability of protective order against any third parties,
including Government, and such order should not be vacated or modified merely to accommodate Government's desire
to inspect protected testimony for possible use in criminal investigation. Palmieri v New York (1985, CA2 NY) 779
F2d 861, 1986-1 CCH Trade Cases P 66905, 4 FR Serv 3d 283.
Court would adopt per se rule that grand jury subpoenas take precedence over validly issued Rule 26(c) protective
orders; deference to grand jury finds strong support in Supreme Court precedent, and there is nothing in Rule's language
or commentary to indicate that Congress intended to abrogate historical investigative powers of grand jury. United
States v Janet Greeson's A Place For Us (In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes) (1995,
CA9 Cal) 62 F3d 1222, 95 CDOS 6323, 32 FR Serv 3d 846.
Presumption of openness of discovery materials arises from Federal Rules of Civil Procedure, particularly Rules
5(d), 26(c), and 30(f)(1). Tavoulareas v Washington Post Co. (1984, App DC) 233 US App DC 126, 724 F2d 1010, 10
Media L R 1129, 38 FR Serv 2d 495, different results reached on other grounds on reh, en banc (1984, App DC) 238 US
App DC 23, 737 F2d 1170, 10 Media L R 2360, 39 FR Serv 2d 747.
A federal district court, other than the one in which a deposition was to be taken in connection with an interference
proceedings in Patent Office, is without jurisdiction to grant relief under Rule 26(c). Hellwarth v Gould (1967, DC
Del) 46 FRD 620, 161 USPQ 134.
There is no absolute right to unlimited discovery. Wilk v American Medical Asso. (1979, ND Ill) 27 FR Serv 2d
802.
Discovery is on-going process and party must answer interrogatories to best of ability whether or not its own
investigations are still continuing and, if necessary, party may move for protective order or other appropriate order as
provided in Rule 33(b) to protect it from revealing expert opinion not yet fully formed but no party may simply delay
answering interrogatories with paltry answers until day or month before trial when all facts are known and theories
finalized. Barker v Bledsoe (1979, WD Okla) 85 FRD 545, 29 FR Serv 2d 1118.
Rule 26(c) gives District Court authority to issue protective order controlling disposition of discovery materials after
party has acquired materials, as well as fixing and controlling conditions under which discovery may be obtained in first
case. Krause v Rhodes (1979, ND Ohio) 535 F Supp 338, 33 FR Serv 2d 1684, affd (1982, CA6 Ohio) 671 F2d 212, 8
Media L R 1130, 33 FR Serv 2d 1675, cert den (1982) 459 US 823, 74 L Ed 2d 59, 103 S Ct 54.
Rule 26(c) motion is appropriate only before deposition commences, whereas Rule 30(d) motion is appropriate only
during taking of deposition. Coates v Johnson & Johnson (1980, ND Ill) 85 FRD 731, 26 BNA FEP Cas 1114, 30 FR
Serv 2d 234.
It is improper for court to attempt to enforce subpoena duces tecum issued by different District Court against person
who is not party to action pending therein. 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.
Party seeking protective order has burden to show valid grounds for it. Leighr v Beverly Enterprises-Kansas (1996,
DC Kan) 164 FRD 550.
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 there was no authority holding that district court must limit its review of selected termination date to
administrative record, court allowed additional discovery regarding Pension Benefit Guaranty Corporation's selected
termination date of ERISA plan and denied pension guaranty corporation' motion for protective order under Fed. R. Civ.
P. 26(c). Pension Ben. Guar. Corp. v Republic Techs. Int'l, LLC (2002, ND Ohio) 211 FRD 307.
Since settlement was reached and deposition transcripts were released to public, potential embarrassment deponents
would suffer at seeing themselves on evening news had significantly lessened or outright disappeared and protective
order brought pursuant to Fed. R. Civ. P. 26(c)was lifted. Felling v Knight (2003, SD Ind) 211 FRD 552.
Under Federal Rules of Civil Procedure, there is presumptive right of public access to discovery in all civil cases;
therefore, party seeking to have access to discovery materials restricted has burden of proving necessity of protective
order. Loussier v Universal Music Group, Inc. (2003, SD NY) 214 FRD 174.
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USCS Fed Rules Civ Proc R 26
371. Constitutional standard
District court determining whether protective order issued under Rule 26(c) violates First Amendment must merely
inquire whether defendants demonstrated good cause for protective order, rather than apply least restrictive means test.
Cipollone v Liggett Group, Inc. (1986, CA3 NJ) 785 F2d 1108, 4 FR Serv 3d 170, 81 ALR Fed 443.
Appropriate constitutional standard governing issuance of restraining orders under Rule 26(c) must take account of
important public interests in functioning of discovery process and unique characteristics of that process as well as First
Amendment interest in unfettered expression. 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.
Civil discovery rules may not always be subordinate to First Amendment but rights must be balanced on
case-by-case basis to protect all relevant interests. Solargen Electric Motor Car Corp. v American Motors Corp.
(1981, ND NY) 506 F Supp 546, 6 Media L R 2441, 32 FR Serv 2d 1376.
Although Rule 26(c) orders restricting expression are similar in form to other orders that have been characterized as
prior restraints, special nature of discovery as source of information justifies reduced level of scrutiny; stringent
standard that would preclude issuance of virtually all Rule 26(c) orders restricting expression could have pernicious
effect on smooth functioning of discovery system. Koster v Chase Manhattan Bank (1982, SD NY) 93 FRD 471, 8
Media L R 1155, 28 CCH EPD P 32557, 34 FR Serv 2d 346.
Order preventing parties from divulging discovery information is not invalid, notwithstanding contention of
non-party that it is prior restraint on First Amendment freedoms. In re Korean Air Lines Disaster (1984, DC Dist Col)
597 F Supp 621, 10 Media L R 2494, 40 FR Serv 2d 870.
First Amendment scrutiny was not properly applied to newspaper's request for access to depositions sealed under
FRCP 26(c) in civil forfeiture action, where deponent did not testify at trial, protective order was entered on showing of
good cause, order was limited to context of pretrial civil discovery, order did not restrict dissemination of information
gained from other sources, and government had weighty interests in safety of its confidential informants and progress of
ongoing investigation. United States v $ 9,041,598.68 (1997, SD Tex) 976 F Supp 633.
372. Applicability
Order prohibiting plaintiff from disclosing information contained in exhibit to its amended complaint on ground that
information consists of proprietary data and trade secrets belonging to defendants is not authorized under Rule 26, since
it constitutes prior restraint on First Amendment right to disseminate documents obtained outside discovery process.
Bridge C.A.T. Bridge C.A.T. Scan Associates v Technicare Corp. (1983, CA2 NY) 710 F2d 940, 36 FR Serv 2d 1182.
Protective order does not shield deposition given in civil suit from subsequent federal grand jury subpoena; historic
purpose served by grand jury outweighs utility served by Rule 26 protective orders. In re Grand Jury Proceedings
(1993, CA11 Ga) 995 F2d 1013, 26 FR Serv 3d 1, 7 FLW Fed C 541.
Grand jury subpoena takes precedence over protective order in civil case unless party seeking to avoid subpoena can
demonstrate existence of exceptional circumstances that clearly favor subordinating subpoena to protective order; this
rule offers desired flexibility and at same time allows room for reasoned analysis in way that does not undermine
public's interest in law enforcement out of misplaced deference to private parties. In re Grand Jury Subpoena (Roach)
(1998, CA1 Mass) 138 F3d 442, 40 FR Serv 3d 145, cert den (1998, US) 1998 US LEXIS 4076.
Rule 26(c) applies to proceedings in admiralty as well as to civil and equitable suits. In re China Merchants Steam
Navigation Co. (1966, SD NY) 259 F Supp 75, 10 FR Serv 2d 846.
Protective orders under Rule 26(c) may apply to all types of pretrial procedures. Swift v Swift (1974, ED NY) 64
FRD 440, 18 FR Serv 2d 581.
Protective order is not available to protect government defendant in ongoing litigation from publication of status
letter concerning litigation, when status letter was not obtained through usual discovery processes, but was prepared by
defendant in non-discovery context. Minneapolis Star & Tribune Co. v United States Dep't of Interior (1985, DC
Minn) 623 F Supp 577, 12 Media L R 1557.
Rule 26 does not authorize district court to issue protective orders regarding documents obtained through means
other than court's discovery processes. In re Shell Oil Refinery (1992, ED La) 143 FRD 105, amd (1992, ED La) 144
FRD 73.
GOPAC is denied preliminary injunction to prohibit Federal Election Commission (FEC) from making any further
contacts with GOPAC contributors, where FEC requests that GOPAC produce lists of names, current addresses, and
telephone numbers of 200 individuals who made largest contributions in response to specific GOPAC solicitation, in
connection with lawsuit charging GOPAC with failing to register and report as political committee while raising and
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USCS Fed Rules Civ Proc R 26
expending funds for purpose of influencing federal elections, because GOPAC really seeks protective order under
FRCP 26(c) and contributor information "appears reasonably calculated to lead to discovery of admissible evidence"
and is discoverable under FRCP 26(b)(1). Federal Election Comm'n v GOPAC, Inc. (1995, DC Dist Col) 897 F Supp
615, 33 FR Serv 3d 794.
Provision for protective orders in FRCP 26(c) is plainly limited in its application to protection from abuses flowing
from employment of discovery rules. Fayemi v Hambrecht & Quist, Inc. (1997, SD NY) 174 FRD 319, 74 BNA FEP
Cas 1133.
Since FRCP 45 subpoenas are method of discovery under FRCP 26, party's request for protection from subpoena is
cognizable under FRCP 26(c), which provides for protective orders. Marvin Lumber & Cedar Co. v PPG Indus. (1997,
DC Minn) 177 FRD 443.
FRCP 26(c) relates to discovery and disclosures; it does not authorize protective orders to regulate conduct of parties
and counsel in their collateral investigations independent of discovery and disclosure. Turnbull v Topeka State Hosp.
(1999, DC Kan) 185 FRD 645, 79 BNA FEP Cas 1384.
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.
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.
Where defendant insurer's expert was Fed. R. Civ. P. 26(b)(4)(B) consulting expert in prior suit against insurer's
agent, and had never been identified as testifying expert in current litigation brought by plaintiff reinsurer, five-factor
test for waiver as to inadvertent disclosure of attorney work product, was applied to inadvertent disclosure of
non-testifying expert's affidavit that had been prepared in insurer's prior suit against its agent, and protective order for
return of affidavit was granted under Fed. R. Civ. P. 26(c). Employer's Reinsurance Corp. v Clarendon Nat'l Ins. Co.
(2003, DC Kan) 213 FRD 422.
373. Persons protected
Although, as voluntary litigant, civil plaintiff has created situation which requires him to choose between his
constitutional privilege of silence and his lawsuit, party "voluntarily" becomes plaintiff only because there is no other
means of protecting legal rights; plaintiff-defendant distinction will not be followed and plaintiff will be granted
protective order barring discovery. Wehling v Columbia Broadcasting System (1979, CA5 Tex) 608 F2d 1084, 5 Media
L R 2228, 28 FR Serv 2d 986, reh den (1980, CA5 Tex) 611 F2d 1026, 5 Media L R 2468, 5 Fed Rules Evid Serv 861,
28 FR Serv 2d 1215.
The powers given to the court by this Rule 26(c) are for the protection of parties and deponents and are not to be
made the basis of an application to the court in every case, but only where bad faith, annoyance, embarrassment, or
oppression are the purpose of the examination. Laverett v Continental Briar Pipe Co. (1938, DC NY) 25 F Supp 80;
Harry Von Tilzer Music Publishing Co. v Leo Feist, Inc. (1941, DC NY) 2 FRD 96, 50 USPQ 298; Banana Distributors,
Inc. v United Fruit Co. (1956, DC NY) 19 FRD 244.
As a matter of discretion, the court will not permit inspection by examining counsel of papers produced in response
to a subpoena duces tecum by a witness whose deposition is being taken and who is not a party to the action, if the
papers are not admissible in evidence and their disclosure might seriously embarrass or prejudice the witness. Eastern
States Petroleum Co. v Asiatic Petroleum Corp. (1938, DC NY) 27 F Supp 121.
Even in the case of a nonparty witness, Rule 26(c) may be used to protect him from annoyance or oppression.
United States v The LV No. 134 (1953, DC NY) 14 FRD 261.
In action involving rights to trademark, court would grant Rule 26(c) motion for protective order as to matters listed
in notices of depositions directed to corporations which were not parties to action where discovery sought involved
inquiry into opinions of nonparty corporations that would not be admissible as evidence. La Chemise Lacoste v
Alligator Co. (1973, DC Del) 59 FRD 332, 177 USPQ 679, 17 FR Serv 2d 157.
In action on claim by individual plaintiffs against defendants for personal injuries allegedly suffered as a result of
contact with chemical substance Kepone produced by defendants, on motion by operator of radio and television
stations, non-party to litigation, to quash subpoena to produce broadcasting materials concerning Kepone, on grounds
that operator had property right in its unpublished files as compiler of materials and that revealing those files would
destroy their value and allow others to appropriate fruits of reporter's efforts and that operator had property right in
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USCS Fed Rules Civ Proc R 26
processes reflected in selection of materials compiled, operator's position was without merit; opening files to discovery
did not necessarily open them to public since court had power as well as duty to fashion protective orders that enabled
movant to secure needed information at minimum of public exposure to subject of subpoena and to condition discovery
on reasonable payments for services rendered. 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).
Discovery will not be denied because it frequently intrudes on litigants in manner inconsistent with their otherwise
protected privacy interests; having commenced litigation, teacher's association could not claim that proper discovery by
defendant school district in defending against association's claim constituted unfair interference in association's affairs.
Racine Education Asso. v Racine Unified School Dist. (1979, ED Wis) 82 FRD 461.
Although not party to litigation, deponent, as person affected, is entitled to reasonable notice of motion to compel
discovery, reasonable notice of ruling thereon, and reasonable access to judicial review, pursuant to Rules 1, 26(c), and
37(a); inasmuch as no precise time is prescribed for filing of appeal by non-party, such filing must be made within
reasonable time. Fischer v McGowan (1984, DC RI) 585 F Supp 978, 10 Media L R 1650, 38 FR Serv 2d 1475.
Rule 26(c) is broad enough to permit District Court to extend protection of Rule 26(b)(3) to non-party insurer and its
assistant claims manager, as representatives of non-party insured, where it is not unlikely that defendants will join
insured as third-party defendant. Basinger v Glacier Carriers, Inc. (1985, MD Pa) 107 FRD 771, 3 FR Serv 3d 235.
Protective orders totally prohibiting deposition should be granted in cases involving request to take party's attorney's
deposition unless requesting party can show that deposition is only practical means available of obtaining information
and information sought will not invade attorney-client privilege or attorney's work product. N.F.A. Corp. v Riverview
Narrow Fabrics, Inc. (1987, MD NC) 117 FRD 83, 9 FR Serv 3d 228.
Taking of deposition of counsel is not specifically prohibited; consequently, party seeking protective order to
preclude his attorney's deposition bears burden under FRCP 26(c) of demonstrating good cause to preclude or limit
testimony. Rainbow Investors Group v Fuji Trucolor (1996, WD La) 168 FRD 34.
Attorney, even attorney for party to suit, is subject to being deposed, and courts, which do not favor thwarting
deposition, rarely grant protective order which totally prohibits deposition, unless extraordinary circumstances are
present; request to take deposition of attorney for party may, however, constitute circumstance justifying departure from
normal rule. Mike v Dymon, Inc. (1996, DC Kan) 169 FRD 376.
Although subpoenas for deposition of three nonparty witnesses did not allow sufficient time for compliance under
Fed. R. Civ. P. 45(c)(2)(B), party lacked standing, absent claim of privilege, to challenge subpoena issued to nonparty,
and defendant employer's motion to quash subpoenas was denied. Donahoo v Ohio Dep't of Youth Servs. (2002, ND
Ohio) 211 FRD 303, summary judgment gr, claim dismissed, judgment entered (2002, ND Ohio) 237 F Supp 2d 844,
motion gr, judgment entered, costs/fees proceeding (2002, ND Ohio) 2002 US Dist LEXIS 23594.
374. Timeliness of application; effect of delay
Inherent in the rule providing for protective orders is an implied condition that the party or deponent must have
reasonable amount of time in which to make application for a protective order. Mims v Central Mfrs. Mut. Ins. Co.
(1949, CA5 Ala) 178 F2d 56.
Motion by plaintiff to strike defendant's answer for his failure to appear for examination on oral deposition is to be
granted unless defendant appears for taking of his deposition within 30 days, despite fact defendant claims he did not
receive notice for taking of his deposition; motion has been adjourned six times, and defendant must have known that
service of notice for taking of his deposition was claimed when motion to strike was first on calendar more than 4
months earlier and he was given notice of such motion; if examination in one judicial district constitutes hardship,
defendant should seasonably move for appropriate relief. O'Neill v Blue Comet Cab Corp. (1953, DC NY) 21 FRD
161.
Motions under Rule 26(c) must be served before date set for production. United States v International Business
Machines Corp. (1976, DC NY) 70 FRD 700, 1976-1 CCH Trade Cases P 60794.
Motion for protective order must be denied as untimely when it was first made in motion for reargument of
document production order and party had ample opportunity to seek productive order earlier. United States v
International Business Machines Corp. (1978, SD NY) 79 FRD 412.
Defendants' application seeking return of discovery matter obtained pursuant to District Court's "open file" discovery
policy is timely despite fact that it is made after settlement since judge gave plaintiffs no reason to infer that parties
were to be given carte blanche to disseminate discovery materials to public and question of how discovery materials
should be handled at close of case was never raised by parties nor mentioned by court. Krause v Rhodes (1979, ND
Ohio) 535 F Supp 338, 33 FR Serv 2d 1684, affd (1982, CA6 Ohio) 671 F2d 212, 8 Media L R 1130, 33 FR Serv 2d
1675, cert den (1982) 459 US 823, 74 L Ed 2d 59, 103 S Ct 54.
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USCS Fed Rules Civ Proc R 26
While objection to place of deposition made by Rule 26(c) motion will normally be allowed if plaintiff designates
place for deposition of defendant other than defendant's residence or place of business, objection and motion must be
timely, and motion is properly denied where it was not seasonably made, having been filed one day before first
deposition was to commence and approximately 7 weeks after notices of deposition had been filed, and where
defendants have offered no excuse for untimeliness of their motion. Anderson v Avco Embassy Pictures Corp. (1984,
DC Mass) 38 FR Serv 2d 1491.
Failure to object to discovery request in timely fashion may constitute waiver of objection, but it is within court's
discretion not to compel discovery which is patently improper. Bumpers v International Mill Service, Inc. (1984, ED
Pa) 40 FR Serv 2d 1334.
Rule 26(c) does not allow post-discovery motions for protection if there was opportunity to move for protective order
before discovery took place. Phillips Petroleum Co. v Pickens (1985, ND Tex) 105 FRD 545, CCH Fed Secur L Rep P
92042, 1 FR Serv 3d 497.
Motion for protective order was seasonable, even though party failed to move for protective order to written
discovery request within time which it was required to respond or to submit proposed protective order along with its
response, since it did note its objections in response to written discovery, submitted proposed protective order prior to
opposing parties' motion to compel discovery, and moved for protective order in response to opposing parties' motion to
compel. Brittain v Stroh Brewery Co. (1991, MD NC) 136 FRD 408.
375. Discretion of court
The exercise of discretion in limiting or terminating the taking of a deposition by the court is akin to the trial court's
discretion in limiting the right to cross-examination at trial, the exercise of this discretion being ground for reversal only
when the trial judge has abused the discretion allowed him. De Wagenknecht v Stinnes (1957) 100 US App DC 156,
243 F2d 413, 70 ALR2d 676, cert den (1957) 355 US 830, 2 L Ed 2d 43, 78 S Ct 44.
Federal trial courts have broad powers to regulate or prevent discovery, and such powers have always been freely
exercised. Brennan v International Brotherhood of Teamsters, etc. (1974) 161 US App DC 173, 494 F2d 1092, 85
BNA LRRM 2594, 73 CCH LC P 14353.
The extent that a party may go in seeking discovery is subject to protective orders that the judge may make under
these rules; under the rules, the extent of discovery and the use of protective orders is clearly within the discretion of the
trial judge. Chemical & Industrial Corp. v Druffel (1962, CA6 Ohio) 301 F2d 126, 133 USPQ 133, 5 FR Serv 2d 505.
Court had discretion to deny issuance of order protecting defendant against answering interrogatories where
defendants failed to submit affidavits supporting contention that interrogatories would be burdensome. White v Wirtz
(1968, CA10 Okla) 402 F2d 145, 58 CCH LC P 32105, 12 FR Serv 2d 820.
Since granting or denial of protective order is within discretion of trial court, only abuse of discretion would be cause
for reversal. 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.
Under Rule 26(c) and Rule 30(d), District Court has broad discretion with respect to termination of deposition. In
re Master Key Litigation (1974, CA9 Cal) 507 F2d 292, 1974-2 CCH Trade Cases P 75395.
Motion under Rule 26(c) to limit discovery requires district judge to compare hardship to party against whom
discovery is sought, if discovery is allowed, with hardship to party seeking discovery, if discovery is denied; district
judge must also consider nature of hardship and give more weight to interests that have distinctively social value than to
purely private interests, and he must consider possibility of reconciling competing interests through carefully crafted
protective order. Marrese v American Academy of Orthopaedic Surgeons (1984, CA7 Ill) 726 F2d 1150, 1984-1 CCH
Trade Cases P 65797, 38 FR Serv 2d 205, revd on other grounds, remanded (1985) 470 US 373, 84 L Ed 2d 274, 105 S
Ct 1327, 1985-1 CCH Trade Cases P 66449, reh den (1985) 471 US 1062, 85 L Ed 2d 491, 105 S Ct 2127.
District Court is not required to fashion limited protective order where party asserts privilege when it has not been
asked to fashion such order. Santiago v Fenton (1989, CA1 Mass) 891 F2d 373.
To insure that discovery functions properly, trial court must have flexibility in fashioning appropriate protective
orders, including restraining orders, as protective orders not only serve to protect against unfairness in particular judicial
proceeding, but may also help preserve effective functioning of civil discovery system more generally. 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.
Where evidence exists which may tend to prove or disprove a disputed issue of fact a great deal of weight should not
be given to the issue of burdensomeness in making it available to the parties, but nevertheless, the question of likelihood
of such evidence existing and its uncertain relevancy to the case as well as the real danger of duplicating volumes of
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USCS Fed Rules Civ Proc R 26
work must be weighed against the burden which its discovery will entail. Banana Distributors, Inc. v United Fruit Co.
(1956, DC NY) 19 FRD 493.
The broad discretionary power vested in the court by Rule 26(c) may be used to strike a fair balance by competing
interests or to prevent annoyance, undue expense, embarrassment or oppression. Lincoln American Corp. v Victory
Life Ins. Co. (1974, DC Kan) 375 F Supp 112.
Evaluation of contention that documents are not relevant to any issue in lawsuit, as ground for granting of protective
order, is largely discretionary. United States v Illinois Fair Plan Asso. (1975, ND Ill) 67 FRD 659, 20 FR Serv 2d
1410.
Court has discretion to deny without prejudice motion for protective order until parties hold discovery conference
pursuant to local rule. Craft v Board of Trustees (1981, ND Ill) 516 F Supp 1317.
Court does not abuse its discretion in granting protective order to plaintiffs pursuant to Rule 26(c) where it appears
that defendants are attempting to utilize discovery rules as "fishing expedition" to find some basis for their civil rights
claim. Strait v Mehlenbacher (1981, WD NY) 526 F Supp 581.
Trial courts have wide discretion in deciding when protective orders are warranted under Rule 26. Ericson v Ford
Motor Co. (1985, ED Ark) 107 FRD 92, 2 FR Serv 3d 1210, clarified, amd (1986, ED Ark) 3 FR Serv 3d 944.
Motion for protective order invokes discretion of court. Leighr v Beverly Enterprises-Kansas (1996, DC Kan) 164
FRD 550.
Court in district where deposition is to be taken has power to grant or deny protective order, but also possesses
discretion to defer to judge handling case on merits. Central States, Southeast & Southwest Areas Pension Fund v
Quickie Transp. Co. (1997, ED Pa) 174 FRD 50.
Whether to grant stay of discovery is within discretion of court. Turner Broadcasting Sys. v Tracinda Corp. (1997,
DC Nev) 175 FRD 554.
In exercising its discretion, district court must balance movant's interests in shielding information from discovery
against countervailing public interests. Cooper Hospital/University Med. Ctr. v Sullivan (1998, DC NJ) 183 FRD 135.
Whether to lift or modify protective order is decision committed to sound discretion of trial court. Alexander v FBI
(1998, DC Dist Col) 186 FRD 54.
In its independent assessment of good cause, court must balance all factors involved, but litigants' interests must be
given priority. Patt v Family Health Sys. (1999, ED Wis) 189 FRD 518.
There is no question that FRCP 26(c) protective order is subject to modification, and decision to modify such order
is committed to sound discretion of trial court. In re Visa Check/Mastermoney Antitrust Litig. (2000, ED NY) 190 FRD
309, class certif gr, motion to strike den (2000, ED NY) 2000 US Dist LEXIS 2027.
Where protective orders have been violated, courts have broad discretion to impose whatever remedy they deem
appropriate. Yates v Applied Performance Techs., Inc. (2002, SD Ohio) 205 FRD 497.
376. In camera examination
If party against whom discovery is sought makes timely motion for protective order, court can examine relevant
documents or information in camera before determining whether restraining order should issue, and in appropriate
cases, opposing counsel should be permitted to participate in such proceedings, so that judge will have benefit of
adversarial presentation. 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.
Protective order claimed to prevent defendant's discovery of documents, regarding plaintiff's financial status and
attorney's fee arrangement, which were allegedly covered by attorney-client privilege, was conditioned on submission to
court for in camera examination. 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.
377. Modification of protective order
Protective orders may be modified for benefit of collateral litigants only when "exceptional circumstances" are
present; collateral litigant should not be permitted to exploit another's discovery by instituting collateral litigation
simply as device to obtain access to sealed information; collateral litigant has no right to obtain discovery of materials
that are privileged or otherwise immune from involuntary discovery. Wilk v American Medical Ass'n (1980, CA7 Ill)
635 F2d 1295, 1980-81 CCH Trade Cases P 63681, 30 FR Serv 2d 1249.
District Court did not err in modifying protective order issued under Rule 26(c), which had provided that all
documents and depositions be treated confidentially, where intervenors requested access to documents and defendants,
who opposed access, did not demonstrate that they had relied on permanence of protective order due to ample warnings
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USCS Fed Rules Civ Proc R 26
that order was temporary in nature, and where protection provided was exceptionally pervasive since defendants never
had to demonstrate good cause for shielding documents, thus making the order improvidently granted and subject to
modification. In re "Agent Orange" Prod. Liab. Litig. (1987, CA2 NY) 821 F2d 139, 7 FR Serv 3d 1091, cert den
(1987) 484 US 953, 98 L Ed 2d 370, 108 S Ct 344.
District Court did not err in modifying protective order even though there had been final adjudication on merits,
since protective order was still in effect. Public Citizen v Liggett Group, Inc. (1988, CA1 Mass) 858 F2d 775, 15
Media L R 2129, 12 FR Serv 3d 1099, cert den (1989) 488 US 1030, 102 L Ed 2d 970, 109 S Ct 838.
Fact that proposed intervenors were involved in litigation concerning same relationship in same kind of action, i.e.
dispute between insurer and insureds over interpretation of environmental liability policy, and that protective order they
sought to have modified was stipulated blanket order, weighed against unfair prejudice to insurer in modifying
protective order to allow other insureds access to insurer's employees' depositions. Beckman Indus. v International Ins.
Co. (1992, CA9 Cal) 966 F2d 470, 92 CDOS 4700, 92 Daily Journal DAR 7499, 22 FR Serv 3d 932, cert den (1992)
506 US 868, 121 L Ed 2d 140, 113 S Ct 197.
Although district court has power to modify protective order, required showing must be more substantial than good
cause needed to obtain sealing order in first interest; absent showing of improvidence in grant of protective order or
some extraordinary circumstance or compelling need, witness should be entitled to rely upon enforceability of
protective order. Geller v Branic Int'l Realty Corp. (2000, CA2 NY) 212 F3d 734, 83 BNA FEP Cas 190, 78 CCH EPD
40016.
Where defendant insurer settled case, and intervenors, public interest associations and plaintiffs in collateral
litigation against insurer moved to intervene and to modify protective order under Fed. R. Civ. P. 26(c), insurer's
reliance on blanket protective order in filing documents with dispositive motion failed to offer compelling reason to
overcome presumption in favor of access to court records; appellate court reversed district court's refusal to release such
documents and remanded with instructions to redact third-party medical information. Foltz v State Farm Mut. Auto. Ins.
Co. (2003, CA9 Or) 331 F3d 1122, 2003 CDOS 5213, 55 FR Serv 3d 690.
While protective order, which prohibited parties from wholesale disclosure to non-parties of material produced in
discovery, was necessary as initial step in getting discovery under way in large, complex litigation, orderly progression
of discovery since issuance of order and adjournment of trial date may make re-examination of protective order
desirable, and order will be lifted, insofar as it relates to confidentiality of government documents and depositions of
present and former government personnel, where (1) public has interest in role government played with respect to some
of issues raised by lawsuit, and (2) government does not object to lifting protective order. In re "Agent Orange"
Product Liability Litigation (1983, ED NY) 99 FRD 645.
In case in which relevant considerations suggest requiring plaintiff to demonstrate need for modification of
protective order, burden of persuasion is properly allocated accordingly. H.L. Hayden Co. v Siemens Medical Systems,
Inc. (1985, SD NY) 106 FRD 551, 1985-2 CCH Trade Cases P 66696, 4 FR Serv 3d 196, 85 ALR Fed 525.
Plaintiff would not be granted modification of protective order, which required parties to return all confidential
materials obtained through discovery within 60 days after termination of action, to direct defendants' counsel to retain
all documents returned by plaintiff in central location so plaintiff could reach documents in event they were needed in
some future case, where parties drafted language of protective order and submitted it to court as stipulation, case had
already been dismissed, and plaintiff failed to show either that documents were or would become relevant in other
proceeding or that plaintiff could not obtain all information to which it was entitled through discovery processes of
court handling other proceeding, despite possibility that documents might be lost or destroyed before they could be
obtained. Cedars-Sinai Medical Center v Revlon, Inc. (1987, DC Del) 113 FRD 632.
Protective order would be modified to permit dissemination to plaintiffs of discovery materials generated in state
case sharing same transaction and same set of operative facts where that case was dismissed before plaintiffs'
intervention motion could be heard, rather than forcing plaintiffs to file petition with state judge or "motion in the
cause." Le Blanc v Broyhill (1988, WD NC) 123 FRD 527.
Intervention is proper procedure for nonparties to challenge protective orders. Northern States Power Co. v
Westinghouse Elec. Corp. (1994, DC Minn) 156 FRD 168, 22 Media L R 2218, 30 FR Serv 3d 683.
Whether to lift or modify protective order is decision committed to sound discretion of trial court. Alexander v FBI
(1998, DC Dist Col) 186 FRD 54.
Once court has entered protective order, it may be modified upon showing of good cause. Alexander v FBI (1998,
DC Dist Col) 186 FRD 99.
Although FRCP 26(c) generally requires party advocating nondisclosure to show good cause for protective order,
court may enter consented or stipulated protective order requiring confidentiality of disclosure without such showing; in
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USCS Fed Rules Civ Proc R 26
such case, when modification of consented protective order is requested, it becomes incumbent upon party opposing
modification to establish need for continued protection. McCarty v Bankers Ins. Co. (1998, ND Fla) 195 FRD 33.
There is no question that FRCP 26(c) protective order is subject to modification, and decision to modify such order
is committed to sound discretion of trial court. In re Visa Check/Mastermoney Antitrust Litig. (2000, ED NY) 190 FRD
309, class certif gr, motion to strike den (2000, ED NY) 2000 US Dist LEXIS 2027.
Protective order issued by court, either state or federal, which on its face survives underlying litigation, continues to
have full force and effect on parties subject to it even after final resolution of underlying case, and issuing court retains
jurisdiction and authority to modify or revoke it. Yates v Applied Performance Techs., Inc. (2002, SD Ohio) 205 FRD
497.
Court concluded that defendants demonstrated no good cause for application of protective order to non-confidential
materials under Fed. R. Civ. P. 26(c) and that it was overinclusive in violation of First Amendment; defendants had not
demonstrated any prejudice from modification, they had been permitted to review all documents to assert
confidentiality, none of circumstances that might have supported broad order existed, and there was public interest
involved in discussing alleged fraudulent practices. United States ex rel. Franklin v Parke-Davis (2002, DC Mass) 210
FRD 257.
In insurer's declaratory judgment action regarding its refusal to reimburse owner for roof repairs performed by
construction company, owner, who agreed to protective order with company as to company's confidential documents,
was not entitled to modify protective order because owner did not show good cause for modification where its only
reason was to investigate possible claims against company. Factory Mut. Ins. Co. v Insteel Indus. (2002, MD NC) 212
FRD 301.
Even assuming that plaintiff's documents were properly designated as confidential without court intervention,
plaintiff failed to meet its burden of showing why protective order should not be modified to permit defendant to use
documents to challenge judgment in favor of plaintiff's parent company in related case brought by defendant. Verizon
Cal., Inc. v Ronald A. Katz Tech. Licensing, L.P. (2003, CD Cal) 214 FRD 583, amd, motion gr, in part, motion den, in
part (2003, CD Cal) 266 F Supp 2d 1144.
In class action against state officials concerning state officials' failure to protect children in state custody from abuse
and neglect, motion to intervene by newspapers for limited purpose of modifying existing confidentiality order to allow
disclosure of information about children currently under state custody was granted where newspapers met their burden
of showing that sufficient reason existed to modify existing confidentiality order in light of death of child under state's
care and abuse of his siblings, existing confidentiality order was overly broad and should be modified for public to have
access to certain state case records regarding status of children under state care, and, because state officials
demonstrated good cause for limited protection of their case records, release of documents would occur pursuant to Fed.
R. Civ. P. 26(c), and documents related to state death reports, critical incident reports, and substantiated reports in abuse
cases, with identifying information redacted, would all be subject to disclosure to public. Charlie H. v Whitman (2003,
DC NJ) 213 FRD 240.
Adopting balancing test similar to one utilized by Court of Appeals for Third Circuit, district court denied plaintiff's
motion to modify protective order concerning discovery in trade secrets case in order to allow plaintiff to use
information in possible future litigation against third parties; defendants' reliance on protective order and need for
order's "lubricating effects" on discovery outweighed plaintiff's interest in avoiding duplicative discovery in possible
future civil case. SRS Techs., Inc. v Physitron, Inc. (2003, ND Ala) 216 FRD 525.
378. Violation of protective order
Person need not be expressly named in protective order to be held liable for civil contempt for violation of order.
Quinter v Volkswagen of America (1982, CA3 Pa) 676 F2d 969, 33 FR Serv 2d 1619.
Sanction of enjoining plaintiffs from using identity of blood donor to bring separate action against donor, for
violation of protective order in action against Red Cross by investigating and learning identity of blood donor, was
abuse of discretion; plaintiffs' right to litigate their claims against donor substantially outweighed donor's privacy
interests and public interest in maintaining safe and adequate blood supply, especially in light of significant evidence
suggesting donor's conduct was suspect. Coleman v American Red Cross (1992, CA6 Mich) 979 F2d 1135, 24 FR Serv
3d 1, appeal after remand, remanded (1994, CA6 Mich) 23 F3d 1091, 1994 FED App 156P, reh, en banc, den (1994,
CA6 Mich) 1994 US App LEXIS 16171.
Rule 37 does not allow sanctions for violation of Rule 26 protective order; Rule 26(c) protective order is not order to
provide or permit discovery and therefore protective orders do not fall within scope of Rule 37 which permits sanctions
for failure to obey order for discovery. Lipscher v LRP Publs., Inc. (2001, CA11 Fla) 266 F3d 1305, 60 USPQ2d 1468,
2001-2 CCH Trade Cases P 73477, 14 FLW Fed C 1343.
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USCS Fed Rules Civ Proc R 26
Compliance with protective order is ultimate responsibility of party who seeks to obtain its benefit, even though his
litigation is conducted by counsel; party seeking benefit of protective order through his counsel, voluntarily chosen,
cannot avoid consequences of acts or omission of that freely selected agent. Falstaff Brewing Corp. v Philip Morris,
Inc. (1981, ND Cal) 89 FRD 133, 1981-1 CCH Trade Cases P 64005, affd in part and revd in part on other grounds,
remanded (1983, CA9 Cal) 702 F2d 770, 1983-1 CCH Trade Cases P 65300, 36 FR Serv 2d 455.
State attorney general's release to media of plaintiff's videotape deposition, without prior notice to either plaintiffs or
their counsel, was deliberate and intentional breach of express agreement made in good faith by assistant attorney
general for purpose of eliminating need to seek protective order, and warranted public reprimand. Word of Faith World
Outreach Center Church, Inc. v Morales (1992, WD Tex) 143 FRD 109, 24 FR Serv 3d 1011.
Where protective orders have been violated, courts have broad discretion to impose whatever remedy they deem
appropriate. Yates v Applied Performance Techs., Inc. (2002, SD Ohio) 205 FRD 497.
379. Appellate review
The exercise of discretion in limiting or terminating the taking of a deposition by the court is akin to the trial court's
discretion in limiting the right to cross-examination at trial, the exercise of this discretion being ground for reversal only
when the trial judge has abused the discretion allowed him. De Wagenknecht v Stinnes (1957) 100 US App DC 156,
243 F2d 413, 70 ALR2d 676, cert den (1957) 355 US 830, 2 L Ed 2d 43, 78 S Ct 44.
Since granting or denial of protective order is within discretion of trial court, only abuse of discretion would be cause
for reversal. 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.
Writ of mandamus would issue to direct district court to determine whether and to what extent deposition testimony
of city officials might be useful, limited to establishing relevant objective circumstances under which challenged zoning
ordinance was enacted, and to grant appropriate protective order; mandamus was appropriate where case was one of
first impression, order denying protective order was interlocutory and nonappealable, and resolution of issue would
substantially aid administration of justice. Las Vegas v Foley (1984, CA9 Nev) 747 F2d 1294, 40 FR Serv 2d 894.
Court lacked jurisdiction to review magistrate's transfer of motion for protective order to district court in another
circuit since magistrate was authorized to make transfer and files had been physically transferred. Petersen v Douglas
County Bank & Trust Co. (1991, CA10 Kan) 940 F2d 1389, 20 FR Serv 3d 1390.
District court's order denying reconsideration of magistrate judge's discovery order was not appealable under
collateral order doctrine despite claims that documents to be produced were privileged since order could be effectively
reviewed upon appeal following final judgment; judgment could be reversed and new trial ordered if court determines
privileged documents were wrongfully disclosed. Boughton v Cotter Corp. (1993, CA10 Colo) 10 F3d 746, 27 FR Serv
3d 1368.
Mandamus was appropriate to vacate District Court order prohibiting release to public of CIA, NSA, and other
documents obtained from defendants. 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.
Decision in appeal from District Court's order quashing subpoena issued by private litigant to employee of National
Transportation Safety Board for purposes of deposing employe who prepared analysis of report of airplane crash which
gave rise to present litigation will be suspended since motion to quash was filed in District of Columbia and underlying
action was brought in Texas and Texas plaintiffs are not parties to appeal, and thus, it is uncertain whether ruling will be
binding on Texas District Court. McCandless v Beech Aircraft Corp. (1983, App DC) 225 US App DC 266, 697 F2d
1156, 12 Fed Rules Evid Serv 751, 35 FR Serv 2d 1011.
Grant of protective order may be reversed only on clear showing of abuse of discretion. Sherrell Perfumes, Inc. v
Revlon, Inc. (1977, SD NY) 77 FRD 705, 25 FR Serv 2d 1307.
Court may reconsider discovery matters referred to Magistrate pursuant to 28 USCS § 636, if Magistrate's rulings
are clearly erroneous or contrary to law; in resolving discovery disputes, Magistrate is afforded broad discretion, which
will be overruled only if abused; Magistrate's rulings sustaining nonparty's objections to defendants' requests for studies
and reports relating to travelers checks were neither clearly erroneous on facts nor contrary to law where it considered
on one hand, defendants' need for information, especially information that could help to define relevant markets in case,
and, on other hand, nonparty's interest in protecting its privacy and property. Citicorp v Interbank Card Asso. (1979,
SD NY) 478 F Supp 756, 1980-1 CCH Trade Cases P 63108.
380. Miscellaneous
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USCS Fed Rules Civ Proc R 26
In suit for declaratory and injunctive relief brought by inmates of various state penal institutions in connection with
denial of parole release court has discretion to issue protective order regarding state Governor's answer to
interrogatories. Shirley v Chestnut (1979, CA10 Okla) 603 F2d 805.
Coram nobis motions, insofar as they are sometimes made long after judgment of conviction are peculiarly
appropriate candidates for use of district court's discretion in issuance of protective orders; district court's decision to
quash party's discovery requests, concerning surveillance of particular restaurant party had frequented, made as part of
his motion for writ of error coram nobis, is within discretion of District Court, especially where breadth of discovery
requests in relation to rather narrow ground of illegal surveillance upon which coram nobis motion is based is
substantial. United States v Balistrieri (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.
Grant of protective order from discovery in diversity action for breach of contract to purchase real estate is not based
upon erroneous ruling of law where court gives parties 3 months to complete discovery, prospective purchasers
unilaterally decide to postpone depositions of prospective vendors and brokers until 2 weeks before expiration of such
period but allege no extenuating circumstances which would justify such postponement of discovery. Otero v Buslee
(1982, CA10 NM) 695 F2d 1244, 35 FR Serv 2d 585.
Grand jury investigating alleged diversion of $ 5,000,000 of corporate funds through bribery, kickbacks,
embezzlement and fraudulent misappropriations by means of fictitious invoices and contracts, is entitled to access to
corporation employee's deposition testimony which surfaced in bankruptcy trustee's investigation of causes of action
available to corporation's estate because that there is no formal protective order, only "understanding of confidentiality"
of such testimony, and employee failed to produce evidence demonstrating that he agreed to testified only in reliance on
"understanding". United States v Davis (1983, CA2 NY) 702 F2d 418, cert den (1983) 463 US 1215, 77 L Ed 2d 1400,
103 S Ct 3554.
As matter of first impression, grand jury subpoena supersedes civil protective order unless party seeking to avoid
subpoena demonstrates existence of exceptional circumstances that clearly favor enforcement of protective order. In re
Grand Jury (2002, CA3 NJ) 286 F3d 153.
Abuse of discretion is found in class action brought by prison inmates against local government challenging
conditions of their confinement where court issues protective order forbidding all disclosure by defense counsel of
information obtained during discovery because, although affidavits submitted by plaintiffs were sufficient to show
substantial and serious harm might have resulted from dissemination of information and although order was limited to
designated areas of inquiry, District Court could have formulated decree that would have been equally effectual in
preventing retaliation and without inhibiting consultation between defendants and their attorneys. Doe v District of
Columbia (1983, App DC) 225 US App DC 225, 697 F2d 1115.
Petition to vacate subpoena to appear for taking of depositions upon oral examination is denied since acceptance of
contention that, if one party may take deposition by oral examination, the other party must be afforded right to take
deposition by same method, would divest court of discretion granted by provision as to protective orders. Miller v N.
V. Cacao-En Chocoladefabrieken Boon (1964, ED NY) 35 FRD 213, 142 USPQ 364, 8 FR Serv 2d 30B.34, Case 1.
Federal District Court for Southern District of Texas, to which action was brought under Rule 26(c) for protective
order to prevent oppressive discovery, was not precluded from transferring action to court in which main action was
pending (Federal District Court for Northern District of Texas) by fact Rule 26(c) allowed action to be commenced in
District Court for Southern District of Texas. Bank of Texas v Computer Statistics, Inc. (1973, SD Tex) 60 FRD 43, 17
FR Serv 2d 1203.
In action on claim by individual plaintiffs against defendants for personal injuries allegedly suffered as a result of
contact with chemical substance Kepone produced by defendants, on motion by operator of radio and television
stations, non-party to litigation, to quash subpoena to produce broadcasting materials concerning Kepone, on grounds
that operator had property right in its unpublished files as compiler of materials and that revealing those files would
destroy their value and allow others to appropriate fruits of reporter's efforts and that operator had property right in
processes reflected in selection of materials compiled, operator's position was without merit; opening files to discovery
did not necessarily open them to public since court had power as well as duty to fashion protective orders that enabled
movant to secure needed information at minimum of public exposure to subject of subpoena and to condition discovery
on reasonable payments for services rendered. 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).
Court may reconsider discovery matters referred to Magistrate pursuant to 28 USCS § 636, if Magistrate's rulings
are clearly erroneous or contrary to law; in resolving discovery disputes, Magistrate is afforded broad discretion, which
will be overruled only if abused; Magistrate's rulings sustaining nonparty's objections to defendants' requests for studies
and reports relating to travelers checks were neither clearly erroneous on facts nor contrary to law where it considered
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USCS Fed Rules Civ Proc R 26
on one hand, defendants' need for information, especially information that could help to define relevant markets in case,
and, on other hand, nonparty's interest in protecting its privacy and property. Citicorp v Interbank Card Asso. (1979,
SD NY) 478 F Supp 756, 1980-1 CCH Trade Cases P 63108.
In Title VII action by plaintiff class consisting of Hispanic Special Agents of Drug Enforcement Agency (DEA)
alleging discriminatory practices by DEA, where parties agreed that government would make available to plaintiff
machine-readable computer tapes containing personnel data on DEA Special Agents and plaintiffs would limit access to
material to plaintiffs' lawyers, support staff, and experts, court held that government was not entitled to require, as
prerequisite receiving material, that plaintiffs' lawyers and their support staffs submit to FBI and other checks and
investigations, where information was clearly discoverable under Rule 26 and government cited no authority
establishing or recognizing law enforcement privilege, and where plaintiffs voluntarily agreed to far-reaching
prophylactic measures to protect government interests concerning information sought. Muniz v Meese (1987, DC Dist
Col) 115 FRD 63.
Court refused to grant protective order requested pursuant to Rule 26 by defendant that would restrict use of video
depositions taken of defendant's expert witnesses, where plaintiff wished to share video depositions with plaintiffs in
other, similar lawsuits across country, and court reasoned that such sharing of information would promote speedy,
efficient, and inexpensive litigation, would reduce repetitious requests for depositions, would conserve judicial
resources, and would help counterbalance effects of uneven financial resources between parties. Burlington City Bd. of
Education v United States Mineral Products Co. (1987, MD NC) 115 FRD 188.
In case alleging copyright infringement of musical compositions by members of American Society of Composers,
Authors and Publishers (ASCAP), where defendant sought to depose individual plaintiffs who requested protective
order under Rule 26(c), District Court found that standard for granting protective order included consideration of
whether information sought was relevant to issues in case, whether proposed source of information was likely to have
that information, and whether preferred form of discovery was necessary in order to obtain information, and Court
found that plaintiffs were entitled to protective order since the information sought was either irrelevant, was not known
by plaintiff, or was discoverable by less costly or burdensome method and court noted that under unique circumstances
involving copyright infringement, actual copyright owners were virtually uninvolved with enforcement of copyright and
ASCAP possessed broad power to prevent infringement and to act as member's attorney-in-fact. Ocasek v Hegglund
(1987, DC Wyo) 116 FRD 154.
Protective order requiring plaintiff in products liability suit against German manufacturer to proceed with discovery
under Hague Convention for Taking Evidence Abroad was appropriate where unfamiliar procedures would not unduly
prejudice plaintiff while proceeding under Federal Rules could require manufacturer to violate privacy rights of
individuals protected under West German law. Hudson v Hermann Pfauter GmbH & Co. (1987, ND NY) 117 FRD 33,
9 FR Serv 3d 301.
Once party resisting disclosure demonstrates that information sought is confidential and that good cause exists for
issuance of protective order, burden shifts to party requesting discovery to demonstrate that information is sufficiently
relevant and necessary to case to outweigh harm disclosure would cause to person from whom he is seeking
information. Four Star Capital Corp. v Nynex Corp. (1997, SD NY) 183 FRD 91, 50 Fed Rules Evid Serv 1531.
Where movant seeks protective order on ground that disclosure would result in embarrassment, embarrassment must
be substantial. Cooper Hospital/University Med. Ctr. v Sullivan (1998, DC NJ) 183 FRD 135.
Since FRCP 35 independent medical examination is not continuation of discovery process, such examinations are
not subject to protective orders under FRCP 26(c). Douponce v Drake (1998, DC Colo) 183 FRD 565.
FRCP 37(d) permits court to assess attorney's fees and costs upon party or his counsel for failing to attend scheduled
deposition, despite pendency of motion for protective order. Alexander v FBI (1998, DC Dist Col) 186 FRD 78.
Overruling motion for protective order prompts consideration of sanctions under FRCP 37(a)(4)(B). Wilson v Olathe
Bank (1999, DC Kan) 184 FRD 395.
Independent of FRCP 26(c), court may issue protective order, if necessary to direct conduct of party or counsel.
Turnbull v Topeka State Hosp. (1999, DC Kan) 185 FRD 645, 79 BNA FEP Cas 1384.
If parties agree to protective order and it is entered without showing of good cause, party who later seeks to keep
information confidential will bear burden of showing good cause; however, if party seeking protection was required to
show good cause initially, burden will be on party seeking modification of order. Longman v Food Lion, Inc. (1999, MD
NC) 186 FRD 331, subsequent app (1999, CA4 NC) 1999 US App LEXIS 24981.
Joint motions for protective orders should not be granted routinely because business of federal courts is that of
public, and only if another public policy favors nondisclosure should such order be issued. Walker Sys. v Hubbell Inc.
(1999, SD W Va) 188 FRD 428.
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USCS Fed Rules Civ Proc R 26
If third party has entered case, that party may request that opposing parties meet and attempt to work out discovery
schedule as to third party's situation, and third party may move court for scheduling order if necessary; discovery need
not wait any period or holding of planning conference, but if there is need to restrict or limit discovery, third party may
seek protective order or otherwise seek assistance of court. Steppes Apt., Ltd. v Armstrong (1999, DC Utah) 188 FRD
642.
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.
Fact that parties all agree to requested protective order does not dispense with requirement to show good cause.
Bryan v Eichenwald (2000, DC Kan) 191 FRD 650.
Three types of protective orders that courts utilize to limit discovery or dissemination of confidential or private
information are particular protective orders, blanket protective orders, and umbrella protective orders. Gillard v Boulder
Valley Sch. Dist. Re-2 (2000, DC Colo) 196 FRD 382.
Power to grant confidentiality orders is not unlimited, and such orders should not be granted arbitrarily. Merit Indus.
v Feuer (2001, ED Pa) 201 FRD 382.
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.
Protective order issued by court, either state or federal, which on its face survives underlying litigation, continues to
have full force and effect on parties subject to it even after final resolution of underlying case, and issuing court retains
jurisdiction and authority to modify or revoke it. Yates v Applied Performance Techs., Inc. (2002, SD Ohio) 205 FRD
497.
Since court determined that stipulation did not mandate issuance or protective order to protect two depositions, and
there was no showing of any adequate reason or annoyance, embarrassment, oppression, or undue burden or expense,
court denied defendants' motion for protective order. Loussier v Universal Music Group, Inc. (2003, SD NY) 214 FRD
174.
Since plaintiffs' counsel had not made testimonial use of information obtained by their investigator's interviews with
third-party witnesses, but had, at most, used information to formulate questions to depose third-party witness, work
product immunity had not been waived; magistrate judge issued protective order prohibiting defendant company from
taking deposition of plaintiffs' counsel's investigator and subpoenaing his records of third-person interviews and other
things. O'Connor v Boeing N. Am., Inc. (2003, CD Cal) 216 FRD 640.
B. Showing Required
381. Generally
Party requesting protective order must initially show that information sought to be protected is within scope of rule
providing for protective order in that he might be harmed by disclosure of such information. Iowa Beef Processors,
Inc. v Bagley (1979, CA8 Iowa) 601 F2d 949, 1979-1 CCH Trade Cases P 62460, 26 FR Serv 2d 1274, 27 FR Serv 2d
1371, cert den (1979) 441 US 907, 60 L Ed 2d 376, 99 S Ct 1997.
General request for protective order is not sufficient. Flood v Margis (1974, DC Wis) 64 FRD 59.
Movant has burden of proving good cause for issuance of protective order. Marshall v S. K. Williams Co. (1978,
ED Wis) 462 F Supp 722.
Discovery must take place in public unless compelling reasons exist for denying public access to proceedings.
Sharjah Inv. Co. v P.C. Telemart, Inc. (1985, SD NY) 107 FRD 81, 11 Media L R 2383, CCH Fed Secur L Rep P 92292,
2 FR Serv 3d 1200.
Party who offered no proof in proceedings before magistrate that documents were within attorney-client privilege
could not offer new evidence on appeal to satisfy its burden; to allow this would render referrals to magistrates
meaningless and waste of time. Branch v Mobil Oil Corp. (1992, WD Okla) 143 FRD 255.
Party seeking stay of discovery carries heavy burden of making strong showing why discovery should be denied;
intention of party to move for judgment on pleadings is not ordinarily sufficient to justify stay of discovery. Turner
Broadcasting Sys. v Tracinda Corp. (1997, DC Nev) 175 FRD 554.
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USCS Fed Rules Civ Proc R 26
To secure protective order, party resisting disclosure must demonstrate that information sought is confidential, and
that good cause exists for issuance of order. Four Star Capital Corp. v Nynex Corp. (1997, SD NY) 183 FRD 91, 50 Fed
Rules Evid Serv 1531.
382. Basis for order
Court did not abuse its discretion in basing its protective order on conclusory showing of cause. Sanders v Shell Oil
Co. (1982, CA5 La) 678 F2d 614, 29 BNA FEP Cas 98, 29 CCH EPD P 32824, 34 FR Serv 2d 543.
Magistrate's grant of motion for protective order and its adoption by District Court were abuses of discretion where
(1) material sought is within scope of discovery, (2) appellee's objections to discovery did not fall within factors
enumerated in Rule 26(b), and (3) appellees' recitation of expense and burdensomeness was merely conclusory.
Panola Land Buyers Asso. v Shuman (1985, CA11 Ala) 762 F2d 1550, 2 FR Serv 3d 546.
Inconvenience to the party whose deposition is to be taken is not a valid objection to the taking of his deposition.
Goldberg v Raleigh Mfrs., Inc. (1939, DC Mass) 28 F Supp 975.
No protective order would be issued where party failed to meet its burden of proving that answering interrogatories
would in fact be oppressive. Luey v Sterling Drug, Inc. (1965, WD Mich) 240 F Supp 632, 9 FR Serv 2d 33.353, Case
1.
Mere allegation that deponent knows nothing about the matters involved does not justify prohibiting the taking of the
deposition. Transcontinental Motors, Inc. v NSU Motorenwerke Aktiengesellschaft (1968, SD NY) 45 FRD 37, 12 FR
Serv 2d 668.
Claim of privilege is not only basis for granting protective order. United States v Illinois Fair Plan Asso. (1975, ND
Ill) 67 FRD 659, 20 FR Serv 2d 1410.
Merely because compliance with request for production would be costly or time-consuming is not ordinarily
sufficient reason to grant protective order where requested material is relevant and necessary to discovery of evidence.
Kozlowski v Sears, Roebuck & Co. (1976, DC Mass) 73 FRD 73, 22 FR Serv 2d 1008.
Inasmuch as motion for protective order is disfavored, burden is on party seeking relief to show some plainly
adequate reason for protection. Kiblen v Retail Credit Co. (1977, ED Wash) 76 FRD 402.
Only after party has shown that to permit public access would be to prejudice that party or to injure someone
unnecessarily will protective order limiting access to materials be granted. Bell v Automobile Club of Michigan (1979,
ED Mich) 26 FR Serv 2d 1034.
It is appropriate for court to step in and limit discovery when it feels that discovery involved is cumulative,
unnecessary, or only marginally relevant or important. Wilk v American Medical Asso. (1979, ND Ill) 27 FR Serv 2d
802.
Justice requires that protective order be granted where plaintiff has shown not even reasonable grounds to support his
allegations of liability; and where discovery costs faced by defendant are substantial. Isaac v Shell Oil Co. (1979, ED
Mich) 83 FRD 428, 28 FR Serv 2d 542.
Fact that protective order is necessary to continue plea agreement approved by state court judge is not sufficient
reason to issue protective order. Cupac, Inc. v Mid-West Ins. Agency, Inc. (1983, SD Ohio) 100 FRD 440.
Notwithstanding defendant's contention that there can be no further discovery because multidistrict litigation has
exhausted all such activities and foreclosed further endeavors, multidistrict litigation proceedings are not to be used by
defendant as shield against further discovery when new evidence sought is relevant, cogent, and essential. Dean v A.H.
Robins Co. (1984, DC Minn) 101 FRD 21.
Fact that information sought in interrogatories was made available to defendant during defendant's search of
plaintiff's document files does not by itself support plaintiff's claim of burdensomeness. Chubb Integrated Sys. v
National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
Motion under FRCP 26(c) to limit discovery requires district judge to compare hardship to party against whom
discovery is sought, if discovery is allowed, with hardship to party seeking discovery, if discovery is denied. Wheeles v
Human Resource Sys. (1998, SD Ala) 179 FRD 635.
Plaintiff's motion for protective order and sanctions against defendant, for communicating with proposed class
members, was denied, where no inherently coercive relationship was alleged and settlement offer was for full amount
for which suit was brought. Cox Nuclear Med. v Gold Cup Coffee Servs. (2003, SD Ala) 214 FRD 696.
Plaintiff class was certified as comprised of detainees who were subject to strip and body cavity searches prior to
leaving incarceration, allegedly without any individualized finding of reasonable suspicion or probable cause; defendant
D. C. was not entitled to protective order based on its assertion that none of its agents had knowledge of how strip
search policy was instituted. Bynum v D.C. (2003, DC Dist Col) 217 FRD 43.
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USCS Fed Rules Civ Proc R 26
In enforcement action by government against power company, alleging various violations of Clean Air Act, power
company's Fed. R. Civ. P. 26 motion for protective order and ruling on admissibility of census offered as objective
study of maintenance practices throughout utility industry was denied where power company failed to carry its burden
to establish that census was sufficiently trustworthy to fall within hearsay exception under Fed. R. Evid. 807 because
census implicated hearsay risk of faulty memory due to requests for information about projects that took place between
1940 and present, there were concerns about degree of attorney involvement in census by power company's lawyers and
power company's lawyers' participation in carrying out census, and deficiencies associated with census were not mere
technicalities, rather, infirmities were substantial and fundamental, rendering census inherently untrustworthy. United
States v S. Ind. Gas & Elec. Co. (2003, SD Ind) 258 F Supp 2d 884.
383. "Good cause"
Discoverable private matters may be placed under seal pursuant to Rule 26(c) away from public scrutiny in first
instance; however, at time of trial such matters should be made subject to public scrutiny unless party objecting to such
disclosure demonstrates exceptional circumstances justifying nondisclosure. Joy v North (1982, CA2 Conn) 692 F2d
880, CCH Fed Secur L Rep P 98860, 35 FR Serv 2d 223, cert den (1983) 460 US 1051, 75 L Ed 2d 930, 103 S Ct 1498.
In determining whether there is good cause for protective order, federal courts balance interest of party seeking
information against that of party seeking to keep information confidential. Farnsworth v Procter & Gamble Co. (1985,
CA11 Ga) 758 F2d 1545, 1 FR Serv 3d 1113.
"Good cause" requirement is established by particular and specific demonstration of facts so that protective order is
no broader than absolutely necessary to protect countervailing interest. 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.
To entitle a party in an action at law to a discovery of evidence in his adversary's possession it must appear that
defendant has good ground for asserting the facts that the evidence will so disclose, and usually he is required to give
the sources of his information; a discovery sought upon suspicion, surmise, or vague guesses is called a "fishing bill"
and will be dismissed. Diffie v H. F. Wilcox Oil & Gas Co. (1944, DC Okla) 4 FRD 240.
Inability of a party whose deposition is being sought to attend at the place designated, for financial or physical
reasons, has been held to constitute good cause for issuance of a protective order. Jones v Pennsylvania Greyhound
Lines, Inc. (1950, DC Pa) 10 FRD 153.
The vitalizing element of "good cause" as used in this rule is a factual matter to be determined from nature and
character of the information sought by deposition or interrogatory weighed in balance of the factual issues involved in
each action; to secure the protective measures provided for in Rule 26(c), it is incumbent that a showing of "good cause"
be made establishing some plainly adequate reason therefor; the bare statement, expressing a desire on part of party
required to make answer to interrogatories, that answers thereto be limited, without a practical and substantial reason
shown to exist, revealing some injustice, prejudice, or consequential harm if answer thereto is required, is of no
importance. Glick v McKesson & Robbins, Inc. (1950, DC Mo) 10 FRD 477.
Courts insist on particular and specific demonstration of fact, as distinguished from conclusional statements, in order
to establish good cause and motion for protective order will be denied if there is any set of circumstances under which
allegation can succeed. Kiblen v Retail Credit Co. (1977, ED Wash) 76 FRD 402.
Good cause is not established solely by showing that discovery may involve convenience and expense. Isaac v
Shell Oil Co. (1979, ED Mich) 83 FRD 428, 28 FR Serv 2d 542.
Court may issue order that party provide or permit discovery on such terms and conditions as are just where party
seeking protective order under Rule 26(c) fails to show good cause essential to issuance of order. Krause v Rhodes
(1979, ND Ohio) 535 F Supp 338, 33 FR Serv 2d 1684, affd (1982, CA6 Ohio) 671 F2d 212, 8 Media L R 1130, 33 FR
Serv 2d 1675, cert den (1982) 459 US 823, 74 L Ed 2d 59, 103 S Ct 54.
Protective order designed to place restrictions on discovery will not be issued unless party seeking such order makes
particularized showing of good cause; vague and conclusory generalizations of pleadings and supporting affidavits will
not suffice. United States v Exxon Corp. (1981, DC Dist Col) 94 FRD 250, 33 FR Serv 2d 609.
Showing that discovery may involve inconvenience and expense does not establish good cause for issuance of
pretrial discovery protective order. Lehnert v Ferris Faculty Association-MEA-NEA (1983, WD Mich) 556 F Supp 316,
114 BNA LRRM 2930.
Requirement of "good cause" and phrase "which justice requires" encompass standard of reasonableness whereby
protective order will be granted where party will suffer unreasonable annoyance or embarrassment; however, issuance
of protective order is not required upon mere showing of some embarrassment, annoyance, or expense. Ericson v Ford
Motor Co. (1985, ED Ark) 107 FRD 92, 2 FR Serv 3d 1210, clarified, amd (1986, ED Ark) 3 FR Serv 3d 944.
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USCS Fed Rules Civ Proc R 26
Conclusory assertions are insufficient to establish good cause under FRCP 26(c). United States v City of Torrance
(1995, CD Cal) 164 FRD 493.
Good cause is shown when it is specifically established that disclosure will cause clearly defined and serious injury;
broad allegations of harm, unsubstantiated by specific examples, will not suffice. Cooper Hospital/University Med. Ctr.
v Sullivan (1998, DC NJ) 183 FRD 135.
Showing required under FRCP 26(c) must be sufficient to overcome opponent's legitimate and important interests in
trial preparation. Alexander v FBI (1998, DC Dist Col) 186 FRD 1.
Once court has entered protective order, it may be modified upon showing of good cause. Alexander v FBI (1998,
DC Dist Col) 186 FRD 99.
In determining whether good cause has been shown for issuance of protective order, courts must weigh private
interests advanced against public interest in judicial documents. Cumberland Packing Corp. v Monsanto Co. (1999, ED
NY) 184 FRD 504.
Even if parties agree that protective order should be entered, they still have burden of showing that good cause exists
for issuance of that order. Makar-Wellbon v Sony Elecs., Inc. (1999, ED Wis) 187 FRD 576, 80 BNA FEP Cas 841.
Movant for protective order bears burden of showing good cause, and such burden must be satisfied with particular
and specific demonstration of fact, as distinguished from stereotyped and conclusory statements; it must be shown that
disclosure will cause clearly defined and serious injury. Patt v Family Health Sys. (1999, ED Wis) 189 FRD 518.
Fact that parties all agree to requested protective order does not dispense with requirement to show good cause.
Bryan v Eichenwald (2000, DC Kan) 191 FRD 650.
In deciding whether to issue stipulated protective order, district court must independently determine if good cause
exists. David J. Frank Landscape Contr., Inc. v La Rosa Landscape (2001, ED Wis) 199 FRD 314.
To demonstrate good cause for protective order, movant must articulate specific facts to support its request and
cannot rely on speculative or conclusory statements. Jennings v Family Mgmt. (2001, DC Dist Col) 201 FRD 272.
Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support good cause
showing. Merit Indus. v Feuer (2001, ED Pa) 201 FRD 382.
In determining whether good cause exists for issuance of protective order, court must balance interests in allowing
discovery against relative burdens to parties. Rivera v NIBCO, Inc. (2001, ED Cal) 204 FRD 647.
Factors for determining whether good cause exists for issuance of protective order include whether information is
sought for legitimate purpose, whether disclosure will violate any privacy interest, whether disclosure will cause party
embarrassment, whether disclosure is important to public health and safety, whether sharing of information among
litigants will promote fairness and efficiency in litigation, and whether case involves issues of public importance. Rivera
v NIBCO, Inc. (2001, ED Cal) 204 FRD 647.
In relator's qui tam action against company and its principal under False Claims Act, 31 USCS § 3729 et seq., court
issued protective order that documents produced by defendants would not be disclosed to relator, but only relator's
attorney, as relator was direct competitor of defendants. United States ex rel. Purcell v MWI Corp. (2002, DC Dist Col)
209 FRD 21.
Absent showing of what effect that videotaping of deposition, to be held pursuant to Fed. R. Civ. P. 30(b)(2), would
have on employee's physical or mental health, court could not find "clearly defined" and "serious injury" as required to
demonstrate good cause, so employee was denied protective order pursuant to Fed. R. Civ. P. 26(c). Fanelli v Centenary
College (2002, DC NJ) 211 FRD 268.
Based on issues raised by insured, discovery could be conducted as to facts as known to Employee Retirement
Income Security Act of 1974 plan administrator at time that decision to deny benefits was made; administrator did not
show good cause for protective order. Lake v Hartford Life & Accident Ins. Co. (2003, MD Fla) 218 FRD 260, 17 FLW
Fed D 143.
384. --Burden of proof
In light of Rule 26(c) requirement that "good cause" be shown for protective order to be issued, burden is upon
movant to show necessity of its issuance, which contemplates particular and specific demonstration of fact, as
distinguished from stereotyped, conclusory statements, and such determination must also include consideration of
relative hardship to non-moving party should protective order be granted. 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; United
States v Purdome (1962, WD Mo) 30 FRD 338, 5 FR Serv 2d 520.
Burden of establishing good cause for entry of protective order is unambiguously on party seeking order. United
Phosphorus v Midland Fumigant (1995, DC Kan) 164 FRD 245.
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USCS Fed Rules Civ Proc R 26
Party seeking protective order has burden to show good cause for it. Sentry Ins. v Shivers (1996, DC Kan) 164 FRD
255, 34 FR Serv 3d 563.
Taking of deposition of counsel is not specifically prohibited; consequently, party seeking protective order to
preclude his attorney's deposition bears burden under FRCP 26(c) of demonstrating good cause to preclude or limit
testimony. Rainbow Investors Group v Fuji Trucolor (1996, WD La) 168 FRD 34.
To secure protective order, party resisting disclosure must demonstrate that information sought is confidential, and
that good cause exists for issuance of order. Four Star Capital Corp. v Nynex Corp. (1997, SD NY) 183 FRD 91, 50 Fed
Rules Evid Serv 1531.
Mere request to depose opposing counsel constitutes good cause for obtaining protective order, unless party seeking
deposition can show both propriety and need for deposition. Dunkin' Donuts v Mandorico, Inc. (1998, DC Puerto Rico)
181 FRD 208.
Party seeking protective order bears burden of making showing of good cause. Alexander v FBI (1998, DC Dist Col)
186 FRD 1.
Party requesting protective order must make specific demonstration of facts to support its request for order and may
not rely on conclusory or speculative statements concerning need for order. Alexander v FBI (1998, DC Dist Col) 186
FRD 1.
Party requesting protective order must make specific demonstration of facts in support of request, as opposed to
conclusory or speculative statements about need for protective order and harm which will be suffered without order.
Alexander v FBI (1998, DC Dist Col) 186 FRD 60.
Although FRCP 26(c) generally requires party advocating nondisclosure to show good cause for protective order,
court may enter consented or stipulated protective order requiring confidentiality of disclosure without such showing; in
such case, when modification of consented protective order is requested, it becomes incumbent upon party opposing
modification to establish need for continued protection. McCarty v Bankers Ins. Co. (1998, ND Fla) 195 FRD 33.
Even if parties agree that protective order should be entered, they still have burden of showing that good cause exists
for issuance of that order. Makar-Wellbon v Sony Elecs., Inc. (1999, ED Wis) 187 FRD 576, 80 BNA FEP Cas 841.
Movant for protective order bears burden of showing good cause, and such burden must be satisfied with particular
and specific demonstration of fact, as distinguished from stereotyped and conclusory statements; it must be shown that
disclosure will cause clearly defined and serious injury. Patt v Family Health Sys. (1999, ED Wis) 189 FRD 518.
Even if parties agree that protective order should be entered, they still have burden of showing that good cause exists
for issuance of that order. David J. Frank Landscape Contr., Inc. v La Rosa Landscape (2001, ED Wis) 199 FRD 314.
Party moving for protective order has heavy burden of showing extraordinary circumstances based on specific facts
that would justify such order. Jennings v Family Mgmt. (2001, DC Dist Col) 201 FRD 272.
Burden is on person seeking protective order to demonstrate good cause. United States v § 160,066.98 from Bank of
Am. (2001, SD Cal) 202 FRD 624.
Under Fed. R. Civ. P. 26(c), burden to show good cause to issue protective order is clearly on movant; that party
must show adequate reason for sealing documents by particular and specific demonstration of fact as distinguished from
stereotyped and conclusory statements. Loussier v Universal Music Group, Inc. (2003, SD NY) 214 FRD 174.
385. --Particular circumstances
No good reason was shown why the examination of plaintiffs by defendant should be terminated or why it should be
limited to written interrogatories. Newcomb v Universal Match Corp. (1939, DC NY) 27 F Supp 937.
Motion to vacate notice for taking of deposition on written interrogatories was denied where defendant contended
that the witness was the real party in interest, court was unable to determine truth or falsity of this charge, and good
cause had not been shown for an order that the deposition should not be taken. Spotts v O'Neil (1939, DC NY) 30 F
Supp 669.
Plaintiff's objections to production of its records in antitrust litigation, that defendants' principal aim was to harass
plaintiff and that requested interrogatories were burdensome, were insufficient to show good cause for issuance of
protective order; plaintiff should be able to show that defendants, by reason of the voluntary discovery already afforded
them, did in fact possess all documentary evidence from which answers to particular interrogatories could be
conveniently obtained. Apco Oil Corp. v Certified Transp., Inc. (1969, DC Mo) 46 FRD 428.
Good cause for issuance of protective order was not shown by defendants who had moved pursuant to Rule 26(c) for
protective order delaying answering of interrogatories until after taking of depositions where, among other things, all
interrogatories, even most simple, direct, and effortless ones, had remained unanswered for approximately 130 days.
Kahn v Eaststates Gas Producing Co. (1973, ND Ohio) 59 FRD 132, 17 FR Serv 2d 1045.
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Nonparty movant for protective order barring disclosure of trade secrets in product liability wrongful death action
has not met its burden of showing "good cause" where movant has failed to show specific harm and type of serious
injury that it will suffer as result of disclosure of information at issue. Monaco v Miracle Adhesives Corp. (1979, ED
Pa) 27 FR Serv 2d 1401.
Protective order will be denied where only "good cause" alleged by defendant is that counsel for plaintiff are
members of trial lawyers associations which collect and distribute information with regard to manufacturers; such
collaboration among plaintiffs' attorneys comes squarely within aims of Federal Rules of Civil Procedure to secure just,
speedy, and inexpensive determination of every action. Patterson v Ford Motor Co. (1980, WD Tex) 85 FRD 152, 29
FR Serv 2d 862.
Although acceptance of parties' stipulation that confidential discovery materials would be filed under seal would
reduce court's burden in supervising discovery, it would be improper to grant protective order without first determining
that there is good cause as required by Rule 26(c); even if court had "So Ordered" such stipulation, order could not
withstand appellate scrutiny because of failure to establish good cause. Sharjah Inv. Co. v P.C. Telemart, Inc. (1985,
SD NY) 107 FRD 81, 11 Media L R 2383, CCH Fed Secur L Rep P 92292, 2 FR Serv 3d 1200.
Nonparty law firm meets "good cause" burden for protective order prohibiting third-party defendant's attorney from
conducting discovery of nonparty firm on third-party defendant's behalf, where third-party defendant's attorneys at one
time represented nonparty firm in directly related securities litigation, and where any prejudice and inconvenience to
third-party defendant is eliminated by fact that it is free to obtain independent counsel for purpose of conducting its
discovery of nonparty firm. Lund v Chemical Bank (1985, SD NY) 107 FRD 374, CCH Fed Secur L Rep P 92378.
In action by plaintiff alleging that he was wrongfully terminated by defendant corporation where defendant claimed
that plaintiff had been terminated in part for sexual harassment of female employees, District Court found that
defendant did not demonstrate sufficient "good cause" to require that court prevent plaintiff and/or plaintiff's attorneys
from interviewing any of defendant's employees, who allegedly made complaint of sexual harassment, without
defendant's consent since the defendant's need to have counsel present to ensure "effective representation" is less than
the need of plaintiff's counsel to gather evidence to prove plaintiff's position that defendant's reasons for termination
were pretextual. Mompoint v Lotus Dev. Corp. (1986, DC Mass) 110 FRD 414, 45 BNA FEP Cas 1810, 20 Fed Rules
Evid Serv 772, 4 FR Serv 3d 866.
Defendant's motion to stay discovery pending resolution of motion to transfer case was tantamount to protective
order and defendant failed to establish good cause for stay; discovery under any scenario would be conducted in both
states involved and court could not perceive any substantial benefit in staying discovery. Kron Medical Corp. v Groth
(1988, MD NC) 119 FRD 636.
Government's motion to stay civil discovery in forfeiture action pending conclusion of parallel criminal investigation
is denied except with respect to names of unidentified informants and agents, where government's affidavits are
conclusory and not credible and property owner's affidavits are highly credible, since government did not show good
cause because it failed to demonstrate substantial likelihood it will prevail on merits. United States v Swissco
Properties within S. Dist. (1993, SD Fla) 821 F Supp 1472, 7 FLW Fed D 203.
Mere request to depose opposing counsel constitutes good cause for obtaining protective order, unless party seeking
deposition can show both propriety and need for deposition. Dunkin' Donuts v Mandorico, Inc. (1998, DC Puerto Rico)
181 FRD 208.
Although FRCP 26(c) generally requires party advocating nondisclosure to show good cause for protective order,
court may enter consented or stipulated protective order requiring confidentiality of disclosure without such showing; in
such case, when modification of consented protective order is requested, it becomes incumbent upon party opposing
modification to establish need for continued protection. McCarty v Bankers Ins. Co. (1998, ND Fla) 195 FRD 33.
Court should enter protective order which alters place of noticed deposition only where good cause for order is
shown. Chris-Craft Indus. Prods., Inc. v Kuraray Co. (1999, ND Ill) 184 FRD 605.
Where deposition of corporation is noticed to be taken at location other than corporation's principal place of
business, purposes of underlying general rule that depositions should proceed at corporation's principal place of
business create presumption that corporation has good cause for protective order. Chris-Craft Indus. Prods., Inc. v
Kuraray Co. (1999, ND Ill) 184 FRD 605.
If parties agree to protective order and it is entered without showing of good cause, party who later seeks to keep
information confidential will bear burden of showing good cause; however, if party seeking protection was required to
show good cause initially, burden will be on party seeking modification of order. Longman v Food Lion, Inc. (1999, MD
NC) 186 FRD 331, subsequent app (1999, CA4 NC) 1999 US App LEXIS 24981.
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USCS Fed Rules Civ Proc R 26
Fact that plaintiffs served discovery request after defendants filed motion for protective order is factor court will
consider in determining whether defendants have demonstrated good cause for requested protection. Gottstein v
National Ass'n for the Self Employed (1999, DC Kan) 186 FRD 654.
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.
Mere filing of dispositive motion, even one attacking jurisdiction of district court, does not constitute good cause for
purpose of issuing protective order to stay discovery. United States v County of Nassau (1999, ED NY) 188 FRD 187.
United States Olympic Committee (USOC) failed to demonstrate good cause for protective order, as required by
FRCP 26(c), with respect to athlete drug test information that was at issue in case, since athletes did not have reasonable
expectation of privacy with respect to drug testing or in information they gave to USOC for drug testing purposes
because they were informed that it was not to be considered confidential. Exum v United States Olympic Comm. (2002,
DC Colo) 209 FRD 201, 30 Media L R 2197.
Burdensome and harassing nature of corporation's requests for production of documents clearly outweighed minimal
need for very limited amount of information that could be discovered under subpoenas; therefore, insurance company
showed good cause for issuance of protective order and court issued protective order that would remain in effect unless
and until corporation could provide court with showing that there was specific, relevant information in insurance
company's possession that would not be protected from disclosure by attorney client privilege or attorney work product
doctrine. Lectrolarm Custom Sys. v Pelco Sales, Inc. (2002, ED Cal) 212 FRD 567.
In discrimination action, where university invoked standard contained in Fed. R. Civ. P. 26(b)(2) in its motion to
quash subpoenas for two university officials, court construed motion as motion for protective order, and therefore,
university had burden of demonstrating good cause for issuance of order quashing subpoena and precluding deposition;
court denied university's motion where depositions could produce information relevant to plaintiff's discrimination
claims under theory of disparate treatment or disparate impact or could lead to admissible evidence and inconvenience
of deponents by itself did not constitute undue burden under Fed. R. Civ. P. 45(c)(3)(A)(iv). Croom v W. Conn. State
Univ. (2002, DC Conn) 218 FRD 15.
Individual was required to give blood sample in connection with paternity suit in Norway because it furthered
statutory aims under 28 USCS § 1782 of assisting foreign courts and encouraging foreign courts to provide similar
means of assistance to U.S. courts; good cause for blood test was shown under Fed. R. Civ. P. 35(a), and protective
order pursuant to Fed. R. Civ. P. 26(c) was denied because requiring compliance with New York law that prima facie
case of paternity be shown before blood test was ordered would have resulted in additional legal barrier to 28 USCS §
1782 discovery. In re Letter Rogatory from Nedenes Dist. Court, Nor. (2003, SD NY) 216 FRD 277.
Insurer did not establish good cause warranting protective order under Fed. R. Civ. P. 26(c) concerning engineering
reports relating to past claims of foundation damage that were requested by insureds who alleged bad faith denial of
their claim for coverage under homeowner's policy; insurer failed to show that allowing requested discovery would have
caused it undue burden or expense. Hussey v State Farm Lloyds Ins. Co. (2003, ED Tex) 216 FRD 591.
Pursuant to Fed. R. Civ. P. 26(c), employer had shown good cause for issuance of protective order where its pending
motions to dismiss and for summary judgment on employee's claims under Employee Retirement Income Security Act,
both of which sought to dispose of action under statute of limitations argument, would have potentially disposed of
entire case, but magistrate allowed individual to pursue any avenue of discovery that related directly to statute of
limitations arguments. Nankivil v Lockheed Martin Corp. (2003, MD Fla) 216 FRD 689.
Corporation's motion for protective order, concerning revenues and profits from Winston Cup races, was denied
where court found that shareholders had articulated logical reason why such information was material and that whatever
prejudice corporation might conceivably suffer by having to designate individual to testify at deposition regarding such
matters did not substantially outweigh relevance of information. Ferko v NASCAR (2003, ED Tex) 218 FRD 125.
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. Ferko v NASCAR (2003,
ED Tex) 218 FRD 125.
Corporation's motion for protective order, regarding its sanctioning of Winston Cup races at motorsports facilities,
investigation and analysis of acquiring Indy Racing League, and corporation's views, assessments, and opinions about
qualities, characteristics, advantages, and disadvantages of each motorsports facility that currently hosts, has hosted,
seeks to host, or is capable of hosting Winston Cup race, was denied where court found that corporation's objections to
these topics constituted stereotyped and conclusory statements. Ferko v NASCAR (2003, ED Tex) 218 FRD 125.
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Patent licensee's in house counsel was be allowed to view confidential and highly-confidential material under
protective order as he was not "competitive decision-maker" for patent licensee. MedImmune, Inc. v Centocor, Inc.
(2003, DC Md) 271 F Supp 2d 762.
C. Particular Protective Orders
1. Order That Discovery Not be Had [Rule 26(c)(1)]
a. In General
386. Generally
The power of the district court to order that depositions shall not be taken in a pending action is discretionary and
mandamus will not lie to compel the judge to vacate such an order. National Bondholders Corp. v McClintic (1938,
CA4 W Va) 99 F2d 595.
Rule 26 places the burden on the proposed deponent to get an order that deposition not be taken, not just to make a
motion, and if there is not time to have his motion heard; the least that he can be expected to do is to get an order
postponing the time of the deposition until his motion can be heard. He might also appear and seek to adjourn the
deposition until an order can be obtained but unless he has obtained a court order that postpones or dispenses with his
duty to appear, that duty remains. Pioche Mines Consol., Inc. v Dolman (1964, CA9 Nev) 333 F2d 257, 8 FR Serv 2d
37D.33, Case 1, cert den (1965) 380 US 956, 13 L Ed 2d 972, 85 S Ct 1081 and cert den (1965) 380 US 956, 13 L Ed 2d
972, 85 S Ct 1082.
Under Rule 26(c)(1) court can deny access to information altogether by preventing discovery upon showing of any
good cause specifically including but not limited to such relatively innocuous possibilities as annoyance,
embarrassment, oppression or undue burden or expense and such denial does not implicate First Amendment. In re
San Juan Star Co. (1981, CA1 Puerto Rico) 662 F2d 108, 7 Media L R 2144, 32 FR Serv 2d 1671.
While district court has broad power under Rule 26(c) to limit burdensome discovery, there is no Congressional
purpose to reduce practical utility of § 16(b) of Fair Labor Standards Act of 1938 by forbidding district court to
approve notice or pendency of action to potential joiners in it. Woods v New York Life Ins. Co. (1982, CA7 Wis) 686
F2d 578, 29 BNA FEP Cas 1160, 29 CCH EPD P 32997, 95 CCH LC P 34236.
Where there is a dispute about the right to inspect and copy papers which have been subpoenaed in connection with
the taking of a deposition, counsel for the party or witness required by the subpoena to produce the papers may seek a
protective order, or may move to quash or modify the subpoena under Rule 45(b). La Chance v Service Trucking Co.
(1963, DC Md) 215 F Supp 159, 6 FR Serv 2d 894.
No party may be compelled to do the interrogating party's investigation for him, nor will he be required to answer
questions concerning privileged matter or questions that are unduly burdensome. Olmert v Nelson (1973, DC Dist Col)
60 FRD 369, 17 FR Serv 2d 1041.
Order to vacate notice of taking deposition is generally regarded as both unusual and unfavorable, and most requests
of this kind are denied. Grinnell Corp. v Hackett (1976, DC RI) 70 FRD 326, 21 FR Serv 2d 965.
Joint motions for protective orders should not be granted routinely; business of federal courts is public's business,
and only if another public policy favors nondisclosure should such order be issued. FEC v Christian Coalition (1998,
DC Dist Col) 179 FRD 22.
387. Relevancy and admissibility
District Court did not abuse its discretion in issuing protective order preventing production of university's file
maintained for use in connection with potential employment termination proceedings against former law school
professor where court concluded that professor had not established claim under 42 USCS § 1983 and professor had
earlier agreed to voluntarily terminate his employment with law school as result of settlement negotiations with
university after university informed him it would be commencing termination proceedings. Samad v Jenkins (1988,
CA6 Ohio) 845 F2d 660.
A motion to vacate a notice to take a deposition, on the ground that the evidence sought would not be admissible,
will not be granted unless it clearly appears that the evidence is privileged or irrelevant. Union Cent. Union Cent. Life
Ins. Co. v Burger (1939, DC NY) 27 F Supp 556.
Court will deny right to take deposition when it is apparent that the information sought would not be relevant to
issues involved in the action. Rose Silk Mills, Inc. v Insurance Co. of North America (1939, DC NY) 29 F Supp 504;
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USCS Fed Rules Civ Proc R 26
Lynch v Henry Pollak, Inc. (1939, DC NY) 1 FRD 120; In re Pittsburgh Terminal Coal Corp. (1942, DC Pa) 2 FRD
568.
Motion to vacate examination of representatives of SEC where defendant was being sued for $ 19 million for breach
of underwriting agreement whereby defendant had agreed to purchase from plaintiff certain shares of stock, the
plaintiff, in support of its motion, contending that testimony sought by depositions was "utterly irrelevant" and that
government personnel should not be subjected to useless annoyance; it was not necessary that testimony obtained be
admissible in evidence, and depositions could be taken since they sought facts as to conversations and conferences
between an official of plaintiff and the SEC representatives, which was clearly relevant to subject matter of the suit.
Kaiser-Frazer Corp. v Otis & Co. (1951, DC NY) 11 FRD 50.
Defendant's motion to disallow depositions sought by plaintiff in action to recover for vexatious refusal to pay under
an insurance policy was granted where plaintiff sought to take depositions of investigators who were aiding defendant's
counsel in preparation of the case for trial; damages for vexatious refusal to pay must be based upon acts of insurer
preceding filing of suit, and, under the circumstances, evidence sought by depositions would be wholly irrelevant and
incompetent on the question involved. O'Brien v Equitable Life Assurance Soc. (1953, DC Mo) 14 FRD 141.
Order to stay taking of depositions by plaintiffs, who alleged a conspiracy to monopolize transportation, of 13
witnesses who were either officials or employees of organizations which plaintiffs alleged were involved in the illegal
conspiracy, was denied where it was obvious that if such conspiracy existed the 13 persons whose testimony was sought
would have knowledge of facts material to the claims upon which plaintiffs' complaint was based, and plaintiffs had
alleged in oral argument that one of defendants had destroyed a great many of the records which would have shown
existence of the conspiracy and same defendant had sent out to other defendants instructions to destroy similar records,
the plaintiffs alleging that if the depositions were not permitted to go on as scheduled, further destruction of records
might take place. Noerr Motor Freight, Inc. v Eastern R. R. Presidents Conference (1953, DC Pa) 14 FRD 189.
Interrogatories requesting information respecting the color of defendant's hair and eyes, date and place of birth, and
of marriage among other things in a personal injury suit arising from an automobile accident were oppressive and
frivolous. Frost v Williams (1969, DC Md) 46 FRD 484, 13 FR Serv 2d 908.
In civil rights action against police officers and others wherein plaintiff filed 209 interrogatories containing 432
separate questions, court granted defendants' motion to strike the interrogatories since majority of them were irrelevant,
overbroad, and improper, only relatively small percentage of them were designed to serve any useful purpose material
to the instant action, and much of what was apparently sought would be more readily available and would be usually
sought through use of examination on oral depositions. Boyden v Troken (1973, DC Ill) 60 FRD 625.
Nonparty deponent may not object to request for documents on grounds documents are irrelevant. Benetz v Photon,
Inc. (1975, DC Mass) 21 FR Serv 2d 791.
Motion of reporters for protective order against taking of depositions sought by plaintiffs incident to action to enjoin
officials from enforcing statute authorizing government official to make regulations pertaining to commercial fishing
and from enforcing certain regulations promulgated under statute pertaining to fishing for menhaden would be granted
where plaintiffs, who sought information relating to statements made by state officials and local fishing interest
concerning menhaden fishing in general and enactment of statute and regulation in particular, had not made sufficient
showing of relevance to warrant discovery. Apel v Murphy (1976, DC RI) 70 FRD 651.
Defendant in civil penalty action for allegedly violating consent order entered into with Federal Trade Commission is
not entitled to order compelling two FTC attorneys to answer certain deposition questions concerning meaning of
admittedly subjective consent order and reasons FTC decided to institute action as not legally germane to issues, not
relevant to establishing defendant's good faith should court decide to assess civil penalty, and subject to attorney
work-product privilege. United States v Reader's Digest Asso. (1978, DC Del) 25 FR Serv 2d 1303.
In action brought pursuant to Education For All Handicapped Children Act, 20 USCS § 1415(e)(2), following
administrative hearings, where only evidence permitted at trial was record from administrative hearing with limited
supplementation, District Court granted defendant's motion for protective order pursuant to Rule 26(c)(1) and denied
plaintiff's discovery in form of further deposition of witness who had already testified at administrative hearing where
plaintiff did not demonstrate that any evidence he sought to discover was type of "additional evidence" that trial court
would have discretion to admit. Roe v Westford (1986, DC Mass) 110 FRD 380.
Since actual content of confidential information had no bearing on whether defendant breached its fiduciary duty to
its shareholders by not disclosing confidential information, protective order barring discovery would be entered. Eagle
Industries, Inc. v Ransburg Corp. (1989, SD Ind) 124 FRD 197.
Plaintiff who alleged violation of his constitutional rights by defendant police officers' arrest and confinement of him
was not entitled to discovery of matters regarding defendants' subsequent criminal investigation of robbery since they
were not relevant to whether plaintiff's arrest was effected with probable cause; information gathered by arresting
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officers, or any actions in subsequent investigations, after release of erroneously arrested individual is wholly irrelevant
to claim that particular arrest and detainer was without probable cause. Smith v Dowson (1994, DC Minn) 158 FRD 138.
Court may grant protective order prohibiting taking of deposition when it believes that information sought is wholly
irrelevant to issues or prospective relief. Leighr v Beverly Enterprises-Kansas (1996, DC Kan) 164 FRD 550.
Contrary to defendant employer's claim in its effort to quash nonparty subpoenas for deposition, deposition
testimony of three nonparty witnesses constituted relevant information for purposes of discovery because clearly
testimony regarding employer's hiring practices appeared reasonably calculated to lead to discovery of admissible
evidence in underlying failure to promote case. Donahoo v Ohio Dep't of Youth Servs. (2002, ND Ohio) 211 FRD 303,
summary judgment gr, claim dismissed, judgment entered (2002, ND Ohio) 237 F Supp 2d 844, motion gr, judgment
entered, costs/fees proceeding (2002, ND Ohio) 2002 US Dist LEXIS 23594.
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, town's motion for protective order under
Fed. R. Civ. P. 26(c) was denied. AMW Materials Testing, Inc. v Town of Babylon (2003, ED NY) 215 FRD 67.
Company's motion to quash insurance broker's subpoena duces tecum was denied where court found that settlement
agreement between company and its insurance carrier was relevant because company's settlement with insurance carrier
concerned very facts underlying parties' dispute; settlement agreement bore directly on damages company sought,
which represented difference between amount of damages incurred in foundry explosion and amount recovered from
insurance carrier under settlement agreement. Atchison Casting Corp. v Marsh, Inc. (2003, DC Mass) 216 FRD 225.
In refund action by taxpayers against government, government's motion for protective order under Fed. R. Civ. P.
26(c) was granted where, because taxpayers' claims failed as matter of law and they were not entitled to refund,
discovery sought had no relevance to any issues in their action. Tilley v United States (2003, MD NC) 270 F Supp 2d
731, 2003-2 USTC P 50594, 92 AFTR 2d 5324.
388. Privilege
When discovery is sought of matter which is privileged, court will issue protective order that such discovery not be
had. 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; Walczak v Detroit-Pittsburgh Motor Freight, Inc. (1956, DC Ind) 140 F Supp 10; Dienstag v Bronsen (1970, SD
NY) 49 FRD 327, 13 FR Serv 2d 806.
In libel case, protective order barring discovery until criminal statute of limitations runs will be granted to protect
plaintiff's exercise of constitutional privilege of silence from choice between silence and lawsuit, despite undesirable
3-year hiatus, where it does not impose undue hardship on defendant. Wehling v Columbia Broadcasting System
(1979, CA5 Tex) 608 F2d 1084, 5 Media L R 2228, 28 FR Serv 2d 986, reh den (1980, CA5 Tex) 611 F2d 1026, 5
Media L R 2468, 5 Fed Rules Evid Serv 861, 28 FR Serv 2d 1215.
Court will issue protective order if proposed discovery would contravene privilege against self-incrimination of
person sought to be questioned. Paul Harrigan & Sons, Inc. v Enterprise Animal Oil Co. (1953, DC Pa) 14 FRD 333;
Perry v McGuire (1964, SD NY) 36 FRD 272, 8 FR Serv 2d 30B.31, Case 4; Dienstag v Bronsen (1970, SD NY) 49 FRD
327, 13 FR Serv 2d 806.
Where a question of privilege is involved, rule as to protective orders may be invoked. Ross v Cities Service Gas
Co. (1957, DC Mo) 21 FRD 34.
Government, in action charging misbranding of drugs, was not entitled to order striking interrogatories propounded
by claimant to it upon ground that it would be unjust to permit claimant to make discovery of it while claimant
effectively refused to answer government's interrogatories on ground of privilege under Fifth Amendment. United
States v 47 Bottles, More or Less (1960, DC NJ) 26 FRD 4, 3 FR Serv 2d 580.
Where party to action claims that reports and other writings associated with investigations made by private
investigators employed by such party or its attorneys are privileged as "lawyers' work product," such party has standing
to claim relief under provision as to protective orders or under Rule 45(b) providing for production of documentary
evidence. Norris Mfg. Co. v R. E. Darling Co. (1961, DC Md) 29 FRD 1, 5 FR Serv 2d 754.
The circumstances are rare which justify an order that a deposition not be taken at all, and the existence of privilege
is not one of those circumstances; objection that such an order issue because information sought is protected by
attorney-client privilege is premature, and such objection can be raised when noticed deposition examination is actually
held. Scovill Mfg. Co. v Sunbeam Corp. (1973, DC Del) 61 FRD 598, 181 USPQ 53, 18 FR Serv 2d 1241.
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USCS Fed Rules Civ Proc R 26
In view of assertion of work-product and attorney-client privileges concerning documents sought to be discovered,
court referred documents to United States Magistrate for in-camera inspection to determine which documents fell within
such privileges. Puerto Rico v SS Zoe Colocotroni (1974, DC Puerto Rico) 61 FRD 653, 18 FR Serv 2d 322.
Persons contesting subpoena must appear and assert whatever privilege or other grounds they are claiming requires
protective order. Solargen Electric Motor Car Corp. v American Motors Corp. (1981, ND NY) 506 F Supp 546, 6
Media L R 2441, 32 FR Serv 2d 1376.
In property owner's suit against county, protective order prohibiting deposition of county attorneys would be granted
since depositions might infringe on work-product or attorney-client privileges. West Peninsular Title Co. v Palm
Beach County (1990, SD Fla) 132 FRD 301, 19 FR Serv 3d 74, subsequent app (1995, CA11 Fla) 41 F3d 1490, 8 FLW
Fed C 966, cert den (1995) 516 US 932, 133 L Ed 2d 237, 116 S Ct 338, reh den (1995) 516 US 1018, 133 L Ed 2d 507,
116 S Ct 586.
Plaintiffs were not entitled to blanket protective order preventing deposition of their attorney where defendant was
seeking to discover only communications made to third parties, thus clearly and by definition not privileged, nor were
any work-product considerations implicated. Qad., Inc. v ALN Assoc., Inc. (1990, ND Ill) 132 FRD 492.
Motion to depose insured's attorney concerning conversation with insurer's attorney would be denied since defendant
failed to show that there were no other means available to obtain information; defendant admitted that he had not
questioned insurer's counsel and rule requires exhaustion of all other reasonable alternatives before party should seek to
depose opponent's attorney. M & R Amusements Corp. v Blair (1992, ND Ill) 142 FRD 304.
Party seeking to withhold documents pursuant to any purported privilege or immunity should state basis for claim,
identity document being withheld by stating its name or title, type of document, date, author, addressee, and general
description of subject matter, present location, custodian, and each person who has seen it, and state number and/or
portion of request to which document would be responsive. Beard v Middle Tennessee Home Health Service (1992,
ED Tenn) 144 FRD 340.
Order that medical malpractice plaintiff not attempt to make any effort to obtain name of nonparty patient or to
contact patient, necessary to preserve patient's confidentiality, was proper condition for release of patient's records
deleted of any identifying information and did not constitute prior restraint on free speech since restriction limited
party's right to gather information, not to speak or publish. Bennett by & Through Bennett v Fieser (1994, DC Kan)
152 FRD 641.
Former employer failed to show good cause for taking deposition of employer's senior in-house attorney in
employer's action seeking to stop former employee from disclosing allegedly confidential information and trade secrets,
since he failed to show that no other means existed to obtain information sought nor that information was not privileged
and was crucial to his case. Caterpillar Inc. v Friedmann (1995, DC Or) 164 FRD 76.
In suit for plaintiff's personal injuries received when defendant, while intoxicated, negligently drove defendant's
motor vehicle into plaintiff, defendant's motion for protective order, pursuant to Fed. R. Civ. P. 26(c), was denied as to
campus police department law enforcement records, as those records were specifically excluded from definition of
protected education records by 20 USCS § 1232g(b)(4)(F)(ii), part of Family Educational Rights and Privacy Act; but,
motion for protective order was granted as to defendant's disciplinary records, which were within general definition of
protected "education records" in § 1232g(a)(4)(A). DeFeo v McAboy (2003, ED Mo) 260 F Supp 2d 790.
389. --Assertion by government
In action by former opponents of participation by United States in war in Vietnam alleging that National Security
Agency violated plaintiffs' constitutional and statutory rights by conducting warrantless interception of their
international wire, cable and telephone communications, National Security Agency is protected by state secrets
privilege from admitting or denying acquisition of communications or disclosing whether or not it disseminated
communications to other federal agencies when there was reasonable danger that revealing information respecting
capabilities of National Security Agency for collection and analysis of foreign intelligence would expose military
matters which should not be divulged. 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.
Although defendant city is not immune from examination through its commissioner of docks, or other employees
having knowledge of facts relative to personal injury action, reports made by engineers, architects, inspectors, or other
employees of dock department to dock commissioner with regard to accident should be excluded from depositions.
Conneway v New York (1940, DC NY) 32 F Supp 54.
Motion for order vacating notice of examination served by defendant on inspector of Wage and Hour Division is
denied, since inspector conceivably has knowledge of facts and might be able to give testimony which is competent and
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USCS Fed Rules Civ Proc R 26
relevant, even though some questions asked him might be objectionable on grounds of competence or assertion of
privilege. Walling v J. Friedman & Co. (1944, DC NY) 4 FRD 384.
Government is subject to Federal Rules of Civil Procedure in same way as any other litigant when it is party to civil
litigation; if information is sought as to privileged matter, such matter can be excluded in process of examining witness.
Bowles v Ackerman (1945, DC NY) 4 FRD 260; Continental Distilling Corp. v Humphrey (1955, DC Dist Col) 17 FRD
237, 49 AFTR 1932; Fay v United States (1958, DC NY) 22 FRD 28.
If factual matters charged by government are known to the other party, and deposition of such party seeks to examine
members of governmental agency as to how they reached their conclusions, right to take the deposition will be denied.
United States ex rel. Schlueter v Watkins (1946, DC NY) 67 F Supp 554, affd (1946, CA2 NY) 158 F2d 853; United
States v 88 Cases, etc., of Bireley's Orange Beverage (1946, DC NJ) 5 FRD 503.
Motion by government to vacate notice for taking of depositions of chief and civil chief of Gun Mount and Missile
Division, Navy Bureau of Ordnance, in connection with injuries suffered by plaintiff while repairing regulator in a gun
turret, was denied; government in an action under Federal Tort Claims Act was subject to the same rules as any other
litigant. Warren v United States (1955, DC NY) 17 FRD 389.
In action against National Labor Relations Board, defendant is entitled to protective order that depositions of
Regional Director and attorney representing Board not be had because Freedom of Information Act exempts from
disclosure interagency or intra-agency memorandums or letters as well as investigatory files complied for law
enforcement purposes. Distillery, Rectifying, Wine & Allied Workers International, Union v Miller (1972, WD Ky) 16
FR Serv 2d 299.
In action brought by United States to recover on fire insurance policy issued by defendant insurer, where plaintiff
asserted that Postal Inspection and Secret Service files were privileged as investigatory records compiled for law
enforcement purposes, court would grant government's protective order with respect to such files, since defendant had
not demonstrated that its need for information outweighed government's need for secrecy, and documents from Small
Business Administration file on individual would not be blocked on grounds that documents were privileged as
intra-agency reports and recommendations. United States v Illinois Fair Plan Asso. (1975, ND Ill) 67 FRD 659, 20 FR
Serv 2d 1410.
Agency head is given exclusive power to claim executive privilege for protection of predecisional, internal
documents of recommendatory or deliberative nature; claim must specifically designate and describe documents and
proffer "precise and certain" reasons for preserving their confidentiality; requirement that agency head and not
subordinates claim privilege assures Court, which makes ultimate decision, that claim of privilege has not been lightly
invoked. Coastal Corp. v Duncan (1980, DC Del) 86 FRD 514, 30 FR Serv 2d 988.
In action by agricultural workers against blueberry producing companies alleging that defendants failed to comply
with Department of Labor regulations regarding disclosure of wage rates, where defendant attempted to depose
Department employee, court exercised judicial discretion to preclude discovery pursuant to Rule 26(c)(1) in light of
important public policy favoring conservation of government resources and protection of orderly governmental
operation, and court noted that although deposition would aid defendant's case it was not essential and defendant did not
demonstrate compelling need for testimony. Alex v Jasper Wyman & Son (1986, DC Me) 115 FRD 156, 107 CCH LC
P 34970, 6 FR Serv 3d 634.
Plaintiff would be granted temporary protective order prohibiting her deposition pending defendants' examination of
her psychiatrist, who stated that deposition of plaintiff risked further deterioration of her mental state and perhaps
hospitalization; plaintiff could move for continuation of protective order within 30 days by coming forward with
specific evidence from her doctors supporting such motion, at which time defendants would be situated to accede to
request or challenge it on basis of information gathered during 30-day period. Medlin v Andrew (1987, MD NC) 113
FRD 650.
In determining whether to vacate protective order issued by state court, District Court may consider state law only to
extent of determining whether material covered by order is subject to evidentiary privilege. First Atlantic Leasing
Corp. v Tracey (1989, DC NJ) 128 FRD 51, 15 FR Serv 3d 821, summary judgment gr, in part, dismd, in part (1990,
DC NJ) 738 F Supp 863, 117 CCH LC P 56478 (criticized in Boyadjian v Cigna Cos. (1997, DC NJ) 973 F Supp 500).
IRS failed to show that documents relating to investigation of plaintiff were compiled for legitimate law enforcement
purposes and was thus not entitled to protective order. Church of Scientology v IRS (1990, DC Mass) 138 FRD 9.
Plaintiff SEC was entitled to protective order barring defendants in civil injunction proceeding from deposing
agency, since proposed Rule 30(b)(6) deposition constituted impermissible attempt by defendant to inquire into mental
processes and strategies of SEC given SEC's sworn, uncontradicted statement that all relevant, nonprivileged material
had already been disclosed to plaintiff. SEC v Morelli (1992, SD NY) 143 FRD 42, CCH Fed Secur L Rep P 96913.
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USCS Fed Rules Civ Proc R 26
Fed. R. Civ. P. 53(c) permitted special master to request documents to assist him in performance of his duties in class
action filed by plaintiff Native Americans against defendants who included Secretary of Department of Interior, for
accounting of Indian trust funds; special masters requests for documents from government was not "discovery"
regulated by Fed. R. Civ. P. 26(c) and defendants' motion for protective order based on assertion of attorney-client
privilege was denied. Cobell v Norton (2003, DC Dist Col) 213 FRD 48.
390. Miscellaneous
In purported class action brought under Title VII of Civil Rights Act of 1964 (42 USCS § § 2000e et seq.) against
employer with respect to alleged race discrimination in employment, court would sustain objection to interrogatories
propounded to defendant upon defendant's motion to stay discovery where interrogatories were directed to merits rather
than to maintainability of action as class action and there was substantial doubt as to maintainability of class action, but
since defendant would presumably be engaged in similar discovery in other action and where effort which would be
involved in supplying counsel for plaintiff with copies of discovery would be minimal, court would order defendant to
supply counsel for plaintiff with copies of all discovery growing out of such other action. Turner v Seaboard C. L. R.
Co. (1974, ED NC) 62 FRD 611, 7 BNA FEP Cas 919, 7 CCH EPD P 9363.
On defendant's motion for protective order from deposition sought to be taken by plaintiff of private investigating
firm hired by defendant, assertion by plaintiff that material sought is needed because surviving plaintiffs have no
memory of facts of accident does not amount to requisite showing of need; thus, protective order in defendant's favor
will be granted. Benton v Dixie Shamrock Oil & Gas, Inc. (1981, ED Tenn) 95 FRD 296, 34 FR Serv 2d 387.
Protective order is entered prohibiting employer from requiring employee to attend "back to work" physical
examination by employer's physicians and from initiating disciplinary proceedings against him if he failed to so attend,
because (1) physical bears directly on issues pending in case, (2) employee could say something against his own interest
during physical, and (3) if employer disciplined him, it could significantly reduce nature and amount of damages for
which it would be liable and would obtain unfair advantage in litigation. Smith v Union Pac. R.R. (1995, DC Colo) 878
F Supp 171, 32 FR Serv 3d 265.
Quashing of subpoena and complete prohibition of deposition are extraordinary measures which should be resorted
to only in rare occasions. Alexander v FBI (1998, DC Dist Col) 186 FRD 60.
Request to take deposition of attorney for party may constitute extraordinary circumstance justifying departure from
normal rule that courts rarely grant protective order that totally prohibits deposition. Simmons Foods, Inc. v Willis
(2000, DC Kan) 191 FRD 625, motions ruled upon (2000, DC Kan) 2000 US Dist LEXIS 1422.
With regard to protective order related to deposition testimony, complete prohibition of deposition is extraordinary
measure which should be resorted to only on rare occasions. Jennings v Family Mgmt. (2001, DC Dist Col) 201 FRD
272.
Court denied defendant energy company's motion for protective order under Fed. R. Civ. P. 26(b)(2) to preclude
production of documents in form of communications with group association as irrelevant and protected by
attorney/client privilege, work product, and joint defense/common interest rule, because documents were relevant to
company's notice defense and because company failed to show agreement among all members of group to share
information as common legal interest relating to ongoing or anticipated litigation. United States v Duke Energy Corp.
(2003, MD NC) 214 FRD 383.
District court's earlier rulings that scope of deposition questions to inmate should be limited to events that occurred
five years before incident was not protective order that applied to all further discovery and it was error for inmate's
counsel to indicate to evaluating psychiatrist that his questions to inmate were limited to events that had occurred five
years before incident. Marsch v Rensselaer County (2003, ND NY) 218 FRD 367.
Motion to strike under Fed. R. Civ. P. 12(f) was granted pursuant to local district court rule, to extent it sought to
strike those portions of affidavits that were submitted by former inmate and that were not referred to in former inmate's
statement of contested material facts, but request for sanctions and to strike affidavits for failure to timely disclose,
made pursuant to Fed. R. Civ. P. 26(c)(1), 37(c)(1), filed by defendants county and sheriff was denied. Faas v Wash.
County (2003, DC Me) 260 F Supp 2d 198.
b. Showing Required and Reason for Order
(1). In General
391. Generally
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USCS Fed Rules Civ Proc R 26
Burden is upon movant to show necessity of issuance of protective order and this requires particular and specific
demonstration of facts as distinguished from stereotyped and conclusionary statements. United States v Garrett (1978,
CA5 Miss) 571 F2d 1323, 78-1 USTC P 9407, 41 AFTR 2d 78-1346.
Under universal interpretation of the rules by the courts it requires strong showing to justify denial to litigant of his
right of discovery. Birnbaum v Wilcox-Gay Corp. (1953, DC Ill) 17 FRD 133.
Discovery from corporation may be had only in accordance with the federal rules, and protective order that such
discovery not be had will be issued if federal rules do not authorize examination of person from whom such discovery is
sought. Schilling-Hillier S. A. Industrial E Comercial v Virginia-Carolina Chemical Corp. (1956, DC NY) 19 FRD
271; Colonial Capital Co. v General Motors Corp. (1961, DC Conn) 29 FRD 514, 5 FR Serv 2d 433; Amato v Barber
S.S. Lines, Inc. (1962, SD NY) 30 FRD 69, 5 FR Serv 2d 478; County Nat'l Bank v U. S. Fidelity & Guaranty Co. (1966,
SD NY) 41 FRD 293, 10 FR Serv 2d 783.
Even with respect to materials disclosed for pretrial discovery purposes, secrecy is exception, not rule; those who
seek to avoid disclosure of commercial information by protective order under Rule 26 bear heavy burden of
demonstrating that disclosure will work clearly defined and very serious injury. Citicorp v Interbank Card Asso.
(1979, SD NY) 478 F Supp 756, 1980-1 CCH Trade Cases P 63108.
Prohibiting taking of depositions is extraordinary measure; party moving for protective order has heavy burden of
showing extraordinary circumstances based on specific facts that would justify such order. Prozina Shipping Co. v
Thirty-Four Autos. (1998, DC Mass) 179 FRD 41.
It is rare for court to issue protective order that completely precludes deposition. In re Tutu Water Wells
Contamination Litig. (1999, DC VI) 189 FRD 153.
392. Effect of delayed notice
Motion to prevent taking of certain depositions was granted where notice to take depositions of witnesses in Virginia
and New York was filed within 10 days of trial date; notice was not reasonable as to time, considering short intervals
between the notice and taking of depositions and the trial date. Spangler v Southeastern Greyhound Lines (1950, DC
Tenn) 10 FRD 591.
Notice served on adversary counsel in Chattanooga, Tenn. and Washington, D.C. that certain depositions would be
taken in Los Angeles, Cal., which notice gave adversary counsel only two full working days notice, was patently
unreasonable, improper and invalid where no showing was made of any special need for taking depositions in such
haste, and notice would be quashed by District Court pursuant to Rule 26(c)(1). Lloyd v Cessna Aircraft Co. (1976, ED
Tenn) 430 F Supp 25, 23 FR Serv 2d 864.
393. Discovery not sought in good faith
The scope of an examination before trial should not be limited on a motion to modify the notice before the
examination; if it thereafter appears that the examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or party, the examination may be suspended for the
presentation of a motion to terminate or limit the examination. Krier v Muschel (1939, DC NY) 29 F Supp 482.
Allegations that deposition was sought in bad faith and that it was intended for use in some other action, or for
purpose not directly related to existing cause of action, found insufficient to warrant a protective order. Empire Liquor
Corp. v Gibson Distilling Co. (1941, DC NY) 2 FRD 247.
Motion by defendant to vacate plaintiff's notice of examination of particular witness was granted where it appeared
that plaintiff had unsuccessfully attempted to examine the witness as a defendant in companion suit in the New York
courts; plaintiff should not be permitted to circumvent that ruling by means of instituting suit in the federal court. Snap
Lite Corp. v Stewart Warner Corp. (1941, DC NY) 40 F Supp 776.
Motion for discovery and examination in stockholders' derivative action by plaintiff who had opportunity to inspect,
of which she had not availed herself for five months, would be denied as not made in good faith but solely to prolong
litigation. Goldboss v Reimann (1943, DC NY) 55 F Supp 811, affd (1944, CA2 NY) 143 F2d 594.
In a suit in admiralty, libelant's exception to interrogatories propounded to respondent's employee was sustained
where the taking of the employee's deposition seemed to indicate a hope that it might prove an effective aid in securing
further postponement of the trial of the lawsuit, and respondents had more than a year's information of the two previous
injuries referred to in the notice of intention to make application at the trial to amend the libel. United States Fidelity &
Guaranty Co. use of Walsh v United States (1945, DC NY) 63 F Supp 114.
Motion by libelant to set aside respondents' notice of taking of depositions of three named witnesses was granted on
ground that respondents were barred from taking such depositions because in their answers to interrogatories
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USCS Fed Rules Civ Proc R 26
propounded by libelant the respondents had failed to disclose identity of such persons. Smith v Acadia Overseas
Freighters, Ltd. (1953, DC Pa) 120 F Supp 192.
Protective order staying answers to interrogatories filed by plaintiff granted where court concluded that plaintiff's
purpose in filing the interrogatories was to use the information thus obtained in a pending state court action. Beard v
New York C. R. Co. (1957, DC Ohio) 20 FRD 607.
Court will deny right to take deposition where it is apparent that party seeking it is not acting in good faith. Knox v
Anderson (1957, DC Hawaii) 21 FRD 97.
Defendants would be prohibited by protective order from using interrogatories to unnamed class action plaintiffs
which represented outrageous and needless invasion of privacy and revealed on their face calculated effort to harass and
discourage class members. Bachman v Collier (1977, DC Dist Col) 23 FR Serv 2d 1461.
Once respondent in subpoena enforcement proceeding has successfully put in issue legitimacy of his purpose
discovery is permissible; party to whom subpoena is addressed must then articulate facts suggesting that subpoena is
intended solely to serve improper purposes to be entitled protective order. United States v McGovern (1980, MD Pa)
87 FRD 590, 30 FR Serv 2d 1246.
394. Likelihood of annoyance or embarrassment
Mere allegations that taking of a deposition will result in annoyance or embarrassment are insufficient to warrant an
order barring taking of the depositions, the courts requiring strong showing to overcome party's right to use the
discovery process freely. Laverett v Continental Briar Pipe Co. (1938, DC NY) 25 F Supp 80; Goldberg v Raleigh
Mfrs., Inc. (1939, DC Mass) 28 F Supp 975; Piccard v Sperry Corp. (1939, DC NY) 30 F Supp 171; Muzak Corp. v
Muse-Art Corp. (1954, DC Pa) 16 FRD 172; Frasier v Twentieth Century-Fox Film Corp. (1958, DC Neb) 22 FRD
194, 1 FR Serv 2d 480.
395. Likelihood of harassment, oppression or undue hardship
Examinations before trial which are oppressive, unduly expensive, and unproductive of results should not be
permitted. Heiner v North American Coal Corp. (1942, DC Pa) 3 FRD 64.
Right to take deposition may be denied where it would impose undue hardship on, or cause great inconvenience to,
deponent. Ginsberg v Railway Express Agency, Inc. (1945, DC NY) 6 FRD 371, 65 USPQ 276; Rosanna Knitted
Sportswear, Inc. v Lass O'Scotland, Ltd. (1952, DC NY) 13 FRD 325, 96 USPQ 327; Ellis Air Lines v Bellanca Aircraft
Corp. (1955, DC Del) 17 FRD 395.
Court would deny motion for protective order striking defendants' written interrogatories on ground that they were
oppressive and annoying and that to require answers would place upon plaintiff undue burden and expense where mere
fact that interrogatories were lengthy, or that plaintiff would be put to some trouble and expense in preparing requested
answers, was not alone sufficient to warrant granting of protective order, where plaintiff had not made specific
objections to particular interrogatories, and where plaintiff had available to him option, under Rule 33(c), of producing
his records in lieu of preparing answers to interrogatories. Flood v Margis (1974, DC Wis) 64 FRD 59.
Showing that likelihood of harassment was "more probable than not" would be insufficient to warrant protective
order against discovery without concomitant showing that information sought was fully irrelevant and could have no
possible bearing on issues. Grinnell Corp. v Hackett (1976, DC RI) 70 FRD 326, 21 FR Serv 2d 965.
Plaintiff's motion for protective order in employment discrimination class action is granted so that unnamed members
of plaintiff class will not be required to answer interrogatories that are, on their face, calculated effort to harass and
discourage class members and are needless invasions of privacy. Bachman v Collier (1977, DC Dist Col) 23 FR Serv
2d 1461.
Contention that depositions would be burdensome and that more qualified people are available to testify on subjects
underlined in notice and that these people have already testified does not support issuance of protective order since mere
possibility of repetition of testimony is not in itself sufficient to justify protective order. Cooper v Welch Foods, Inc.
(1984, WD NY) 105 FRD 4, 40 FR Serv 2d 535.
Plaintiff was not entitled to protective order prohibiting second deposition sought by defense attorney who replaced
original defense attorney, since plaintiff failed to demonstrate basis for claims of undue expense and hardship and
embarrassment, but defendant would be limited to those areas not covered by first deposition. Tramm v Porter
Memorial Hosp. (1989, ND Ind) 128 FRD 666.
Party seeking to block its attorney's deposition concerning relevant information will succeed if it establishes undue
burden or oppression measured by quality of information in attorney's knowledge, availability of information from other
sources that are less intrusive into adversarial process, and harm to party's representational rights of its attorney if called
upon to give deposition testimony. Rainbow Investors Group v Fuji Trucolor (1996, WD La) 168 FRD 34.
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USCS Fed Rules Civ Proc R 26
Party need not be permitted to wear out or harass corporation with number of futile Fed. R. Civ. P. 30(a)(1)
depositions; consequence of plaintiff's excessive use of Rule 30(a)(1) instead of using Fed. R. Civ. P. 30(b)(6) can be
granting of protective order against further Rule 30(a)(1) corporate depositions. Folwell v Sanchez Hernandez (2002,
MD NC) 210 FRD 169.
Good cause existed for short postponement of plaintiff's deposition where plaintiff was minor confined to youth
facility, plaintiff was allegedly sexually assaulted by former juvenile detention officer, there were nine months
remaining for parties to complete discovery, and forcing plaintiff to recount details of alleged sexual assault in same
environment where incident occurred could have exacerbated potential harm to plaintiff. Williams v Greenlee (2002,
ND Tex) 210 FRD 577.
396. Repetitive nature of discovery
Motion by defendant to vacate notice for taking of depositions on ground that interrogatories under Rule 33 had
previously been filed by plaintiff, and that this precluded examination before trial by deposition, was denied. Howard
v States Marine Corp. (1940, DC NY) 1 FRD 499.
There was no merit to defendant's contention that plaintiff was not entitled to take deposition of its president because
it would be repetitive of interrogatories, discovery and inspection, and admissions previously obtained by plaintiff.
Bullard v Universal Millwork Corp. (1960, ED NY) 26 FRD 144, 4 FR Serv 2d 582.
Plaintiff was not entitled to protective order prohibiting defendants from taking second deposition of plaintiff where
he asserted no particular harm or burden nor demonstrated how second deposition would be cumulative or how newly
added defendants would not be prejudiced if they could not depose him. Christy v Pennsylvania Turnpike Comm'n
(1995, ED Pa) 160 FRD 51.
Taking statement of party, sworn or unsworn, pursuant to investigating claim or potential lawsuit, does not equate
with deposing him or her; thus, fact that insurance company or any other potential litigant pursues such investigation
generally does not preclude its later engaging in discovery authorized by Federal Rules of Civil Procedure. Sentry Ins. v
Shivers (1996, DC Kan) 164 FRD 255, 34 FR Serv 3d 563.
District court held that defendants' motion for leave to depose witnesses for trial must be denied in individual's civil
action where extension of discovery deadline at late date would impose unnecessary hardship on individual; court
rejected defense position that trial depositions were different from discovery depositions. Marshall v Rice (2002, MD
Fla) 211 FRD 680, affd, objection overruled (2002, MD Fla) 211 FRD 680.
397. Miscellaneous
In view of statement in advisory committee notice on 1983 amendments to Rules that reasonable inconvenience must
be borne to further goals of making available to litigants all relevant and available information, claim by United States
Department of State that requested discovery would be inconvenient in that 967 cubic feet of documents would have to
be searched is insufficient alone to require quashing subpoena; court should carefully examine both requesting party's
need for discovery and burden on State Department, paying special attention to possibility of modifying subpoena to
accommodate needs and interests of both. Northrop Corp. v McDonnell Douglas Corp. (1984, App DC) 243 US App
DC 19, 751 F2d 395, 1985-1 CCH Trade Cases P 66330, 17 Fed Rules Evid Serv 150, 40 FR Serv 2d 1042.
Objection to an examination before trial on the ground that the person sought to be examined is an infant sixteen
years of age cannot be sustained. Union Cent. Union Cent. Life Ins. Co. v Burger (1939, DC NY) 27 F Supp 556.
Application to vacate notice of taking of depositions served by plaintiffs denied where no contention was made that
depositions were not related to plaintiffs' claim, the only objection raised being that they were being taken to be used
solely in a proceeding before Securities and Exchange Commission, which was denied by plaintiffs. Phillips v Hickey
(1950, DC NY) 10 FRD 43.
If, in case of corporate party, adverse party seeks to obtain discovery from officer or agent not authorized or
designated under federal rules to represent the corporation in such respect, court will issue order that such discovery not
be had. M. A. Porazzi Co. v The Mormaclark (1951, DC NY) 16 FRD 383; Armstrong Cork Co. v Niagara Mohawk
Power Corp. (1954, DC NY) 16 FRD 389; Duncan v United States (1954, DC NY) 16 FRD 568.
Motion for order forbidding taking of deposition of defendant denied where similar motion had been denied 2 1/2
years earlier, and situation remained the same except that plaintiff had had complete examination of other witnesses,
and defendant claimed that plaintiff had waived right to examine him; court rejected the claim of waiver, which
apparently was based upon fact that defendant had been continuously in Europe since previous order, and that plaintiff
had taken no affirmative steps in formal way toward securing his examination but had offered to have the deposition
taken orally in Europe, plaintiff to pay his attorney's expense in connection therewith. Gill v Stolow (1955, DC NY) 18
FRD 323.
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USCS Fed Rules Civ Proc R 26
Defendant's motion to vacate notice of deposition on ground that engineers deposed by plaintiff were employees and
not "managing agents" of defendant would be denied where engineers were the only two of defendant's employees who
actually participated in relevant accident investigation and absent showing that harm would result to defendant's
business by deponents' brief absence from job. Tomingas v Douglas Aircraft Co. (1968, SD NY) 45 FRD 94, 12 FR
Serv 2d 669.
Although trial of action has been stayed pending completion of arbitration proceedings, court retains discretion to
permit discovery; where discovery is particularly necessary, amounts involved are substantial so that expense in taking
depositions is comparatively small and action has proceeded to point that taking of depositions can be accomplished
without delaying arbitration, court will exercise discretion in favor of permitting discovery. Bigge Crane & Rigging
Co. v Docutel Corp. (1973, ED NY) 371 F Supp 240, 17 FR Serv 2d 337.
Defendants' discovery requests were untimely, onerous, and inappropriate warranting protective order for plaintiff,
where defendants' interrogatories and requests for production of documents and admission of facts came eight years
after filing and commencement of action and would have delayed hearing by master on issue of damages. Global
Maritime Leasing, Inc. v M/S North Breeze (1978, DC RI) 451 F Supp 965, 25 FR Serv 2d 1488.
In absence of showing of good cause, defendant is not entitled to protective order which would stay discovery until
court renders decision on its pending motion to dismiss complaint for failure to state claim and for failure to plead fraud
with sufficient articularity, where court is not persuaded that motion to dismiss will inevitably be granted; defendant's
contention that he should not have to participate and monitor plaintiffs' discovery from third party does not constitute
good cause for issuance of protective order. Howard v Galesi (1985, SD NY) 107 FRD 348.
Court would grant plaintiff's motion for protective order precluding depositions of plaintiff corporation's president,
where defendant expressly stated that one purpose of deposition was to "waste" deponent's time. Digital Equipment
Corp. v System Industries, Inc. (1986, DC Mass) 108 FRD 742.
Plaintiff would not be granted protective order staying all discovery on ground that her participation in discovery
would result in waiver of right to object to removal of case from state to federal court, where plaintiff had already filed
timely motion for remand and thus put all parties on notice of her intention to contest removal, and plaintiff alleged only
nonjurisdictional defects in removal. Medlin v Andrew (1987, MD NC) 113 FRD 650.
Protective order would be granted where case had been terminated; there is not need for discovery in closed case.
American Motorists Ins. Co. v General Host Corp. (1988, DC Kan) 120 FRD 129.
Motion to quash third party's deposition would be denied where third party did not object to discovery, he would
provide relevant testimony concerning merits of action, and there was no immediate and clear possibility that motions to
dismiss would be granted so as to terminate action; nor would deposition be limited to matters involving class action
issues, since mere filing of complaint seeking class action treatment does not justifying staying all discovery except that
which strictly relates to class action issue, and instant case involved allegations of fraud to which deposition went to
heart. Simpson v Specialty Retail Concepts, Inc. (1988, MD NC) 121 FRD 261.
Magistrate properly entered protective order prohibiting discovery from nonparty since discovery was not directed at
bringing claims against nonparty which could not have also been brought against plaintiff as counterclaim. Blount
International, Ltd. v Schuylkill Energy Resources, Inc. (1989, DC Mass) 124 FRD 523.
Third-party defendant was not entitled to protective order staying discovery until court ruled on its motion to dismiss
since opposing party had not failed to state cognizable claim and third-party defendant had made mere conclusory
statement that discovery would cause undue burden and expense. Twin City Fire Ins. Co. v Employers Ins. of Wausau
(1989, DC Nev) 124 FRD 652.
Order for motion staying all discovery would be denied where moving party had not also moved for dismissal, had
not joined in codefendant's motion for dismissal, and had actively pursued discovery against plaintiff and codefendant.
White v American Tobacco Co. (1989, DC Nev) 125 FRD 508.
Defendants were not entitled to protective order to stay depositions of their officers and other witnesses where they
failed to prove that state's decision in other case would have preclusive effect on Federal Government's action in instant
case. United States v Rayle Coal Co. (1989, ND W Va) 129 FRD 135, 30 Envt Rep Cas 1551.
City's motion to stay discovery pending resolution of its dismissal motion would not be granted since it did nothing
more than to argue in conclusory fashion that its motion would succeed. Skellerup Indus. v City of Los Angeles (1995,
CD Cal) 163 FRD 598.
Professed lack of knowledge typically does not constitute good cause and is insufficient to warrant quashing of
deposition. Alexander v FBI (1998, DC Dist Col) 186 FRD 60.
If there is compelling evidence that deposition will be substantial threat to deponent's life, court may in its discretion
appropriately grant protective order that completely precludes deposition. In re Tutu Water Wells Contamination Litig.
(1999, DC VI) 189 FRD 153.
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USCS Fed Rules Civ Proc R 26
With regard to protective order related to deposition testimony, complete prohibition of deposition is extraordinary
measure which should be resorted to only on rare occasions. Jennings v Family Mgmt. (2001, DC Dist Col) 201 FRD
272.
(2). Particular Circumstances
398. Accord and satisfaction
Motion seeking to have vacated and set aside defendant's notice for examination of plaintiff is denied where
defendant interposed separate defense of accord and satisfaction; even if this were not so and there had been only a
general denial, defendant's right to examine plaintiff before trial would not be defeated, inasmuch as party may have
such an examination even though he does not have the affirmative upon the issues on which the examination is sought.
Newcomb v Universal Match Corp. (1938, DC NY) 25 F Supp 169.
Protective order would not be granted where it would necessarily be ruling that statute barred defendant's accord and
satisfaction defense; it would be inappropriate to grant motion for protective order that would in essence amount to
partial summary judgment for plaintiff since such ruling should come only after each party has had full and fair
opportunity to submit all relevant evidence to court. Federal Deposit Ins. Corp. v Percival (1989, DC Neb) 131 FRD
166.
399. Antitrust
In antitrust action brought by group of building owners, all of whom were partnerships or corporations under control
and at least partial ownership of individual whose deposition was sought by defendants, plaintiffs were not entitled to
protective order against taking of individual's deposition on ground that he had no knowledge of transactions which
gave rise to action and that questions relating to claim that suit was class action were improper subjects of discovery,
although scope of deposition would be limited to exclude matters relating to plaintiffs' motives or authority of their
attorney for bringing suit, in absence of any argument by defendant showing possible relevance of such matters.
Amherst Leasing Corp. v Emhart Corp. (1974, DC Conn) 65 FRD 121, 20 FR Serv 2d 238.
In antitrust class actions in which plaintiffs indicated through deposition testimony willingness and ability to pay
costs of notifying members of their respective classes, defendants would not be allowed discovery related to income tax
returns since awareness of earning capacities or incomes is not required by Rule 23, and consequently, not in issue;
furthermore, discovery of income tax returns would tend to invade plaintiffs' privacy and have chilling effect upon
bringing and maintenance of class action suits. In re Nissan Motor Corp. Antitrust Litigation (1975, SD Fla) 22 FR
Serv 2d 63.
400. Attorneys' fees
District court did not err in granting protective order prohibiting plaintiff's attorney's deposition on issue of plaintiff's
claim for attorney's fees since court had attorney's affidavit before it, was familiar with proceedings in case, and had
affidavit of experienced practitioner stating that fees and expenses request was reasonable. Rolex Watch U.S.A. v
Crowley (1996, CA6 Tenn) 74 F3d 716, 37 USPQ2d 1585, 1996 FED App 37P.
401. Criminal investigation
As matter of first impression, grand jury subpoena supersedes civil protective order unless party seeking to avoid
subpoena demonstrates existence of exceptional circumstances that clearly favor enforcement of protective order. In re
Grand Jury (2002, CA3 NJ) 286 F3d 153.
Where, in response to defendant's request for FBI reports on investigations of certain individuals and files of certain
trial, Department of Justice responded by releasing over 400 pages of documents from FBI files and all public materials
from trial file, Department properly opposed defendants' request for index of remaining materials, inasmuch as FBI files
consisted of 15,000 pages of materials and trial file consisted of 11 boxes of materials; although defendants might be
able to discover some additional documents which might be relevant or lead to discovery of relevant evidence if they
were armed with comprehensive and detailed index, balance must be struck between possibility of production of useful
evidence and burden on party in possession of materials. Dowd v Calabrese (1984, DC Dist Col) 101 FRD 427.
Defendant failed to show good cause for protective order where it merely requested that all disclosures be sealed to
protect it from having to create evidence which could be used to its detriment in criminal proceeding but defendant had
not been indicted nor shown that it was target of grand jury investigation nor explained why Fifth Amendment would
not adequately protect its interests. John Hancock Leasing Corp. v Luis Electrical Constr. Corp. (1989, SD NY) 127
FRD 450.
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USCS Fed Rules Civ Proc R 26
Company president's motion to stay discovery against him in civil litigation pursuant to Fed. R. Civ. P. 62 pending
conclusion of criminal proceedings against him was denied in favor of sealing his deposition pursuant to Fed. R. Civ. P.
30(d), allows court to limit scope and manner of taking of deposition as provided in Fed. R. Civ. P. 26(c) and limited
use of company president's deposition to perjury or impeachment. In re CFS-Related Secs. Fraud Litig. (2003, ND
Okla) 256 F Supp 2d 1227.
402. Contracts
Government may not refuse to permit discovery depositions of government auditors upon its unilateral perception
that contractor had made evasive or incomplete answers to its interrogatories, rather than seeking from Board of
Contract Appeals protective order vacating notice of depositions on grounds complained of, since bare refusal to allow
discovery depositions cannot be permitted. Nero & Associates, Inc. (1982, GSBCA) 83-1 CCH BCA Dec P 16174.
403. Copyright
In action for copyright infringement involving song published by plaintiff, District Court properly grants motion
compelling defendant to produce financial records relative to allegedly infringing song, notwithstanding defendant's
contention that disclosure of this sensitive information would jeopardize its position in fiercely competitive music
industry; however, nature of industry and information sought do warrant issuance of protective order limiting disclosure
by parties of information sought. Intersong-USA, Inc. v CBS, Inc. (1985, SD NY) 1 FR Serv 3d 609.
404. Damages issue
District court did not abuse its discretion in quashing subpoenas for depositions of three employees of non-party
corporation in breach of warranty action, where party had already deposed two witnesses on behalf of corporation and
requesting party had not shown that information sought from three other employees would be anything but cumulative
or duplicative. Ameristar Jet Charter, Inc. v Signal Composites, Inc. (2001, CA1 Mass) 244 F3d 189.
Trial court properly denies plaintiffs' motion to reopen discovery to assist them in ascertaining damages, where (1)
they have already conducted 3 years of extensive discovery, almost exclusively directed to question of damages, and (2)
issue of damages has already been fully tried. Pittsburgh Terminal Corp. v Baltimore & O. R. Co. (1984, WD Pa) 586
F Supp 1297, CCH Fed Secur L Rep P 91677, affd without op (1985, CA3 Pa) 760 F2d 257 and affd without op (1985,
CA3 Pa) 760 F2d 260, cert den (1985) 474 US 919, 88 L Ed 2d 256, 106 S Ct 247.
District Court properly denies defendants' motion for order staying discovery as to damages until resolution of
summary judgment motion which they intend to file, where they have as yet failed to prove facts supportive of such
motion beyond dispute, and they have also failed to establish these facts by affidavits of persons with personal
knowledge of relevant events. Intersong-USA, Inc. v CBS, Inc. (1985, SD NY) 1 FR Serv 3d 609.
405. Freedom of Information Act
Federal agency is entitled to protective order in action brought pursuant to Freedom of Information Act (5 USCS §
552), in which plaintiff seeks discovery as to whether agency search was in fact responsive to his request, where scope
and adequacy of agency's search is not yet at issue. Niren v Immigration & Naturalization Service (1984, DC Or) 103
FRD 10, 39 FR Serv 2d 498.
406. Immunity issue
Protective orders staying discovery until resolution of defendants' motion for dismissal on immunity grounds would
not be ordered where, under applicable state law, defendants at most would be entitled to qualified immunity, so that
plaintiffs were entitled to proceed with discovery limited to questions whether they acted without malice and in good
faith and acted within scope of official, delegated authority. Kutilek v Gannon (1990, DC Kan) 132 FRD 296.
407. Insurance
Protective order which barred all interrogation of attorney and was based exclusively on ground that work product
was not discoverable absent good cause shown was improper where 1) motion for such order did not mention work
product but sought relief based on mootness and harassment, 2) nonmovant alleged in his pleading that he sought to
depose movant's attorney with respect to certain relevant papers that movant had already filed in various related
proceedings, and 3) nature of nonmovant's claim was such that discovery via such deposition was essential; such a
claim was made in diversity case governed by Pennsylvania substantive law by death action verdict winner, as assignee
of loser insured via attachment and garnishment proceedings, for amount by which insured's liability exceeded
insurance coverage because of insurer's failure to conduct death action with utmost good faith as insured's agent, even
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USCS Fed Rules Civ Proc R 26
after settlement and dismissal with prejudice of excess judgment action by insured against insurer, since death action
verdict winner alleged that such settlement involved collusion and was analogous to fraudulent debtor's conveyance and
showed by uncontradicted evidence that insured was insolvent seven months before such settlement and that such
winner would have settled wrongful death action for insurance policy limits but insurer refused to so settle. Jamison v
Miracle Mile Rambler, Inc. (1976, CA3 Pa) 536 F2d 560, 21 FR Serv 2d 971.
Motion to quash taking deposition of plaintiff in action to recover under policy of insurance on stolen jewelry, on
ground that deposition of the party had already been taken by defendant, was denied where it appeared that "an
examination under oath" as provided for in the policy had been conducted; this was insufficient to induce court to
exercise its discretionary power to order that deposition of plaintiff should not be taken. Kamin v Central States Fire
Ins. Co. (1958, ED NY) 22 FRD 220, 1 FR Serv 2d 483.
Defendant-insurer in declaratory judgment action regarding environmental liability coverage failed to show good
cause for prohibiting disclosure of files relating to insured's facility, since mere assertion of competitive disadvantage
was refuted by prior co-operation among other insurers regarding environmental liability which presupposed disclosure.
Nestle Foods Corp. v Aetna Casualty & Surety Co. (1990, DC NJ) 129 FRD 483, 16 FR Serv 3d 857.
Insurer failed to show good cause for protective order barring disclosure of its investors; insurer failed to identify
with particularity any serious harm that would result from public disclosure. Traveler's Ins. Co. v Allied-Signal, Inc.
Master Pension Trust (1992, DC Conn) 145 FRD 17.
To extent homeowners had right to pursue issues regarding payments for damages under their homeowners' policy,
insurer had already provided adequate information, or that information could alternately be obtained from other sources
without deposing executive officers of insurer; insurer's motion for protective order was granted as to these depositions.
Evans v Allstate Ins. Co. (2003, ND Okla) 216 FRD 515.
408. Labor and employment
In action by EEOC against employer for equitable relief against alleged discriminatory practices, court would grant
defendant's motion for protective order where expense and burden placed on defendant by Rule 34 request might be
obviated if court were to rule against plaintiff on defendant's allegation that plaintiff failed to make good faith effort to
investigate charge made by "charging party" against defendant. 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.
Defendants in employment discrimination class action under Title VII, 42 USCS § § 2000 et seq., and 42 USCS §
1981, would not be required to answer 56 pages of interrogatories pending hearing on motion to dismiss on statute of
limitations grounds since parties should not be put to trouble of burdensome discovery when there is probability that
motion to dismiss will be allowed. Halder v Digital Equipment Corp. (1978, DC Mass) 25 FR Serv 2d 409.
Plaintiff failed to show good cause for protective order prohibiting Turnpike Commission from instructing its
employees not to discuss Commission's hiring and promotional practices with plaintiff; allegations were insufficient to
support claim that Commission had issued such instruction, that alleged instruction had kept employees from talking to
him, or to show how ex parte contact would save time and money. Christy v Pennsylvania Turnpike Comm'n (1994, ED
Pa) 157 FRD 338.
Court granted protective order to prevent employer from discovery regarding employee's immigration status because
information requested was not relevant to employee's claims against employer for unpaid wages, but even if it were,
potential for prejudice far outweighed whatever minimal probative value such information would have for employer;
furthermore, added in terrorem effect of producing documents weighed in favor of granting request for protective order.
Flores v Amigon (2002, ED NY) 233 F Supp 2d 462.
409. --Age discrimination
In age discrimination in employment action in which plaintiff made no attempt to show particularized need and
relevance required to move beyond focus of his work unit in seeking information necessary to establish his claim,
district court properly denied broad and oppressive discovery order encompassing some 7,500 employees in thirty-two
districts and three manufacturing plants. Marshall v Westinghouse Electric Corp. (1978, CA5 Fla) 576 F2d 588, 17
BNA FEP Cas 1288, 17 CCH EPD P 8417, 25 FR Serv 2d 1492, reh den (1978, CA5 Fla) 582 F2d 966, 18 BNA FEP
Cas 501, 18 CCH EPD P 8669.
410. --Race discrimination
In action brought under § 706(f) of Civil Rights Act of 1964 (42 USCS § 2000e-5(f)) by black employee of
defendant hospital for alleged racially discriminatory employment practices, defendant would be entitled to protective
order against set of 70 interrogatories filed by plaintiff, which interrogatories sought massive information not only with
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USCS Fed Rules Civ Proc R 26
respect to race, but also with respect to sex, for period of time beginning before defendant was incorporated or its
hospital was opened, where preparation of answers to such interrogatories would require unreasonable amount of time
and unreasonable expenditure of money by defendant; court would order plaintiff's attorney to review interrogatories
and reduce them to reasonable set before serving them on defendant's attorney. Jones v Holy Cross Hospital Silver
Spring, Inc. (1974, DC Md) 64 FRD 586, 8 BNA FEP Cas 1024, 8 CCH EPD P 9775, 19 FR Serv 2d 509.
411. Patents
Objection to interrogatory in patent infringement suit will be sustained if too broad in scope. Otto v Koppers Co.
(1955, DC W Va) 134 F Supp 886, 106 USPQ 406.
412. Products liability
In product liability actions seeking recovery for injuries suffered from disease toxic shock syndrome (TSS),
defendant's need for names and addresses of women who participated in research by Center for Disease Control (CDC)
on TSS and of their doctors is not compelling and is outweighed by CDC's interest in maintaining confidentiality of
research participants, notwithstanding that participants did not receive express promises of confidentiality, given very
personal, sensitive nature of disclosures they made and given possible future harm to CDC's public health mission if this
information were released. Farnsworth v Procter & Gamble Co. (1984, ND Ga) 101 FRD 355, 39 FR Serv 2d 73, affd
(1985, CA11 Ga) 758 F2d 1545, 1 FR Serv 3d 1113.
In products liability action against manufacturer of drug alleged to have caused birth defects, plaintiffs' subjection of
FDA Project Officer to deposition would fall within definition of oppressive discovery of Rule 26(c), where Project
Officer's sole relation to drug in question was that she had reviewed rat study, and where plaintiffs had possession of
study and were deposing person who conducted it. 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.
In products liability suit, defendant manufacturer failed to show good cause for protective order prohibiting plaintiff
from deposing defendant's officer's physician from whose statement manufacturer asserted officer was unfit to testify or
be deposed; since plaintiff and his insurer sought to depose officer and request that he testify at trial, his medical
condition was at issue and physician's conclusory statements as to effect of testifying or taking deposition on officer's
medical condition were insufficient to meet manufacturer's burden. Deines v Vermeer Mfg. Co. (1990, DC Kan) 133
FRD 46.
413. Securities
Motion to prohibit taking of plaintiffs' depositions by defendant was denied in derivative suit by stockholders of
defendant corporation, where it was shown that complaint contained only vague generalities, and plaintiffs' attorneys
had failed to disclose identity of their clients prior to filing of suit although adversary counsel had conferred on the case
prior thereto, and there was no reason to believe that access to defendant's records would have been denied plaintiffs
prior to suit had their identity been disclosed and their right as stockholders to make inquiry been established.
Birnbaum v Wilcox-Gay Corp. (1953, DC Ill) 17 FRD 133.
In civil action brought by Securities and Exchange Commission, non-party witnesses are not entitled to protective
order quashing plaintiff's notice for taking of their depositions because although criminal investigation into same
activities was pending, non-party witnesses may assert Fifth Amendment privilege and because in absence of collusion
between SEC and United States Attorney interference with discovery process is improper. Securities & Exchange
Com. v United Brands Co. (1975, DC Mass) 21 FR Serv 2d 66.
414. Other personal injury and death
In case by plaintiff alleging infection with HIV resulting from transfusion of blood donated to defendants, potential
danger to volunteer blood supply system outweighed plaintiffs' discovery needs. Coleman v American Red Cross
(1990, ED Mich) 130 FRD 360, affd, remanded (1992, CA6 Mich) 979 F2d 1135, 24 FR Serv 3d 1, appeal after
remand, remanded (1994, CA6 Mich) 23 F3d 1091, 1994 FED App 156P, reh, en banc, den (1994, CA6 Mich) 1994 US
App LEXIS 16171.
Court would quash notices of depositions to panel of experts assembled by professor appointed pursuant to Rule 706
of Federal Rules of Evidence to estimate future claims in asbestos class action since deposing 706 panel members by
one attorney representing small minority of plaintiffs in hostile manner would be excessively burdensome and
expensive in limited fund class action, and process employed by parties had afforded full ongoing disclosure without
need for formal discovery. In re Joint E. & S. Dists. Asbestos Litig. (1993, ED NY) 151 FRD 540, app dismd (1994,
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USCS Fed Rules Civ Proc R 26
CA2 NY) 14 F3d 151, 25 BCD 226, CCH Bankr L Rptr P 75669, app dismd sub nom Findley v Blinken (In re Joint E.
& S. Dists. Asbestos Litig.) (1994, CA7 Ill) 22 F3d 755, 28 FR Serv 3d 1259.
Where parents sought to impose liability for their son's death on corporate parent of corporation that employed other
driver in fatal accident, and corporate parent moved for protective order under Fed. R. Civ. P. 26(c), deposition of
divisional president of parent corporation was limited; deposition was not prevented because parents were forced into
federal court when suit was removed after extensive discovery in state court, and it was not clear that state court would
have so limited parents' actions. Folwell v Sanchez Hernandez (2002, MD NC) 210 FRD 169.
415. Miscellaneous
Trial court did not abuse discretion in issuing protective order barring discovery of matters related to affirmative
defenses which were not cognizable in proceeding, since discovery relating to defenses was irrelevant and immaterial.
Navel Orange Administrative Committee v Exeter Orange Co. (1983, CA9 Cal) 722 F2d 449, 14 Fed Rules Evid Serv
1286, 74 ALR Fed 265.
In denying motion to vacate notice of an examination, the court directed that the examination take place in Los
Angeles, California, unless deponent came to New York, in which case he must submit to examination there. United
States v Paramount Pictures, Inc. (1940, DC NY) 1 FRD 100.
Defendant's motion to vacate plaintiff's notice to take deposition of accountant employed by defendant to make
examination of the plaintiff's books is granted not on ground of privilege but rather on that ground evidence sought, so
far as it was relevant, was within possession of plaintiff. Dipson Theatres, Inc. v Buffalo Theatres, Inc. (1948, DC NY)
8 FRD 313.
In action brought under Title VII of Civil Rights Act of 1968 (42 USCS § 3613) with respect to defendants' alleged
discrimination in managing and renting of apartments, defendants' motion for protective order against government
inspection of various documents and records of defendants would be denied, notwithstanding that subject of discovery
involved records predating enactment of Civil Rights Act of 1968, where movant had not shown that information would
be irrelevant, and where it did not appear to court that defendants would be required to spend their time, effort, and
energy in searching records requested. United States v Samson Management Corp. (1974, ND Ga) 64 FRD 83, 19 FR
Serv 2d 881.
In indemnification suit by supplier of bulk chocolate which allegedly was contaminated against supplier of milk with
which chocolate was made, plaintiff is not entitled to protection from discovery by deposition of its officers on matters
which were touched on in discovery in prior action brought by purchaser of chocolate against plaintiff in which
defendant's interests were not represented and plaintiff's contention that defendant should satisfy itself with depositions
taken in prior case in which it offered defendant opportunity to defend is insufficient to deprive defendant of its right to
conduct it own discovery. Blumenthal Bros. Chocolate Co. v Koontz Creamery, Inc. (1977, ED Pa) 25 FR Serv 2d
873.
In action by United States corporation regarding sale of peanuts, court would deny defendant's motion to quash
subpoena directed to employee of legal entity established under laws of The Netherlands, where defendant (1)
established that plaintiff was sister corporation of that entity, (2) has shown that both participated in transaction at issue,
(3) established that sale of peanuts whose wholesomeness was at issue was between sister entities as one unit and
defendant as another unit, (4) established that counsel for plaintiff had actively participated in those aspects of discovery
in which foreign entity participated and had acted with and for both entities, and (5) has shown that discovery sought is
relevant to issues presented and that employee to whom subpoena was directed has knowledge of facts about peanuts at
issue. Alimenta (U.S.A.), Inc. v Anheuser-Busch Cos. (1983, ND Ga) 99 FRD 309, 39 FR Serv 2d 646.
In action in which plaintiff alleges that Federal Bureau of Investigation and certain banks interfered with campaign
financing activity in violation of plaintiffs' constitutional rights by harassing and pressuring contributors to recant
contributions and to claim that contributors were defrauded, District Court properly grants defendants' motions for stay
of discovery in view of on-going criminal investigation of plaintiffs which involves improper use of credit card
transactions, where fact that plaintiffs filed action soon after initiation of criminal investigation, as well as similarity in
subject matter, belies plaintiffs' contention that 2 cases are separate and distinct actions, and where it is clear that
discovery requests directed to banks have direct bearing on criminal investigation and information sought is
consequently not discoverable in parallel civil action; order staying discovery will be in effect until grand jury that has
been impaneled is released after failing to return indictment against either of plaintiffs or until conclusion of
presentation of evidence against plaintiffs in trial of parallel criminal proceeding. LaRouche Campaign v FBI (1985,
DC Mass) 106 FRD 500.
Defendant accused of misappropriating plaintiff's software was not entitled to protective order that plaintiff not
depose defendant's customers, absent establishing good cause, since defendant's attempt to prevent its customers from
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USCS Fed Rules Civ Proc R 26
learning of law suit was certainly not sufficient, some customers already had knowledge of law suit, defendant failed to
show that depositions could not produce any relevant information, and defendant failed to establish with particularity
sufficient likelihood of harm. UAI Technology, Inc. v Valutech, Inc. (1988, MD NC) 122 FRD 188.
Railroad employee was not entitled to protective order prohibiting defendant from requesting railroad medical forms
as proof of continuing disability on grounds that request constituted communication between parties over counsel's
objection, since communications arose out of collective bargaining agreement provision and were admitted by
duplicative of information already provided by employee's attorney and thus not prejudicial. DeFelice v Conrail
(1989, WD Pa) 124 FRD 603, 133 BNA LRRM 2742, 115 CCH LC P 10085.
Plaintiff showed good cause for protective order permitting her to refuse to submit to second deposition where
defendant over one year had not raised any question about completeness of plaintiff's first deposition, defendant was
seeking discovery of its own information as revealed by plaintiff's diligent discovery, in effect making her do its pretrial
preparation, plaintiff is not required to submit to separate depositions at settlement and trial phases of lawsuit, and
issues in case had been significantly narrowed since first deposition. Graebner v James River Corp. (1989, ND Cal)
127 FRD 532, 15 FR Serv 3d 620, amd (1989, ND Cal) 130 FRD 440.
Plaintiff would be granted protective order prohibiting defendant from taking another deposition, where defendant
wanted to ask plaintiff about information it could have uncovered in its own investigation, counsel were in midst of
preparation for trial less than 2 months away, and it would be unjust to require plaintiff to set side own pretrial
preparation to accommodate defendant. Graebner v James River Corp. (1989, ND Cal) 130 FRD 440.
Plaintiff's litigation counsel would be subject to deposition concerning discussions in which they participated with
various defendants prior to institution of lawsuit since attorney-client privilege had been waived, contents of discussions
were key issue in case, information was not available from any other person who had not already been deposed, and
plaintiff selected counsel knowing he had acted as labor counsel during key developments in activities giving rise to
case. Johnston Dev. Group, Inc. v Carpenters Local Union No. 1578 (1990, DC NJ) 130 FRD 348, 16 FR Serv 3d 357.
Sister of plaintiff who alleged sexual abuse as child by her parents and two brothers was entitled to protective order
to prevent her deposition upon medical evidence that she had medical condition that was exacerbated by stress to point
of being life-threatening. Frideres v Schiltz (1993, SD Iowa) 150 FRD 153, 27 FR Serv 3d 1061, subsequent app
(1997, CA8 Iowa) 113 F3d 897.
Plaintiff's evidence did not rise to level of extraordinary circumstances necessary to prohibit defendants from
deposing plaintiff's 15-year-old daughter, whose alleged sexual abuse by defendant psychologist while daughter was
patient at defendant hospital's adolescent care unit for treatment of sexual abuse formed basis of plaintiff's lawsuit, since
daughter had demonstrated that she was capable of talking about events surrounding her alleged sexual abuse and
plaintiff failed to show that daughter's mental condition deteriorated or that she was emotionally traumatized by these
discussions, objective medical evidence did not establish that daughter would be irreparably harmed by deposition
process, and fact that daughter might be incompetent to testify at trial did not mean her deposition could not be taken,
though procedural safeguards would be ordered. Bucher v Richardson Hosp. Auth. (1994, ND Tex) 160 FRD 88.
In Federal Tort Claims Act suit by wife claiming that federal physician euthanized wife's husband, where United
States Attorney refused to certify physician's scope of employment and government moved for protective order barring
deposition testimony concerning physician's acts or omissions, in granting motion, district court held that wife could not
contest refusal to certify; under plain text of 28 USCS § 2679(d)(3), part of Federal Employees Liability Reform and
Tort Compensation Act of 1988, only employee had that right, and though wife could pursue claims against physician
as individual, wife had voluntarily dismissed physician from action with prejudice. Booten v United States (2002, DC
Mass) 233 F Supp 2d 227.
Pursuant to Fed. R. Civ. P. 26(c), district court partially granted insurer's motion for protective order precluding
discovery of information outside administrative record in individual's de novo challenge to decision to terminate
disability benefits under Employee Retirement Income Security Act where broad discovery requests were far more than
necessary to demonstrate insurer's alleged conflict of interest in acting as both plan administrator and insurer Waggener
v Unum Life Ins. Co. of Am. (2002, SD Cal) 238 F Supp 2d 1179.
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, inmate failed to demonstrate good
cause for his requested stay of discovery under Fed. R. Civ. P. 26(c) as inmate could participate in telephonic oral
deposition under Fed. R. Civ. P. 33(b)(7), but prison employees were entitled to entry of amended scheduling order
under Fed. R. Civ. P. 16(b) due to substantial delays occasioned by court's previous orders. Davidson v Goord (2003,
WD NY) 215 FRD 73, app den (2003, WD NY) 259 F Supp 2d 238.
2. Discovery on Condition; Place and Time [Rule 26(c)(2)]
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USCS Fed Rules Civ Proc R 26
a. In General
416. Discovery on specified conditions, generally
Since Rule 26 authorizes a complete ban on a deposition, court has authority to permit a deposition to be taken on
such conditions as the court may impose. Clark v Geiger (1962, ED Pa) 31 FRD 268, 6 FR Serv 2d 576.
Pursuant to Rule 26(c)(2), providing that court may order that discovery may be had only on specified terms and
conditions, court may order that party seeking discovery pay portion of expenses incurred in obtaining discoverable
materials. American Standard, Inc. v Bendix Corp. (1976, WD Mo) 71 FRD 443, 1976-2 CCH Trade Cases P 61205,
23 FR Serv 2d 1513.
Court has discretion to deny without prejudice motion for protective order until parties hold discovery conference
pursuant to local rule. Craft v Board of Trustees (1981, ND Ill) 516 F Supp 1317.
417. Manner of recordation
Defendant moved to forbid plaintiff's counsel's use of tape recorder to record deposition testimony for his own use;
court treated this as motion under Rule 26(c) and allowed use of tape recorder but in such a way as not to disrupt taking
of deposition or distract deponent. Montgomery Mills, Inc. v Giffen-Burgess Corp. (1974, DC Del) 62 FRD 105, 18 FR
Serv 2d 578.
Motion for protective order seeking to have deposition taken only before stenographic court reporter and to prevent
use of videotape and sound is overruled but following safeguards are to be applied: (1) plaintiffs are required to use
certified court reporter from petitioner's jurisdiction with videotape capability, (2) zoom lens will not be allowed, and
court reporter is to shoot deponent straight on without any angle shots so as to give full frontal view of him sitting either
in witness box in courtroom or behind table, (3) all parties and persons having access to original and any copies of tape
are prohibited from exhibiting or showing it to anyone other than attorneys and others directly involved in preparation
and trial of case, and after trial is concluded, no other use may be made of tape; further, (1) cameraman and person
making recording must take oath to record proceedings accurately and in confidence and must certify correctness and
completeness of recording in same manner as stenographic reporter certifying typed record, (2) log index must be made,
(3) copies of recordings must be made, at expense of plaintiffs, and provided for use by defendant, (4) original
recording must be filed with clerk of court and preserved pending resolution of all questions of admissibility, and (5)
recording may not be publicized and, pending further orders of court, it may be used only in connection with
preparation and trial of this case. In re Daniels (1975, ND Ga) 69 FRD 579, 21 FR Serv 2d 774.
Since FRCP 35 independent medical examination is not continuation of discovery process, and as such is not subject
to protective orders under FRCP 26(c), third party's presence at examination and tape recording of examination is not
allowed. Douponce v Drake (1998, DC Colo) 183 FRD 565.
418. Miscellaneous
In granting motion to quash plaintiff's notice to take deposition of defendant by certain of its officers, where the
notice served was concededly improper, plaintiff's request that quashing be conditioned on granting of an order that
examination of defendant as set out in notice commence immediately on completion of the defendant's examination of
plaintiff is rejected since plaintiff had right to serve proper notice without any court order and since the Rules provided
method for plaintiff to obtain requested examination, there was no necessity for any order by the court. Von Witte v
American Elite, Inc. (1957, DC NY) 20 FRD 221.
Creditor has right to use discovery proceedings under Federal Rules of Civil Procedure prior to interposition of any
objection to his claim where claimant filed proof of claim in amount of approximately $ 500,000 and served notice for
the taking of deposition of representatives of the debtor, which had filed petition for arrangement under Bankruptcy
Act; motion by debtor that taking of deposition be allowed only in event that an objection to claim was interposed is
rejected despite fact motion was made without indicating whether or when objection would be filed to the claim since
preparation for possible contest involving the claim should not be impeded. In re American Anthracite & Bituminous
Coal Corp. (1958, SD NY) 22 FRD 504, 1 FR Serv 2d 438.
Party in patent infringement action is required to produce documents in which it relates its position with respect to
invention dates and related invention priority, such issues being within scope of discovery under Rules because party
has agreed to produce documents on certain conditions, and such disclosure must be made without requested condition
that defendants simultaneously produce documents indicating their invention priority positions. Technitrol, Inc. v
Digital Equipment Corp. (1973, ND Ill) 180 USPQ 192, 18 FR Serv 2d 576.
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USCS Fed Rules Civ Proc R 26
Protective order, preventing revelation of governmental agencies' intelligence-gathering activities, was necessary
until judicial determination was made as to constitutional validity of defendants' surveillance activities. Alliance to
End Repression v Rochford (1976, ND Ill) 75 FRD 431.
In action for alleged violations of Federal Water Pollution Control Act (33 USCS § § 1251 et seq.), and Rivers and
Harbors Act of 1899 (33 USCS § § 401 et seq.), in which United States sought order to compel defendant to permit
United States to enter defendant's land in order to perform drilling of wells and to conduct inspection for sampling in
preparation for trial, defendant's motion for protective order requiring United States to enter into indemnification
agreement would be denied since United States was not required to indemnify defendant in manner requested before
entering on its lands for purposes of carrying out discovery procedures in preparation for trial and no officer of United
States was authorized to execute such indemnity agreement and if executed the same would be unenforceable. United
States v Bunker Hill Co. (1976, DC Idaho) 417 F Supp 332, 10 Envt Rep Cas 2071, 22 FR Serv 2d 134, 6 ELR 20722.
Protective order claimed to prevent defendant's discovery of documents, regarding plaintiff's financial status and
attorney's fee arrangement, which were allegedly covered by attorney-client privilege, was conditioned on submission to
court for in camera examination. 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.
Defendants in products liability action arising out of burns suffered by infant plaintiff allegedly due to flammability
of nightwear manufactured and sold by defendants were entitled to production of portions of garments remaining in
plaintiffs' possession for destructive testing, where plaintiffs' expert had already conducted tests on fabric without notice
to defendants, testing by defendants was essential to their defense of improper laundering, plaintiffs would be permitted
to attend testing, testing would be videotaped, and plaintiffs would be permitted to depose defendants' experts after
conclusion of testing. Ostrander v Cone Mills, Inc. (1988, DC Minn) 119 FRD 417.
In copyright infringement action, plaintiff must produce source codes relating to computer software that was subject
of action, because it is relevant to issues raised in action; however, since source codes constitute trade secrets, their
production is subject to terms and conditions of protective order issued pursuant to FRCP 26(c) relating to manner of
disclosure. Dynamic Microprocessor Assocs. v EKD Computer Sales (1996, ED NY) 919 F Supp 101, magistrate's
recommendation (1997, ED NY) 1997 US Dist LEXIS 6337, adopted, summary judgment gr, partial summary judgment
den, injunction gr (1997, ED NY) 1997 US Dist LEXIS 6283.
Since FRCP 35 independent medical examination is not continuation of discovery process, and as such is not subject
to protective orders under FRCP 26(c), third party's presence at examination and tape recording of examination is not
allowed. Douponce v Drake (1998, DC Colo) 183 FRD 565.
Protective orders sought under FRCP 26(c)(2) which seek to regulate terms, conditions, time or place of discovery
are wholly within court's discretion. Pro Billiards Tour Ass'n v R.J. Reynolds Tobacco Co. (1999, MD NC) 187 FRD
229, 44 FR Serv 3d 1269.
b. Place of Examination
419. Generally
Courts generally frown on taking of deposition at office of counsel for either party and will provide that some other
place should be used. Norton v Cooper Jarrett, Inc. (1938, DC NY) 1 FRD 92; Havell v Time, Inc. (1940, DC NY) 1
FRD 439.
A court may order depositions to be taken in the place most convenient to all parties. Fruit Growers Co-op. v
California Pie & Baking Co. (1942, DC NY) 3 FRD 206.
If warranted by sufficient showing of good cause or hardship, involving such factors as residence or business situs of
party to be examined, distance to be traveled and travel expense, etc., court may issue protective order changing place of
examination or discovery. Isbrandsten v Moller (1947, DC NY) 7 FRD 188; Sullivan v Southern Pac. Co. (1947, DC
NY) 7 FRD 206; Ross v True Temper Corp. (1951, DC Ohio) 11 FRD 307.
It is clear that District Court is vested with wide discretion to designate location for taking of depositions and that
each application for protective order must be considered on its own facts and equities. Leist v Union Oil Co. (1979, ED
Wis) 82 FRD 203, 27 FR Serv 2d 600.
Pursuant to FRCP 26(c)(2), court has broad discretion to alter place of noticed deposition. Chris-Craft Indus. Prods.,
Inc. v Kuraray Co. (1999, ND Ill) 184 FRD 605.
Depositions of parties and witnesses may occur in proximity to where they reside. In re Continental Grain Co.
(1979, Jud Pan Mult Lit) 482 F Supp 330.
420. Location of corporate personnel
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In light of frequent travels to New York by president of defendant Greek corporation, it was not abuse of discretion
for District Court to require that his deposition, which defendant had noticed for Greece, be held either in Milwaukee or
New York, where (1) defendant had office in New York, (2) although saving time and expense of bringing deponent
from Greece was not unworthy object, it was not so compelling as to require judge to ignore time and expense of
requiring plaintiff's lawyers to go to Greece, and (3) although order was not issued until 3 weeks before trial, suit was
then 2 and 1/2 years old, and thus defendant had already had plenty of time to notice deposition for New York and
thereby obviate controversy over conducting it in Greece. Afram Export Corp. v Metallurgiki Halyps, S.A. (1985, CA7
Wis) 772 F2d 1358, 41 UCCRS 1709.
The deposition of corporate party, by its officers, was ordered taken in Michigan where the officers resided and
where the records which would be required were located, instead of, as specified in the notice, in New York where the
action was pending. Fairwater Transp. Co. v Chris-Craft Corp. (1940, DC NY) 1 FRD 509.
Where parties cannot agree on the locus of the examination, the taking of the depositions of a corporate party by its
officers and agents should be taken at the main place of business of the corporation, or where it has its books and
records; especially is this so where plaintiff and defendants are both engaged in war contracts. Sprague Electric Co. v
Cornell-Dubilier Electric Corp. (1944, DC Del) 4 FRD 113.
Deposition of foreman in charge of East Binghamton roundhouse of defendant, noticed by plaintiff for Brooklyn,
should not be taken there, since his duties were restricted to East Binghamton location and under existing conditions he
should not be required to attend in New York. Farr v Delaware, L. & W. R. Co. (1944, DC NY) 7 FRD 494.
Motion to vacate notice for an examination of officials of defendant corporation, or to change situs thereof, is
granted, where corporate records would be referred to and persons to be examined were important in daily operation of
corporation, and since it did not appear that plaintiff would be unduly burdened by taking depositions at defendant's
place of business. Garshol v Atlantic Refining Co. (1951, DC NY) 12 FRD 204.
Right of plaintiff in action against certain citizens of Texas and a Texas corporation to take depositions of the
defendants in New York was denied where there was very little evidence indicating that defendants had been doing
business within jurisdiction of New York District Court; court would be extremely reluctant to exercise its discretion to
compel parties to come to New York from Texas for purpose of determining whether court in fact had jurisdiction over
them. Petroleum Financial Corp. v Stone (1953, DC NY) 111 F Supp 351.
Motion to transfer taking of depositions of officers of New York corporation from New York to California is denied
but it is appropriate for depositions of two officers of California corporation, on whose behalf derivative action has been
brought, to be taken in California, since it appears that two officers have never been in New York on corporate matters;
also, each party should pay its own expenses in connection with examinations and such expenses are to be taxed against
unsuccessful party. Haymes v Columbia Pictures Corp. (1954, DC NY) 16 FRD 118.
Motions by defendant to vacate plaintiffs' notice for taking depositions of five managing agents of defendant in New
York, on ground that four of them lived outside the United States, were denied; plaintiffs were entitled to oral
examination and request for the examination to be held in New York was not unreasonable in view of fact that
defendant airline could carry its employees at no charge. Supine v Compagnie Nationale Air France (1955, DC NY) 21
FRD 42.
Motion by defendant in patent infringement action that depositions of its officers be taken in Amsterdam, New York,
its headquarters, rather than in Boston where the action was brought, was denied where it appeared that defendant was
qualified to do business in Massachusetts and had designated a person for service of process in Boston, thereby
consenting to be sued in that district. Fairhope Fabrics, Inc. v Mowhawk Carpet Mills, Inc. (1956, DC Mass) 140 F
Supp 313, 109 USPQ 218.
Motion by defendant that depositions of three of its supervisory officials, named, be not taken, or that they be taken
only in the Netherlands, or on written interrogatories, was denied where plaintiff sued for alleged wrongful death of
passenger in airplane disaster in Ireland; defendant could readily provide transportation for its employees at minimum
cost, and depositions could be conveniently spaced so that only one of the individuals need be away from his work at a
time. Schultz v Koninklijke Luchtvaart Maatschappij, etc. (1957, DC NY) 21 FRD 20.
Petition to vacate subpoena to appear for taking of depositions upon oral examination denied where petitioner argued
that if respondent, a foreign corporation, were permitted to take his deposition by oral examination in New York,
petitioner must be afforded right to take deposition by same method by foreign corporation making itself available in
New York or paying his expenses to Holland. Miller v N. V. Cacao-En Chocoladefabrieken Boon (1964, ED NY) 35
FRD 213, 142 USPQ 364, 8 FR Serv 2d 30B.34, Case 1.
Defendant's motion to vacate notice of deposition on ground that, if depositions were taken, they should be taken at
defendant's principal place of business in California rather than at plaintiff's counsel's office in New York would be
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denied where defendant was most able to bear expense of the trip, and would be the party most able to obtain the least
expensive transportation rates. Tomingas v Douglas Aircraft Co. (1968, SD NY) 45 FRD 94, 12 FR Serv 2d 669.
The deposition of an officer of a nonparty corporation, which corporation admittedly is doing business within the
district, may be taken and may be compelled by service of a subpoena upon the corporation within the district. However
such witness must be protected against undue burden and expense, and a deposition of the corporation should be taken
at its principal place of business. Less v Taber Instrument Corp. (1971, WD NY) 53 FRD 645, 15 FR Serv 2d 1269.
Defendant's motion for protective order to change place of taking deposition to principal place of business of
corporation would be denied where there was no undue burden or expense inasmuch as defendant corporation operated
in Puerto Rico a number of wholly owned subsidiaries and the officers, directors and agents of defendant continuously
traveled to Puerto Rico, there was no showing that witness or defendant corporation was destitute or insolvent, and
motion was not timely in that it was made only two days prior to date stipulated for taking of deposition. Baker v
Standard Industries, Inc. (1972, DC Puerto Rico) 55 FRD 178, 16 FR Serv 2d 597.
In wrongful death action involving airplane crash in England, defendants are entitled to protective order pursuant to
Rule 26(c) providing that its corporate personnel be deposed in London, England because such personnel are essential
for daily operations of airlines. Lanza v British European Airways (1974, ED NY) 18 FR Serv 2d 1250.
In action arising under federal securities laws where plaintiffs, purchasers of highly speculative securities from
defendant brokerage firm, noticed defendant officer, director, and majority shareholder of defendant company for
deposition in Michigan and requested him to produce documents there, deposition and production of documents would
be allowed to take place in Arizona where individual had moved his residence and taken his documents, but such would
be conditioned upon parties being enjoined to bring further motions relating to discovery before Michigan court, and not
before any Arizona federal courts. 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.
Motion of defendant Florida corporation for protective order regarding deposition of its officers in Oklahoma would
be denied, where defendant's objection to deposition of officers or agents was made in connection with permissive
counterclaim. Continental Federal Sav. & Loan Asso. v Delta Corp. of America (1976, WD Okla) 71 FRD 697, 23 FR
Serv 2d 200, 23 FR Serv 2d 205.
It was proper to consider financial position of deponent and that of corporate party for which he worked in
designating place for deposition; protective order requiring employee of corporate defendant to be deposed in
Milwaukee rather than in Cincinnati, his residence, was not permitted because of counsel's location in Wisconsin, and
plaintiff's unemployment and impecunious situation. Leist v Union Oil Co. (1979, ED Wis) 82 FRD 203, 27 FR Serv
2d 600.
Defendant, California corporation is not entitled to protective order to prevent deposition in Wisconsin of one of its
employees, Ohio resident, in action by Wisconsin resident brought in Wisconsin federal court, in view of comparative
burdens on parties and fact all counsel are located in Wisconsin; it is proper to consider financial position of deponent
and that of corporate party for which he works in designating place for his deposition. Leist v Union Oil Co. (1979, ED
Wis) 82 FRD 203, 27 FR Serv 2d 600.
California corporate defendant is not ordered to depose its own officers in Tennessee forum, where cost to defendant
of accepting invitation to attend officers' deposition in California is considerably less than corporation's cost of sending
officers and counsel to Tennessee, and where corporation has, in equitable exchange for California deposition site,
waived contractual provision specifying California as exclusive forum for litigation. Dollar Systems, Inc. v Tomlin
(1984, MD Tenn) 102 FRD 93, 39 FR Serv 2d 755.
In insurance coverage case, defendant insurer would be required to send employee for deposition in forum state of
North Carolina where insured was small businessman, his son had incurred medical bills in excess of $ 50,000 and
expenses of travel for him and his attorney to Florida would be financial hardship, while insured was large corporation
with offices in many states, including North Carolina, and therefor cost of defending lawsuits, especially as to its
medical policies as in instant case, in various forms is one of expected costs of doing business. Turner v Prudential
Ins. Co. (1988, MD NC) 119 FRD 381.
Defendant corporation's employee who made principal decision resulting in instant litigation could be deposed by
plaintiff subject only to defendant's right to move for protective order as to place of taking deposition. Frank S.
Sinkwich, Inc. v Texaco Refining & Marketing, Inc. (1988, MD Ga) 120 FRD 540, 1989-2 CCH Trade Cases P 68662,
11 FR Serv 3d 375.
Protective order that discovery of defendant be had out of state would not be granted where defendant made
conclusory allegations of burdensomeness, failed to respond to plaintiff's evidence that it would not be burdensome, and
both parties' counsel resided in district, making it less expensive for both document production and depositions to take
place there. Benchmark Design, Inc. v BDC, Inc. (1989, DC Or) 125 FRD 511.
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USCS Fed Rules Civ Proc R 26
Post-judgment deposition of judgment debtor's president, who resided overseas, should take place in Dallas since it
was corporation's principal place of business and both parties' counsel are located there. Resolution Trust Corp. v
Worldwide Ins. Management Corp. (1992, ND Tex) 147 FRD 125, affd without op (1993, CA5 Tex) 992 F2d 325, cert
den (1993) 510 US 992, 126 L Ed 2d 452, 114 S Ct 551.
Finding that insurance company could bear cost of traveling to California to take depositions of three employees of
another insurance company, that no equitable considerations weighed in favor of compelling employees to travel to
present federal district to be deposed, and that documents relevant to case were located in California, court granted
second insurance company's motion for protective order and ordered that depositions take place in California and that
first insurance company bear travel costs. Phila. Indem. Ins. Co. v Fed. Ins. Co. (2003, ED Pa) 215 FRD 492.
421. Consideration that plaintiff has chosen forum
Where plaintiff, a Wisconsin corporation, brought action in District Court of New York to recover amount due on
cherries shipped to New York, and defendant brought third-party action against railroads handling the shipment, and the
third-party defendants, alleging improper packing on part of the plaintiff or inherent vice in the cherries, sought to take
depositions in New York of plaintiff's officers or employees in charge of packing the cherries, plaintiff was not entitled
to have notice for depositions vacated on ground that the expenses which would be incurred by plaintiff and its
attorneys in attending such an examination should be borne by third-party defendants; plaintiff had sought relief in the
forum and should not have right to require payment of expenses for taking of depositions in such forum. Fruit Growers
Co-op. Fruit Growers Co-op. v California Pie & Baking Co. (1942, DC NY) 3 FRD 206.
Plaintiff's motion to vacate notice to take his deposition in New York was denied, plaintiff claiming in support of his
motion that after commencement of action he had moved to Missouri and that compelling him to leave Missouri for
purpose of giving his deposition would place his position in jeopardy and that expense involved would be an undue
financial burden; since plaintiff had chosen the forum he should be required to give his deposition there. Anthony v
RKO Radio Pictures, Inc. (1948, DC NY) 8 FRD 422, 79 USPQ 335.
Transfer of taking of depositions of various officers of plaintiff from Michigan, where the suit was brought and
where the alleged unlawful practices took place, to California, where the officers resided and where the corporations
with which the officers were connected had their principal offices and places of business, was denied; rule requiring
depositions of corporation executives and officers to be taken at principal place of business of the corporation was no
more inflexible than rule that depositions of plaintiffs choosing certain forum should be taken there. Society of
Independent Motion Picture Producers v United Detroit Theatres Corp. (1948, DC Mich) 8 FRD 453.
Plaintiff's motion that depositions of officers of plaintiff corporation be not taken, or in alternative that they be taken
in Switzerland rather than in District of Columbia, was denied in an action arising under Trading With the Enemy Act;
depositions taken by defendant should be taken in District of Columbia where suit was to be tried, but at expense of
United States within usual government limitations. Societe Internationale pour Participations Industrielles et
Commeriales S. A. v Clark (1948, DC Dist Col) 8 FRD 565.
As a general rule, where plaintiff has selected the forum and no unusual circumstances appear, he should be required
to submit to oral examination at the forum at his own expense. Sekely v Salkind (1950, DC NY) 10 FRD 503; V. O.
Machinoimport v Clark Equipment Co. (1951, DC NY) 11 FRD 55; Zweifler v Sleco Laces, Inc. (1950, DC NY) 11 FRD
202.
Plaintiff's motion that his deposition not be taken in New York, where plaintiff, a resident of Chicago, had brought
suit, was denied, since suit was for substantial sum and New York was readily accessible from Chicago and expense
involved in requiring plaintiff to appear there would be nominal. Worth v Trans World Films, Inc. (1951, DC NY) 11
FRD 197.
Motion to vacate order for taking of plaintiff's deposition in New York was denied where plaintiff's counsel in
affidavit alleged that plaintiff had no net worth, earned about 30 English pounds per week, and was employed in heating
business which at present was in its busy season; this was an insufficient showing to warrant departure from rule
requiring nonresident plaintiff to make himself available for examination in the forum of his choice. Slade v
Transatlantic Financing Corp. (1957, DC NY) 21 FRD 146.
Court refused to change place of taking plaintiff's deposition from forum where plaintiff had chosen to sue,
allegations being of type requiring depositions upon oral examination and extent of financial hardship not requiring
court intervention. Seuthe v Renwal Products, Inc. (1965, SD NY) 38 FRD 323, 147 USPQ 66, 9 FR Serv 2d 30B.32,
Case 1.
A protective order will be granted to prevent plaintiff, who chose the forum, from taking a deposition of one of its
officers in Germany, in the absence of a showing of the burden and hardship to the plaintiff, especially when deposition
is intended to serve as trial testimony and more than the normal routine objections may be raised, and if taken abroad, a
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court would not be available to rule on such objections at the time; deposition should be taken in the forum in which the
plaintiff has chosen to sue. Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v Steinway & Sons (1971, DC NY) 54
FRD 280, 15 FR Serv 2d 1614.
Plaintiff which brought action in Washington forum would be denied reimbursement for travel and living expenses
incident to its production of employee who was working in Nevada since normal rule that plaintiff would be required to
make himself available for examination in district in which he has brought suit and that costs are not available absent
good cause would apply to plaintiff's agents and employees, especially since plaintiff was responsible for their absence
from district. Detweiler Bros., Inc. v John Graham & Co. (1976, ED Wash) 412 F Supp 416.
422. --Special or unusual circumstances
Although customarily such request by defendant that plaintiff be required to appear where suit was filed, for
examination would be granted, request will be, stating that in denied where it would be simpler, as well as fairer, to take
deposition of plaintiff where he lived. Ginsberg v Railway Express Agency, Inc. (1945, DC NY) 6 FRD 371, 65 USPQ
276.
Special circumstances requiring variance of rule that where nonresident plaintiff chooses his forum he makes himself
available for examination there were found to exist where plaintiffs' notice to take depositions of plaintiffs in
Wilmington, Delaware, was unreasonable and improper, since plaintiffs resided and had their business in California and
by sworn affidavit had unequivocally stated that they would be present for trial where they would be available for
examination and cross-examination. Messelt v Security Storage Co. (1950, DC Del) 10 FRD 509.
Motion to vacate notice of examination of plaintiff to be held in New York is granted where affidavits indicate that
plaintiff resides in Dracut, Massachusetts, and is needed at home to take care of an elderly brother and sister, who are
dependent upon her, and are without independent financial resources; there is no inflexible rule that plaintiff must
submit to an examination at forum chosen. Coburn v Warner (1951, DC NY) 12 FRD 188.
While ordinarily a plaintiff might be required to appear for taking of an oral deposition in the forum of his choice, to
require plaintiff to travel from India to New York for taking of his deposition in this action, which involved less than $
16,000, would impose such hardship and expense upon plaintiff as to place burden upon defendant of showing that the
necessary testimony could not be secured by written interrogatories, particularly in view of pretrial order providing that
counsel for the respective parties would prepare interrogatories and cross interrogatories to be sent to India to be
answered in writing under oath, and such interrogatories had been prepared. Timblo v Rhode Island Ins. Co. (1954, DC
NY) 16 FRD 563.
Motion to quash notice for taking depositions of plaintiff was granted where it appeared that plaintiff had
commenced similar action in Illinois, but to protect herself, if it appeared that defendant was not "present" in Illinois for
venue purposes, had instituted the present action, and that defendant had noticed deposition of the plaintiff on oral
examination in both actions; facts presented special circumstances warranting departure from general rule that an
individual plaintiff, selecting the forum, should come there to be examined. Linneen v Cunard S.S. Co. (1956, DC NY)
144 F Supp 753.
The general rule is that a plaintiff, having chosen the forum, must submit to oral examination within the district he
has chosen, but the defendant does not have an absolute right to examine the plaintiff at the forum and the defendant's
preference for oral examination at the forum must be weighed against his actual need and the resulting burden on the
plaintiff. Fisser v International Bank (1957, DC NY) 20 FRD 419; De Dalmady v Price Waterhouse & Co. (1973, DC
Puerto Rico) 62 FRD 157, 18 FR Serv 2d 1396.
Plaintiff, a resident and citizen of Venezuela, filed motion for protective order under Rule 26(c) when defendant
notified plaintiff's attorney of its intention to take plaintiff's deposition at forum--San Juan, Puerto Rico on grounds that
special circumstances may warrant departure from rule that plaintiff may be called upon to present himself at forum for
taking of his deposition; however, motion is denied where plaintiff did not make sufficient showing of such
circumstances and 30 days allowed him to file necessary documentation to substantiate his assertions as to his hardship
and financial condition. De Dalmady v Price Waterhouse & Co. (1973, DC Puerto Rico) 62 FRD 157, 18 FR Serv 2d
1396.
Discovery by defendants and production of documents by plaintiffs order to be held at home of one of plaintiffs
where plaintiffs were indigent and it would be unreasonable hardship to compel them to travel to another city and to
transport relevant documents. Molinaro v Lafayette Radio Electronics (1973, ED Pa) 62 FRD 464, 182 USPQ 548, 17
FR Serv 2d 1606.
In absence of exceptional or unusual circumstances, when deponent resides at substantial distance from deposing
party's residence, deposing party should be required to take deposition at location in vicinity in which deponent resides
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even if deponent is party and claim of financial hardship, taken alone, does not demonstrate exceptional or compelling
circumstances. General Leasing Co. v Lawrence Photo-Graphic Supply, Inc. (1979, WD Mo) 84 FRD 130.
Petitioner waived right to have deposition taken in district where he resided by waiting until eve of trial to notify
plaintiff that he would not appear in forum district for deposition. Undraitis v Luka (1992, ND Ind) 142 FRD 675.
423. Conditioning change of place on payment of expenses
Not in every case is a party seeking pre-trial discovery entitled to a deposition on oral examination at the situs of the
forum, as his preference, if opposed under rule as to protective orders, must be weighed both against his actual and
supposed need for such and against the resulting burden to his opponent; and where there is serious conflict the judge,
after consideration, may order the deposition taken at an appropriate distant place under terms whereby the reasonable
expense thereof may ultimately be reflected in the taxable costs, or order the depositions taken, at least in the first
instance, only on written interrogatories. Hyam v American Export Lines, Inc. (1954, CA2 NY) 213 F2d 221.
Upon objection by plaintiff to taking of deposition of absent witness by defendant in Arizona, unless it was taken
upon interrogatories in writing, or expenses of attendance, including reasonable counsel fee, were allowed the plaintiff,
the court, on the assumption that the witness, who was formerly general engineer of defendant corporation, would be
willing to travel to Philadelphia, exercised its right to order deposition taken at a place other than that stated in the
notice, and entered an order for deposition to be taken in Philadelphia, the expenses of the attending witness to be taxed
as part of costs in the case. Clair v Philadelphia Storage Battery Co. (1939, DC Pa) 27 F Supp 777.
Defendant's motion that examination of its motormen and firemen should be had at their places of residence in North
and South Carolina rather than in New York, as noticed by plaintiff, is upheld, despite plaintiff's contention that
defendant should pay reasonable traveling expenses and counsel fees incurred by plaintiff in taking such depositions;
there was no obligation on the part of defendant to make any such payment. Delaney v Atlantic C. L. R. Co. (1945, DC
NY) 5 FRD 31.
Court, in denying motion for change of place of examination, may, where circumstances warrant, provide in
alternative for change of place of examination on condition that party seeking the change pay expenses of other party or
other party's counsel. Irwin Co. v Tide Pub. Co. (1952, DC NY) 13 FRD 18; Alexander v Oberndorf (1952, DC NY) 13
FRD 137; Demeulenaere v Rockwell Mfg. Co. (1959, SD NY) 23 FRD 686, 1 FR Serv 2d 600.
In declaratory judgment, action praying that certain of defendant's patents be declared invalid and not infringed by
plaintiff where plaintiff noticed taking of depositions at Wilmington, Delaware, of 3 of defendant's officers and
executors, place of taking deposition was moved to Ohio where witnesses all resided, defendant's principal place of
business was located, and where it maintained its corporate records, but since change was made for convenience of
defendant, traveling expenses and maintenance of plaintiff and its attorney while in Ohio would have to be paid by
defendant, although fees of plaintiff's attorney while away from Philadelphia office would not be allowed. Fischer &
Porter Co. v Sheffield Corp. (1962, DC Del) 31 FRD 534, 135 USPQ 389, 6 FR Serv 2d 603.
Defendant's motion for protective order that would require plaintiff to bear expenses of deponent's appearance at
offices of plaintiffs' attorneys or to take deposition at deponent's place of residence was denied where there was no
showing that any harm would result to defendant's business and defendant was most able to bear expense, court
alternatively allowed change of place for taking of deposition if defendant elected to advance travel and per diem
expenses to plaintiffs' attorneys. Terry v Modern Woodmen of America (1972, WD Mo) 57 FRD 141, 16 FR Serv 2d
1541.
424. Place upheld on condition of payment of expenses
The court may fix the place of examination before trial as to nonresidents of the district and the place of their
residence is immaterial so long as they may be reached by the process of the court; persons residing in Missouri,
however, should not be compelled to attend such examination in New York and parties should not be so compelled
without adequate provision for their expenses. Norton v Cooper Jarrett, Inc. (1938, DC NY) 1 FRD 92.
Where it appeared from notice of examination that defendants intended to conduct very brief examinations, plaintiff's
motion that depositions of witnesses in Rhode Island, Massachusetts, New York, and Missouri, be taken by written
interrogatories, or in alternative that defendants pay plaintiff, prior to taking of the depositions, expenses of one
attorney, together with his fee, for attendance at places where the depositions were to be taken, is granted. Moore v
George A. Hormel & Co. (1942, DC NY) 2 FRD 340, 53 USPQ 677.
Since the court has the power to make any order which will further the ends of justice, the court will specify the
procedure to be followed where plaintiff served a notice of examination upon defendants whereby he sought to take the
deposition of the president of both defendants; defendants' motion for an order directing that the deposition be taken at
defendants' principal place of business was denied, but plaintiff was required to pay reasonable traveling expenses
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incident to the president's trip to the place designated for the taking of the deposition. Moore v George A. Hormel &
Co. (1942, DC NY) 4 FRD 15, 63 USPQ 59.
Court may issue alternative order for change of place of examination unless party seeking examination pay expenses
of other party for examination at place originally scheduled. Hirsch v Glidden Co. (1948, DC NY) 79 F Supp 729, 78
USPQ 194; Boone v Wynne (1947, DC Dist Col) 7 FRD 22; Johnston v Manufacturers & Traders Trust Co. (1956, WD
NY) 22 FRD 67, 1 FR Serv 2d 494.
Based on plaintiff's affidavit that because of her physical condition resulting from accident involved in the action,
she had been unable to earn any money, that she had no savings or other source of income, and was being supported by
a son-in-law, court granted protective order requested by plaintiff requiring the defendant to elect either to pay plaintiff's
expenses to Philadelphia, or take deposition in Boston, the residence of plaintiff, or proceed by written interrogatories.
Jones v Pennsylvania Greyhound Lines, Inc. (1950, DC Pa) 10 FRD 153.
Although plaintiff, having selected the forum, ordinarily must make himself available for taking of his deposition
there, plaintiff would not be required to come from his home in California to Pennsylvania for oral depositions unless
defendant paid all of his expenses, since it was shown that defendant had previously served interrogatories on plaintiff
which had been answered and which apparently were satisfactory to defendant, and that plaintiff had been in
Pennsylvania for several weeks and available for taking of his deposition at a time when case was discussed and
continuance granted at request of defendant. Lawson v Mathiasens' Tanker Industries, Inc. (1957, DC Pa) 21 FRD
314.
Interests of justice would be best served if oral examination of corporate president residing in Minnesota was had in
South Carolina, but upon the following conditions: the plaintiff, who served the notice to take deposition, and the
defendant to bear and pay the travel expenses of bringing the deponent to South Carolina, and his return, in equal
shares; the plaintiff to bear and pay a reasonable living expense for the deponent on the day or days that he was called
upon to testify. Connell v Biltmore Sec. Life Ins. Co. (1966, DC SC) 41 FRD 136, 10 FR Serv 2d 835.
In case in which plaintiffs have noticed 5 depositions involving at least 2 deponents from Puerto Rico, plaintiffs are
properly directed to depose witnesses who are currently in New York area first, since expenses of complying with
plaintiffs' discovery request are disproportionate to size of claim, but if, after taking initial depositions, plaintiffs still
desire deposition of witnesses from Puerto Rico, they shall be permitted to do so provided they pay reasonable expenses
incurred by defendants in having those witnesses appear in New York. Yannitelli v Navieras de Puerto Rico (1984, SD
NY) 103 FRD 413, 40 FR Serv 2d 1138, dismd (1985, SD NY) 106 FRD 42.
425. Miscellaneous
Where plaintiff in personal injury action resided in Bethlehem, Pennsylvania, notice for an oral examination to be
conducted in Allentown, Pennsylvania, where doctor who was also to be examined resided, was modified so that
examination of plaintiff should be in Bethlehem. Krier v Muschel (1939, DC NY) 29 F Supp 482.
The plaintiff having been examined rather fully previously, the court refused to require him to go to New York from
Texas on the eve of trial for further examination as to documents wanted by the defendant, it having been possible for
latter to have obtained such information previously. Rosenblum v Dingfelder (1941, DC NY) 2 FRD 309.
Defendant's motions for an order compelling plaintiff's attendance in San Francisco for the taking of plaintiff's
deposition, although plaintiff was resident of Los Angeles, or in alternative, for an order striking the complaint and
entering a default judgment, were denied where plaintiff failed to appear for examination in San Francisco as noticed by
defendant, but instead mailed his objections against making such an appearance to defendant, relying on Rule 45(d)(2).
Barili v Bianchi (1946, DC Cal) 6 FRD 350.
Motion of California resident to vacate notice to take her oral deposition in New York would be denied if court
determined, from report of physical examination, that she was able to travel to New York. Rifkin v United States Lines
Co. (1959, SD NY) 177 F Supp 875, 2 FR Serv 2d 466.
Plaintiff, claiming to be a resident of Ohio and under indictment in Louisiana, brought a multi-million libel suit
against the district attorney of Orleans Parish in that state and others and simultaneously with the filing of the complaint
served interrogatories on the district attorney who, in turn sought pre-trial discovery of plaintiff and gave notice to take
plaintiff's deposition in New Orleans, Louisiana, and plaintiff filed motion to avoid having the deposition taken in
Orleans Parish; such motion was denied, since such difficulties as the plaintiff might have been having with the district
attorney should not be used as a barrier of orderly discovery under these rules. Novel v Garrison (1967, ED La) 42
FRD 234, 11 FR Serv 2d 779.
Court ordered depositions to be taken at town where defendants and plaintiff all resided, on ground that taking them
in Philadelphia would be oppressive. Twardzik v Sepauley (1968, ED Pa) 286 F Supp 346, 12 FR Serv 2d 907.
Page 85
USCS Fed Rules Civ Proc R 26
Following receipt of notice to take deposition and request for production of documents from defendant, proper
procedure for defendant to use in objecting to place of taking deposition was by way of motion for protective order,
rather than filing of objection to taking of deposition in designated location. Continental Federal Sav. & Loan Asso. v
Delta Corp. of America (1976, WD Okla) 71 FRD 697, 23 FR Serv 2d 200, 23 FR Serv 2d 205.
While non-party is permitted to move for protective order not only in court in which case is pending but also in court
in district in which deposition is sought to be taken, nothing in Rule 26(c) deprives latter court of power to transfer
proceeding to former court; transfer to court in which action is pending is preferable where questions raised in motion
for protective order can only be answered by judge thoroughly familiar with facts of case; in proceeding instituted in
District of Maryland to obtain protective order in connection with taking of deposition of non-party to action pending in
Southern District of New York, plaintiffs' motion to transfer proceeding to latter court would be granted; however,
plaintiffs would be required to pay all additional counsel fees and travel and subsistence expenses of deponents and
their counsel caused by the transfer. Socialist Workers Party v Attorney Gen. of United States (1977, DC Md) 73 FRD
699, 23 FR Serv 2d 197.
While objection to place of deposition made by Rule 26(c) motion will normally be allowed if plaintiff designates
place for deposition of defendant other than defendant's residence or place of business, objection and motion must be
timely, and motion is properly denied where it was not seasonably made, having been filed one day before first
deposition was to commence and approximately 7 weeks after notices of deposition had been filed, and where
defendants have offered no excuse for untimeliness of their motion. Anderson v Avco Embassy Pictures Corp. (1984,
DC Mass) 38 FR Serv 2d 1491.
In case in which plaintiffs have noticed 5 depositions involving at least 2 deponents from Puerto Rico, plaintiffs are
properly directed to depose witnesses who are currently in New York area first, since expenses of complying with
plaintiffs' discovery request are disproportionate to size of claim, but if, after taking initial depositions, plaintiffs still
desire deposition of witnesses from Puerto Rico, they shall be permitted to do so provided they pay reasonable expenses
incurred by defendants in having those witnesses appear in New York. Yannitelli v Navieras de Puerto Rico (1984, SD
NY) 103 FRD 413, 40 FR Serv 2d 1138, dismd (1985, SD NY) 106 FRD 42.
Defendant waived defense of lack of personal jurisdiction pursuant to Rule 12(h)(1), notwithstanding contention that
his Rule 26(c) motion to have deposition held in Florida instead of forum state because of his limited contact with
forum state put court and plaintiff on notice of alleged jurisdictional defect, since even if Rule 26(c) motion had not
come later than 20 days after service of defendant's answer, his omission of arguments pertaining to personal
jurisdiction from his Rule 26(c) motion effectively waived them under Rules 12(g) and 12(h)(1)(A). I. Oliver
Engebretson, Inc. v Aruba Palm Beach Hotel & Casino (1984, SD NY) 575 F Supp 1262, 38 FR Serv 2d 1094.
Plaintiff showed good cause for protective order that would permit defendant to depose plaintiff telephonically or to
depose plaintiff in middle district of Florida at defendant's expense. Duran v M.R.R. Land Equity, Inc. (1986, MD Fla)
112 FRD 648.
Court should enter protective order which alters place of noticed deposition only where good cause for order is
shown. Chris-Craft Indus. Prods., Inc. v Kuraray Co. (1999, ND Ill) 184 FRD 605.
Where deposition of corporation is noticed to be taken at location other than corporation's principal place of
business, purposes of underlying general rule that depositions should proceed at corporation's principal place of
business create presumption that corporation has good cause for protective order. Chris-Craft Indus. Prods., Inc. v
Kuraray Co. (1999, ND Ill) 184 FRD 605.
Creditor's motion for protective order pursuant to Fed. R. Civ. P. 26(c), made applicable in bankruptcy proceedings
by Fed. R. Bankr. P. 7026, requiring Chapter 11 debtor to conduct deposition under Fed. R. Civ. P. 30(b)(6), made
applicable in bankruptcy proceedings by Fed. R. Bankr. P. 7030, at creditor's place of business in Peru rather than in
Connecticut, district where bankruptcy case was pending, was denied for lack of extreme hardship where (1) problem of
bearing litigation costs for ailing company was no less severe for debtor than for creditor; (2) if parties held video
deposition, creditor's representative would not have to again travel for trial; (3) debtor's costs in having its attorney and
court reporter travel to Lima, Peru, were double cost to having creditor's representative come to Connecticut; and (4)
Department of State's issuance of travel alert concerning travel to Peru additionally counseled denial motion. Doe Run
Peru S.R.L. v Handy & Harman Refining Group, Inc. (In re Handy & Harman Refining Group, Inc.) (2003, BC DC
Conn) 295 BR 179, 41 BCD 157.
In suit to recover possession of and quiet title to a 180-acre ranch, trial court did not abuse its discretion in granting
protective order limiting deposition of plaintiff to place of his residence. Kerman v Swafford (1984, App) 101 NM 241,
680 P2d 622.
c. Time of Discovery
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USCS Fed Rules Civ Proc R 26
426. State court action also pending
Where it appeared that actions were pending in state court covering same issues as those in the federal court action,
and that application for taking of testimony of certain of defendants and witnesses was not made until state action had
been consolidated and trial had begun, an alternative motion that the deposition should be deferred until disposition of
the actions in state court was granted; it was reasonable to assume that the examinations were sought primarily for use
in the state court actions, and this did not appear to be within the letter or the spirit of the Federal Rules of Civil
Procedure. Bachrach v General Inv. Corp. (1940, DC NY) 31 F Supp 84.
Motion by defendants to vacate notice for taking of depositions in derivative action brought by stockholder is denied,
but where similar actions are pending in state court and pretrial examination of same defendants is in process in state
court, alternative motion to postpone taking of depositions until completion of pretrial examination in state court is
granted, provided that defendants allow plaintiff adequate inspection of all depositions taken in state court. Finkelstein
v Boylan (1940, DC NY) 33 F Supp 657.
Where purpose of plaintiff's interrogatories appeared to be to aid in preparation of case pending in state court,
defendant's motion to stay answers until it appeared that interrogatories would be used in instant case was granted.
Beard v New York C. R. Co. (1957, DC Ohio) 20 FRD 607.
Motion to stay taking of deposition of officer of defendant corporation on ground of prevention of annoyance,
oppression, or embarrassment was denied, where allegation of defendant that pending state court action involved same
issues, and that taking of deposition would involve duplication of pretrial proceedings, was untenable. O'Donnell v
Richardson-Allen Corp. (1964, ED NY) 34 FRD 214, 8 FR Serv 2d 30B.31, Case 1.
427. Criminal prosecution also pending
Motion by government to dismiss interrogatories propounded by defendants, or to extend time to file objections or
answers until after the disposition of criminal prosecution against same defendants in an antitrust case, was granted as to
extension of time since furnishing of information would be contrary to policy of law against disclosure of prosecution's
case in advance of trial. United States v Linen Supply Institute, Inc. (1955, DC NY) 18 FRD 452.
Motion by government for an order deferring taking of any deposition by defendants in a civil action until
companion criminal case against the same defendants had been disposed of, was granted so far as it referred to
depositions which were sought against five individuals all of whom had appeared before grand jury which returned
indictment in the criminal case against the defendants. United States v Maine Lobstermen's Asso. (1958, DC Me) 22
FRD 199.
In suit by SEC to enjoin 5 defendants from engaging in certain practices, collateral to prosecution of 2 of same
defendants arising out of same transactions, where civil case would not be set for trial before disposition of criminal
case and Federal Rules of Criminal Procedure did not authorize taking depositions of prospective witnesses, but
information obtained would be used in both cases, subpoenas to take depositions in civil case would be quashed without
prejudice to right to discovery in civil case when criminal case was concluded. United States v Steffes (1964, DC
Mont) 35 FRD 24, 8 FR Serv 2d 30B.31, Case 2.
Where claimant filed interrogatories in action by United States, as libelant, for an adjudication forfeiting currency
seized by the United States in claimant's place of business, the libelant's motion to quash the interrogatories, without
prejudice, or to extend the time of libelant to answer until after the disposition of a criminal action instituted against
claimant, was granted to the extent that its time to file objections to the interrogatories or to respond thereto was
extended until after the disposition of the criminal action. United States v $ 2,437.00 United States Currency (1964,
ED NY) 36 FRD 257, 9 FR Serv 2d 30B.31, Case 2.
Plaintiff is not entitled to stay of discovery because he is under indictment and scheduled to go on trial. 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.
In civil action brought by SEC for injunction and disgorgement against defendant alleged to have purchased
securities on basis of inside information, defendant is not entitled to stay of action, including discovery, pending
completion of related criminal proceedings, notwithstanding his contention that theory of criminal liability is so lacking
in merit that pending grand jury inquiry should be regarded as strategem to pressure him into pleading Fifth
Amendment in civil depositions, thereby providing Government with basis for arguing that adverse inference should be
drawn in civil proceeding. SEC v Musella (1983, SD NY) CCH Fed Secur L Rep P 99156, 38 FR Serv 2d 426.
United States is not entitled to stay of discovery sought by claimant banks in context of proceedings for forfeiture of
money located in various bank accounts, notwithstanding its assertion that stay is necessary because information sought
would prejudice prosecution of president of bank which was at hub of money laundering scheme involving claimant
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USCS Fed Rules Civ Proc R 26
banks, as well as criminal investigation of claimant banks, where United States' allegations are conclusory and thus
insufficient to warrant stay of civil forfeiture action, and where scope and duration of requested stay are too indefinite.
United States v Banco Cafetero International (1985, SD NY) 107 FRD 361.
Stay of discovery in civil action was not warranted, despite fact that defendants were allegedly targets of continuing
grand jury investigations, since no indictments had been issued, and criminal investigation involved misconduct before
Food and Drug Administration while civil action essentially involved federal securities law so that it could not be said
that two actions would implicate same or substantially same public interest. Par Pharmaceutical Sec. Litig. (1990, SD
NY) 133 FRD 12, CCH Fed Secur L Rep P 95633.
Four-month stay of discovery in civil forfeiture proceeding would be granted because of pending criminal
investigation, and if indictments are not issued by that time court will consider partial discovery. United States v Any
& All Assets of Shane Co. (1992, MD NC) 147 FRD 99, mod on other grounds (1993, MD NC) 1993 US Dist LEXIS
15514.
Where corporate officers, defendants in fraud lawsuit, also had been indicted for bank fraud, and indictment arose
from same conduct underlying civil suit, court granted officers' Fed. R. Civ. P. 26(c) motion for protective order staying
discovery pending resolution of criminal case; plaintiff bank did not oppose motion, criminal case was proceeding,
officers had answered complaint by asserting their Fifth Amendment rights against self-incrimination, and in criminal
case, government had seized corporation's documents and records pertaining to transactions underlying fraud claims.
Am. Express Bus. Fin. Corp. v RW Prof'l Leasing Servs. Corp. (2002, ED NY) 225 F Supp 2d 263.
Where corporation, defendants in fraud lawsuit, also had been indicted for bank fraud, and indictment arose from
same conduct underlying civil suit, court granted corporation's Fed. R. Civ. P. 26(c) motion for protective order staying
discovery pending resolution of criminal case; plaintiff bank did not oppose motion; although corporation did not have
Fifth Amendment right against self-incrimination, individual defendants had invoked that right and it would be difficult
for corporation to defend itself in civil suit without individual defendants' assistance; and government's seizure, in
criminal case, of documents and records pertaining to transactions underlying fraud claims impeded corporation's ability
to respond to plaintiff bank's discovery requests. Am. Express Bus. Fin. Corp. v RW Prof'l Leasing Servs. Corp. (2002,
ED NY) 225 F Supp 2d 263.
428. Other particular circumstances
Secretary of Labor brought action against union to set aside election of officers, and union members who complained
of election were allowed to intervene; Secretary and intervenors moved for summary judgment; district court did not
abuse its discretion in granting protective order presenting union from continuing its discovery against Secretary until 5
days after ruling on summary judgment motion, and order did not deny union due process. Brennan v International
Brotherhood of Teamsters, etc. (1974) 161 US App DC 173, 494 F2d 1092, 85 BNA LRRM 2594, 73 CCH LC P 14353.
In action brought by nurse with respect to alleged negligently performed surgery, trial court did not abuse discretion
in scheduling deposition of one of doctor defendants 2 days before commencement of trial where record indicated that
during pre-trial hearing counsel for plaintiff described arrangement to depose defendant on day before trial as
satisfactory. Sanden v Mayo Clinic (1974, CA8 Minn) 495 F2d 221, 18 FR Serv 2d 1439.
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 properly conditioned grant of corporation's motion for protective order requiring defense to reschedule
deposition, on corporation's payment of one-half of defense counsel's round-trip air fare to New York, where
corporation's counsel, who would be unable to attend deposition in New York as scheduled, did not make motion until
late in afternoon of day before deposition, after defense counsel had already arrived in New York. National
Independent Theatre Exhibitors, Inc. v Buena Vista Distribution Co. (1984, CA11 Ga) 748 F2d 602, 1984-2 CCH Trade
Cases P 66311, 40 FR Serv 2d 954, reh den, en banc (1985, CA11 Ga) 755 F2d 176 and cert den (1985) 471 US 1056,
85 L Ed 2d 484, 105 S Ct 2120.
Contention by bank that depositions of its agents in action for an accounting by plaintiff against one of its depositors
should not be taken prior to determination by court that plaintiff is entitled to accounting is rejected since one purpose
of rules of discovery is to enable any party to obtain information that would aid in preparation for trial, and information
sought from bank is such as to assist plaintiff in preparing for trial on issue of right to an accounting. Fox v House
(1939, DC Okla) 29 F Supp 673, affd (1940, CA3 Del) 110 F2d 813.
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USCS Fed Rules Civ Proc R 26
Motion by plaintiffs, who were partners residing in Bolivia, for protective order fixing time at which they were
required to produce documents in response to notice for taking of their depositions, in which the plaintiffs objected to
producing certain documents as irrelevant and immaterial, was in effect denied in view of distance from place of trial of
plaintiffs' records, making it impracticable, if not impossible, to obtain such records after taking of the depositions was
commenced, it would be advisable for plaintiffs to produce all of documents called for by the motion, at time of taking
of their depositions, with matter of irrelevancy or immateriality of any of documents to be presented to court in due
course. MacDonald & Co. v Differential Steel Car Co. (1948, DC Ohio) 8 FRD 223.
Where both parties had filed motions for summary judgment, taking of depositions of certain officers of defendant
should be stayed until determination of motions for summary judgment; even if plaintiff desired information from
depositions for use in connection with his motion for summary judgment, any issue of fact as established by complaint
and answer could not be determined by subsequent affidavit or deposition. Klein v Lionel Corp. (1955, DC Del) 18
FRD 184.
Motion to vacate defendant's notice of examination of plaintiff was conditionally granted where it appeared that
plaintiff had, subsequently to beginning of the action, been deported to Trinidad; he must appear for examination in
New York within 60 days of the decision or have his action dismissed. Pierre v Bernuth, Lembcke Co. (1957, DC NY)
21 FRD 194.
Court denied plaintiff's Rule 26(c) motion for protective order to delay taking of his deposition by defendant until
plaintiff received copy of statement he made following accident to his employer, and fact plaintiff might have right to
statement under rules of discovery was not determinative. Smith v China Merchants Steam Navigation Co. (1972, ED
Pa) 59 FRD 178, 17 FR Serv 2d 1045.
Defendant's request for order that his oral deposition not go forward at this time was denied where it was clear that
defendant's position as mayor of Chicago was not cabinet level post in federal government and defendant was not joined
in action because of his exercise of official discretion, but rather because of his alleged active participation in illegal
activity. Alliance to End Repression v Rochford (1976, ND Ill) 75 FRD 428.
Party failed to show any extraordinary circumstances justifying order permitting discovery during stay of
proceedings pending arbitration and in fact admitted that it sought to depose witnesses because their testimony would be
important in arbitration proceeding. Harry F. Ortlip Co. v George Hyman Constr. Co. (1989, ED Pa) 126 FRD 494.
Protective order staying discovery until resolution of movant's summary judgment motion would be granted where
opposing party did not argue that disclosure was necessary for its response to summary judgment motion. Dashiell v
Montgomery County (1989, DC Md) 131 FRD 102, 134 BNA LRRM 2241.
Motion to stay discovery in securities class action pending disposition of motions to dismiss and certify class would
be denied since defendants merely argued in conclusory fashion that there motions to dismiss would succeed and that
plaintiff class would not be certified and order staying discovery pending class certification would be unworkable since
plaintiffs must be able to develop facts in support of their class certification motion. Gray v First Winthrop Corp.
(1990, ND Cal) 133 FRD 39, CCH Fed Secur L Rep P 95724.
Newspaper was entitled to stay of discovery in defamation action pending ruling on its summary judgment motion
since gravamen of summary judgment motion was newspaper's argument that court must determine as matter of law
whether words or phrases used were sufficiently factual to be susceptible of being proved true or false and plaintiff had
not persuasively shown that such determination required scrutiny beyond challenged publication. Moldea v New York
Times Co. (1990, DC Dist Col) 137 FRD 1, 18 Media L R 1717.
Antitrust defendant was not entitled to stay of discovery pending disposition of its dismissal and summary judgment
motions since, even if its motions were granted, plaintiffs and remaining defendants were likely to continue to conduct
discovery with respect to moving party as material witness. Hachette Distribution, Inc. v Hudson County News Co.
(1991, ED NY) 136 FRD 356, 1991-2 CCH Trade Cases P 69580.
Disclosure of photograph allegedly showing another registered nurse improperly using blood product paraphernalia
was not required until after witness shown in photograph, as well as plaintiff and other affected witnesses, had been
deposed; photograph was relevant to plaintiff's claims that other nurses had committed allegedly unsafe practices, and
prior recording of witnesses' sworn statements would avoid any temptation to alter testimony in light of photograph.
Tisby v Buffalo Gen. Hosp. (1994, WD NY) 157 FRD 157.
Discovery in habeas proceedings is limited to that allowed by Federal Rules of Civil Procedure, which do not
provide for pre-petition or pre-complaint discovery except in very limited circumstances; even though habeas
proceedings are not subject to Fed. R. Civ. P. 26(f)'s timing restriction for discovery, habeas proceedings are governed
by Federal Rules, which do not allow pre-petition discovery. Orbe v True (2002, ED Va) 201 F Supp 2d 671.
3. Substitution of Another Type of Discovery [Rule 26(c)(3)]
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USCS Fed Rules Civ Proc R 26
429. Generally
While a party is generally free to choose its method of discovery, it does not have an absolute right so to do and upon
a showing of good cause the court may alter the manner or place of discovery as it deems appropriate. Colonial
Capital Co. v General Motors Corp. (1961, DC Conn) 29 FRD 514, 5 FR Serv 2d 433.
430. Substitution of written interrogatories
The fact that the libelant, instead of presenting his claim to a tribunal in Bombay, where most of the witnesses were
located, brought his action to a federal court in New York did not disentitle him to invoke the protection afforded by
Rule 26, and as denial of his motion that his deposition be taken only on written interrogatories was not based on actual
need for oral examination, dismissal of the libel on its merits because the libelant failed to appear for pre-trial
examination was improper, as the federal courts are open to foreign suitors as to others, and procedural rules are not to
be construed so as to impose conditions on litigants which amount to a denial of jurisdiction. Hyam v American Export
Lines, Inc. (1954, CA2 NY) 213 F2d 221.
Admission of deposition of doctor taken in Hong Kong is not error despite fact that appellant was not represented at
its taking since deposition was taken on notice and no objection to notice was interposed; had appellant wished to avoid
expense of retaining counsel in Hong Kong to represent him, he could have moved for an order of protection to require
use of written interrogatories, but where appellant raises objection for first time at trial, when it is too late to secure
essential testimony of the doctor in any other manner, he must be regarded as having waived his right to cross-examine.
Wong Ho v Dulles (1958, CA9 Cal) 261 F2d 456, 1 FR Serv 2d 456.
As a matter of discretion, if depositions are taken abroad, and undue traveling expenses are involved, the adverse
party may employ local counsel or after the depositions have been taken and examined, address written
cross-interrogatories to the deponents; if the answers to the first set of cross-interrogatories are incomplete, leave to file
further cross-interrogatories may be sought. The Italia (1939, DC NY) 27 F Supp 785.
The notice of examination bearing internal evidence that defendants intended to conduct brief examinations of
witnesses residing in several distant cities, the court, in the alternative, ordered that the depositions be taken by written
interrogatories in order to save traveling expenses. Moore v George A. Hormel & Co. (1942, DC NY) 2 FRD 340, 53
USPQ 677.
Where it appeared that corporate defendants had their principal place of business in Denmark, and individual
defendant resided there, examination of these defendants should be conducted in Denmark rather than in New York, as
noticed by plaintiff; such examination should be conducted by written interrogatories rather than oral depositions, but if,
on return of the interrogatories and answers, they are shown to be insufficient, plaintiff might apply for taking testimony
by oral deposition. Isbrandsten v Moller (1947, DC NY) 7 FRD 188.
Examination on written interrogatories only was ordered in action by an administrator for death of former employee
of defendant, where plaintiff was resident of California and intestate's family resided there, and defendant was Kentucky
corporation with its principal office in Los Angeles and an office in New York State; fact that defendant questioned
plaintiff's status and his right to maintain the action did not require oral depositions, since such matters could easily be
developed upon written interrogatories, and certified copies of court's records could be obtained without examining
plaintiff. Butts v Southern Pac. Co. (1947, DC NY) 7 FRD 194.
Notice served by defendant to take deposition in New York of president of plaintiff, a resident of Korea, in an action
involving less than $ 9,000, is vacated and examination is limited to written interrogatories, since action, which is
ordinary goods-sold-and-delivered action with counterclaim based upon breach of warranty, presents no unusual or
difficult features which makes oral examination essential. Taejon Bristle Mfg. Co. v Omnex Corp. (1953, DC NY) 13
FRD 448.
Motion by plaintiff, resident of New Mexico, to vacate order for taking of her deposition in Missouri, where suit has
been started, is granted since deponent was not eyewitness to accident involved in suit and can only testify concerning
family relationship and dependency; under the circumstances complete examination can be made through deposition
upon written interrogatories, but new notice to take her deposition orally may be served if she should fail to answer,
fully and nonevasively, written interrogatories. Robinson v Tracy (1954, DC Mo) 16 FRD 113.
Written interrogatories ordered in place of requested oral examination where it has been shown that it would
constitute hardship for prospective deponent to attend an oral examination, and nature of the issues involved is such that
written questions would be adequate. Perry v Edwards (1954, DC Mo) 16 FRD 131; Kurt M. Jachmann Co. v Hartley,
Cooper & Co. (1954, DC NY) 16 FRD 565; Endte v Hermes Export Corp. (1957, DC NY) 20 FRD 162.
Corporate defendant's deposition taken through honorary chairman of board of directors was ordered taken on
written interrogatories in first instance with right subsequently to take deposition on oral examination if necessary
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USCS Fed Rules Civ Proc R 26
where chairman was almost completely deaf and had no knowledge of any of the matters alleged in the complaint and
chairman could give complete and accurate answers to questions only if he had the exact questions before him in
writing. Colonial Capital Co. v General Motors Corp. (1961, DC Conn) 29 FRD 514, 5 FR Serv 2d 433.
Corporate defendant's deposition taken through chairman of board and chief executive officer was ordered taken on
written interrogatories without prejudice to the subsequent taking of such deposition on oral examination if warranted
where plaintiff had already taken the depositions of twelve officers and employees of corporate defendant and officer
had no personal knowledge of the matters in the suit and officer desired to be examined on written interrogatories in
order to minimize the amount of time he must take from his duties. Colonial Capital Co. v General Motors Corp.
(1961, DC Conn) 29 FRD 514, 5 FR Serv 2d 433.
Whether depositions on written interrogatories in lieu of oral examination will be ordered is in the discretion of the
court, and in the absence of special circumstances the court should ordinarily allow the examining party to choose his
own mode of examination. Interlego A. G. v Leslie-Henry Co. (1963, MD Pa) 32 FRD 9, 6 FR Serv 2d 580.
Motion of defendants to vacate plaintiff's notices to take deposition of corporate officer was granted where under
circumstances plaintiff's purpose would be adequately served by means of written interrogatories. Mitchell v American
Tobacco Co. (1963, MD Pa) 33 FRD 262, 7 FR Serv 2d 534.
In action by plaintiff challenging integrity of departmental hearing wherein plaintiffs were dismissed from New York
City Police Department, and where plaintiffs sought to depose 5 non-party witnesses and defendants filed motion for
protective order to prevent those depositions, District Court granted motion with regard to 3 witnesses to extent that
plaintiff shall be limited to depositions upon written questions involving narrow issues even though plaintiff wished to
explore decision making process of hearing officer, prosecutor, and assistant district attorney, since although such
processes are not generally subject to discovery, where party has made prima facie showing that decision is tainted by
impropriety, inquiry into process may be made and here plaintiff met burden by alleging, in addition to presence of
general atmosphere of bias created by media stories, fact that prosecutor had indicated to plaintiffs' counsel that matter
would not have proceeded to trial stage but his superiors had ordered continuation of matter. McGoldrick v Koch
(1986, SD NY) 110 FRD 153.
431. --Oral examination upheld
Preference of defendant for deposition of witness on oral examination instead of written interrogatories was a
reasonable choice. Clair v Philadelphia Storage Battery Co. (1939, DC Pa) 27 F Supp 777.
Mere assertion by plaintiff that defendant could obtain by written interrogatories sufficient information to make
unnecessary the taking of oral deposition is insufficient to warrant protective action; there are obvious advantages in
confronting examination over written one and there is no way of determining whether plaintiff's assertion that defendant
can get sufficient information is true. Goldberg v Raleigh Mfrs., Inc. (1939, DC Mass) 28 F Supp 975.
Motion that a notice to take oral depositions be vacated or that depositions be taken upon written interrogatories is
denied where case involves large sums, construction of long contract, and counterclaim based on 12 separate counts;
difficulties of coverage of the subject matter through written interrogatories are apparent by reason of suits magnitude
and diversity, and purposes of Rule 26 would be best served by oral examination. Canuso v Niagara Falls (1945, DC
NY) 7 FRD 159.
Motion to substitute written interrogatories for oral deposition denied where it appeared that deposition had already
been improperly taken in absence of plaintiff. Savage v Isthmian S.S. Co. (1946, DC Pa) 6 FRD 311.
Alternative motion by plaintiffs that their depositions be taken on written interrogatories, rather than requiring them
to travel from California to Michigan for oral depositions, denied where action alleged conspiracy by defendant to
monopolize showing of first-run pictures in Detroit area, since it was already foreseeable that the case would have great
complexity and many ramifications, and written interrogatories would not adequately serve defendants' purposes.
Society of Independent Motion Picture Producers v United Detroit Theatres Corp. (1948, DC Mich) 8 FRD 453.
Where reasons advanced by the deponent for substitution of written interrogatories are regarded as insufficient to
deprive other party of his right to his own choice of discovery methods, notice for taking of an oral deposition would be
upheld. Hirsch v Glidden Co. (1948, DC NY) 79 F Supp 729, 78 USPQ 194; Greenberg v Safe Lighting, Inc. (1959,
SD NY) 24 FRD 410, 2 FR Serv 2d 464; Interlego A. G. v Leslie-Henry Co. (1963, MD Pa) 32 FRD 9, 6 FR Serv 2d
580.
Plaintiff's motion to limit notice for taking of her deposition to written interrogatories was denied where nature of the
defense and necessity for confronting and questioning plaintiff with regard to original documents bearing her signature
indicated necessity for oral examination. Groll v Stolkin (1951, DC NY) 12 FRD 262.
Allegations that plaintiff's physical condition was such that he must avoid nervous tension and that mental stress or
strenuous excitement might produce serious impairment of his health, together with straitened financial circumstances,
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was insufficient to warrant granting of his motion that notice for his oral examination in New York be vacated and that
examination be taken upon written interrogatories. Montgomery v Sheldon (1954, DC NY) 16 FRD 34.
Motion that written interrogatories be substituted for oral depositions of officers of a corporation was denied since
respondent should have benefit of more complete technique of oral deposition. Williams F. Jobbins, Inc. v American
Export Lines, Inc. (1954, DC NY) 16 FRD 178.
There is no burden on party seeking deposition on oral examination to show that written interrogatories would not be
sufficient for his purposes. Greenberg v Safe Lighting, Inc. (1959, SD NY) 24 FRD 410, 2 FR Serv 2d 464.
Defendant's request that discovery by written interrogatories be substituted for oral deposition was denied where all
defendants in case were hostile to plaintiffs' suit, examination of discovery objections raised by defendants since outset
of litigation indicated defendants' intention to resist any significant disclosure at every step, all interrogatories directed
to defendant were objected to on grounds that could have been mooted by defendant's own reasonable cooperation, and
defendants indicated no willingness to cooperate in discovery matters in order to move litigation forward. Alliance to
End Repression v Rochford (1976, ND Ill) 75 FRD 428.
432. Substitution of oral examination
Where circumstances appeared to warrant such action, court entered orders canceling written interrogatories and
providing that examination be conducted orally. Fall Corp. v Yount-Lee Oil Co. (1938, DC Tex) 24 F Supp 765; Lago
Oil & Transport Co. v United States (1951, DC NY) 97 F Supp 438; Vareltzis v Luckenbach S.S. Co. (1956, DC NY) 20
FRD 383.
Request that oral examination be substituted for written interrogatories would be denied where facts shown are
deemed insufficient to warrant the change. Spotts v O'Neil (1939, DC NY) 30 F Supp 669; Baron v Leo Feist, Inc.
(1946, DC NY) 7 FRD 71, 72 USPQ 107.
After plaintiff had served notice that it would take depositions of seven witnesses in China on written interrogatories,
defendant's motion for leave to cross-examine witnesses orally on the taking of depositions was granted; circumstances
were such that defendant should have such leave and plaintiff might either have direct examination orally as well as a
redirect, or it might adhere to its written interrogatories on direct and have an oral redirect. Winograd Bros., Inc. v
Chase Bank (1939, DC NY) 31 F Supp 91.
Motion by defendant bank, in action to adjudicate rights of all parties to a deposit, for leave to cross-examine orally a
witness whose deposition was to be taken upon written interrogatories in Paris, France, was denied where it appeared
that the witness had been examined and cross-examined orally in another suit in state court on much the same subject
matter, and bank was taking deposition of another Russian lawyer on same issue, using written interrogatories; in view
of situs of the examination and expense of attendance upon an oral examination, granting of the motion would give
defendant bank an advantage which was unwarranted. United States v National City Bank (1940, DC NY) 1 FRD 367.
Where interrogatories addressed by defendant to the plaintiff were numerous and called for information in great
detail and plaintiff contended that much of information sought had been furnished in its bills of particulars, and where
interrogatories were being utilized to discover matters which could better and more conveniently be discovered by oral
examination, discovery is limited to taking of plaintiff's deposition by oral examination. New England Terminal Co. v
Graver Tank & Mfg. Corp. (1940, DC RI) 1 FRD 411.
Motion to substitute oral examinations for written interrogatories is denied but such, substitution might be made if
moving party paid expenses of the other party in attending taking of the oral deposition. Houghton Mifflin Co. v
Stackpole Sons, Inc. (1940, DC NY) 1 FRD 506, 47 USPQ 228.
Where plaintiff moved to strike out defendant's interrogatories served without permission of court, after plaintiff had,
by leave of court, served an amended complaint after deposition of plaintiff had been taken and completed, defendant
might examine plaintiff solely upon any new issue created by the amended complaint, but such examination, in interest
of speeding approaching trial of the case, should be oral. Pleska v Curtiss-Wright Corp. (1945, DC NY) 7 FRD 149.
Where plaintiff had submitted written interrogatories to certain witnesses, defendant's motion to cross-examine
deponents orally in connection with such written interrogatories was denied; defendant could submit counter or cross
interrogatories and if from the answers it appeared that justice required such action, defendant might be authorized to
take oral depositions of the deponents. J. C. Nichols Co. v Mid-States Freight Lines, Inc. (1949, DC Mo) 9 FRD 553.
Application by defendant for issuance of commission to take depositions of three witnesses in France on written
interrogatories is denied where evidence of French witnesses is sought as to whether or not plaintiff was intoxicated at
time of his injury in returning to the ship since issue is not so complex as to require need for an oral cross-examination;
plaintiff must attempt to conduct his examination by cross interrogatories and if after receipt of answers to such
interrogatories, it appears that further cross-examination is necessary, plaintiff may apply for an order permitting this
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oral deposition on such terms and conditions as might seem proper. Wheeler v West India S.S. Co. (1951, DC NY) 11
FRD 396.
Court denied respondent's motion for examination of libellant before trial where it appeared on argument that
information sought could be obtained by interrogatories. Virginia-Carolina Chemical Corp. v Conners-Standard
Marine Corp. (1956, DC NY) 144 F Supp 676.
Court would grant motion for protective order under Rule 26(c)(3) made by defendants who objected to battery of
detailed interrogatories and sought protection in form of order directing plaintiff to proceed by way of oral deposition
instead, where plaintiff had resorted to written interrogatories not for purpose of obtaining information which might lead
to discovery of admissible evidence, but rather in naked attempt to procure evidence directly. Fishman v A. H. Riise
Gift Shop, Inc. (1975, DC VI) 68 FRD 704, 21 FR Serv 2d 777.
Although defendant was entitled to requested information, it must be obtained through depositions since information
requested in interrogatories was clearly beyond scope of limited information obtainable through interrogatories from
expert witnesses designated to testify at trial. Bottorff v Bethlehem Steel Corp. (1990, ND Ind) 130 FRD 97.
433. Substitution of written deposition
Court will grant defendants' motion for order that deposition be completed by use of written questions, where
defendants began plaintiff's deposition pursuant to notice which stated that deposition would continue from day to day
until completion unless parties agreed otherwise, and where, defendants' counsel having finished their questioning of
plaintiff, plaintiff proceeded to "ask" himself questions and then suggested that deposition be adjourned to later date.
Nash v Heckler (1984, WD NY) 39 FR Serv 2d 119.
In antitrust case charging piping construction companies and individuals with bid-rigging, price-fixing, and job
allocation over period in excess of 20 years, court will overrule defendants' objections to interrogatories on grounds that
answering would be burdensome and expensive, and that information sought may be obtained more inexpensively
through depositions, where information sought is fundamental to resolution of dispute on merits, lawsuit is complex,
encompassing innumerable individual actors and events, and presenting important substantive issues, and there is no
showing of financial weakness of any defendant so as to make interrogatories especially burdensome; fact that
defendants want attorneys to carry out investigation necessary to answer interrogatories to guard against prejudice that
might result from flippant, careless, or inaccurately recorded response from any of numerous persons to be interviewed
is not proper objection where choice to proceed with such caution is defendant's own and any careless or flippant
remark may easily be edited out in preparing answers; defendants may not assert burdensomeness arising from necessity
to warn persons to be interviewed of fact that criminal prosecution might result from answers and to suggest obtaining
lawyer, since that is attempt to assert Fifth Amendment rights of those individuals, which rights are personal and may
not be asserted vicariously; and defendants mere assertion that information can be obtained more inexpensively by
depositions, does not explain why it is more efficient for plaintiffs to seek information by that circuitous route rather
than by direct questions to defendants themselves. 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.
434. Miscellaneous
In action against foreign defendant where plaintiff sought order to compel defendant to answer interrogatories and to
comply with document request, and defendant requested protective order pursuant to Rule 26(c) suggesting that plaintiff
secure information sought by alternate means, District Court denied request for protective order stating that although a
court may invoke principles of international comity when party could be subjected to penalties under foreign law, in this
case United States had vital interest in integrity of judicial system, defendant had conducted business in United States,
possible systematic intrusion posed by plaintiff's discovery request was limited, and any intrusion on foreign
sovereignty would be restricted since actual discovery process could be performed outside foreign territory, and Court
stated it was not obligated to conform to foreign limitations. First Nat'l Bank v Reinhart Vertrieb's AG (1986, ND Ill)
116 FRD 8.
Motion quashing subpoena of regional director of job corps would be granted where he would not be called to testify
and any information he would have was contained in agency's file which was already in possession of counsel seeking
deposition. Wade v Singer Co. (1990, ND Ill) 130 FRD 89.
4. Excluding Certain Matters or Limiting Discovery [Rule 26(c)(4)]
a. In General
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USCS Fed Rules Civ Proc R 26
435. Generally
District Court may limit discovery "for good cause" under Rule 26(c)(4) and may continue to stay discovery when it
is convinced that plaintiff will be unable to state claim for relief. Wood v McEwen (1981, CA9 Cal) 644 F2d 797, cert
den (1982) 455 US 942, 71 L Ed 2d 654, 102 S Ct 1437.
A party proceeding to take depositions may not move to limit the scope of the examination. Barrezueta v Sword
S.S. Line, Inc. (1939, DC NY) 27 F Supp 935.
Motion to limit scope of pretrial examination will not be granted where party seeking such protective order does not
make sufficient showing of reason for such limitation and merely objects that request for such examination is too broad.
Goldberg v Raleigh Mfrs., Inc. (1939, DC Mass) 28 F Supp 975.
Examinations before trial should not be limited to the precise issues presented by the pleadings. Stevenson v Melady
(1940, DC NY) 1 FRD 329.
Court may limit scope of oral examination to those matters which are directly relevant and material to the litigation
in which the examination is sought. In re Coronet Metal Products Corp. (1948, DC NY) 81 F Supp 500.
When a limitation order is sought the application should be made by the person to whom the subpoena duces tecum
is directed. Shepherd v Castle (1957, DC Mo) 20 FRD 184.
The power of the court to limit the scope of an examination under Rule 26(b) should not be exercised in the absence
of a showing that the examination is being conducted in bad faith and in such a manner as to unreasonably annoy,
embarrass or oppress the opposite party. Russo v Merck & Co. (1957, DC RI) 21 FRD 237.
Until such time as the court is satisfied that bad faith or harassment motivates the movers' action, the court will not
intervene to limit the scope of pre-trial discovery. Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5
FR Serv 2d 517.
Magistrate judge may, in course of supervising discovery, condition direction for expedited production of documents
upon temporary restriction barring counsel receiving papers from showing them to anyone else, including client, until
proper treatment of items is sorted out later; flexibility in managing expedited document discovery authorized by Rule
34(b) and similar provisions is crucial to workability of accelerated disclosures when needed, and deferment of disputes
concerning controversial potential uses of information is vital to immediate production for purposes that are not
disputed. Chambers v Capital Cities/ABC (1994, SD NY) 157 FRD 3.
436. Matters pertaining to jurisdiction
Motion for an order directing defendant to refrain from "propounding questions to plaintiff's officers and employees
directed to lack of jurisdiction of this Court" was denied where defendant had noticed the taking of depositions of the
officers prior to filing its answer to complaint and intended to interrogate them with respect to facts bearing on question
of existence of a controversy between the parties. Technical Tape Corp. v Minnesota Mining & Mfg. Co. (1955, DC
NY) 18 FRD 318, 107 USPQ 118.
Protective order was unnecessary where discovery measures involved only facts relevant to question of jurisdiction
over defendant. Commonwealth Oil Refining Co. v Houdry Process Corp. (1958, DC Puerto Rico) 22 FRD 306, 1 FR
Serv 2d 450.
In stockholder's derivative action, court limited proposed deposition of plaintiff to facts material to plaintiff's
jurisdictional allegations and his standing to maintain the action. Bauer v Servel, Inc. (1958, SD NY) 168 F Supp 478, 1
FR Serv 2d 410.
437. Privileged matters
Trust company and its law firm failed to sustain their burden of demonstrating that they would sustain specific injury
from public dissemination of privileged documents disclosed pursuant to stipulated confidentiality agreement between
parties sufficient to warrant entry of umbrella protective order; general allegations of injury to reputation and client
relationships or embarrassment is insufficient. Glenmede Trust Co. v Thompson (1995, CA3 Pa) 56 F3d 476, 23 Media
L R 2036, 32 FR Serv 3d 889, motions ruled upon (1995, ED Pa) 1995 US Dist LEXIS 18780.
In mother's action against county social services agency and private agency for rape of her daughter by foster child
who was under defendants' care at time, court would not recognize federal privilege barring release of information about
child's allegedly violent sexual propensities, where child, now adult, expressly waived his interests in confidentiality of
information, and Rule 26 was sufficiently flexible to fashion protective order to protect third parties' legitimate interests
in confidentiality of information about themselves, without regard to restrictions of state statutes. Pearson v Miller
(2000, CA3 Pa) 211 F3d 57.
Motion by defendant to limit pretrial examination of doctor and nurse so as to exclude any testimony with reference
to physical and mental condition of plaintiff's decedent on ground of privilege was denied in action to recover damages
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USCS Fed Rules Civ Proc R 26
for death of a patient by suicide; under New York law plaintiff as representative of deceased had right to waive the
privilege, since the testimony, if indicating that deceased was insane, would not tend to disgrace his memory, but would
rather explain an otherwise reprehensible act of suicide. Stiles v Clifton Springs Sanitarium Co. (1947, DC NY) 74 F
Supp 907.
Plaintiff alleging employment discrimination was not entitled to discovery of names, addresses, and telephone
numbers of other employees who had filed similar employment discrimination claims with Equal Employment
Opportunity Commission or other agencies, since such information is privileged and disclosure would have chilling
effect on future complaints. Guruwaya v Montgomery Ward, Inc. (1988, ND Cal) 119 FRD 36, 60 BNA FEP Cas 811,
48 CCH EPD P 38564.
Writer of report containing allegedly libelous statement about product manufactured by plaintiff was not required to
divulge source of information since information had been given to writer on condition that source be accorded
anonymity, breach of this guarantee of confidentiality would be likely to impede free flow of information to writer in
future, identity of source would not directly bear upon truth or falsity of allegedly libelous statement, and since plaintiff
had been apprised of content of conversations between unnamed source and doctor who conducted tests on product as
well as time frame within which conversations took place, doctor should be able to identify source for plaintiff.
Summit Technology, Inc. v Healthcare Capital Group, Inc. (1992, DC Mass) 141 FRD 381, 19 Media L R 2180.
Discovery by former bank executive relating to his allegations of covert relationships between CIA and
defendants--bank/employer and corporation for which executive had handled letters of credit--would be precluded on
grounds of state secrets privilege; accidental disclosure could not be viewed as affirmative waiver by government,
personal examination of every document by CIA Director was not required, and even circumstantial evidence of any
relationship between CIA and defendants would be precluded since defendants' responses would go to heart of state
secrets that must be protected. Maxwell v First Nat'l Bank (1992, DC Md) 143 FRD 590, affd without op (1993, CA4
Md) 998 F2d 1009, reported in full (1993, CA4 Md) 1993 US App LEXIS 17511 and cert den (1994) 510 US 1091, 127
L Ed 2d 214, 114 S Ct 920.
Police documents which had been redacted to exclude identifying information concerning police officers, their
families, and complaining witnesses, should not be designated as confidential in police misconduct suit. Sasu v
Yoshimura (1993, ND Ill) 147 FRD 173, 27 FR Serv 3d 851.
Court would adopt special procedure for invoking official information privilege before it would look at police
documents in camera and before it would entertain discovery conference to compel documents; party receiving request
must serve and file objection for each document it believes privileged and sufficiently identify documents to afford
requesting party opportunity to challenge assertion, and assertion of privilege must be accompanied by affidavit from
responsible official, parties shall meet and attempt to reach agreement, and only if they cannot shall they call court for
discovery conference. Hampton v City of San Diego (1993, SD Cal) 147 FRD 227.
Michigan order, by facially prohibiting products liability defendant's litigation consultant from testifying as to
matters outside scope of any privilege violated Georgia public policy and would not be given full faith and credit.
Williams v General Motors Corp. (1993, SD Ga) 147 FRD 270.
Defendant's motion for protective order covering information he was allegedly prohibited from disclosing by laws of
Switzerland would be denied since U.S. has strong interest in private enforcement of RICO and securities laws and
Swiss government, despite opportunity to do so, had not expressed any view or attempted to intervene to prevent
disclosure, and applicability of Swiss secrecy laws was not at all clear. Alfadda v Fenn (1993, SD NY) 149 FRD 28,
CCH Fed Secur L Rep P 97602.
In action alleging medical malpractice by physician and administrative negligence in hospital's failure to supervise
physician, utilization review committee documents were privileged but plaintiffs' need for information was sufficiently
compelling to overcome privilege, and doctor-patient privilege did not shield access to peer review materials regarding
other patients' files so long as personal identifying material was redacted; documents' indications that 20 times in year
preceding childbirth in question physician failed to be available for delivery were clearly relevant to plaintiffs' claim of
noticeable decrease in quality of physician's medical care and that hospital was negligent for not removing him. Todd v
South Jersey Hosp. Sys. (1993, DC NJ) 152 FRD 676, 43 Soc Sec Rep Serv 784.
Defendant was not entitled to protective order barring his income tax returns from disclosure since they were
relevant to whether he was paid all money due under contract in issue and defendant did not show alternate source from
which plaintiff could obtain relevant information. Fort Wash. Resources v Tannen (1994, ED Pa) 153 FRD 78.
Information gleaned from defense contractor's DOD-mandated fraud hotline is not privileged, in absence of statutory
law, regulation, or common law, so as to protect information received via it concerning workers' compensation claim at
issue, nor were ensuing documents prepared by contractor's general counsel protected by work product doctrine, even
though prepared in anticipation of possible litigation against worker to recover any wrongfully paid benefits, since
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contractor was not party to worker's action against manufacturer of hydraulic cylinder which injured him. Johnson v
Standex Int'l Corp. (1994, ED Va) 153 FRD 80.
Corporate and individual defendants sued in connection with federal tax liens were not entitled to protective order
providing that any testimony from individual could not be used against individual defendant in criminal action since
defendants failed to show that limited preclusion remedy sought by government, i.e., that defendant's testimony on
behalf of corporation be precluded if he was unwilling to be deposed, in any way burdened their Fifth Amendment
privilege, there were no special circumstances warranting protective order but only defendant's naked desire to avoid
prosecution, and individual indicated no willingness to testify under terms of protective order. United States v Talco
Contrs. (1994, WD NY) 153 FRD 501.
Renovation contractor was not entitled to order compelling discovery of ongoing settlement negotiations between
parties to failed renovation project since discovery might destroy settlement negotiations, parties to negotiations
involved at least one non-party to contractor's actions, namely FDIC, and contractor was unable to make particularized
showing that evidence sought was relevant and likely to lead to admissible evidence since its assertions that it would be
in position to assert creditor status as to one of parties was unsupported. Lesal Interiors v Resolution Trust Corp.
(1994, DC NJ) 153 FRD 552.
Contents of personnel file of race discrimination plaintiff's replacement was clearly within scope of Rule and went to
issue of pretext, but disclosure would also constitute invasion of privacy, hence file would be ordered produced subject
to protective order. Miles v Boeing Co. (1994, ED Pa) 154 FRD 112, 65 CCH EPD P 43190.
Untimely offer of privilege log was insufficient to convince court to reconsider its prior ruling denying protective
order for documents claimed to be privileged since plaintiffs had failed to provide adequate facts in support of their
objections to discovery to permit adverse party to evaluate merits of objection or challenge it, defendants had provided
privilege log, and plaintiffs clearly admitted that delay in preparing privilege log until relevancy arguments had been
resolved or they were ordered to do so was deliberate, but had failed to seek relief under Rule 26(c) for allegedly
burdensome requests. Rural Water Sys. Ins. Benefit Trust v Group Ins. Adm'rs (1995, DC Kan) 160 FRD 605.
Defendant's internal affairs investigatory documents and witness statements could not be shielded by self-critical
analysis privilege from discovery by plaintiff who alleged § 1983 violation by defendant's police officers' use of
excessive force in arresting him for outstanding misdemeanor and traffic warrants, since there is no empirical support
for contention that possibility of disclosure would reduce candor of officers who contribute to such investigations, and
notion that police departments should be able to completely shield their internal investigatory process from public
offends basic notions of openness and public confidence in justice system. Soto v City of Concord (1995, ND Cal) 162
FRD 603.
FRCP 26(b)(3), which requires party seeking discovery to show it has substantial need of materials in preparation of
party's case and that party is unable without undue hardship to obtain substantial equivalent of materials by other means,
appears to limit discovery by one party only against another party; however, despite fact that FRCP 26(b)(3) seems to
give insufficient protection to material prepared in connection with some other litigation, court can vindicate purposes
of work product rule by issuance of protective order under FRCP 26(c). Genevit Creations v Underwriters at Lloyd's
(1996, ED NY) 166 FRD 281, 35 FR Serv 3d 710.
438. --Attorney-client privilege
District court did not commit clear error when it limited access to habeas petitioner's trial counsel's file to Attorney
General's use only for purposes of pending habeas litigation in which petitioner claimed ineffective assistance of
counsel, and that restriction would continue after conclusion of habeas proceedings and would apply in event of retrial
of all or portion of petitioner's criminal case. McDowell v Calderon (1999, CA9 Cal) 197 F3d 1253, 99 CDOS 9363, 99
Daily Journal DAR 12100.
In federal habeas corpus case in which ineffective assistance of counsel claims were raised, district court properly
entered protective order under Fed. R. Civ. P. 26(c) precluding use of attorney-client privileged materials for any
purpose other than litigating petition, as Court of Appeals adopted narrow waiver rule holding that inmate's waiver
extended only to federal habeas petition, and that privilege was not waived for all time and all purposes, court held that
narrow waiver rule also applied to attorney work product. Bittaker v Woodford (2003, CA9 Cal) 331 F3d 715, 2003
CDOS 4773, 2003 Daily Journal DAR 6078 (criticized in Fears v Bagley (2003, SD Ohio) 2003 US Dist LEXIS 15021).
Motion to restrict depositions of certain witnesses to be taken by defendant is denied although plaintiff claims
matters involved in particular phase of depositions are privileged communications between attorney and client since
depositions also include statements from officers and employees of plaintiff which are not privileged. Brockway Glass
Co. v Hartford-Empire Co. (1941, DC NY) 36 F Supp 470, 48 USPQ 371.
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USCS Fed Rules Civ Proc R 26
Defendant wholesale distributor of periodicals and paperbacks, in action by United States for civil penalties and
equitable relief for violation of FTC final order to divest and to cease and desist, is entitled to protective order
prohibiting government questioning of executive as to what was said at meeting of defense counsel and executives of
publishing company regarding company's decision to cease doing business with wholesale agencies; privilege
constitutes exception for information exchanged in order to facilitate representation of clients on matters of common
interest in pending and future proceedings. United States v ARA Services, Inc. (1978, ED Mo) 26 FR Serv 2d 580.
Order protecting identity of 65,000 documents selected for copying out of 660,000 documents provided by defendant
would not be granted to plaintiff on grounds of work product privilege since fact that plaintiff selected certain
documents would ultimately be revealed either in depositions, interrogatories, or exhibit lists and it is highly unlikely
that defendant would be able to discern plaintiff's theory of case or thought processes simply by knowing which
documents had been selected for copying. In re Shell Oil Refinery (1989, ED La) 125 FRD 132.
Work-product privilege is not broad enough to prohibit all inquiry regarding information received from working with
counsel, obtained after institution of litigation, learned while working with counsel or other colleagues, and all
information learned while reviewing documents or having conversations in connection with litigation so that objection
to depositions on basis of such privilege was invalid. United States v Pepper's Steel & Alloys (1990, SD Fla) 132 FRD
695.
Attorney's mere presence at meetings was insufficient basis for blanket protective order as to all such meetings and
communications and defendants would be required to specify proper basis for their objections. Seal v University of
Pittsburgh (1990, WD Pa) 135 FRD 113.
Court was unable to determine from parties' representations of viability of attorney-client or work-product privilege
applicable to deposition testimony of attorney hired by excess insurer to monitor litigation, hence court would preside
over deposition. Pacific Employers Ins. Co. v P.B. Hoidale Co. (1992, DC Kan) 789 F Supp 1117.
Protective order would be granted to EEOC since only person with knowledge of information requested in deposition
notice was its trial attorney and information sought to be discovered was privileged. EEOC v HBE Corp. (1994, ED Mo)
157 FRD 465, judgment entered (1996, ED Mo) 76 BNA FEP Cas 487, 69 CCH EPD P 44560, affd in part and revd in
part on other grounds, remanded (1998, CA8 Mo) 135 F3d 543, 76 BNA FEP Cas 495.
Remedy for opposing counsel's inadvertent disclosure of discovery materials produced pursuant to protective order
was not additional protective order but motion for sanctions for violating existing protective order. Zapata v IBP, Inc.
(1995, DC Kan) 160 FRD 625, 23 Media L R 2556.
For purposes of work product under Fed. R. Civ. P. 26(c), counsel's decision to retain particular documents in and of
itself involves exercise of that attorney's judgment. Flaherty v Seroussi (2002, ND NY) 209 FRD 300.
In action by aircraft purchaser against aircraft purchase financier regarding purchaser's liability for make-whole
payment to financier relating to settlement agreement between purchaser and aircraft ownership interest seller,
financier's motion for protective order pursuant to Fed. R. Civ. P. 26(c) regarding certain documents listed on its
privilege log was denied where financier failed to carry its burden of demonstrating that attorney-client privilege
applied to communications at issue because they were not predominately of legal character, or at all legal in nature, and
that, even if attorney-client privilege applied, common interest rule was inapplicable because financier failed to prove
that it and seller had identical legal interests; financier failed to carry its burden of demonstrating that work product
protection applied to communications, because, other than unsupported statements, financier failed to submit evidence
establishing that it subjectively believed at time that litigation with purchaser was imminent, and communications were
routinely generated by financier irrespective of litigation. Gulf Islands Leasing, Inc. v Bombardier Capital, Inc. (2003,
SD NY) 215 FRD 466.
439. Matters previously covered; other proceedings
Defendants failed to meet heavy burden of demonstrating why discovery was denied where defendants' sole
objection to deposition was that what person to be deposed had to offer would be repetitious with what plaintiff had
learned from other sources. Blankenship v Hearst Corp. (1975, CA9 Cal) 519 F2d 418, 1975-2 CCH Trade Cases P
60384, 20 FR Serv 2d 707.
In actions brought in Federal District Court for defendants' alleged failure to properly mark wreckage of vessel which
had been involved in collision, District Court did not err in issuing protective orders limiting discovery which plaintiffs
sought before responding to motion to dismiss for forum non conveniens, where proposed depositions dealt with topics
for which full information was already available. Fitzgerald v Texaco, Inc. (1975, CA2 NY) 521 F2d 448, 21 FR Serv
2d 383, cert den (1976) 423 US 1052, 46 L Ed 2d 641, 96 S Ct 781.
Protective order which barred all interrogation of attorney and was based exclusively on ground that work product
was not discoverable absent good cause shown was improper where 1) motion for such order did not mention work
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product but sought relief based on mootness and harassment, 2) nonmovant alleged in his pleading that he sought to
depose movant's attorney with respect to certain relevant papers that movant had already filed in various related
proceedings, and 3) nature of nonmovant's claim was such that discovery via such deposition was essential. Jamison v
Miracle Mile Rambler, Inc. (1976, CA3 Pa) 536 F2d 560, 21 FR Serv 2d 971.
If examination and inspection already authorized might obviate necessity of asking some of the proposed questions,
witnesses will not be required to answer such questions. Brockway Glass Co. v Hartford-Empire Co. (1942, DC NY) 2
FRD 267, 52 USPQ 539.
Fact that plaintiff, in response to motion by defendants, has furnished bill of particulars with regard to alleged
conspiracy, is insufficient to warrant limiting pretrial examination of plaintiff by defendants in such manner as to
exclude all matters upon which bill of particulars was furnished, since rules permit an examination as to all matters
relative to the issues. Hillside Amusement Co. v Warner Bros. Pictures, Inc. (1942, DC NY) 2 FRD 275.
Where it appeared that depositions had been taken in previous action between the parties, which involved practically
the same issues, court, in response to a motion by defendant that depositions be not taken, issued order limiting scope of
the depositions with regard to various witnesses so that testimony taken should not be repetitious of that which had
already been adduced. Campbell v American Fabrics Co. (1943, DC NY) 3 FRD 3.
Where defendant's motion for separate trial on issues of existence of an alleged contract and its validity under New
York statute of frauds was granted in action where plaintiff claimed $ 10,000,000 in damages, court granted defendant's
further motion to limit scope of depositions, some of which already had been taken, stating that in view of disposition of
the other motion the deposition should be limited to those issues which were to be tried separately. Canister Co. v
National Can Corp. (1943, DC Del) 3 FRD 279.
Request by plaintiff that if right to take oral depositions was granted they be limited to matters not previously
covered by answers of plaintiff to interrogatories previously served by the defendant, was rejected where the matters
involved were extremely complex; various discovery procedures were complementary to one another and use of one did
not restrict further use of the other on same subject matter. V. O. Machinoimport v Clark Equipment Co. (1951, DC
NY) 11 FRD 55.
Defendant's contention that plaintiff should not be permitted to take any testimony concerning matters which were
necessarily subjects of inquiry in a patent interference proceeding already pending between the parties was denied. Jay
V. Zimmerman Co. v National Mask & Puppet Corp. (1952, DC NY) 13 FRD 172, 96 USPQ 132.
In civil action for violation of antitrust laws, court excluded matters in prior criminal action from proposed
examination of defendants. New Sanitary Towel Supply, Inc. v Consolidated Laundries Corp. (1959, SD NY) 24 FRD
186, 2 FR Serv 2d 472.
Absent showing of good cause there can be no limitation on public access to judicial proceedings and documents;
burden of showing good cause rests on movant. Alliance to End Repression v Rochford (1976, ND Ill) 75 FRD 431.
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 issued confidentiality order; it would be abuse of discovery process to order defendant in instant litigation
to produce all documents which he had 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.
Claim of duplication is insufficient, unless all documentary material from which interrogatory answers may be
conveniently obtained has been previously provided; if all information has been previously produced sufficient to derive
answer to interrogatory, plaintiffs may demonstrate good cause for protective order as to these interrogatories pursuant
to Rule 26, but if protective order is granted, plaintiffs will still have to identify documents from which answers to
interrogatories can be obtained. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d
116.
Defendant tire seller and installer in personal injury action was entitled to depose plaintiff who had already been
deposed by defendant tire manufacturer, since second defendant was added after deposition, but second deposition
would be limited to those areas not covered in first deposition. Perry v Kelly-Springfield Tire Co. (1987, ND Ind) 117
FRD 425, 9 FR Serv 3d 324.
Defendant in action by United States to protect its interests as guarantor of shipbuilding bonds was not entitled to
protective order prohibiting discovery of documents regarding arbitration proceedings where defendant merely alleged
broadly that future business negotiations with parties to arbitration would be harmed by such disclosure; such broad
allegations of economic injury, without more, are insufficient to show good cause. United States v Panhandle Eastern
Corp. (1988, DC Del) 118 FRD 346, 10 FR Serv 3d 686.
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Defendants in action brought by SEC were not entitled to protective order preventing SEC from disclosing discovery
materials to party who has brought separate action against defendants based on same facts, in absence of prior
agreement between defendants and SEC net materials would not be disclosed. SEC v Amster & Co. (1989, SD NY) 126
FRD 28, CCH Fed Secur L Rep P 94480, 14 FR Serv 3d 138.
Insured was not entitled to protective order that discovery not be had where he had already provided examinations
under oath to insurer, but was entitled to order that new deposition be limited to areas not covered in previous 2
statements. Jones v State Farm Fire & Casualty Co. (1990, ND Ind) 129 FRD 170.
Plaintiffs seeking injunctive relief precluding their criminal prosecution under federal obscenity statutes were entitled
to protective order regarding titles and material solely under indictment in Utah since defendants' honor respecting Utah
material had been specifically challenged and vindicated by judge's denying present plaintiffs' motion to dismiss
indictment for bad faith and vindictive prosecution. PHE, Inc. v Department of Justice (1991, DC Dist Col) 139 FRD
249.
Since court's power to control discovery does not extend to material discovered in other cases, material received by
one party prior to commencement of action cannot be made legitimate part of protective order court enters. Culinary
Foods v Raychem Corp. (1993, ND Ill) 153 FRD 614.
440. Time of occurrence or date of document
The plea of a statute of limitations as a defense should not limit the scope of depositions taken by plaintiff to matters
occurring after the statute began to run. Laird v United Shipyards, Inc. (1941, DC NY) 1 FRD 772.
Where complaint alleged a continuing wrong and continuing damage, motion for order to limit production of
documents to those in existence prior to commencement of action would be denied. Portsmouth Baseball Corp. v
Frick (1955, DC NY) 18 FRD 430.
Equal Pay Act statute of limitation provision (29 USCS § 255) does not prevent discovery of matters occurring
prior to date after which liability may be imposed where such discovery may be relevant to fact of discrimination or
willfulness. Marshall v Maintenance Services, Inc. (1978, ND Ill) 26 FR Serv 2d 351.
441. Persons to whom discovery is directed
In trademark infringement suit protective order denying deposition of entertainer's former wife was properly ordered
where she had filed affidavit stating that she had no knowledge of alleged infringer's activities prior to his filing law suit
and it appeared that defendant's primary purpose in deposing her would be to harass and annoy her. Elvis Presley
Enterprises, Inc. v Elvisly Yours, Inc. (1991, CA6 Tenn) 936 F2d 889, 19 USPQ2d 1377, 19 FR Serv 3d 1397.
District court in age discrimination action did not abuse its discretion in issuing protective order relieving chairman
of employer's board of directors from necessity of complying with plaintiff's notice to take his deposition where notice
violated local court rule regarding timeliness, clashed with normal procedure that depositions of corporate officers are
normally taken at corporation's principal place of business, plaintiff waited until after expiration of original discovery
deadline to give notice of deposition, had not taken deposition of any other personnel of employer, and chairman's
affidavit disclaimed any personal knowledge of plaintiff, her age, her performance ranking, any work evaluations she
may received, or that she even worked for employer. Thomas v IBM (1995, CA10 Okla) 48 F3d 478, 67 BNA FEP Cas
270, 66 CCH EPD P 43479, 31 FR Serv 3d 1403.
Motion to limit scope of depositions called for in an order served by plaintiff on defendant was granted where the
notice stated that plaintiff would take depositions of certain named officers and employees of defendant "and perhaps
others"; notice should be limited to those persons named in it. Wagner Mfg. Co. v Cutler-Hammer, Inc. (1950, DC
Ohio) 10 FRD 480.
Motion to limit certain direct interrogatories to be propounded to members and employees of firm which had done
restoration work on a violin and certified as to its authenticity was denied where the objection was principally that
plaintiff, so far as interrogatories were directed to persons who did not examine the violin or certify it, was trying to
qualify the certificate of authenticity as one made in regular course of business and therefore admissible into evidence;
question of certificate's admissibility was not in issue since that would necessarily be passed upon by trial court, and
plaintiff was justified in asking the questions. Weinberg v Travelers Fire Ins. Co. (1951, DC NY) 12 FRD 80.
Notice to take depositions of officers of defendant, which called for examination of certain officials by their titles,
and "such other officers and employees familiar with the matters involved in this action," was modified, the court
providing that plaintiff should examine the flight superintendent, the manager of flight operations for western region,
and the New York regional sales manager, and that if plaintiff was unable to obtain the facts necessary to prepare her
case and names of other persons who had knowledge of relevant matters, she might then serve new notice to examine
the president, secretary, and treasurer. Shankman v Northwest Air Lines, Inc. (1955, DC NY) 18 FRD 436.
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Motion by defendant to modify plaintiff's notice of examination so as to substitute its assistant claim manager for its
president as the party to be examined was granted where it appeared that the assistant claims manager had had active
charge of the case and knowledge of the facts involved. Brause v Travelers Fire Ins. Co. (1956, DC NY) 19 FRD 231.
Motion for order limiting scope of examination of certain employees of defendants who were managing agents of
defendants so as to exclude any question calling for answers based on expert knowledge or opinions and to exclude all
hypothetical questions was denied. Russo v Merck & Co. (1957, DC RI) 21 FRD 237.
Deposition witness who stated that he had never seen or studied documents handed him was not required to answer
questions about them. Besly-Welles Corp. v Balax, Inc. (1968, ED Wis) 43 FRD 368, 156 USPQ 643, 12 FR Serv 2d
790.
Manufacturer in products liability action was entitled to protective order to quash, on grounds of harassment and
abuse, deposition of vice-president of one of its divisions who wrote memorandum distributed to 18 employees
describing his observations of prototype vehicle's restraint system, without prejudice to taking it later should alternative
discovery devices prove inadequate; similarly, manufacturer's motion for protective order to quash all but 3 of 18
depositions directed to those who received memorandum would be granted since deposing all 18 would be burdensome,
expensive, inconvenient and duplicative without any gain to plaintiffs' legitimate discovery needs. Baine v General
Motors Corp. (1991, MD Ala) 141 FRD 332.
In action for breach of trade secrets law, inter alia, defendants would be permitted to depose president of plaintiff's
international division concerning his knowledge of salesman stealing competitor's price book, as relevant to equitable
unclean hands defense in providing circumstantial evidence that plaintiff itself was responsible for theft of documents in
instant case; fact that defendants had already deposed other employees of plaintiff on same issue did not preclude this
deposition, nor did president's busy schedule. Nalco Chem. Co. v Hydro Technologies (1993, ED Wis) 149 FRD 686,
26 FR Serv 3d 336.
Neither Governor nor Secretary of Department of Administration would be compelled to give deposition in county
employee's wrongful termination suit since there was no evidence that either had any evidence to corroborate plaintiff's
theory that "deal" had been made for her supervisor's neutrality should another elected official challenge governor in
election in exchange for state's helping county resolve its health care plan funding problem. Warzon v Drew (1994, ED
Wis) 155 FRD 183, 22 Media L R 1925.
Since plaintiffs' counsel's investigator was working as counsel's agent when he interviewed number of third-party
witnesses, his interview notes were protected by work product immunity and magistrate judge issued protective order
prohibiting company from taking investigator's deposition and subpoenaing his records of third-party witnesses and
other things. O'Connor v Boeing N. Am., Inc. (2003, CD Cal) 216 FRD 640.
442. Damages
Proper way to prevent discovery of matters relating to proof of damages, where plaintiffs are under court sanction
precluding such proof, is to seek protective order rather than to ignore their discovery obligations. Al Barnett & Son,
Inc. v Outboard Marine Corp. (1979, CA3 Del) 611 F2d 32, 1980-1 CCH Trade Cases P 63078, 28 FR Serv 2d 802.
Defendant, in opposing motion by plaintiff for summary judgment on arbitrators' award, has right to testimony of
arbitrators as to whether or not they had made a decision as to specific issues in the case, but has no right to question
them to determine specific amount of damage included in award on account of each particular claim and since such
questions go beyond permissible limit of interrogation of arbitrators plaintiff is granted protective order limiting scope
of interrogatories propounded to arbitrators. La Cotonniere de Moislains v H & B American Machine Co. (1956, DC
Mass) 19 FRD 6.
In action for copyright infringement and unfair competition, where no jury trial had been demanded, in exercise of
judicial discretion and economy, scope of examination would be limited to preclude discovery as to question of
damages. Orgel v Clark Boardman Co. (1956, DC NY) 20 FRD 31, 111 USPQ 435.
Motion by defendant for order prohibiting examination by plaintiff into subject of damages before defendant's
liability had been established was granted. Polaroid Corp. v Commerce International Co. (1957, DC NY) 20 FRD 394,
114 USPQ 492.
Plaintiffs in antitrust action were not entitled to bifurcate issue of liability from that of damages under Rule 42(b) and
to limit discovery under Rule 26(c)(4) on contention that there would be no need for trial on damage issue if they did
not establish claim since proof addressed to one issue would be probative of other and if bifurcation were granted after
completion of discovery and first trial resulted in finding of liability, parties would be ready to proceed to trial on
damage issue without further delay. Broadway Delivery Corp. v United Parcel Service, Inc. (1977, SD NY) 74 FRD
438, 1977-2 CCH Trade Cases P 61688, 25 FR Serv 2d 792.
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443. Miscellaneous
In antitrust suit by purchasers alleging price-fixing by agricultural products defendant, secret recordings made by
defendant's vice-president but not used in earlier criminal investigation were discoverable by plaintiffs, including those
of telephone conversations since vice-president at time was government informant and in making recordings was acting
under color of law within meaning of 18 USCS § 2611(2)(c). In re High Fructose Corn Syrup Antitrust Litig.,
Delwood Farms, Inc. (2000, CA7 Ill) 216 F3d 621, 2000-1 CCH Trade Cases P 72945.
Court, in denying motion to exclude certain matters from inquiry at pretrial examination on ground that they would
be inadmissible, pointed out that objection on that ground could be made at the trial. Union Cent. Union Cent. Life Ins.
Co. v Burger (1939, DC NY) 27 F Supp 556; Laird v United Shipyards, Inc. (1941, DC NY) 1 FRD 772.
Motion by libelant that proposed oral examination of its officers be limited was denied but without prejudice to
application by the libelant during examination for relief from annoyance, embarrassment, or oppression, where papers
were insufficient to determine at that time whether the testimony, when sought, would appear reasonably calculated to
lead to discovery of admissible evidence. Williams F. Jobbins, Inc. v American Export Lines, Inc. (1954, DC NY) 16
FRD 178.
Motion by plaintiff to limit scope of the examination by defendant as premature is denied since any claim of
privilege or irrelevancy should be raised by plaintiff's objection to specific questions when asked, and court will not, in
advance, pass upon anticipated questions. Independent Productions Corp. v Loew's, Inc. (1958, SD NY) 22 FRD 266.
Along with balancing harms of staying discovery, court should take preliminary peek at merits of allegedly
dispositive motion to see if on its face there appears to be immediate and clear possibility that it will be granted; in
doing so, moving party bears burden of showing immediate and clear possibility and reasonableness. GTE Wireless, Inc.
v Qualcomm, Inc. (2000, SD Cal) 192 FRD 284.
b. Particular Exclusions and Limitations
444. Accidents and personal injury
Protective order restricting plaintiffs' use of defendant's materials to instant bellwether products liability litigation
was not abuse of discretion since plaintiffs showed no prejudice from inability to share and compare information with
other litigants in other cases sufficient to overcome District Court's broad discretion regarding protective orders. Scott
v Monsanto Co. (1989, CA5 Tex) 868 F2d 786, 13 FR Serv 3d 650.
Manufacturer of cigarette lighter was entitled to protective order in products liability case prohibiting plaintiff from
disseminating trade secret information gained through discovery but trade secrets do not include names of
manufacturers and suppliers of materials because vendors themselves have every incentive and right to disclose their
identities, but manufacturer was not entitled to protective order limiting discovery of other accident or claims
information since it failed to show how it would suffer serious harm and embarrassment resulting from public
disclosure. Smith v BIC Corp. (1989, CA3 Pa) 869 F2d 194, 16 Media L R 1286, 10 USPQ2d 1052, 13 FR Serv 3d
181.
Complaints filed in other courts against personal injury defendant by other accident victims in other cases were valid
subject of protective order notwithstanding their nature as "public records," since there were obtained by compulsory
discovery from party seeking discovery, and "public" documents can easily represent significant investment of
discovery and assembly by original finder and barrier to easy replication. Poliquin v Garden Way (1993, CA1 Me) 989
F2d 527, 25 FR Serv 3d 681, 138 ALR Fed 687.
Magistrate judge properly granted ski operator's motion for protective order to bar injured skier from deposing
defendant's nonsupervisory employees concerning hazardous nature of rope which skier crossed, allegedly without
seeing, since clear import of depositions was that supervisory personnel were ultimately responsible for marking trails
and nonsupervisory personnel had little if any discretion in deciding how to mark trails and hazards. Kidd v Taos Ski
Valley (1996, CA10 NM) 88 F3d 848, 34 FR Serv 3d 1440.
Products liability defendant made nothing more than conclusory allegation that substantial majority of fact witnesses
in underlying litigation were employees of plaintiff and would therefore be subject to plaintiff's influence and would be
inclined to protect each other, and therefore denial of protective order sequestering fact witnesses prior to their
depositions and barring them from attending other witnesses' depositions. In re Terra Int'l (1998, CA5 Miss) 134 F3d
302, 39 FR Serv 3d 1397.
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
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manner as to annoy, harass, or oppress the plaintiff. Stankewicz v Pillsbury Flour Mills Co. (1939, DC NY) 26 F Supp
1003.
Motion to limit plaintiff's examination of insurance company's representative in connection with automobile accident
was denied where defendant sought to prevent inquiry into, or production of, original or copy of statement given by
plaintiff to representative of the insurance company, original or copy of statement given by defendant to representative
of the insurance company, and production of photographs which were exhibited to plaintiff by representative of the
insurance company. Bough v Lee (1939, DC NY) 28 F Supp 673.
Proposed examination of insurance adjuster for defendant's insurer in personal injury action was limited by court to
relevant matters within his knowledge, including disclosure of names, identity, and addresses of persons who were at
scene of the accident, but excluding statements, oral or written, of persons whom he had interviewed and who might be
called as witnesses at the trial. Maryland use of Montvila v Pan-American Bus Lines, Inc. (1940, DC Md) 1 FRD 213.
Plaintiff's notice for taking of defendant's deposition was modified on motion of defendant to delete therefrom "any
statement or statement obtained by. . . persons in charge of said barge. . . and any and all photographs taken of the scene
of said accident," since if plaintiff desired to examine any statements and photographs it must procure an order on notice
under Rule 34. Matthies v Peter F. Connolly Co. (1941, DC NY) 2 FRD 276.
Motion to vacate notice of examination served upon attorney for defendant, who conducted examination into
accident on behalf of insurance carrier of defendant, is denied where subpoena has also been served on deponent calling
for production of various documents in connection with investigation; however, plaintiff will be restricted to
examination as to names of witnesses obtained by carrier or its attorney and will not be entitled to obtain copies of such
statements. Gajowski v Empie (1951, DC NY) 11 FRD 60.
In action between two occupants of same automobile involved in collision with another automobile, where driver and
owner of second automobile had investigation made of accident, defendant may call investigator for taking of his
deposition, and may subpoena him to produce books, papers, and documents; investigator's motion to limit the scope of
his oral examination on grounds that information sought from him is privileged is rejected and he may be examined as
to names and addresses of witnesses that he interviewed, steps he took in investigating the accident, and may be
required to produce any photographs or maps he may have made of the scene. McNelley v Perry (1955, DC Tenn) 18
FRD 360.
Where jurisdiction in personal injury action is doubtful, defendant's motion to stay discovery which would go to
merits of case will be granted. Kelleher v Omark Industries, Inc. (1974, DC Mass) 19 FR Serv 2d 725.
Plaintiff in personal injury action is not entitled to protective order limiting examination of witnesses' statements
taken shorty after accident by workmen's compensation insurer even though insurer had paid compensation benefits to
plaintiff and to such extent had interest in litigation as subrogee. Uhlman v McGraw-Edison Co. (1977, DC Mass) 25
FR Serv 2d 460.
In products liability action against manufacturer of drug alleged to have caused birth defects, District Court's failure
to confine discovery to drug in question and its components alone or in combination with other components would have
necessarily opened all of manufacturer's drugs to discovery, and result would have been oppressive and would have
thwarted any attempt at just, speedy, and inexpensive determination of action. 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.
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
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 multi-district litigation involving claims for personal injury and wrongful death arising out of aircraft crash,
defendant airline was entitled to protective order directing that crewmembers' depositions not include re-enacting events
with flight simulator since plaintiffs had direct evidence of events of flight and could question crewmembers in detail
about actual flight, and questioning them about actual flight while simultaneously requiring them to operate flight
simulator is oppressive and unduly burdensome. In re Air Crash Disaster at Sioux City (1990, ND Ill) 131 FRD 127,
17 FR Serv 3d 428.
Defendant drug manufacturer would be required to indicate nature of redaction on each document it was disclosing,
i.e., whether it was patient's identity, reporter's identity, or aspect of manufacturing process that was subject of deletion,
unless nature of redaction was obvious from document itself. In re Eli Lilly & Co. (1992, SD Ind) 142 FRD 454.
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Estate of deceased who had received HIV-tainted blood transfusion was entitled to disclosure of identity of donor,
who was also deceased; any residuum of privacy interests which may have survived donor's death could be addressed
by protective order, and Red Cross did not produce sufficient probative evidence in support of its concern that such
disclosure would affect safety and adequacy of nation's blood supply. Long v American Red Cross (1993, SD Ohio)
145 FRD 658.
Estate of patient who was infected with HIV by tainted blood transfusion nine years earlier and died from AIDS was
not entitled to discovery of name of donor from defendant since, even if donor were living, it was unlikely he would
remember details of donation, and plaintiffs already had access to information to confirm whether donor screening
procedures were followed; hence, strong interest in donor's privacy prevailed. Estate of Hoyle v American Red Cross
(1993, DC Utah) 149 FRD 215, 26 FR Serv 3d 1255.
Any information whether products liability defendant's products were dangerous and whether defendant knew of
dangers and either failed to take action or attempted to conceal information was not entitled to Rule 26(c) protection;
although information regarding hazards of products and corporation's knowledge of such may be embarrassing and
incriminating, it is insufficient to bar public disclosure. Culinary Foods v Raychem Corp. (1993, ND Ill) 151 FRD 297,
clarified, amd (1993, ND Ill) 153 FRD 614.
Protective order in products liability case would be modified to more closely adhere to standards in Remington Arms
case, in order to ensure that confidential status of trade secret information would be maintained while still permitting
intervenors in similar litigation reasonable access to those documents relevant to their pending lawsuits. Jochims v
Isuzu Motors (1993, SD Iowa) 151 FRD 338.
Employee injured by machine allegedly manufactured by German defendant would be entitled to depose employer
limited to issue of personal jurisdiction over defendant. Hansen v Neumueller GmbH (1995, DC Del) 163 FRD 471.
445. Antitrust
District Court did not abuse its discretion in antitrust action in denying motion of witness for protective order
terminating his oral deposition entirely, where individual refused, on grounds of self-incrimination, to answer questions
upon deposition. In re Master Key Litigation (1974, CA9 Cal) 507 F2d 292, 1974-2 CCH Trade Cases P 75395.
In antitrust action against professional association in which plaintiffs' counsel sought discovery of association's
membership files as source of names of members to depose in effort to find out motives behind their opposition to
plaintiffs' applications, district judge abused his discretion in issuing protective order that not only allowed plaintiffs
themselves to read files on their own applications, but also allowed plaintiffs' counsel to discuss with plaintiffs general
contents of all other files and to depose anyone whose name they found in files; district judge would have more
appropriately ordered files edited to remove names of deliberating members prior to review by plaintiffs' counsel, and
then, if files turned out to contain evidence or leads to evidence of anticompetitive conduct, plaintiffs' counsel could
then have requested judge to order names revealed so that relevant individuals could be deposed. Marrese v American
Academy of Orthopaedic Surgeons (1984, CA7 Ill) 726 F2d 1150, 1984-1 CCH Trade Cases P 65797, 38 FR Serv 2d
205, revd on other grounds, remanded (1985) 470 US 373, 84 L Ed 2d 274, 105 S Ct 1327, 1985-1 CCH Trade Cases P
66449, reh den (1985) 471 US 1062, 85 L Ed 2d 491, 105 S Ct 2127.
Motion to limit scope of defendants' examination of plaintiff corporation, on plaintiff's allegation that the inquiry was
mere fishing expedition, is denied; since defendants raise question of monopolistic character of plaintiff and its
subsidiaries, they may not be denied their right to make pertinent inquiries which would tend to establish that point;
however, right is reserved to assess costs of the examination against defendants if it develops that inquiry was of no
avail in defense of case. Checker Cab Mfg. Checker Cab Mfg. Corp. v Checker Taxi Co. (1943, DC Mass) 3 FRD 228.
In seeking to quash subpoena duces tecum requiring production of large volume of records, and to vacate notice for
taking of plaintiff's deposition, an alternative motion by plaintiff that protective order should be issued limiting scope of
the examination so as to exclude questions whether defendants engaged in an illegal boycott, and whether harness
racing constituted interstate commerce, was denied. Yonkers Raceway, Inc. v Standardbred Owners Asso. (1957, DC
NY) 21 FRD 3.
In suit against defendants for violations of Antitrust Laws [15 USCS § § 1 et seq.] by defendants' concerted
"blacklisting" and refusing employment to plaintiffs in the motion-picture industry because of plaintiffs Communist
affiliation, plaintiffs motion to preclude defendants' inquiry as to plaintiffs' political associations or beliefs on deposition
by oral examination, which defendants served notice they intended to take, on the ground that such inquiry sought
matter which was irrelevant in suit for violation of Antitrust Laws [15 USCS § § 1 et seq.] was denied; such motion
was premature and would require the court to pass on the question of the relevancy of plaintiffs' Communist affiliation
in advance of the proceedings. Young v Motion Picture Asso. (1961, DC Dist Col) 28 FRD 2, 5 FR Serv 2d 479.
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In proceedings on government's motion for protective order to halt taking of deposition of Antitrust Division of
Department of Justice and order barring defendant, sought to be held in contempt for failing to comply with pretrial
order requiring production of certain documents, from opposing government's motion to quash subpoena and other
relief, court held subpoena too broad, since it would require another full search of files of Antitrust Division after
plaintiff had conducted one such search; however, court allowed defendant limited discovery on issue of damage
occasioned by its failure to comply with court's order, and ordered that hearing on that issue be postponed until
completion of that discovery. United States v International Business Machines Corp. (1973, DC NY) 60 FRD 650.
Defendant in complex antitrust action is not entitled to protective order against deposition request since sound,
efficient judicial administration requires that discovery be permitted where plaintiff had noticed 5 depositions in another
case involving many of same issues in different temporal context and court had refused to allow depositions to go
forward in view of settlement negotiations between parties. Ohio-Sealy Mattress Mfg. Co. v Duncan (1982, ND Ill) 95
FRD 99.
Since most discoveries sought by antitrust plaintiff from defendant would prove unnecessary unless plaintiff could
make adequate showing of market definition and existence of entry barriers into relevant market, protective order
limiting discovery to those issues would be entered. Rebel Oil Co. v Atlantic Richfield Co. (1990, DC Nev) 133 FRD
41, 1990-2 CCH Trade Cases P 69258, 18 FR Serv 3d 983.
In surgeon's antitrust action, nonparty hospital was not entitled to protective order excluding patients' records and
minutes of peer review committees from disclosure, since federal interests in enforcing antitrust laws outweigh interest
in protecting these privileges to extent that such interest cannot be accommodated by protective measures, but surgeon
was only entitled to discover materials within such documents relevant to his claims. Morgenstern v Wilson (1990, DC
Neb) 133 FRD 139, 1991-1 CCH Trade Cases P 69404.
Antitrust plaintiff would be required to provide all requested information concerning survey conducted by one of its
experts, including identity of survey respondents and how respondents were selected for inclusion, since survey
evidence appeared to have dual purpose: to prove customer perception and truth of matters asserted. Comm-Tract
Corp. v Northern Telecom (1992, DC Mass) 143 FRD 20, 1992-2 CCH Trade Cases P 70076.
446. Banking
Discovery of nonparty banks would be limited to accounts in issue. Harris v Wells (1991, DC Conn) 137 FRD 206.
Bank seeking balance due on loan after crediting proceeds of foreclosure sale was entitled to discovery of debtor's
general business affairs and property in which bank had security interest, but not of unrelated documents pertaining to
other litigation involving debtor or detailed information regarding debtor's other business or personal interests since her
privacy interests outweighed bank's right to obtain relevant discovery. Chemical Bank v Dana (1993, DC Conn) 149
FRD 11.
447. Child abuse
In suit under 42 USCS § 1983 challenging public agency action based on suspicions of child abuse, nursing
personnel having information relevant to case could be deposed subject to limitations on persons present, sealing
transcript of deposition, and parties' use of depositions only for determining steps they wish to take in litigation.
Gottlieb v County of Orange (1993, SD NY) 151 FRD 258.
448. Commodities
Protective order would be granted to avoid serious adverse consequences to business of defendant in anti-fraud case
brought by Commodity Futures Trading Commission, with Commission allowed to contact customers only through
means of written questionnaire approved by District Court. Commodity Futures Trading Com. v Rosenthal & Co.
(1977, ND Ill) 74 FRD 454, dismd without op (1979, CA7 Ill) 605 F2d 559.
449. Copyrights
In action for copyright infringement involving song published by plaintiff, interrogatory which asks each of
individual defendants to identify all musical compositions which they claim to have authored, in whole or in part, is
overly broad; defendants are properly directed to provide information requested only as to compositions actually
published within last 10 years. Intersong-USA, Inc. v CBS, Inc. (1985, SD NY) 1 FR Serv 3d 609.
450. Defamation
In action for libel, court properly prevented further discovery of witness, where witness had been questioned for 15
hours over three-day period, where defamatory portions of witness' article were constitutionally protected opinion, and
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where questions were about political issues that were not even tangentially relevant to action. Liberty Lobby, Inc. v
Dow Jones & Co. (1988, App DC) 267 US App DC 337, 838 F2d 1287, 14 Media L R 2249, cert den (1988) 488 US
825, 102 L Ed 2d 51, 109 S Ct 75.
451. Energy and mining
In action for rescission of certain oil and gas interests which plaintiff alleges he purchased due to defendant's
misrepresentations, plaintiff is entitled to a protective order excluding from production his income tax returns and the
memoranda of his tax consultant since sources and amount of his income have no bearing on the case, and the amount
realized by him on his oil and gas interests can be discovered from his records without use of his tax returns; plaintiff
might, however, be compelled to disclose his highest tax bracket in each year because this might bear on the probability
of his reliance on the alleged misrepresentations since his motive might have been tax deductions. Cooper v
Hallgarten & Co. (1964, SD NY) 34 FRD 482, 8 FR Serv 2d 26B.31, Case 3.
452. Fraud
Protective order would be entered in foreign government's fraud action against corporation to protect interests of
both parties; order would permit disclosure to third parties only of information to which they are entitled, and only
pursuant to their following appropriate rules of criminal procedure. Nowaczyk v Matingas (1993, ND Ill) 146 FRD
169.
453. Gender discrimination
In suit brought by biology professor against university, alleging sex discrimination in pay, promotion, and teaching
opportunities in violation of Title VII and 42 USCS § 1983, District Court erred by granting university's motion to
confine discovery to 2 university departments on ground that relevant personnel decisions were made at department
level and data about other departments would therefore not lead to admissible evidence, since plaintiff was not allowed
opportunity to place that asserted fact in context. Duke v University of Texas (1984, CA5 Tex) 729 F2d 994, 34 BNA
FEP Cas 982, 34 CCH EPD P 34319, 38 FR Serv 2d 1624, cert den (1984) 469 US 982, 83 L Ed 2d 320, 105 S Ct 386,
36 BNA FEP Cas 234, 35 CCH EPD P 34747.
Order that plaintiff not be required to produce documents or answer questions with regard to her motive for bringing
sex discrimination class action against law firm merely directed that pretrial discovery not include matters which
defendant could not, as matter of law, present as defense, and as such limitation was consistent with Federal Rules of
Civil Procedure and in no way impeded proper and liberal discovery. Blank v Sullivan & Cromwell (1975, SD NY) 418
F Supp 1, 15 BNA FEP Cas 1776, 10 CCH EPD P 10365.
Employer is not entitled to limitation of 20 days for deposition of employees in sex-based wage discrimination suit
against employer under Equal Pay Act (29 USCS § 206(d)) where such limitation would be arbitrary, absent some
showing of harassment of employer. Marshall v Maintenance Services, Inc. (1978, ND Ill) 26 FR Serv 2d 351.
Defendant in employment sex discrimination action brought by Equal Employment Opportunity Commission
pursuant to 42 USCS § 2000e-6 is entitled to protective order limiting plaintiff's discovery of "historical" materials
1970 to present where discovery of such "historical" information is unduly burdensome in light of marginal relevance
and cost of compiling it. EEOC v Bumble Bee Seafoods Co. (1979, DC Or) 27 FR Serv 2d 532.
In sex discrimination class action, employee's motion for protective order preventing discovery of names and nature
of claims of putative class members by employer is granted since defendants can obtain information as to general nature
of claim in order to argue against class action treatment by taking plaintiff's deposition and asking her to describe nature
of claims of putative class members. Brinkerhoff v Rockwell International Corp. (1979, ND Tex) 83 FRD 478, 20 BNA
FEP Cas 1637, 28 FR Serv 2d 347.
454. --Sexual harassment
In sexual harassment suit against employer, plaintiffs would be entitled to discover names and addresses of former
female employees for purposes of mailing form letter requesting their consent to be contacted for lawsuit, with further
discovery of employees and their files subject to their individual consent and use solely for purpose of instant lawsuit.
Cook v Yellow Freight System, Inc. (1990, ED Cal) 132 FRD 548, 53 BNA FEP Cas 1681, 5 BNA IER Cas 1422, 31
Fed Rules Evid Serv 1161.
Plaintiff in sexual harassment suit would be precluded from asking defendant former university president about his
sexual activity while at previous university since trustees' knowledge of president's sexual activity while at other
university was irrelevant to plaintiff's sexual harassment claims; likewise plaintiff had right to be protected from
invasive inquiry into her sexual history, and defendant's generalized allegation that there might be some other acts
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evidence somewhere in case was insufficient to overcome potential of requested discovery to harass plaintiff.
Longmire v Alabama State Univ. (1992, MD Ala) 151 FRD 414.
Student who brought sexual harassment suit against university was entitled to protective order and monetary
sanctions for defense counsel's harmful and improper conduct in reviewing and copying plaintiff's medical records from
university health service without her knowledge, prior to date set forth in subpoena, knowing that plaintiff's attorney
was studying whether to release relevant medical records; plaintiff was entitled to in camera review of records prior to
disclosure to defense counsel to determine if necessity for disclosure outweighed plaintiff's right to privacy in most
personal of documents. Mann v University of Cincinnati (1993, SD Ohio) 152 FRD 119, affd (1997, CA6 Ohio) 1997
US App LEXIS 12482.
455. Health care
Hospital was entitled to discovery of agency's data base containing Medicare patient records since it would be
relevant to hospital's challenge to reimbursement regulations as applied as well as to its arguments that regulations
contravene congressional purposes for which they were allegedly promulgated, and patient's privacy rights would be
protected by appropriate protective order. Mary Imogene Bassett Hosp. v Sullivan (1991, ND NY) 136 FRD 42.
456. Insurance
Discovery in insurance coverage case would be limited to specific chemicals which allegedly contaminated disposal
site owned by insured and specific hazardous wastes allegedly generated and shipped to land fill sites, insured's
knowledge of landfill and off-site characteristics, and identities of insured's employees and former employees with
knowledge of such matters to extent such employees were managerial or supervisory persons. J.T. Baker, Inc. v Aetna
Casualty & Surety Co. (1989, DC NJ) 135 FRD 86.
Disability insured's wife, her business, and her records were not entitled to protective order since disability insurer
claimed that insured made sham transfer of business to wife to support his disability claim, and insurer's claim was
substantiated by its surveillance of insured reveling his repeated presence at his place of business, his frequent absence
from home, and his partaking in recreation and carrying large boxes, in contravention of his claims of disability. Great
W. Life Assurance Co. v Levithan (1994, ED Pa) 152 FRD 494, 28 FR Serv 3d 566.
457. Labor and employment
District Court acted within its authority in issuing protective order allowing employment discrimination employer to
avoid answering certain interrogatories, preventing plaintiff from using information from depositions conducted in
violation of court's discovery orders and forbidding plaintiff from conducting further discovery without court's express
written approval, since plaintiff had been given ample opportunity to conduct discovery but failed to do so properly.
Reed v Amax Coal Co. (1992, CA7 Ill) 971 F2d 1295, 59 BNA FEP Cas 788, 59 CCH EPD P 41660, 23 FR Serv 3d
354.
In response to motion for protective order, following notice by defendant of taking of the deposition of plaintiff,
plaintiff, who is purported to be bringing class suit on behalf of other members against labor union, must of necessity at
some time disclose to defendant members of that class despite alleged threats of physical violence against them; also,
defendant is entitled to require plaintiff to produce copies of official documents of union which are in his possession as
result of his former official position with the union prior to his ouster, but plaintiff need not disclose what members
contributed to cost of litigation or attended meetings in support of it subsequently to plaintiff's ouster. Underwood v
Maloney (1954, DC Pa) 16 FRD 3, 26 CCH LC P 68601.
Motion by defendant for order limiting scope of depositions to be taken by plaintiff was denied where it was alleged
that defendant held itself out as labor organization or union, and damages were sought for acts declared unlawful under
Taft-Hartley Act; court rejected defendant's argument that it was obvious from nature and character of documents
demanded in subpoenas duces tecum that it was plaintiff's intention to inquire into matters which were not relevant to
the cause of action. Aacon Contracting Co. v Association of Catholic Trade Unionists (1959, ED NY) 175 F Supp 659,
44 BNA LRRM 2748, 37 CCH LC P 65693, 2 FR Serv 2d 469.
In action by Equal Employment Opportunity Commission investigating charge of racial and sex discrimination
involving defendants' sales agents and seeking to take depositions of 25 individuals who were associated with
defendant, defendant's motion for protective order prohibiting or limiting discovery would be denied because
Commission's deposition request was reasonable and because Commission merely sought to depose some of defendant's
agents. EEOC v Northside Realty Associates, Inc. (1977, ND Ga) 24 FR Serv 2d 899.
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USCS Fed Rules Civ Proc R 26
Defendant's access to plaintiff's files is limited to those writings received by former employee prior to deposition
hearing and which may be fairly said in fact to have impact upon his 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.
Requests for admissions served upon employee in job discrimination action are oppressive and unduly burdensome,
and plaintiff is consequently entitled to protective order, where requests include 1,664 items, some of which contain
multiple parts or cover multiple issues, requests are 370 pages in length, exclusive of attachments numbering more than
300 pages, and litigation, which involves single plaintiff and 2 affiliated corporate defendants, poses issues which are
customary in job discrimination actions. Wigler v Electronic Data Systems Corp. (1985, DC Md) 108 FRD 204.
Protective order would issue in employment discrimination case allowing employer to discovery from Equal
Employment Opportunity Commission, at its own expense, copies of computerized data base in form of computer
storage disk, code book, user's manual, and all documents used in encoding data base which EEOC created from
employer's records to do statistical analysis, since expert's testimony based on such analysis was likely to be
determinative in case; employer would not be entitled to documents regarding program used to create data base or
printouts generated through use of data base, since they were not relevant; and employer would be required to pay
EEOC fair portion of fees and expenses incurred in formulating data base and encoding requested data. Williams v E.
I. Du Pont de Nemours & Co. (1987, WD Ky) 119 FRD 648, 45 BNA FEP Cas 887, 45 CCH EPD P 37616, 48 CCH
EPD P 38601.
In employee's suit against employer alleging violation of FLSA, employer's motion for protective order restricting
plaintiff's counsel from conducting interviews with employer's non-management employees who have no legal power to
bind corporation would be denied. Bouge v Smith's Management Corp. (1990, DC Utah) 132 FRD 560, 29 BNA WH
Cas 1663, 117 CCH LC P 35431.
Class-wide rather than individualized discovery was appropriate in FLSA class action suit; except in rarest of cases,
discovery in class action should be conducted on class-wide level; individualized discovery places tremendous burden
on representative plaintiff's counsel and ideas of class action and individualized discovery do not fit together well.
Adkins v Mid-America Growers, Inc. (1992, ND Ill) 141 FRD 466.
Employee suing employer for wrongful termination would be permitted to depose co-employee who made
allegations of sexual harassment against him concerning her sexual conduct and history with employees since it was
relevant to assessing thoroughness of employer's investigation into witnesses' complaint that plaintiff sexually harassed
her, leading to his termination. Weiss v Amoco Oil Co. (1992, SD Iowa) 142 FRD 311, 58 BNA FEP Cas 1352, 7 BNA
IER Cas 786, 62 CCH EPD P 42609.
Defendant OPM Director was entitled to protective order in class action by administrative law judges alleging that
OPM adopted regulations that placed their pay significantly below pay of other ALJs who had comparable or identical
periods of service, since discovery requests seeking to identify ALJs who might be members of putative class, to
examine reasons for plaintiffs' former classification, and to explore legislative history concerning ALJ classifications
and pay, were not relevant to whether, as matter of law, FEPCA committed formulation, promulgation, and
implementation of ALJ pay regulations to OPM. Sprague v Brook (1993, ND Ill) 149 FRD 575.
Appropriate scope of discovery in former employees' suit alleging breach of contract, age discrimination, and wage
and hour law violations was division in which plaintiffs worked, not entire company, since only similarly situated
employees were those within division whose employment situations, like plaintiffs', were supervised by same head who
terminated plaintiffs' employment as part of reduction in force. Rodger v Electronic Data Sys. Corp. (1994, ED NC) 155
FRD 537, 2 BNA WH Cas 2d 1436, 30 FR Serv 3d 674.
Union trustees who alleged that former employees of apprenticeship and training trust had breached their fiduciary
duty to plan were entitled to protective order limiting one plaintiff's deposition testimony to use in case and to
disclosure only to named parties and counsel until union election in which plaintiff was candidate was over, since
defendants had raised healthy suspicion that they intended to use plaintiff's deposition testimony for purposes other than
preparing for trial. Jennings v Peters (1995, ND Ill) 162 FRD 120.
Plaintiff was not entitled to protective order barring disclosure of documents relied on by its statistical expert in
forming his opinion in case alleging race and national origin discrimination by defendant city absent any showing with
particularity or specific good cause; documents were relevant to expert's opinions and credibility and therefore
discoverable. United States v City of Torrance (1995, CD Cal) 163 FRD 590, subsequent app (1998, CA9 Cal) 1998 US
App LEXIS 5912.
Corporate defendants charged with serious sexual harassment leading to hostile work environment were not entitled
to unrestricted discovery of all plaintiff's medical records; although plaintiff waived privacy claims as to those matters
which were related to causation and damages as to her claim by putting her psychological and emotional condition in
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issue, she did not waive privacy interests on matters unrelated to case or not calculated to lead to admissible evidence.
Bottomly v Leucadia Nat'l Corp. (1995, DC Utah) 163 FRD 617.
458. Military
In suit by former service member seeking to represent class in declaratory and injunctive action relating to drug
urinalysis testing procedures of Air Force, defendants were entitled to protective order limiting discovery to group of
veterans who received notification of set aside of their urinalysis results, but would not be limited to those who had
exhausted their administrative remedies since issues regarding exhaustion would be more appropriately raised at class
certification state. Cooper v Secretary of Air Force (1990, DC Dist Col) 132 FRD 119.
459. Patents
Motion by plaintiff in action against municipality that the order authorizing defendant to take oral deposition exclude
questions relating to date on which invention of the patent in suit was made or reduced to practice, or relating to
development or research on the invention, unless defendant simultaneously disclosed the date and identity of any prior
uses, patents, or publications on which it intended to rely, was denied. Chemo-Mechanical Water Improv. Co. v
Milwaukee (1939, DC Wis) 29 F Supp 45.
Motion that defendant's examination of plaintiff's personnel with respect to plaintiff's operation of its partial
oxidation plant subsequent to date on which applications for patents involved in the suit were filed, should be limited to
inquiries concerning commercial success of such plant, was granted, where it appeared that "commercial success" was
the only substantial basis advanced by defendant concerning any inquiry subsequent to dates of applications for such
patents. Cities Service Oil Co. v Celanese Corp. of America (1953, DC Del) 14 FRD 246.
In action for recovery of unpaid royalties, allegedly owing under patent-license contract, patent examiner, or former
patent examiner, may be deposed subject to requirement that subject matter of deposition be restricted to relevant
matters of fact and that deposition avoid any hypothetical or speculative questions or conclusions based thereon.
Fischer & Porter Co. v Corning Glass Works (1974, ED Pa) 61 FRD 321, 181 USPQ 329, 18 FR Serv 2d 122.
Disclosure of abandoned or pending patent applications may be compelled under protective order only where there is
clear showing of relevancy of applications to issues involved in present litigation. Duplan Corp. v Deering Milliken,
Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
In suit alleging patent infringement, theft of trade secrets and confidential information, and RICO violations,
defendants were entitled to protective order as to marketing and financial information, but plaintiffs were entitled to
information about supplier sources of those materials specifically relevant to misappropriation claims. Duracell, Inc. v
SW Consultants, Inc. (1989, ND Ga) 126 FRD 576, 15 FR Serv 3d 93.
In patent priority case, defendant was entitled to protective order prohibiting discovery of any internal patent
application files since they were likely to be privileged and/or irrelevant, but was not entitled to protective order
prohibiting discover of its scientists' laboratory notebooks since they were reasonably calculated to lead to evidence
relevant to issue of priority. Allied-Signal v Allegheny Ludlum Corp. (1990, DC Conn) 132 FRD 134, 17 USPQ2d
1638, 18 FR Serv 3d 246, reported at (1990, DC Conn) 18 USPQ2d 1080.
Motion to compel discovery of patent infringement defendant's documents concerning defendants' acts in obtaining
regulatory approval would be granted since discovery was necessary for plaintiffs to effectively frame response to
defendant's partial summary judgment motion based on its affirmative defense that it was preparing investigational new
drug application to prepare new drug application for filing with FDA, and terms of stipulated protective order
adequately protected defendants. Ares-Serono, Inc. v Organon Int'l B.V. (1993, DC Mass) 151 FRD 215, magistrate's
recommendation (1994, DC Mass) 862 F Supp 603, accepted, adopted (1994, DC Mass) 1994 US Dist LEXIS 13571.
Holder of patent involving active human fertility follicle's stimulating hormone was entitled to depose alleged
infringer's employees since whether defendant's importation of allegedly infringing material fell within safe harbor of
35 USCS § 271(g) for limited purpose of conducting studies to include in FDA submission would only be determined
after plaintiff examined relevant facts and court made determination based on those facts, but plaintiff's request to enter
and inspect defendant's premises to inspect flacons in which material was imported would be denied since information
sought could be obtained by less intrusive means of depositions. Ares-Serono, Inc. v Organon Int'l B.V. (1994, DC
Mass) 160 FRD 1.
Patent infringement defendant was not entitled to modification of protective order to allow its in-house counsel to
attend depositions of plaintiff's witnesses and experts, since good cause existed for original protective order limiting
access to defendant's outside counsel and experts, defendant had not shown good cause for modification, plaintiff
proposed adequate alternative for proposed modification, possibility of hiring in-house counsel was clearly foreseeable
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when parties negotiated original protective order, and plaintiff justifiably relied heavily on original protective order in
producing millions of documents. Bayer AG v Barr Lab. (1995, SD NY) 162 FRD 456.
Justice did not require order to protect patent infringement plaintiff from release of his undergraduate transcripts
under FRCP 26(c), where plaintiff testified on deposition that he had taken undergraduate courses in engineering and
physics, courses which may have provided him with requisite expertise to have created patented inventions, because
information in transcripts is directly related to defendant's affirmative defense, and transcript, like all documents in case,
is subject to protective order that will "prevent release of transcript beyond parameters of this lawsuit." Gorman v Polar
Electro, Inc. (2000, ED NY) 124 F Supp 2d 148, 48 FR Serv 3d 961.
District court did not abuse its discretion in entering order protecting nonparty in patent infringement suit from
disclosing all trade secrets and confidential information concerning bone implant prosthesis which were subject of suit,
where subpoena required types of information courts generally regard as trade secrets or confidential, disclosure might
cause economic harm to nonparty since implant industry is highly competitive and other competitors were parties to
suit, party seeking discovery failed to show relationship between its allegedly infringed patent and nonparty's
confidential sales data to support conclusion that such data would lead to discovery of admissible evidence, and
nonparty's sharing with other parties' counsel its outside counsel's opinion letter that patent in question was invalid did
not waive attorney-client privilege opening door to all information about patent in question because letter was not
privileged communication since it was expressly based on nonconfidential information. American Standard, Inc. v
Pfizer, Inc. (1987, CA) 828 F2d 734, 3 USPQ2d 1817.
Magistrate did not err in refusing to grant request of defendant in patent infringement suit for disclosure of identity of
article referee of nonparty since nonparty-journal established need to maintain confidentiality of referees while
defendant's position that identity of person would help establish its defense of invalidity was speculative. Solarex
Corp. v Arco Solar, Inc. (1989, CA) 870 F2d 642, 10 USPQ2d 1247.
460. Prisons and jails
Magistrate did not abuse her discretion in suit by inmates against prison authorities in limiting use of inmates' names
and personally identifiable information obtained from plaintiffs through discovery since her finding that plaintiffs had
significant privacy interest in their identities as HIV victims, when revealed in their own responses to discovery, was
reasonable. Doe v Meachum (1988, DC Conn) 126 FRD 437, later proceeding (DC Conn) 126 FRD 450, later
proceeding (DC Conn) 126 FRD 452 and adopted (DC Conn) 126 FRD 456, later proceeding (DC Conn) 126 FRD 458,
later proceeding (DC Conn) 126 FRD 459 Doe v Meachum (1988, DC Conn) 126 FRD 437, later proceeding (DC
Conn) 126 FRD 437, later proceeding (DC Conn) 126 FRD 450, later proceeding (DC Conn) 126 FRD 452 and adopted
(DC Conn) 126 FRD 456, later proceeding (DC Conn) 126 FRD 458, later proceeding (DC Conn) 126 FRD 459.
461. Securities
In action for injunctive relief brought by Securities and Exchange Commission alleging scheme to defraud in
violation of securities laws, defendants are entitled to protective order providing that they be deposed only upon grant of
immunity pursuant to 18 USCS § 6002 and that neither information derived by discovery of defendant nor fruits
thereof be used in connection with any criminal proceeding brought against defendants; invocation of use immunity
statute would relieve defendants of dilemma they face in choosing between possible harmful disclosure, risk of
imposition of severe civil penalties which may follow from failure to testify and perjury. Securities & Exchange Com.
v Vesco (1973, SD NY) 16 FR Serv 2d 1237.
Content of advice given to plaintiff corporation by its financial and legal advisors did not have to be disclosed to
defendant corporation which was making attempt to acquire plaintiff, in plaintiff's suit seeking declaration that actions it
took under Virginia Control Share Acquisition Act and Virginia Affiliated Transaction Statute were constitutional and
that rights plan adopted by its directors was valid, since content of advice was not probative of alleged director conflict
because fairness of director's actions must be established irrespective of advice sought or given, and Virginia's business
judgment rule permits inquiry into process by which decision was made rather than substance of information processed
in making decision. WLR Foods v Tyson Foods (1994, WD Va) 155 FRD 142.
462. Taxation
Defendant was not entitled to discover income tax records of one of plaintiff's expert witnesses without any specific
evidence of possible bias, such as evidence of special relationship between expert and defense counsel or between
expert and plaintiff. Wacker v Gehl Co. (1994, WD Mo) 157 FRD 58.
463. Miscellaneous
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USCS Fed Rules Civ Proc R 26
In coram nobis proceedings court should decide on scope of discovery at each stage of such proceeding by
considering amount of time which has elapsed since trial, burden of discovery on government and witnesses, and nature
of applicant's claims; if relevant evidence is revealed by discovery which only lightly burdens government, court retains
option of allowing more extensive requests in order to see if there is more evidence to be found; however, if
examination of only most relevant materials fails to turn over any relevant new stones, coram nobis proceedings may be
brought to speedy conclusion. United States v Balistrieri (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.
Trial court did not abuse its discretion in denying plaintiff's motion to take depositions and in quashing subpoena,
where not only had plaintiff completely changed its request for information after filing of its original subpoena duces
tecum and notice of deposition but now, in its reply brief on appeal of District Court order, has once again changed
information which it seeks by these documents. Ohio-Sealy Mattress Mfg. Co. v Duncan (1985, CA11 Ga) 749 F2d
1560, 1985-1 CCH Trade Cases P 66350.
Where it was necessary for plaintiff to establish background of corporate existence of defendant and subsidiaries,
plaintiff would not be limited in its examination of defendant with respect to corporate identity, officers, directors, and
stockholders of various subsidiaries or affiliates of defendant corporation. Folley Amusement Holding Corp. v
Randforce Amusement Corp. (1940, DC NY) 1 FRD 496.
Where plaintiff alleged conspiracy to prevent it from obtaining motion pictures for theater, motion to limit scope of
examination before trial in which 474 pages of testimony had already been taken was granted to extent of limiting
examination to acts constituting, or from which inferences could reasonably be drawn establishing, alleged conspiracy
according to date alleged in amended complaint. Folley Amusement Holding Corp. v Randforce Amusement Corp.
(1940, DC NY) 1 FRD 496.
In action against corporate defendants and individuals in which corporate defendants had filed counterclaims with
their answers, examination of the representatives of a defendant corporation before trial should be limited to matters
other than those raised in the counterclaim unless reply was served prior to service of interrogatories, in which case the
examination might cover any issues raised by the pleadings. Isbrandsten v Moller (1947, DC NY) 7 FRD 188.
Order that certain matters might not be inquired into upon taking of plaintiff's deposition in action for alienation of
affections and loss of consortium was refused where plaintiff was asked if he had any information regarding his wife
and defendant registering at same hotel at any time, and replied that he had such information through his attorneys, but
refused further answer. O'Donnell v Breuninger (1949, DC Dist Col) 9 FRD 245.
Plaintiff's motion for an order limiting matters to be inquired into in taking of oral deposition of the chief of the Real
Estate Division, Corps of Engineers, United States Army, was substantially granted where it appeared that deponent had
during prior negotiations expressed an opinion touching value of the subject property. United States v 50.34 Acres of
Land (1952, DC NY) 12 FRD 440.
In a civil rights action, in which it is alleged that police officials conspired to violate plaintiff's civil rights, and
concerning which the police investigation is completed, no protective order will be made in respect to discovery of
reports made by policemen which are strictly factual and do not contain recommendations for future conduct. Wood v
Breier (1972, DC Wis) 54 FRD 7, 15 FR Serv 2d 1422.
In dispute arising over installation of steam piping on university coliseum project, defendant's request for production
of documents was overbroad and would be limited to those materials related to installation of steam piping at issue
where plaintiff was also engaged in aspects of coliseum project other than those at issue. Detweiler Bros., Inc. v John
Graham & Co. (1976, ED Wash) 412 F Supp 416.
Court may permit discovery of party's personnel file and employment record notwithstanding contentions that such
material contains private information relating to party's personal life and background and that production of such
material would therefore be annoying, embarrassing, and oppressive; party will be sufficiently protected by requiring
opposing party's attorney to submit affidavit of assurance pledging that he will not breach any confidentiality of any
information disclosed through production of such material and further pledging that disclosure of such information will
be limited to his clients and to such other persons whose consultation is necessary for preparation for trial of case.
Chaney v Slack (1983, SD Ga) 99 FRD 531, 37 FR Serv 2d 163.
In action for breach of contract, negligence, fraud and misrepresentation, and federal and state securities laws
violations arising out of sale of stock by defendants to plaintiffs, protective order would be issued to limit depositions of
2 former attorneys who worked for special committee of plaintiff's board of directors as to their work in preparing proxy
materials on a one-time basis when plaintiff sought to become a "private" company, allegedly to uncover plaintiff's
general financial difficulty rather than any arising out of sale of stock; no attorney-client privilege was involved because
preparation of proxy statements does not involve the privileges, and work-product privilege was not involved because
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USCS Fed Rules Civ Proc R 26
preparation of proxy statements was not done in response to threat of litigation. Southern Film Extruders, Inc. v
Coca-Cola Co. (1987, MD NC) 117 FRD 559.
Civil rights plaintiffs' juvenile adjudications were not discoverable by defendants since they were inadmissible as
evidence. Schuurman v North Reading (1991, DC Mass) 139 FRD 276.
In suit by private litigants seeking to prohibit defendants from erasing certain material stored on National Security
Council's professional office computer system during Reagan administration, discoverable materials included training
on use of system, Council's practices on use and access to printed records from system, previous recovery of system
material in response to requests by other "governmental entities," alteration of system software, defendants' estimates
concerning burden of recovering material from preserved system backup tapes, information stored only in electronic
form on system, and facts concerning archivist's conduct; materials not discoverable included sample of materials
preserve on system backup tapes, and Council's instructions to staff on identifying printed records that should be
preserved as "agency records" would be granted to extent plaintiffs would be directed to focus on guidelines relating to
"federal records" rather than conducting discovery on instructions relating to "Presidential records." Armstrong v Bush
(1991, DC Dist Col) 139 FRD 547, 24 FR Serv 3d 1401.
In case alleging violation of civil rights in conduct of investigation of alleged burglary and assault, complaining
witness's name, address and telephone number could be disclosed to plaintiff's attorneys, but not to individual parties;
order recognized that witness could provide relevant information and protected her privacy. Brown v City of Oneonta
(1995, ND NY) 160 FRD 18, 32 FR Serv 3d 210, motions ruled upon (1996, ND NY) 911 F Supp 580, revd in part on
other grounds, app dismd, in part, remanded, in part (1997, CA2 NY) 106 F3d 1125.
Where company not had shown substantial need to depose plaintiffs' counsel's investigator and have investigator
produce records and other things of his interviews with third-party witnesses and witnesses were available to company,
investigator's records and other things were protected by work product immunity; magistrate judge issued protective
order prohibiting company from deposing investigator and having him produce his records and other things. O'Connor v
Boeing N. Am., Inc. (2003, CD Cal) 216 FRD 640.
5. Limiting Persons Present During Discovery [Rule 26(c)(5)]
464. Generally
Publicity in Taking Evidence Act (15 USCS § 30) providing that depositions of witnesses in antitrust act be open to
public does not conflict with and hence is not superseded by Rule 26(c) of Federal Rules of Civil Procedure requiring
that discovery be conducted with no one present except those designated by court; Rule's good cause standard is flexible
one that requires individualized balancing of many interests that may be present in particular case, and 15 USCS § 30
expresses one of those interests. United States v Microsoft Corp. (1999, App DC) 165 F3d 952, 27 Media L R 1300,
1999-1 CCH Trade Cases P 72423.
Although generally the one seeking to limit persons present at oral deposition is deponent or the party against whom
the deposition is being taken, such an order may be obtained by the party taking the deposition. Central Hide &
Rendering Co. v B-M-K Corp. (1956, DC Del) 19 FRD 296.
Discovery must take place in public unless compelling reasons exist for denying public access to proceedings.
Sharjah Inv. Co. v P.C. Telemart, Inc. (1985, SD NY) 107 FRD 81, 11 Media L R 2383, CCH Fed Secur L Rep P 92292,
2 FR Serv 3d 1200.
465. Exclusion of party
Under Rule 26(c), court has discretion to exclude even a party from taking of deposition of adverse party, and in
action by photographer against President Kennedy's widow and 3 Secret Service agents for false arrest, malicious
prosecution, and interference with trade, district court did not abuse its discretion in excluding plaintiff from deposition
examination of widow since plaintiff had already been charged with violation of court's temporary restraining order
entered to protect defendant from further harassment. Galella v Onassis (1973, CA2 NY) 487 F2d 986, 1 Media L R
2425, 17 FR Serv 2d 1205, 28 ALR Fed 879.
In antitrust action, defendants are entitled to protective order excluding each of plaintiffs from depositions of
co-plaintiffs which precede that plaintiff's deposition; however, after each plaintiff has been deposed he may attend any
subsequent depositions of other plaintiffs. Milsen Co. v Southland Corp. (1972, ND Ill) 16 FR Serv 2d 110.
Depositions before qualified officer in equity or law case are not judicial trial, nor part of trial, but are proceedings
preliminary to trial, and neither public nor representatives of press has right to be present at such taking; until deposition
has been presented to court and ordered opened, it does not become evidence in case, nor has either party until then an
opportunity to be heard upon question of competency, materiality, or relevancy of statements made by witness. Times
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USCS Fed Rules Civ Proc R 26
Newspapers, Ltd. (of Great Britain) v McDonnell Douglas Corp. (1974, CD Cal) 387 F Supp 189, 1 Media L R 2346,
19 FR Serv 2d 714.
Under Rule 26(c)(5), trial court has authority to limit who may attend depositions even to exclusion of parties to suit,
and in housing discrimination action, subtle and sophisticated questions of whether the defendants engaged in unlawful
discriminatory housing practices present good cause for entry of exclusionary order. Beacon v R. M. Jones Apartment
Rentals (1978, ND Ohio) 79 FRD 141, 26 FR Serv 2d 350.
Defendant in action by Secretary of Labor challenging election of union officers is not entitled to order excluding
unsuccessful candidates from attendance at deposition of union president where individuals in question are in very real
sense parties in interest. Marshall v Local No. 2, International Union of Police & Protection Employees, etc. (1979,
SD NY) 27 FR Serv 2d 1403.
Sequestration rule does apply to deposition in exceptional circumstances upon proper motion and order of court;
party seeking to exclude citizens from depositions bear burden of showing good cause and protection is limited to
circumstances where justice requires exclusion to protect party from annoyance, embarrassment, oppression, or undue
burden or expense. Skidmore v Northwest Engineering Co. (1981, SD Fla) 90 FRD 75, 8 Fed Rules Evid Serv 214, 31
FR Serv 2d 738.
Plaintiffs who sought to bar non-deposed parties from attending depositions of other parties had to show good cause
for sequestration under Rule 26(c)(5) and where plaintiffs failed to show that defendants (1) had harassed them, (2)
would learn legitimately secret information if present at plaintiffs' depositions, (3) had falsified testimony, or (4) would
be likely to falsify testimony, court refused to bar party from attending opponents' deposition because of inchoate fear
that perjury would otherwise result. Kerschbaumer v Bell (1986, DC Dist Col) 112 FRD 426, 7 FR Serv 3d 971.
Plaintiff-prisoner would be permitted to attend deposition of corrections officers who were defendants in his civil
rights lawsuit since it would take place at correctional facility where prisoner was located and thus posed no
transportation security issues, case was swearing contest and it was thus imperative that plainiff be able to aid his
attorneys in questioning defendants, and defendants failed to show that this prisoner would pose security threat. James
v Roberts (1995, SD Ohio) 163 FRD 260.
Defendant prison officials failed to demonstrate exceptional circumstances for excluding plaintiff-prisoner from their
depositions since depositions were scheduled for prison so that no transportation security problem would exist,
prisoner's incarceration at medium security institution represented state's determination that he was not extreme security
risk, and defendants did not suggest that prisoner posed particularized security risk with respect to this civil rights
litigation. Hines v Wilkinson (1995, SD Ohio) 163 FRD 262, 33 FR Serv 3d 1195.
Defendant in sexual harassment suit was not allowed to personally attend deposition of plaintiff's psychotherapist,
despite defendant's contention that his inability to attend deposition violated his right to appropriate defense in action,
because allowing defendant to be present at deposition would create potential to needlessly invade sensitive relationship
and embarrass and intimidate plaintiff, and it was inconceivable that presence of defendant personally at deposition of
therapist, whom plaintiff had met with only five times and whom plaintiff did not intend to call at trial, would in any
way be necessary to defendant's right to make out his defense in case. Deluca v Gateways Inn (1996, DC Mass) 166
FRD 266, 70 BNA FEP Cas 1506, 35 FR Serv 3d 496.
FRCP 26(c)(5) grants to trial court power to exclude party from deposition; however, such power should be used
rarely and only in extraordinary circumstances. Lee v Denver Sheriff's Dep't (1998, DC Colo) 181 FRD 651.
FRCP 26(c)(5) was not intended to bar parties from attending depositions. Alexander v FBI (1998, DC Dist Col) 186
FRD 21.
466. --Corporate representatives
Employees suing corporate employer were entitled to protective order excluding succession of corporate
representatives who were listed as fact witnesses and had some supervisory authority over deponents since, by
designating multiple corporate representatives who are in fact fact witnesses, employer would in effect avoid
sequestration of witnesses rule and gain unfair advantage. In re Shell Oil Refinery (1991, ED La) 136 FRD 615, 33
Fed Rules Evid Serv 498.
467. Exclusion of witness
In F.E.L.A. action where ten witnesses who were subpoenaed by plaintiff for pre-trial depositions were all employed
by defendant and would be testifying regarding a damage claim against employer, employer's control over witnesses
and the camaraderie of employees who work together was "good cause" for their separation on their pre-trial
examination. Dunlap v Reading Co. (1962, ED Pa) 30 FRD 129, 5 FR Serv 2d 498.
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USCS Fed Rules Civ Proc R 26
Party to civil lawsuit is not entitled to sequester of witnesses pursuant to Rule 615, Fed. R. Evid., as a matter of right
in oral depositions taken pursuant to Federal Rules of Civil Procedure; party seeking to exclude anyone from such
deposition must file motion for protective order pursuant to Rule 26(c)(5), Fed.R.Civ.P., before deposition begins, must
show good cause for exclusion, and must obtain court order before exclusion can occur. BCI Communication Sys., Inc.
v Bell Atlanticom Sys., Inc. (1986, ND Ala) 112 FRD 154, affd without op (1993, CA11 Ala) 995 F2d 236.
Since rule which applies to sequestration of witnesses at trial also applies to oral depositions, plaintiff was entitled to
protective order limiting number of witnesses defendant could have present at plaintiff's deposition. Lumpkin v Bi-Lo,
Inc. (1987, MD Ga) 117 FRD 451, 24 Fed Rules Evid Serv 54, 9 FR Serv 3d 395.
468. Exclusion of newsmedia
Third party deponent failed to make requisite showing that he was entitled to protective order prohibiting members
of press and public from attending his deposition in order to protect his privacy and prevent injury to his reputation
where presumption inherent in Rule 26(c) is that discovery should be open and deponent had already been subject of
publicity because of his testimony in Congressional Iran-Contra hearings. Avirgan v Hull (1987, DC Dist Col) 118
FRD 252, 14 Media L R 2136, 9 FR Serv 3d 1086.
Network had no right to order permitting it to attend deposition of former Attorney General. Kimberlin v Quinlan
(1992, DC Dist Col) 145 FRD 1.
469. Miscellaneous
Where motion for the taking of defendant's deposition had been granted and subpoena issued for the production of
certain documents, including those which would show the recipe now being used by defendant, examination should be
held with no one present except the parties and their officers and counsel, and, after depositions had been taken, they
should be sealed and opened only on order of the court. Marshwood Co. v Jamie Mills, Inc. (1950, DC Ohio) 10 FRD
386.
Court denied plaintiff's motion to limit persons present at examination where no sufficient reason for such motion
had been shown. Higgins v Shenango Pottery Co. (1952, DC Pa) 12 FRD 510.
In action for damages for conspiracy and monopoly under Sherman Act and price discrimination under Clayton Act,
sufficient reason was found to grant request that examination of witnesses on deposition should be held with no one
present except reporter, witness, and such counsel or representatives of witness as he might desire to be present, counsel
for parties, and not more than one officer or other representative of each party. Uinta Oil Refining Co. v Continental
Oil Co. (1964, DC Utah) 36 FRD 176, 9 FR Serv 2d 26A.32, Case 1, affd (1965, CA10 Utah) 340 F2d 993, 1965 CCH
Trade Cases P 71357, 9 FR Serv 2d 26A.32, Case 2, cert den (1965) 380 US 964, 14 L Ed 2d 155, 85 S Ct 1110 and
(ovrld on other grounds as stated in MDK, Inc. v Mike's Train House (1994, CA4 NC) 27 F3d 116, 1994-1 CCH Trade
Cases P 70620, 29 FR Serv 3d 1472) and (criticized in Bennett v City of Boston (1995, CA1 Mass) 54 F3d 18, 32 FR
Serv 3d 48).
Pursuant to Rule 26(c), District Court in Maryland will grant defendant's request to transfer to District Court in
Florida (forum court) motion for order directing counsel for Congressional Committee not to attend any renewed
deposition proceeding involving nonparty Maryland resident. SEC v Paradyne Corp. (1985, DC Md) 601 F Supp 560.
6. Disclosure of Secrets; Sealing of Papers [Rule 26(c)(6)-(8)]
a. In General
470. Disclosure, generally
Disclosure, because of potential needs of litigation, need not be made to public, and in case of sensitive materials,
disclosure should be restricted to counsel unless and until documents are made part of public trial record. Dellums v
Powell (1977) 182 US App DC 244, 561 F2d 242, 22 FR Serv 2d 1053, cert den (1977) 434 US 880, 54 L Ed 2d 160, 98
S Ct 234.
Party compelled to make disclosure is entitled to such safeguards as are available for protection of secret
information. National Utility Service, Inc. v Northwestern Steel & Wire Co. (1970, CA7 Ill) 426 F2d 222, 14 FR Serv
2d 229; Paul v Sinnott (1963, WD Pa) 217 F Supp; Paul v Sinnott (1963, WD Pa) 217 F Supp 84, 137 USPQ 443, 7 FR
Serv 2d 732; Vogue Instrument Corp. v Lem Instruments Corp. (1967, SD NY) 41 FRD 346, 153 USPQ 161, 1967 CCH
Trade Cases P 71971, 10 FR Serv 2d 841.
Absent showing of improvidence in grant of Rule 26(c) protective order or some extraordinary circumstance or
compelling need, witness should be entitled to rely upon enforceability of protective order against any third parties,
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USCS Fed Rules Civ Proc R 26
including government, and such order should not be vacated or modified merely to accommodate government's desire to
inspect protected testimony for possible use in criminal investigation, either as evidence or as subject of possible perjury
charge. Martindell v International Tel. & Tel. Corp. (1979, CA2 NY) 594 F2d 291, CCH Fed Secur L Rep P 96811, 26
FR Serv 2d 1249 (criticized in United States v Janet Greeson's A Place For Us (In re Grand Jury Subpoena Served on
Meserve, Mumper & Hughes) (1995, CA9 Cal) 62 F3d 1222, 95 CDOS 6323, 32 FR Serv 3d 846) and (criticized in In
re NASDAQ Market-Makers Antitrust Litig. (1996, SD NY) 164 FRD 346, 1996-1 CCH Trade Cases P 71282) and
(criticized in In re Grand Jury Subpoena (Roach) (1998, CA1 Mass) 138 F3d 442).
Secret processes may be protected against unnecessary disclosure in pretrial discovery proceedings. International
Nickel Co. v Ford Motor Co. (1954, DC NY) 15 FRD 392, 101 USPQ 107.
The entry of a secrecy order is within the court's sound discretion and, once entered, is subject to modification when
deemed advisable by the court. American Securit Co. v Shatterproof Glass Corp. (1957, DC Del) 20 FRD 196.
Fact that sensitive information is involved in litigation gives a party neither an absolute nor automatic right to have
the discovery process hindered; exercise of the court's discretion must be guided by liberal federal principles favoring
disclosure, keeping in mind the need to safeguard confidential information transmitted within discovery process from
disclosures harmful to business interests while permitting both sides to have meaningful access to information, where it
can be reasonably shown to be "relevant" to prosecution or defense of a claim. Johnson Foils, Inc. v Huyck Corp.
(1973, ND NY) 61 FRD 405, 180 USPQ 243.
General rule under USCS Rules of Civil Procedure is that discovery materials are part of public record. Bell v
Automobile Club of Michigan (1979, ED Mich) 26 FR Serv 2d 1034.
Material of general nature concerning competitive plans of party with respect to corporation begun by him is not sort
of technical information contemplated in Rule 26(c)(7). Tobias v Kwiatek (1983, DC Vt) 98 FRD 513, 13 Fed Rules
Evid Serv 1725, 36 FR Serv 2d 1456.
Rule 26(c)(7) protects against competitive disadvantages. In re Coordinated Pretrial Proceedings in Petroleum
Products Antitrust Litigation (1984, CD Cal) 101 FRD 34, 10 Media L R 1300, 1984-1 CCH Trade Cases P 65898.
Order preventing parties from divulging discovery information is not invalid, notwithstanding contention of
non-party that it is prior restraint on First Amendment freedoms. In re Korean Air Lines Disaster (1984, DC Dist Col)
597 F Supp 621, 10 Media L R 2494, 40 FR Serv 2d 870.
Because protective orders are available to limit extent to which disclosure of trade secret is made, relevant injury to
be weighed in balance is not injury that would be caused by public disclosure, but injury that would result from
disclosure under appropriate protective order; in this regard, it is presumed that disclosure to party who is not in
competition with holder of trade secret will be less harmful than disclosure to competitor. Coca-Cola Bottling Co. v
Coca-Cola Co. (1985, DC Del) 107 FRD 288, 227 USPQ 18, 4 FR Serv 3d 1291.
There is no absolute privilege against disclosure for trade secrets and similar confidential information; district court
must balance need for trade secrets against claim of injury resulting from disclosure. DDS, Inc. v Lucas Aero. Power
Transmission Corp. (1998, ND NY) 182 FRD 1, 1998-2 CCH Trade Cases P 72364.
471. Relevancy of materials sought; need for disclosure
Rule does not authorize a federal district court to protect trade secrets and sensitive competitive information from
such disclosure as is relevant to the subject matter involved in a pending private treble-damage action; all that may be
done is to afford such protection from disclosure as is practicable, consistent with the right of access thereto for
purposes of litigation. Olympic Refining Co. v Carter (1964, CA9 Cal) 332 F2d 260, 8 FR Serv 2d 30B.52, Case 1, cert
den (1964) 379 US 900, 13 L Ed 2d 175, 85 S Ct 186.
It is within sound discretion of trial court to decide whether trade secrets are relevant and whether need outweighs
harm of disclosure; relevancy is construed more broadly during discovery than at trial. Centurion Industries, Inc. v
Warren Steurer & Associates (1981, CA10 NM) 665 F2d 323, 213 USPQ 36, 9 Fed Rules Evid Serv 795, 32 FR Serv 2d
1413.
In light of rule as to protective orders, Federal Rules do not contemplate an investigation which would enable a
plaintiff to obtain complete information as to defendant's secret processes, research, and development not material or
necessary for the determination of issues involved in the case. Floridin Co. v Attapulgus Clay Co. (1939, DC Del) 26
F Supp 968, 41 USPQ 129.
Where it appeared that secrecy of business processes would be endangered by enforcement of deposition or
discovery procedure, relief has been denied upon ground that materiality and relevancy of matters in question was not
sufficiently established to justify the court, in exercise of its discretion, in compelling disclosure. Lever Bros. Co. v
Proctor & Gamble Mfg. Co. (1941, DC Md) 38 F Supp 680, 49 USPQ 533; Hercules Powder Co. v Rohm & Haas Co.
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USCS Fed Rules Civ Proc R 26
(1944, DC Del) 4 FRD 452, 66 USPQ 138; Glick v McKesson & Robbins, Inc. (1950, DC Mo) 10 FRD 477; Wagner
Mfg. Co. v Cutler-Hammer, Inc. (1950, DC Ohio) 10 FRD 480.
In action brought for alleged violation of federal securities laws and violations of state laws relating to libel and
defamation, protective order limiting defendant's use of information produced by plaintiff through discovery would be
denied, where forbidding disclosure of nonpublic information provided by plaintiff to persons other than attorneys
would constitute prior restraint on First Amendment rights. Reliance Ins. Co. v Barron's (1977, SD NY) 428 F Supp
200, 2 Media L R 1641, CCH Fed Secur L Rep P 95918, 23 FR Serv 2d 1159.
Party which seeks disclosure of trade secrets or confidential business information must make clear showing that
documents are relevant to issues involved in litigation and that inspection of documents to be produced is in some
specific way necessary for its adequate trial preparation. Pioneer Hi-Bred Int'l v Holden's Found. Seeds (1985, ND
Ind) 105 FRD 76, 1 FR Serv 3d 315, judgment entered (1991, SD Iowa) 1991 US Dist LEXIS 21179, affd (1994, CA8
Iowa) 35 F3d 1226, 31 USPQ2d 1385, 39 Fed Rules Evid Serv 993.
In order to resist discovery of trade secret, party must first demonstrate by competent evidence that information
sought through discovery is trade secret and that disclosure of secret might be harmful; if this showing is made, burden
shifts to party seeking discovery to establish that disclosure of trade secret is relevant and necessary to action.
Coca-Cola Bottling Co. v Coca-Cola Co. (1985, DC Del) 107 FRD 288, 227 USPQ 18, 4 FR Serv 3d 1291.
In view of limited relevance of materials sought, District Court properly denies plaintiff's motion to compel
production, where materials are closely guarded by defendant because they memorialize its bargaining position and
goals in its current negotiations with codefendant, and since codefendant would gain unfair advantage in negotiations if
it were to discover this strategic information. Empire of Carolina, Inc. v Mackle (1985, SD Fla) 108 FRD 323, 4 FR
Serv 3d 874.
Confidential informant suing for breach of contract by state officials by denying him emergency relocation
payments, redocumentation of new identities, insurance and cash payments, was entitled to information in documents
relevant to his status as police informant or which related to relationship between police and informants generally, but
was not entitled to criminal investigation files of nonparties in those cases where he supplied information. G-69 v
Degnan (1990, DC NJ) 130 FRD 339, 16 FR Serv 3d 591.
Protective order pursuant to FRCP 26(c) was entered to protect prison inmate's privacy interest in letters written to
minor daughter, where state sought letters in connection with inmate's habeas corpus petition alleging ineffective
assistance of counsel, and although letters likely contained material relevant to claim, they were marginally relevant to
consideration of whether inmate's attorney should have introduced mitigating evidence of inmate's family background
or should have investigated his mental condition more thoroughly, and such information likely was available from other
sources. Cockrum v Johnson (1996, ED Tex) 917 F Supp 479.
472. Need for protective order
It would be inappropriate for Court of Appeals to sign proposed order whereby any party to appeal may designate
documents submitted to be confidential, and whereby any papers submitted to court referring to such confidential
material shall be filed under seal, where parties have failed to provide any information about nature of material they
seek to protect from public view or why that information warrants protection. Ferguson v Schweiker (1985, CA3 Pa)
765 F2d 31.
In action by state seeking injunction directing owner of smelting plant to control and abate alleged air pollution,
District Court did not abuse its discretion by modifying and affirming magistrate's order temporarily prohibiting state
from releasing to public preliminary report on chemical emissions from plant and requiring confidentiality in disclosing
report to government employees, where magistrate took judicial notice of panic in New Jersey as result of alleged
dioxin pollution, and magistrate then found that he had granted state access to defendant's plant to obtain samples and to
prepare final report, that instant report had only speculative information about emissions into ambient air, and that,
regardless of whether state would withdraw or substantiate report later, its immediate release would cause irreparable
harm to defendant; such order is properly based upon wide discretion given to trial court under Rule 26(c), and is not
dependent on defendant establishing that report contains trade secrets or confidential information. New York v United
States Metals Refining Co. (1985, CA3 NJ) 771 F2d 796, 23 Envt Rep Cas 1865, 2 FR Serv 3d 1111, 15 ELR 20946.
District court did not abuse its discretion in entering protective order that limited disclosure of Ku Klux Klan
membership list to counsel for blacks in civil rights action based on fire bombing of their home, where order balanced
First Amendment associational rights of Klan members with blacks' right to seek to vindicate their civil rights, rejecting
newspaper's contention that it had First Amendment right to access to list. Courier-Journal v Marshall (1987, CA6 Ky)
828 F2d 361, 14 Media L R 1561, 8 FR Serv 3d 1017.
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USCS Fed Rules Civ Proc R 26
Court would permit discovery involving plaintiff's "trade secrets" which had already been divulged to defendant by
former employees of plaintiff. Radio Receptor Co. v General Motors Corp. (1939, DC NY) 1 FRD 167.
In action against tire company for injuries received when a tire blew out, defendant sought by motion to limit or
modify notices for taking of depositions, the allegation being made that the testimony sought would reveal secret
processes; court said that this was a matter to be developed by the examination itself, as to which action could be taken
at proper time under provision as to protective orders. Nekrasoff v U. S. Rubber Co. (1939, DC NY) 27 F Supp 953.
In action alleging unfair trade practices, protective order to prevent disclosure of defendant's trade secrets was denied
where plaintiff had disclosed similar information in its complaint and the business of the two litigants was such that
neither one would be benefited by the information supplied by the other, nor would such information be prejudicial to
either if the other possessed full information, since they were not engaged in selling the same products and were not
competitors. Cook Paint & Varnish Co. v Cook Chemical Co. (1948, DC Mo) 8 FRD 93, 78 USPQ 124.
Objection by defendant to an interrogatory which called for analysis of contents of one of defendant's magazines and
breakdown of advertising revenues was overruled despite defendant's claim that it required disclosure of trade secret
since secrets did not amount to secret process or an item or service sold in trade and since interrogatory involved
matters that could be brought out on the trial, such matters were amenable to discovery. Caldwell-Clements, Inc. v
McGraw-Hill Pub. Co. (1952, DC NY) 12 FRD 531.
Protective order enjoining plaintiff, and its representatives and attorneys from disclosing or publishing information
discovered by it in interrogatories propounded to defendants, is unnecessary since motion for order seems to be based
on imputation of bad faith to plaintiff or its counsel and should be denied in absence of anything to create doubt as to
attorney's good faith. Leonia Amusement Corp. v Loew's, Inc. (1955, DC NY) 18 FRD 503.
Plaintiff who based his motion to have further discovery in the case retained in confidence pending the trial of the
case on the contention that the defendants had wrongfully appropriated one or more of the plaintiff's trade secrets and a
protective order was needed to protect the plaintiff from disclosure of its trade secrets in the course of discovery was
entitled to such order. Textured Yarn Co. v Burkart-Schier Chemical Co. (1966, ED Tenn) 41 FRD 158, 10 FR Serv 2d
843.
In order to invoke the protection of Rule 26 (c)(7), it is necessary to specify precisely how the disclosure of the
information could prejudice defendant. Hunter v International Systems & Controls Corp. (1970, DC Mo) 51 FRD 251.
Any protective order inhibiting liberal discovery of confidential information must issue only upon a specific showing
that the information in question is of nature that its disclosure should be restricted and that party disclosing will indeed
be harmed by disclosure. Johnson Foils, Inc. v Huyck Corp. (1973, ND NY) 61 FRD 405, 180 USPQ 243.
In action by attorney pursuant to Title VII of Civil Rights Act of 1964, 42 USCS § § 2000(e), et seq., alleging that
law firm discriminatorily denied him promotion to partnership because of his religion and national origin, defendant
was entitled to protective order under Rule 26(c) prohibiting plaintiff from directly quoting from certain portions of his
interrogatories or from disclosing contents with attribution to answers as such when individual partners were named and
charged with ethnic bigotry, ineptitude, sloth, and various unethical practices without opportunity to test accuracy
through cross-examination and only loss plaintiff might suffer would be inability to disclose those contents either
shielded by privilege against liability for libel when statements are made in course of litigation or cloaked with
authenticity conferred by filing papers with court. Lucido v Cravath, Swaine & Moore (1978, SD NY) 25 FR Serv 2d
1050.
Defendants are not entitled to protective order eliminating sharing of discovery materials between counsel for
plaintiffs in race discrimination action and counsel for plaintiffs in sex discrimination action where defendant has not
shown it will be prejudiced by such co-operation as long as defendants have opportunity to apply to court for order
concerning any particular document for which good cause for such order can be shown; expensive computerized cardex
tape may not be turned over to counsel for plaintiffs in sex discrimination case until payment of one-third of cost. Bell
v Automobile Club of Michigan (1979, ED Mich) 26 FR Serv 2d 1034.
Since grant of any request for return of discovery materials will have effect of denying opportunity to plaintiffs to
release those materials to public, request must be treated as application for protective order banning publication and
good cause must be shown before return is ordered; however even if good cause for complete return of discovered
materials is not shown, denial of motion for full return may be accompanied by order permitting use of particular
materials on such terms and conditions as are just and factors to be considered in determining whether there is good
cause to order return of are same as factors considered in determining whether any relief short of returns should be
ordered. Krause v Rhodes (1979, ND Ohio) 535 F Supp 338, 33 FR Serv 2d 1684, affd (1982, CA6 Ohio) 671 F2d
212, 8 Media L R 1130, 33 FR Serv 2d 1675, cert den (1982) 459 US 823, 74 L Ed 2d 59, 103 S Ct 54.
Protective order will be denied where only "good cause" alleged by defendant is that counsel for plaintiff are
members of trial lawyers associations which collect and distribute information with regard to manufacturers; such
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USCS Fed Rules Civ Proc R 26
collaboration among plaintiffs' attorneys comes squarely within aims of Federal Rules of Civil Procedure to secure just,
speedy, and inexpensive determination of every action. Patterson v Ford Motor Co. (1980, WD Tex) 85 FRD 152, 29
FR Serv 2d 862.
Nature of discovery makes it unfair to allow recipient of discovery materials virtually unlimited right to disseminate
those materials; since discovery rules are very liberal and accord litigants broad right of access to information,
production of much irrelevant and inadmissible information could be compelled by processes of court. Koster v Chase
Manhattan Bank (1982, SD NY) 93 FRD 471, 8 Media L R 1155, 28 CCH EPD P 32557, 34 FR Serv 2d 346.
Where plaintiff's discovery request requires production of every sheet and scrap of paper and information from every
other record source in defendant's file concerning its limited price put in call options program, restriction will be
imposed to protect business and financial privacy of defendant's customers, including prohibition against disclosure of
documents produced and other information. Edwards v Gordon & Co. (1982, DC Dist Col) 94 FRD 584, CCH Fed
Secur L Rep P 98841.
Court denied employer's request for protective order against disclosure of trade secrets obtained during investigation
by Equal Employment Opportunity Commission (EEOC), since Title VII of Civil Rights Act already requires that all
information obtained during investigation and conciliation stages of EEOC proceedings be kept confidential, and any
EEOC employee who violates this requirement is subject to imprisonment or fine, and since employer made no showing
that violation of confidentiality was likely to occur or that statutory remedy is inadequate. Valley Industrial Services,
Inc. v EEOC (1983, ND Cal) 570 F Supp 902, 32 BNA FEP Cas 482, 32 CCH EPD P 33877.
In action for copyright infringement involving song published by plaintiff, District Court properly grants motion
compelling defendant to produce financial records relative to allegedly infringing song, notwithstanding defendant's
contention that disclosure of this sensitive information would jeopardize its position in fiercely competitive music
industry; however, nature of industry and information sought do warrant issuance of protective order limiting disclosure
by parties of information sought. Intersong-USA, Inc. v CBS, Inc. (1985, SD NY) 1 FR Serv 3d 609.
To allow information to become presumptively confidential on basis of defendants' designation without affording
plaintiffs opportunity to disagree with that designation and then to bear burden of mounting challenge would run afoul
of basic burden-shifting approach mandated by Rule 26(c) and would violate First Amendment. Cipollone v Liggett
Group, Inc. (1985, DC NJ) 106 FRD 573, 2 FR Serv 3d 1227.
Where purpose underlying protective order is protection of confidential materials, discharging burden of proving
necessity of order normally entails showing both that information sought requires protection under Rule and that
disclosure will result in clearly defined and serious injury. Cipollone v Liggett Group, Inc. (1985, DC NJ) 106 FRD
573, 2 FR Serv 3d 1227.
In order to resist discovery of trade secret, party must first demonstrate by competent evidence that information
sought through discovery is trade secret and that disclosure of secret might be harmful; if this showing is made, burden
shifts to party seeking discovery to establish that disclosure of trade secret is relevant and necessary to action.
Coca-Cola Bottling Co. v Coca-Cola Co. (1985, DC Del) 107 FRD 288, 227 USPQ 18, 4 FR Serv 3d 1291.
In class action alleging worldwide conspiracy to defraud investors out of hundreds of millions of dollars, contention
of one defendant who was Swiss national and resident that requiring him to respond to discovery in U.S. would subject
him to penal sanctions under Swiss law was without merit since Swiss law does not prohibit person from divulging his
own business affairs but only those of others without their consent, and defendant had made no showing that he was
protecting any interest but his own. Roberts v Heim (1990, ND Cal) 130 FRD 430.
Defendant brokerage firm established with three affidavits its claim of confidentiality regarding documents
pertaining to its compliance program under federal and state securities laws, their related regulations, and rules of
NASD and NYSE, and defendant's proposed stipulation for confidentiality of designated documents, while generally
self-executing, contained provision for party to bring to court's attention at any time question whether particular
document should have been designated confidential by opposing party, hence would be approved. Prochaska & Assocs.
v Merrill Lynch, Pierce, Fenner & Smith (1993, DC Neb) 155 FRD 189.
Proposed stipulation which would allow each party to commercial dispute to designate documents as "confidential"
did not meet requisite good cause standard since parties failed to show with specificity that disclosure would cause
defined and serious injury upon party or that there was need to protect third-party, parties' self-selection of documents
resulted in judicial discretion yielding to private judgment, and stipulation was far too broad and imprecise to permit its
fair enforcement. Aetna Casualty & Sur. Co. v George Hyman Constr. Co. (1994, ED Pa) 155 FRD 113, 22 Media L R
2030.
Protective order will remain in force without modification, even though purpose of FRCP 27 proceeding has been
accomplished since patentee has notified court that it is satisfied that new onion harvester does not infringe patents,
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USCS Fed Rules Civ Proc R 26
because owner of new harvester has relied and still relies upon order as means of protecting its putative trade secrets
under FRCP 26(c). Lee Shuknecht & Sons v P. Vigneri & Sons (1996, WD NY) 927 F Supp 610, 35 FR Serv 3d 1071.
To obtain FRCP 26(c)(7) protective order, movant must show that interest for which protection is sought is actual
trade secret or other confidential business information protected under rule, and that there is good cause for protective
order. Andrew Corp. v Rossi (1998, ND Ill) 180 FRD 338.
Party seeking to resist discovery of trade secret must show that information is trade secret and that disclosure might
be harmful; if this showing is made, burden shifts to party seeking to compel discovery to establish that disclosure of
trade secret is relevant and necessary to action. DDS, Inc. v Lucas Aero. Power Transmission Corp. (1998, ND NY) 182
FRD 1, 1998-2 CCH Trade Cases P 72364.
Under FRCP 26(c), court would not keep under seal records of health insurer regarding former procedure for
processing medical emergency claims, when only support for sealing documents were conclusory allegations of
employee that insurer would be harmed if competitors had access to them. Tinman v Blue Cross & Blue Shield (2001,
ED Mich) 176 F Supp 2d 743.
473. --Public access to deposition materials
Following consent decree in sexual harassment case, employer was not required to show concrete threat to important
interest to justify district court's order restricting public access to depositions in case, rather some showing of good
cause is all that is required to restrict use of depositions. EEOC v National Children's Ctr. (1996, App DC) 321 US App
DC 243, 98 F3d 1406, 72 BNA FEP Cas 314, 69 CCH EPD P 44389, 36 FR Serv 3d 412.
Affidavit by plaintiff's attorney to effect that if plaintiff was forced by deposition to disclose ingredients he
purchased he would be revealing a secret formula and trade and business secrets to defendant, inasmuch as such
disclosure would reveal chemicals originally put into the product which disappear when combined with others in
manufacture, was insufficient to warrant an order restraining defendant from inquiring into items comprising cost of
manufacture of the goods sold to defendant; hearsay statements of an attorney constituted an insufficient showing that
testimony sought would betray any secrets. Sacks v Frank H. Lee Co. (1955, DC NY) 18 FRD 500.
In balancing respective rights in deposition1and discovery proceedings court must weigh right of plaintiff to examine
with respect to everything relevant, and to have production for copying of relevant documents for which plaintiff has
established good cause, and on other hand right of defendant to be protected against oppression and in his trade secrets.
De Long Corp. v Lucas (1956, DC NY) 138 F Supp 805; Melori Shoe Corp. v Pierce & Stevens, Inc. (1953, DC Mass)
14 FRD 346, 98 USPQ 382.
Deposition of research microbiologist, all exhibits produced at deposition, and all briefs relating to deposition are
properly ordered sealed and parties to litigation are properly ordered not to reveal contents of such materials where (1)
research has little probative value in its present incomplete form, and (2) release of incomplete data will harm
deponent's professional reputation, impair his ability to complete and publish final results of his research efforts, and
have adverse effect on research into controversial areas conducted throughout nation. Rogers v Procter & Gamble Co.
(1984, ED Mo) 39 FR Serv 2d 76.
In former city official's civil right suit against city and various city officials, defendants' motion to seal depositions
would be denied where defendants had not substantiated their allegations of annoyance, embarrassment and oppression
and public interest in conduct of public officials outweighed minimal harm tendered by defendants as good cause.
Hawley v Hall (1990, DC Nev) 131 FRD 578, 17 Media L R 2025.
474. Methods of protection
Order directing nonparty witnesses to comply with subpoena duces tecum requesting witnesses to disclose trade
secrets with respect to marketing procedures used by oil company would not be quashed where trial court concluded
that interests of justice required enforcement of subpoenas, and imposed conditions designed to protect witnesses, that
is, documents were made available only to counsel and independent certified public accountants and only for purposes
of case, forbade use of material for business or competitive purposes, limited those who could be present at depositions,
directed that documents and depositions were to be held by clerk under seal with access thereto only upon order of
judge, and recognized that further protective orders upon appropriate showing could be had. Covey Oil Co. v
Continental Oil Co. (1965, CA10 Utah) 340 F2d 993, 1965 CCH Trade Cases P 71357, 9 FR Serv 2d 26A.32, Case 2,
cert den (1965) 380 US 964, 14 L Ed 2d 155, 85 S Ct 1110 and (ovrld on other grounds as stated in MDK, Inc. v Mike's
Train House (1994, CA4 NC) 27 F3d 116, 1994-1 CCH Trade Cases P 70620, 29 FR Serv 3d 1472) and (criticized in
Bennett v City of Boston (1995, CA1 Mass) 54 F3d 18, 32 FR Serv 3d 48).
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USCS Fed Rules Civ Proc R 26
If trade secrets are deemed relevant and necessary, appropriate safeguards that should attend their disclosure by
means of protective order are matter within trial court's discretion. Centurion Industries, Inc. v Warren Steurer &
Associates (1981, CA10 NM) 665 F2d 323, 213 USPQ 36, 9 Fed Rules Evid Serv 795, 32 FR Serv 2d 1413.
Court approved protective order under Rule 26 that denied non-parties, including newspaper publisher, access to
discovery materials that had been compiled in series of complex security actions and that had been designated as
"confidential" by parties, and court stated that publisher had no common law right to examine discovery material since
it did not qualify as "judicial record", that publisher had no first amendment right to protected information since
discovery process is statutorily created forum not judicially open to public and private litigants have protectable privacy
interest in confidential information, and court pointed out that protective order in question was issued with consent of
parties, was intended to expedite flow of discovery and save time, contained specific terms, allowed liberal access to all
materials for parties, and no less onerous alternative existed. In re Alexander Grant & Co. Litigation (1987, CA11 Fla)
820 F2d 352, 14 Media L R 1370, 8 FR Serv 3d 251.
If necessary to protect confidential material, delivery would be ordered made to an officer designated by the court,
who would take positive precaution to protect defendant's interests. Hirshhorn v Mine Safety Appliances Co. (1948,
DC Pa) 8 FRD 11, 76 USPQ 526.
If it were necessary to compel disclosure of defendant's trade secrets, court would consider advisability of
appointment of an impartial expert or special master to examine, under pledge of secrecy, into matter of such trade
secrets. Cities Service Oil Co. v Celanese Corp. of America (1950, DC Del) 10 FRD 458, 86 USPQ 439.
Disclosure of information involving trade secrets may be protected by order limiting scope of answers. Reed v Swift
& Co. (1951, DC Mo) 11 FRD 273; Sikes Co. v Swift & Co. (1949, DC NY) 11 FRD 315; Baxter v Savannah Sugar
Refining Corp. (1968, SD Ga) 46 FRD 56, 1 BNA FEP Cas 507, 70 BNA LRRM 2067, 1 CCH EPD P 9937, 59 CCH LC
P 9180, 12 FR Serv 2d 555.
Department store seeking information regarding fairness of charges for delivery service is entitled to have accountant
examine confidential records of delivery company, provided accountant report only conclusions as to fairness of
charges rather than detailed figures which would reveal confidential information relating to other stores. United Parcel
Service, Inc. v Federated Dep't Stores, Inc. (1953, DC Del) 14 FRD 451.
Although defense counsel in patent infringement suit submitted neither affidavit nor brief in support of oral
allegation that inspection would reveal trade secrets, inspection and photographing of machine pursuant to Rule 34 is
permitted and, counsel for plaintiffs should prepare appropriate order identifying by name inspectors and photographers
accompanied by assurances under oath from each inspector and photographer that none of the information obtained
would be divulged except in the course of judicial proceedings. Paul v Sinnott (1963, WD Pa) 217 F Supp 84, 137
USPQ 443, 7 FR Serv 2d 732.
Interrogatories are relevant if they have a bearing on the subject matter of the action; however, where they would
involve much searching and tabulation by the answering party, they may impose an unnecessary burden; in lieu of such
interrogatories, the interrogating party may be allowed to inspect the records himself pursuant to Rule 34 or, if trade
secrets might be involved, to have an impartial third party examine the records and tabulate the information in such a
way that no trade secrets are disclosed. 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.
Where certain interrogatories under consideration might disclose trade secrets, protective order was appropriate and
counsel for both sides could be required to jointly draft and submit separate order providing that trade secrets obtained
by either side in course of discovery would be utilized only for purposes of present litigation and would be revealed
only during judicial proceedings. Struthers Scientific & International Corp. v General Foods Corp. (1968, SD Tex) 45
FRD 375, 159 USPQ 565, 12 FR Serv 2d 767.
Answers to interrogatories will be required although they require disclosure of trade secrets where information
sought is relevant and necessary for preparation of case for trial, there is no absolute privilege protecting manufacturer
from disclosing its customer list and source of supply, however, protective order will issue ordering plaintiff to utilize
information solely for purpose of litigation. Russ Stonier, Inc. v Droz Wood Co. (1971, ED Pa) 52 FRD 232, 169
USPQ 546, 15 FR Serv 2d 55.
Defendant in suit involving alleged infringement of patent for pitch matching detecting and counting system would
be ordered to produce and permit inspection and testing of documents and items related to each type of alleged
infringing device sold by defendant; access to material relating to trade secrets or confidential research would be
restricted to trial counsel and could be disclosed to no more than 2 independent consultants. Spartanics, Ltd. v
Dynetics Engineering Corp. (1972, ND Ill) 54 FRD 524, 172 USPQ 458, 15 FR Serv 2d 1435.
In civil antitrust case, defendant, in response to interrogatories, specified files from which information could be
obtained and received protective order limiting disclosure to counsel and those persons, not competitors of the
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USCS Fed Rules Civ Proc R 26
defendant, whose aid is necessary in the preparation of plaintiff's case, and the information so obtained is not to be used
for any purpose other than the preparation of the trial of the case. Tosa Chrysler-Plymouth, Inc. v Chrysler Motors
Corp. (1972, ED Wis) 55 FRD 41, 1972 CCH Trade Cases P 74123, 15 FR Serv 2d 1615.
In action for alleged violation of federal antitrust laws, plaintiff would not be required to disclose documents which
fell in category of correspondence from government informant which was likely to disclose his identity or tend to reveal
his identity, although to extent any correspondence with informants could be masked to exclude name and address of
informant, and providing such correspondence would not otherwise tend to reveal identity of such informant, plaintiff
would be directed to produce copies of such documents appropriately masked. United States v Real Estate Bd. (1973,
ED Mo) 59 FRD 637, 1973-2 CCH Trade Cases P 74796, 17 FR Serv 2d 506.
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, defendant's request
for protective order limiting response to certain interrogatories seeking commercial information was granted in part;
answers were to be given only to plaintiff's counsel, were not to be shown to plaintiff, and were to be used only in
connection with preparation of instant case, and were then to be filed under seal with this court. 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 patent infringement action in which defendant moved for summary judgment to prevent plaintiff from using, in
foreign litigation, certain information involved in the discovery process, where both parties agreed that protective order
should be entered but disagreed on extent of such order, summary judgment is not appropriate and, since it does not
appear that plaintiff is abusing discovery process, limited protective order is entered allowing discovery information to
be used only in specified litigation but with right of plaintiff's technical advisers to have access to any information of
confidential nature obtained by discovery. Johnson Foils, Inc. v Huyck Corp. (1973, ND NY) 61 FRD 405, 180 USPQ
243.
Order proposed by plaintiff and its employee witness, allowing only government lead counsel and counsel
designated to cross-examine witness to have access to confidential information, was defective as it imposed unnecessary
restriction on access to confidential information produced; protective order issued by court properly placed emphasis on
preventing plaintiff's misuse of rather than limiting its access to confidential information by requiring each person
permitted access to information to submit affidavit stating that he would abide by its terms, thereby subjecting any
misuser to sanction power of court. United States v International Business Machines Corp. (1979, SD NY) 82 FRD
183.
Corporation may be compelled to produce distributor, vendor, and customer information subject to conditions which
would limit access to requested information to counsel and counsel's associates and employees (thereby precluding
disclosure to any competitors), would limit number of copies of information which might be circulated among counsel,
and would limit use of said information only for purposes of present litigation (thereby precluding its use in any
anticompetitive fashion). Liberty Folder v Curtiss Anthony Corp. (1981, SD Ohio) 90 FRD 80, 31 FR Serv 2d 1525.
Where protective order contained provision that after termination of case all protected materials were to be returned
to producing party or destroyed and destruction verified, party in possession of materials could not be excused from
complying because it was allegedly burdensome; protective orders are not issued lightly and cannot be dispensed with
when they finally become inconvenient to one of parties. H.L. Hayden Co. v Siemens Medical Systems, Inc. (1989, SD
NY) 130 FRD 281, 16 FR Serv 3d 469.
Defendant's designated expert would be permitted to inspect plaintiff's confidential materials provided through
discovery only upon his agreement to relinquish any current or future position as consultant to defendant on
nonlitigation matters and upon his consent to be bound by existing protective order. Digital Equipment Corp. v Micro
Technology, Inc. (1992, DC Colo) 142 FRD 488.
Appropriate protective order will require defendant's in-house counsel and experts to sign affidavit agreeing to limit
access to confidential licenses and technological information to one in-house attorney and one in-house expert, in patent
infringement action involving plastic container lids, because such order strikes balance between risk of competitive
injury and need for material information in line with FRCP 26(c)(7). Bailey v Dart Container Corp. (1997, DC Mass)
980 F Supp 560.
475. --In camera inspection
Under Rule 26(c), court may enter order for submission of confidential information in camera. Ronson Corp. v
Liquifin Aktiengesellschaft (1974, DC NJ) 370 F Supp 597, CCH Fed Secur L Rep P 94369, affd (1974, CA3 NJ) 497
F2d 394, CCH Fed Secur L Rep P 94536, cert den (1974) 419 US 870, 42 L Ed 2d 108, 95 S Ct 129.
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USCS Fed Rules Civ Proc R 26
476. Simultaneous filing of documents or information
In patent infringement suit, plaintiff's answers to defendant's interrogatories, directed to ascertainment of such facts
as dates of invention and dates and places of first disclosure, would not be conditioned upon requirement that defendant
deliver simultaneously, under seal, answers to same questions with respect to each instance of prior knowledge, use,
sale, and invention of patents in suit upon which defendant would rely. Chandler v Cutler-Hammer, Inc. (1940, DC
Wis) 31 F Supp 453, 45 USPQ 149.
Court directed that order be entered requiring plaintiffs to answer certain interrogatories and requiring defendants,
within same time, to furnish names and dates of all prior art references, including prior publications, prior uses, and
other anticipations upon which they would rely at trial of the action by way of defense, the order to provide further that
plaintiffs' answers and defendants' corresponding particulars would be sealed and deposited with clerk of court to be
opened only upon order of the court. Prosperity Co. v St. Joe Machines, Inc. (1942, DC Mich) 2 FRD 299, 53 USPQ
15.
Protective order requiring simultaneous filing of documents would be issued where it appeared that unilateral
disclosure of information might give undue advantage to other party. Ginsberg v Railway Express Agency, Inc. (1945,
DC NY) 6 FRD 371, 65 USPQ 276; Eastern Fireproofing Co. v United States Gypsum Co. (1957, DC Mass) 21 FRD
290.
Court, in refusing to order simultaneous disclosure, took position that party required to furnish information in pretrial
examination was sufficiently protected, inasmuch as he could by similar procedure obtain same information from the
other party. Binger v Unger (1946, DC NY) 7 FRD 121, 72 USPQ 166; Armour Research Foundation v Brush
Development Co. (1949, DC Ohio) 9 FRD 113, 81 USPQ 156.
Plaintiff sought to require defendant to deliver business machines designed by former employee of plaintiff who had
used confidential knowledge of plaintiff's business while employed by defendant, and to restrain defendant from
manufacturing inventions produced by such employee; on motion by plaintiff to require defendant to produce certain
records and papers relating to pertinent matters, defendant objected to revealing information relating to four pending
patent applications; court ordered that papers and information relating to the pending patents be filed in sealed
envelopes to be opened as directed by the court, on condition that plaintiff simultaneously file, in sealed envelopes,
information concerning alleged confidential matters. Remington Rand, Inc. v Control Instrument Co. (1947, DC NY) 7
FRD 18, 73 USPQ 285.
In action for declaratory judgment that patent owned by defendant was invalid and not infringed by plaintiff,
defendant's interrogatories asked for dates of prior use alleged by plaintiff, and court stated that an exchange of dates
would facilitate matters at the trial, but that plaintiff should not be placed at disadvantage by furnishing defendant with
dates without receiving, at same time, dates from defendant. Sutherland Paper Co. v Grant Paper Box Co. (1948, DC
Pa) 8 FRD 416, 79 USPQ 183, 79 USPQ 211, 79 USPQ 212.
Court denied request by defendant that answers to interrogatories seeking information as to dates of invention,
conception, first disclosure, and first written description be filed by both sides with the court in sealed envelopes to be
opened on first day of trial in patent infringement action because court was of opinion that the two sets of
interrogatories were not directed to same subject matter and answers to one set of interrogatories were not dependent
upon answers to the other. General Motors Corp. v California Research Corp. (1949, DC Del) 9 FRD 568, 83 USPQ
285.
In Examination of defendant involving production of documents relative to secret processes, defendant's secret recipe
will be disclosed to plaintiff but, before depositions are taken, plaintiff must file with clerk of the court all documents
relating to its secret process in sealed envelope to be opened only as directed by the court. Marshwood Co. v Jamie
Mills, Inc. (1950, DC Ohio) 10 FRD 386.
In action for declaratory judgment with respect to validity and infringement of patent, plaintiff was not required to
answer interrogatories asking for dates of alleged prior use without receiving dates at same time from defendants. Mall
Tool Co. v Sterling Varnish Co. (1951, DC Pa) 11 FRD 576, 91 USPQ 322.
477. Restriction on use of material
Having granted EEOC's motion to compel discovery of age, sex, and race data in Title VII race discrimination suit, it
was not abuse of discretion for District Court to restrict EEOC's use of material to instant litigation under Rule 26(c),
notwithstanding contention that adherence to protective order would conflict with EEOC's duty to enforce Title VII
should it wish to bring suit based on age and sex data, and that use restriction precludes EEOC compliance with
interagency agreement relative to sharing information concerning employment discrimination. Harris v Amoco Prod.
Co. (1985, CA5 La) 768 F2d 669, 38 BNA FEP Cas 1226, 38 CCH EPD P 35568, 3 FR Serv 3d 1321, cert den (1986)
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USCS Fed Rules Civ Proc R 26
475 US 1011, 89 L Ed 2d 302, 106 S Ct 1186, 40 BNA FEP Cas 192, 39 CCH EPD P 35875 and (criticized in Rivers v
Barberton Bd. of Educ. (1998, CA6 Ohio) 1998 FED App 141P).
District Court erred in permitting one media entity to have access to discovery materials that were covered by
protective order pursuant to Rule 26(c) but denying access to another media entity, since court may not selectively
exclude news media from access to information otherwise made available for public dissemination; protective orders
will not offend First Amendment if they meet Rule 26(c) requirement of good cause, are restricted to discovery context,
and do not restrict dissemination of information obtained from other sources. Anderson v Cryovac, Inc. (1986, CA1
Mass) 805 F2d 1, 13 Media L R 1721, 6 FR Serv 3d 369.
District Court may not compel testimony in civil action of nonparty witness who asserts valid Fifth Amendment
claim by issuing protective order which purports to limit prosecutorial access to compel testimony, since protections of
protective order simply are not as certain as protections of either Fifth Amendment or statutory grant of use immunity.
Andover Data Services, Div. of Players Computer, Inc. v Statistical Tabulating Corp. (1989, CA2 NY) 876 F2d 1080, 28
Fed Rules Evid Serv 428, 13 FR Serv 3d 1328.
It is neither justified nor wise to restrict use of even confidential material to instant litigation. Cipollone v Liggett
Group, Inc. (1985, DC NJ) 106 FRD 573, 2 FR Serv 3d 1227.
On motion for modification of protective order prohibiting disclosure of name and identity of non-party attorney
witness, Magistrate may allow for disclosure of non-party attorney's identity, while prohibiting counsel from averring in
civil complaint that non-party attorney took Fifth Amendment in instant case. Weil v Markowitz (1985, DC Dist Col)
108 FRD 113.
In suit arising out of alleged breaches of subcontracting provisions of collective bargaining agreement, union would
be barred from using documents or information for any purpose other than instant litigation; union's concern that it
would be in violation of its duty of fair representation if it failed to use discovered information was without justification
since if union is acting within purview of protective order of court, membership would be unable to establish bad faith
motive. Safran v United Steelworkers (1990, WD Pa) 132 FRD 32.
Civil protective order would be preserved, although if either deponent in civil litigation testified at criminal
prosecutions brought against them, U.S. would be entitled to access to their civil depositions for impeachment purposes.
Omaha Indem. Co. v Royal American Managers, Inc. (1991, WD Mo) 140 FRD 398.
Good cause existed for modifying protective order entered in action dismissed voluntarily and unconditionally to
effect that documents subject to order were to be maintained by parties subject to directives of FDA and discovery
orders of courts of competent jurisdiction where proposed intervenors were parties to pending cases. Grundberg v
Upjohn Co. (1991, DC Utah) 140 FRD 459.
478. Miscellaneous
Without protective order, materials obtained in discovery may be used by party for any purpose, including
dissemination to public; issuance of protective order restricting disclosure of matter discovered must be evaluated on
three criteria: substantial and serious harm posed by dissemination; narrowly drawn and precise restraining order, and
no alternative means of protecting public interest which intrudes less directly on expression; judicial order pursuant to
Rule 26(c) limiting lawyers' and parties' expression concerning government documents derived from unlawful programs
of surveillance of citizens who opposed Vietnam War, obtained from government through discovery, possessed many
characteristics of administrative licensing scheme of prior restraint. 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 suit charging infringement of patents for manufacture of sulphuric acid esters of high normal primary alcohols,
where both parties sought disclosure of processes used by way of pretrial interrogatories and where objection to
disclosure of secret process had been raised, request for enforcement of certain interrogatories which called generally
for complete disclosure of the parties' processes and composition of their products is denied; however, refusal to require
an answer to a question as to changes made by one party in its raw materials, processes, and products, upon ground that
secret processes would be revealed, is without prejudice to renewal of the interrogatory if the party seeking the
information still feels that it is essential after interrogatories are answered and examined. E. I. Du Pont De Nemours &
Co. v Byrnes (1939, DC NY) 1 FRD 34, 44 USPQ 13.
Where it was impossible for court to determine whether trade secrets would be disclosed by production of certain
documents, court would deny motion for such production by holding that although the Federal Rules intended to make
such examinations liberal, court's discretion should be used in patent infringement cases to prevent disclosure of trade
secrets in advance of trial. Western States Machine Co. v S.S. Hepworth Co. (1941, DC NY) 1 FRD 766, 50 USPQ 564.
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USCS Fed Rules Civ Proc R 26
Where one who was injured in using hair dye manufactured by defendant sought to propound interrogatories
inquiring into ingredients and processes used by defendant, revelation of secret processes, concealed methods of
compounding, and the like, are not compelled since such trade secrets are protected by rule, but interrogation as to
ingredients may be compelled since such information does not constitute trade secret. Lenerts v Rapidol Distributing
Corp. (1942, DC NY) 3 FRD 42.
Rulings in patent infringement cases concerning right to discovery of trade secrets are not controlling in tort actions
for personal injury; in such actions secret formulae need not be revealed, but plaintiff, suing for injuries allegedly
received in use of a sun-tan lotion made by defendant, is entitled to be told ingredients used in manufacture, but not
their proportions. Glick v McKesson & Robbins, Inc. (1950, DC Mo) 10 FRD 477.
Plaintiff whose goods were allegedly damaged by improper bleaching was permitted to inspect and photograph
defendant's secretly constructed tanks, and records pertaining thereto, but not analysis and expert opinions concerning
discoloration, nor standard drier. Louis Weinberg Associates, Inc. v Monte Christi Corp. (1951, DC NY) 11 FRD 514.
Inspection, copying, or photographing of certain documents involving trade secrets requested by defendants in action
to enjoin alleged infringement of patented process for extracting oil from cotton seeds by use of chemical solvents must
be conducted under such conditions as to protect plaintiff's legitimate rights and prevent unnecessary disclosure of trade
secrets to competitors or to public generally. V. D. Anderson Co. v Helena Cotton Oil Co. (1953, DC Ark) 117 F Supp
932, 100 USPQ 413.
Where plaintiff had been given requested information and then sought to have existing protective order and secrecy
arrangement with regard thereto abrogated in order to make information public, court granted motion as to name and
country of origin of foreign supplier, absent showing by defendant that substantial harm would result if secrecy of such
information were not maintained, but denied motion to disclose terms of contract between defendant and foreign
supplier, on showing by defendant that great competitive disadvantage would result from divulgence of such
information to public. Essex Wire Corp. v Eastern Electric Sales Co. (1969, ED Pa) 48 FRD 308, 13 FR Serv 2d 818.
In a personal injury action by woman who allegedly suffered a stroke as result of using an oral contraceptive
manufactured by defendant, motion by defendant for protective order forbidding plaintiffs and their attorneys from
divulging any of material obtained from the defendant through discovery processes to any persons or firms not directly
connected with preparation of this action for trial was denied over defendant's contentions (1) that the fruits of discovery
in one action should be used in that action only and should not be communicated to any party not directly involved in
the action; (2) that plaintiffs' attorneys will use the fruits of discovery in this case to stir up further litigation involving
defendants; and (3) that plaintiffs or their attorneys have used the fruits of discovery to try case in the press rather than
in the courtroom. Williams v Johnson & Johnson (1970, SD NY) 50 FRD 31, 14 FR Serv 2d 137.
Objection that plaintiff had shown propensity to misuse trade secrets already discovered did not prevent further
discovery, since record on misuse was unclear and discovery of both parties was subject to protective orders, giving
parties respective rights if orders were violated. Struthers Scientific & International Corp. v General Foods Corp.
(1970, DC Del) 51 FRD 149, 168 USPQ 202, 14 FR Serv 2d 1290.
In antitrust-patent action, court would not recognize principle of subject matter waiver of trade secret privilege, and
where documents supposedly constituting subject matter waiver had been considered in court's analysis of relevancy of
trade secrets to issues in lawsuit, and where determination of relevancy had been made, production of trade secrets was
compelled under protective orders to be prepared by holders of trade secrets in accordance with Rule 26(c)(7). Duplan
Corp. v Deering Milliken, Inc. (1974, DC SC) 397 F Supp 1146, 184 USPQ 775.
In action on claim by individual plaintiffs against defendants for personal injuries allegedly suffered as a result of
contact with chemical substance Kepone produced by defendants, on motion by operator of radio and television
stations, non-party to litigation, to quash subpoena to produce broadcasting materials concerning Kepone, on grounds
that operator had property right in its unpublished files as compiler of materials and that revealing those files would
destroy their value and allow others to appropriate fruits of reporter's efforts and that operator had property right in
processes reflected in selection of materials compiled, operator's position was without merit; opening files to discovery
did not necessarily open them to public since court had power as well as duty to fashion protective orders that enabled
movant to secure needed information at minimum of public exposure to subject of subpoena and to condition discovery
on reasonable payments for services rendered. 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).
Notwithstanding entry of umbrella protective order, strong common law presumption of access attaches to pretrial
documents (including pretrial briefs, summary judgment materials, memoranda exhibits, and cited documents connected
with motions for judgment on pleadings), and defendants may properly be required to show that such documents
continue to be worthy of protection; furthermore, third parties which have provided documents presumptively subject to
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USCS Fed Rules Civ Proc R 26
disclosure may move to intervene with respect to this issue. In re Coordinated Pretrial Proceedings in Petroleum
Products Antitrust Litigation (1984, CD Cal) 101 FRD 34, 10 Media L R 1300, 1984-1 CCH Trade Cases P 65898.
Protective order oversteps bounds permitted by Rule 26(c), and consequently those of First Amendment, by limiting
flow of information without any cause whatsoever, where order provides that all information produced or exchanged in
course of action shall be used solely for purposes of case. Cipollone v Liggett Group, Inc. (1985, DC NJ) 106 FRD
573, 2 FR Serv 3d 1227.
In context of investigation of charge of sex discrimination by Equal Employment Opportunity Commission,
defendant employer is not entitled to protective order prohibiting EEOC from disclosing information from personnel
files to public, including charging party and her attorney or representatives. EEOC v County of Hennepin (1985, DC
Minn) 623 F Supp 29, 39 BNA FEP Cas 1811, 38 CCH EPD P 35540.
Customer lists are trade secrets only if names are not readily ascertainable from sources outside employer's business.
DDS, Inc. v Lucas Aero. Power Transmission Corp. (1998, ND NY) 182 FRD 1, 1998-2 CCH Trade Cases P 72364.
For purpose of obtaining protective order under FRCP 26(c)(7), party has no absolute privilege for trade secrets and
similar confidential information. Volvo Penta of the Ams., Inc. v Brunswick Corp. (1999, ED Va) 187 FRD 240, 44 FR
Serv 3d 1020.
Joint motions for protective orders should not be granted routinely because business of federal courts is that of
public, and only if another public policy favors nondisclosure should such order be issued; however, where information
sought to be protected concerns documents that parties in good faith believe contain trade secrets or other confidential
information, and orders are routinely agreed upon by parties, such orders should be granted, especially in cases between
direct competitors. Walker Sys. v Hubbell Inc. (1999, SD W Va) 188 FRD 428.
Power to grant confidentiality orders is not unlimited, and such orders should not be granted arbitrarily. Merit Indus.
v Feuer (2001, ED Pa) 201 FRD 382.
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.
b. Sealing of Confidential or Privileged Matter
479. Generally
Federal Rule 26(c)(7) is fully applicable to United States as party, so protection of confidential commercial
information from discovery is within District Court discretion. Federal Open Market Committee of Federal Reserve
System v Merrill (1979) 443 US 340, 61 L Ed 2d 587, 99 S Ct 2800, 5 Media L R 1221.
Entry of order sealing depositions or documents, to be opened only on court order, is matter within court's discretion
and, once entered, is subject to modification by court when deemed advisable and in consideration of reasonable needs
of persons seeking the information for use in other litigation. Olympic Refining Co. v Carter (1964, CA9 Cal) 332 F2d
260, 8 FR Serv 2d 30B.52, Case 1, cert den (1964) 379 US 900, 13 L Ed 2d 175, 85 S Ct 186; American Securit Co. v
Shatterproof Glass Corp. (1957, DC Del) 20 FRD 196.
Federal Rules of Civil Procedure, and particularly Rule 26, are not within Freedom of Information Act exemption
which is explicitly confined to material exempted from disclosure "by statute" because Rule 26 allows for court
discretion whereas exemption of FOIA concerns matters of no discretion; if concerns behind protective order are still
valid at time of later FOIA action, nondisclosure may be approved under Act's substantive exemptions. Founding
Church of Scientology, Inc. v Bell (1979, App DC) 195 US App DC 363, 603 F2d 945, 5 Media L R 1316.
Rule 26(c) permits entry of an order to protect a party from annoyance, embarrassment, or oppression, and authorizes
filing a document containing confidential, personal information in sealed envelope, to be opened only by order of the
court, to prevent harm to plaintiff which might result from publicizing document's contents. Nichols v Philadelphia
Tribune Co. (1958, DC Pa) 22 FRD 89.
Joint motions for protective orders should not be granted routinely because business of federal courts is that of
public, and only if another public policy favors nondisclosure should such order be issued; however, where information
sought to be protected concerns documents that parties in good faith believe contain trade secrets or other confidential
information, and orders are routinely agreed upon by parties, such orders should be granted, especially in cases between
direct competitors. Walker Sys. v Hubbell Inc. (1999, SD W Va) 188 FRD 428.
480. Trade or business secrets
Plaintiff sought order adjudicating defendant in contempt for alleged violation of an injunction, entered by consent,
which restrained defendant from substituting medicine of another manufacturer for plaintiff's product when filling
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USCS Fed Rules Civ Proc R 26
prescriptions calling for plaintiff's medicine; defendant's interrogatories requested plaintiff to reveal identity of a
chemical tracer used in plaintiff's medicine to make it uniquely identifiable and by which plaintiff expected to prove
defendant's violation; court gave plaintiff option of answering, in which case it ordered that answers would be sealed
and kept secret until published by an order of the court, or of not answering, in which case no proof concerning the
tracer would be permitted at the trial. A. H. Robins Co. v Fadely (1962, CA5 Ala) 299 F2d 557, 5 FR Serv 2d 547.
Where nonparty witnesses is required to comply with subpoena duces tecum requesting documents revealing trade
secrets relating to price, cost, and volume of sales of gasoline, protective order imposing various conditions designed to
limit disclosure of the secrets, including requirement that depositions and documents be held by the clerk, under seal,
with access thereto granted only upon order of the court is valid exercise of discretion. Covey Oil Co. v Continental
Oil Co. (1965, CA10 Utah) 340 F2d 993, 1965 CCH Trade Cases P 71357, 9 FR Serv 2d 26A.32, Case 2, cert den
(1965) 380 US 964, 14 L Ed 2d 155, 85 S Ct 1110 and (ovrld on other grounds as stated in MDK, Inc. v Mike's Train
House (1994, CA4 NC) 27 F3d 116, 1994-1 CCH Trade Cases P 70620, 29 FR Serv 3d 1472) and (criticized in Bennett
v City of Boston (1995, CA1 Mass) 54 F3d 18, 32 FR Serv 3d 48).
Expert witness does not violate protective order when he uses discovery material consisting of trade secrets as stage
prop on national television news program where viewers are not able to read item but narrator and cameramen probably
can. Quinter v Volkswagen of America (1982, CA3 Pa) 676 F2d 969, 33 FR Serv 2d 1619.
District Court clearly abused its discretion in ordering defendant to produce documents in question without affording
defendant opportunity to demonstrate that documents contained trade secrets and that disclosure would be harmful. In
re Remington Arms Co. (1991, CA8 Mo) 952 F2d 1029, 22 USPQ2d 1063, 21 FR Serv 3d 1253.
Deposition of power tool manufacturer's officer given in civil RICO lawsuit between two other parties was relevant
to ITC proceeding which manufacturer brought against civil RICO plaintiff alleging that it was dumping professional
power tools in U.S. at less than fair market value and was thus discoverable by ITC notwithstanding interim stipulated
protective order (IPO) in RICO case; neither magistrate judge nor district court made independent determination that
good cause existed for IPO, and it was apparent that manufacturer did not consider subject matter of deposition
confidential since officer gave public testimony on issue during ITC preliminary conference. Jepson, Inc. v Makita Elec.
Works (1994, CA7 Ill) 30 F3d 854, 29 FR Serv 3d 1090, reh, en banc, den (1994, CA7 Ill) 1994 US App LEXIS 22771.
Bankruptcy court did not abuse its discretion in permitting trade secret information sealed under protective order in
bankruptcy case to be disclosed to two employees of defendant charged in state court action with misappropriation of
those trade secrets and violation of injunction entered in bankruptcy action, where defendant was not party to
bankruptcy proceedings and could not adequately defend itself without access to information. Cook Group v C.R. Bard,
Inc. (In re Wilson) (1998, CA4 NC) 149 F3d 249, 10 Fourth Cir & Dist Col Bankr Ct Rep 405, 47 USPQ2d 1212, 41
FR Serv 3d 106.
Order permitting either party to designate as confidential any document believed to contain trade secrets or other
confidential or governmental information, including information held in fiduciary capacity, was overbroad; protective
order is legitimate provided judge satisfies himself that parties know what trade secret is and are acting in good faith in
deciding which parts of record are trade secrets, and makes explicit that either party and any interested member of
public can challenge secreting of particular documents. Citizens First Nat'l Bank v Cincinnati Ins. Co. (1999, CA7 Ill)
178 F3d 943, 51 USPQ2d 1218.
Motion for order to seal documents refused where harm caused by disclosure of business information contained
therein had already been done, a protective order therefore being unnecessary. Ferguson v Ford Motor Co. (1948, DC
NY) 8 FRD 414, 79 USPQ 205.
Adequate protection for business information which defendant desired to withhold from competitor was afforded by
order limiting persons present at taking of deposition, and by requiring that the deposition be sealed and opened only by
court order. Marshwood Co. v Jamie Mills, Inc. (1950, DC Ohio) 10 FRD 386.
Preliminary protection by order sealing financial statements and other business records until further order of the
court was provided where defendants' objections to an order to produce these documents were deemed not specific
enough to show good cause for order preventing discovery; as an alternative to immediate disclosure, court permitted
defendants to produce documents under seal for in camera inspection by court, the documents to be categorized and
sealed in separate packages or envelopes together with specific statements concerning the claims for immunity from
discovery for each category. Hunter v International Systems & Controls Corp. (1970, DC Mo) 51 FRD 251.
Competitor of defendant in suit for fraud and breach of contract is entitled to protective order precluding defendant
from entering its plant for purpose of inspecting, photographing, and videotaping portions of its premises and activities
occurring therein, and quashing subpoenas duces tecum that defendant has served upon 3 of its employees, where
defendant, which does not contest confidential and trade secret nature of competitor's processes and methods, contends
that disclosure of such is required to enable it to defend lawsuit, but has not demonstrated that discovery sought would
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lead to evidence which would be admissible in lawsuit and has not sufficiently demonstrated that it could not support its
defense of suit by presenting expert testimony, aside from any evidence which would be derived from discovery of trade
secrets of competitor. Slater Steel, Inc. v Vac-Air Alloys Corp. (1985, WD NY) 107 FRD 246, 1 FR Serv 3d 1467.
In order to resist discovery of trade secret, party must first demonstrate by competent evidence that information
sought through discovery is trade secret and that disclosure of secret might be harmful; if this showing is made, burden
shifts to party seeking discovery to establish that disclosure of trade secret is relevant and necessary to action.
Coca-Cola Bottling Co. v Coca-Cola Co. (1985, DC Del) 107 FRD 288, 227 USPQ 18, 4 FR Serv 3d 1291.
Magistrate's orders requiring disclosure of trade secrets are not unconstitutional taking of property in view of (1)
nondisclosure agreement to be signed by each person who receives confidential material, violation of which subjects
that person to contempt of court, (2) provisions of protective order requiring, inter alia, that documents remain in
depository, and (3) ethical obligation of attorneys involved. St. Jude Medical, Inc. v Intermedics, Inc. (1985, DC Minn)
107 FRD 398, 40 FR Serv 2d 1455.
Defendant would not be granted protective order where it simply alleged documents sought were internal proprietary
documents containing valuable confidential technical information generated by its scientists and defendant failed to
specifically identify clearly defined and serious injury that would occur in the event of disclosure. Cuno, Inc. v Pall
Corp. (1987, ED NY) 117 FRD 506, 5 USPQ2d 1683, 8 FR Serv 3d 343.
Drug manufacturer was not entitled to keep trade secrets or confidential information set forth in its case report forms
filed as part of its drug application with FDA within scope of umbrella protective order since documents are subject to
FOIA access. Grundberg v Upjohn Co. (1991, DC Utah) 137 FRD 372.
Manufacturer and seller of radial arm saw were not entitled to protective order on trade secrets grounds since
information sought had been released and persons outside company had access to information sought. Hotchkiss v
Sears, Roebuck & Co. (1991, MD Pa) 139 FRD 313.
Manufacturer suing former employee for misappropriation of trade secrets and breach of contract would be permitted
to depose other manufacturer's employee limited to questions relating to statute of limitations and if those questions
should require employee to disclose any confidential trade secrets, only counsel for plaintiff would be permitted to
attend deposition, deposition would be sealed, and neither plaintiff nor its counsel would be permitted to retain copy of
deposition. Puritan-Bennett Corp. v Pruitt (1992, SD Iowa) 142 FRD 306.
Outside accounting firm of securities litigation defendant would not be compelled to produce its auditing manuals
which were in-house documents outlining unique auditing procedures which might be equal to or greater than generally
accepted accounting standards (GAAS) or generally accepted accounting principles (GAAP) since they were closely
guarded trade secret whose disclosure to competitors would probably be harmful and they were not relevant since
standard by which their conduct in suit was to be judged were GAAS and GAAP. In re Worlds of Wonder Sec. Litig.
(1992, ND Cal) 147 FRD 214.
Joint motions for protective orders should not be granted routinely because business of federal courts is that of
public, and only if another public policy favors nondisclosure should such order be issued; however, where information
sought to be protected concerns documents that parties in good faith believe contain trade secrets or other confidential
information, and orders are routinely agreed upon by parties, such orders should be granted, especially in cases between
direct competitors. Walker Sys. v Hubbell Inc. (1999, SD W Va) 188 FRD 428.
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.
481. --Antitrust suit
Competitor's challenge to District Court's authority to enforce protective order sealing and prohibiting inspection,
except by order of the court, of divestiture plans establishing new banana importing company, filed in compliance with
consent judgment in antitrust case, is denied; that competing importer's purpose for seeking access to the documents
was admittedly one of self interest, to obtain advance information about the proposed competitor. United States v
United Fruit Co. (1969, CA5 La) 410 F2d 553, 1969 CCH Trade Cases P 72778, 13 FR Serv 2d 822, 10 ALR Fed 598,
cert den (1969) 396 US 820, 24 L Ed 2d 71, 90 S Ct 59.
Court of Appeals will seal for 5 years documents discovered, despite attorney-client privilege and work product
doctrine, which consist in part of premerger communications between plaintiffs and their attorneys concerning potential
antitrust exposure; public interest expressed in doctrines of attorney-client privilege and work product immunity
doctrine outweigh other public interests in understanding disputes that are presented to public forum for resolution and
assurance that courts are fairly run and judges are honest especially where public's general interest in honesty and
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fairness of court is left unimpaired by public oral argument. Crystal Grower's Corp. v Dobbins (1980, CA10 Colo) 616
F2d 458, 1980-1 CCH Trade Cases P 63210.
Order to file answers to interrogatories concerning business information in sealed envelopes to be opened later by the
court was granted the plaintiff in private treble damage action for violation of Sherman Act, to prevent defendant from
gaining an unfair advantage. Eastern Fireproofing Co. v United States Gypsum Co. (1957, DC Mass) 21 FRD 290.
In civil antitrust action brought against five major oil companies, objections to answering interrogatories which
involved trade secrets would be disposed of by requiring that at request of any defendant, the answers be sealed and
treated by government as confidential; this procedure would protect the information from public disclosure until further
ruling on right to secrecy could be made as to that information which government decided to use at the trial. United
States v Standard Oil Co. (1958, SD NY) 23 FRD 1, 1 FR Serv 2d 484.
Circumstances of suit for damages for conspiracy and monopoly under Sherman Act and alleged price discrimination
under Clayton Act warranted order that documents, answers to interrogatories, and transcripts of depositions be retained
by clerk of court under seal. Uinta Oil Refining Co. v Continental Oil Co. (1964, DC Utah) 36 FRD 176, 9 FR Serv 2d
26A.32, Case 1, affd (1965, CA10 Utah) 340 F2d 993, 1965 CCH Trade Cases P 71357, 9 FR Serv 2d 26A.32, Case 2,
cert den (1965) 380 US 964, 14 L Ed 2d 155, 85 S Ct 1110 and (ovrld on other grounds as stated in MDK, Inc. v Mike's
Train House (1994, CA4 NC) 27 F3d 116, 1994-1 CCH Trade Cases P 70620, 29 FR Serv 3d 1472) and (criticized in
Bennett v City of Boston (1995, CA1 Mass) 54 F3d 18, 32 FR Serv 3d 48).
In antitrust action, defendant is entitled to protective order assuring confidentiality in use of documents which
plaintiffs have discovered, and plaintiffs are ordered to confine use of documents to prosecution of instant action and are
prohibited from revealing information to third parties who could use it against defendants in subsequent law suits.
Milsen Co. v Southland Corp. (1972, ND Ill) 15 FR Serv 2d 1268.
In action alleging violations of Robinson-Patman Act, defendant is entitled to protective order covering business
records which contain confidential commercial information; such order will not limit number of copies that plaintiff
may make of documents in question, but counsel for plaintiff is directed to restrict disclosure of copies to those persons,
not competitors of defendant, whose aid is necessary in preparation of plaintiff's case, and all authorized recipients are
directed not to reveal contents of documents or use documents for any purpose other than for preparation of case. Tosa
Chrysler-Plymouth, Inc. v Chrysler Motors Corp. (1972, ED Wis) 55 FRD 41, 1972 CCH Trade Cases P 74123, 15 FR
Serv 2d 1615.
In private antitrust action by motion-picture sublicensor against other sublicensors and motion-picture distributors,
defendant's request for protective order limiting response to certain interrogatories seeking commercial information was
granted in part; answers were to be given only to plaintiff's counsel, were not to be shown to plaintiff, and were to be
used only in connection with preparation of instant case, and were then to be filed under seal with court. 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 action, court, under standard whereby commercial information may be subject to protection under Rule
26(c) if its disclosure will work clearly defined and very serious injury, would not require continued sealed protection of
(1) testimony of individual pertaining to his consultancy to mutual fund, where individual provided his services on
commercial basis and no representation had been made that his opinions were disclosed to or had to be maintained by
client on confidential basis, (2) testimony of individual and deposition exhibits revealing revenue, sales, and
manufacturing data over 12-year period, where general allegations of confidentiality did not demonstrate measures
taken to guard secrecy of data so that it might be justly characterized as secret, and (3) statistical tabulations, deposition
testimony, financial reports, computer customer list, and internal business planning report, where none of data was
current and revealed directly little, if anything at all, about current operations of party which sought continued sealed
treatment of data. 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.
Publicity in Taking Evidence Act would be subverted by allowing witness or party to designate which documents
and testimony are to be retained under seal without court review; it was improper for plaintiff and employee witness to
claim for themselves role of deciding which testimony and documents would be sealed and thereby shielded from public
disclosure. United States v International Business Machines Corp. (1979, SD NY) 82 FRD 183.
Plaintiffs in antitrust suit are not entitled to modification of protective order, which order prevents third-party access
to confidential business information received from defendants, notwithstanding that modification is sought in order to
enable plaintiffs to comply with civil investigative demand and subpoena issued by states which seek to utilize materials
in preliminary investigations into defendants' possible violations of state antitrust statutes, where plaintiffs' only
contention in support of modification is that it would result in savings of time and money by states. H.L. Hayden Co. v
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Siemens Medical Systems, Inc. (1985, SD NY) 106 FRD 551, 1985-2 CCH Trade Cases P 66696, 4 FR Serv 3d 196, 85
ALR Fed 525.
Protective order prohibiting disclosure of documents in antitrust suit would be rescinded after conclusion of suit
upon newspaper's request, since documents would have been required to be disclosed under Freedom of Information
Act except for court order during suit and fact that one of original parties was public utilities accused of illegal antitrust
activities which, if they occurred, would have effect of raising electric utility rates to average consumer, hence original
parties failed to show sufficient good cause to maintain confidentiality of documents. United States v Kentucky
Utilities Co. (1989, ED Ky) 124 FRD 146, 13 FR Serv 3d 545.
In antitrust action alleging that defendant illegally restricted access to replacement parts for its equipment, plaintiff
was not required to disclose identities of its parts suppliers as confidential trade secrets since it demonstrated potential
harm which could result from even inadvertent disclosure of its confidential suppliers and defendant had not met its
burden of showing sufficient need for disclosure to counterbalance that potential harm. CSU Holdings v Xerox Corp. (In
re Independent Serv. Orgs. Antitrust Litig.) (1995, DC Kan) 162 FRD 355, injunction gr (1995, DC Kan) 910 F Supp
1537, 38 USPQ2d 1273, 1995-2 CCH Trade Cases P 71237.
482. --Copyright and trademark infringement
Protective order prohibiting copyright infringement plaintiff's in-house counsel from having access to defendant's
trade secrets but permitting disclosure to outside counsel reflected proper balance of competing interests; magistrate
reasonably concluded that in-house counsel's employment would necessarily entail advising his employer in areas
relating to defendant's trade secrets, hence knowledge of those secrets would place in-house counsel in untenable
position of having to refuse his employer legal advice on host of decisions lest he improperly or indirectly revealed
defendant's trade secrets. Brown Bag Software v Symantec Corp. (1992, CA9 Cal) 960 F2d 1465, 92 CDOS 3005, 92
Daily Journal DAR 4680, 22 USPQ2d 1429, 22 FR Serv 3d 771, cert den (1992) 506 US 869, 121 L Ed 2d 141, 113 S
Ct 198.
Copyright and trademark infringement plaintiff failed to take advantage of protective order provisions of Rule 26,
hence failed to produce sufficient evidence to support its burden of proof to justify preliminary injunction. Sega
Enters. v Accolade, Inc. (1992, CA9 Cal) 977 F2d 1510, 92 CDOS 8612, 92 Daily Journal DAR 14275, 24 USPQ2d
1561, amd (1993, CA9) 93 Daily Journal DAR 304.
483. --Patent infringement
Protective order prohibited defendant from disclosing material in another case in which it was plaintiff, to defendant
in other case allegedly to help defendant prove defense to patent infringement charges; defendant in other case had not
shown any need for materials in question beyond usual desire of litigant for material that could be useful to it in defense
of lawsuit. Richard Wolf Medical Instruments Corp. v Dory (1990, ND Ill) 130 FRD 389, affd without op (1991, CA)
928 F2d 410, reported in full (1991, CA FC) 1991 US App LEXIS 1778 and cert dismd (1991) 501 US 1283, 115 L Ed
2d 1119, 112 S Ct 39 and cert den (1991, US) 60 USLW 3258.
In suit alleging breach of settlement agreement reached in patent validity suit, plaintiff's senior staff attorney would
be permitted access to confidential information since he was not involved in plaintiff's competitive decision making, but
plaintiff's director of law would be not entitled to access since it appeared that he had some involvement with
competitive decisions and his involvement in contract negotiations could involve competitive decision making.
Carpenter Tech. Corp. v Armco, Inc. (1991, ED Pa) 132 FRD 24.
Party's chief executive officer would not be added to protective order which had been entered three years earlier in
patent litigation involving polypropylene-related patents, since he was CEO at time original protective order was
negotiated, when his identity, position, relationship to board of directors and involvement with in-house counsel was
recognized and understood, there was no claim that organizational and personnel changes resulted in changes in
reporting system or chain of command, information requested to be accessible to CEO was considered confidential and
its disclosure would cause competitive disadvantage, and both parties had used and benefited from agreed upon
protective order. Phillips Petroleum Co. v Rexene Prods. Co. (1994, DC Del) 158 FRD 43, 32 USPQ2d 1839, remanded
(1996, CA FC) 1996 US App LEXIS 6298, injunction gr (1997, DC Del) 1997 US Dist LEXIS 18460.
484. --Products liability
When court apparently failed to recognize it had discretionary power to order protection of confidential documents
under Fed. R. Civ. P. 26(c)(7), its order allowing intervenor newspaper access to defendant's previously sealed
confidential settlement documents with other plaintiffs was vacated for failure to conduct "good cause" analysis.
Phillips v GMC (2002, CA9 Mont) 307 F3d 1206, 2002 CDOS 10397, 2002 Daily Journal DAR 11978.
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In products liability suit, court would permit discovery of information concerning different products since it might
lead to admissible evidence concerning design defects, but protective order limiting disclosure to court, counsel, and
experts or consultants retained by parties would be entered based on nature of requested documents. Fireman's Fund
Ins. Co. v ECM Motor Co. (1990, WD Pa) 132 FRD 39, 17 FR Serv 3d 1422.
In products liability action arising out of minor's inoculation with DPT vaccine, plaintiffs were entitled to discovery
of defendant's trade secret acellular pertussis vaccine research since it was relevant to whether production of such
vaccine was feasible when plaintiff was inoculated, plaintiffs had no other source for information, and protective order
limiting further dissemination of information would protect confidentiality. Snowden v Connaught Laboratories, Inc.
(1991, DC Kan) 136 FRD 694.
Plaintiff suing vaccine manufacturer was entitled to discovery of manufacturer's research prior to and since period
when plaintiff was inoculated to discover whether defendant had capability of producing safer product during period in
question, in view of fact that under Alaska law evidence of subsequent measures is admissible to show feasibility of
alternative designs as well as defective condition, though discovery would be restricted to protect manufacturer's
confidential material. Snowden v Connaught Laboratories, Inc. (1991, DC Kan) 137 FRD 336, app den (1991, DC
Kan) 136 FRD 694.
In suit alleging breach of warranty involving seller's product, formula of product was trade secret but plaintiff-buyer
was entitled to discover it since it was relevant to determining whether product supplied to plaintiff at particular time
was substandard, but disclosure would be limited to plaintiff's counsel of record and to experts. Multi-Core, Inc. v
Southern Water Treatment Co. (1991, DC Mass) 139 FRD 262.
Products liability plaintiff was entitled to discover information from firearms manufacturer's under protective order
to safeguard trade secret privilege since information was relevant to issues of causation, feasible alternative designs, and
defendant's knowledge at time, and without information plaintiff would be left with significant time gap in evidence
concerning defendant's design knowledge. Hartman v Remington Arms Co. (1992, DC Mo) 143 FRD 673.
485. Other particular circumstances
Order by District Court sealing a deposition was too broad because it prevented publication of information obtained
by parties through independent investigation outside court's processes, even though publication of information might be
embarrassing to the United States. International Products Corp. v Koons (1963, CA2 NY) 325 F2d 403, 7 FR Serv 2d
612.
Protective order preventing parties from using any confidential information obtained during discovery except as part
of litigation did not violate media's right to gather news since individual has no common law right to discovery material
because it is not judicial records or public documents and First Amendment right to access to discovery is limited by
good cause issuance of protective order. McCarthy v Barnett Bank of Polk County (1989, CA11 Fla) 876 F2d 89, 16
Media L R 2016, 14 FR Serv 3d 557.
In deciding to seal bids conducted to select lead counsel in securities class action lawsuit, district court failed to
recognize that bids were judicial records subject to common law presumption of public access, and accordingly failed to
articulate necessary findings to override presumption of access when issuing confidentiality order. Goldstein v Forbes
(In re Cendant Corp.) (2001, CA3 NJ) 260 F3d 183, motion to strike den, motion den (2001, DC NJ) 2001 US Dist
LEXIS 14405.
District court did not abuse its discretion in lifting protective order from two deposition transcripts it had previously
sealed in civil suit charging securities law violations since depositions were taken prior to entry of relevant protective
order so that they could not have been given in reasonable reliance on that order, depositions had been taken in presence
of third parties who had not agreed to be bound by protective order, and district court considered anew balance between
claims of privacy and claims of public for access to testimony relating to interaction of Securities and Exchange
Commission and New York Stock Exchange. SEC v TheStreet.com (2001, CA2 NY) 273 F3d 222.
In a case involving a deposition claimed to invade privilege which protects confidential communications between
husband and wife by making one spouse incompetent to testify against the other, deposition is to be taken and sealed, to
be opened only as directed by the court. Federal Deposit Ins. Corp. v Alter (1952, DC Pa) 106 F Supp 316.
In action to recover under fire insurance policy for loss of hotel and dining room, where defendant insurance
company proposed to take depositions of estranged wife of a third-party defendant, alleging that she would testify that
the fire was intentionally set by her husband and others at request of the insured plaintiffs, motion to have the wife's
deposition filed with the court in sealed envelope is denied; although orders sealing deposition are often made to
prevent deposition from being used for publicity purposes, where fire had occurred several years previously and had
received little or no publicity in recent years, sealing the deposition was unnecessary and served no valid purpose.
Teplitzky v Boston Ins. Co. (1971, DC Pa) 52 FRD 160, 15 FR Serv 2d 325, 19 ALR Fed 966.
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In case involving hearing on permanent injunctive relief against tender offer by foreign corporation for shares of
American corporation, where documents whose discovery was sought included defense contracts involving national
security and other commercial information concerning helicopter subsidiary of party, and certain other confidential
information, court, after reviewing the documents, was convinced of need of keeping documents under seal and ordered
sealing where none of parties would be prejudiced by such order. Ronson Corp. v Liquifin Aktiengesellschaft (1974,
DC NJ) 370 F Supp 597, CCH Fed Secur L Rep P 94369, affd (1974, CA3 NJ) 497 F2d 394, CCH Fed Secur L Rep P
94536, cert den (1974) 419 US 870, 42 L Ed 2d 108, 95 S Ct 129.
In civil action plaintiff's motion to lift seal imposed on certain documents will not be granted where grand jury
investigation is ongoing against defendant and where in court's discretion civil discovery would jeopardize defendant's
Fifth Amendment rights. Brink v Da Lesio (1979, DC Md) 82 FRD 664, 88 CCH LC P 11928, 28 FR Serv 2d 769.
Defendant in action brought by Securities and Exchange Commission is not entitled to order directing all discovery
in action sealed even though defendant's defense of securities violations charge is impeded by possibility that criminal
action will be filed against him in which statements that he makes in defense of securities action could be used against
him since intent of Congress as manifested in Securities Exchange Act of 1934 (15 USCS § 78u(d) provides that
Securities Exchange Commission may share information in its possession concerning violations of Securities Act with
Attorney General. SEC v Rubinstein (1982, SD NY) 95 FRD 529, CCH Fed Secur L Rep P 98842, 35 FR Serv 2d 921.
Protective order will issue in favor of United States in multidistrict "Agent Orange" products liability litigation on
basis of government's claimed need to maintain confidentiality of certain documents produced by government during
discovery and trial preparation. Re "Agent Orange" Product Liability Litigation (1983, ED NY) 97 FRD 424.
District Court will not lift protective order which placed expert's deposition under seal, which order was entered
because expert's research was incomplete and because premature disclosure of information could adversely affect his
reputation and research, as well as controversial research throughout nation, notwithstanding petitioner's contentions
that expert's submission of his research for publication has eliminated basis for order and that order should be lifted to
avoid repeating discovery by taking expert's deposition second time, where, even if petitioner's claim is true, court does
not know whether part or all of research was submitted, what scientific journal may publish research, and whether
research was accepted for publication, since fact that expert has submitted some of his research for publication does not
by itself indicate that his research is completed, and reasons behind protective order have not been negated. Rogers v
Proctor & Gamble Co. (1985, ED Mo) 107 FRD 351, 2 FR Serv 3d 1370.
Order sealing deposition would not be lifted where, to large extent, documents were sealed to protect deponent's
research and reputation, and this purpose still existed; court was not aware of any fact which could be considered
intervening or extraordinary circumstance to warrant lifting order. Rogers v Proctor & Gamble Co. (1985, ED Mo)
107 FRD 351, 2 FR Serv 3d 1370.
Where defendant newspaper in libel action sought to unseal discovery materials that had been covered by blanket
protective order pursuant to Rule 26(c) sealing all discovery provided by plaintiff, District Court ruled that plaintiff
demonstrated good cause for continued maintenance of protective order where attorney for plaintiff reviewed all sealed
material, discussed material with officers of plaintiff, and stated concise grounds for maintaining protective order on
page-by-page basis; and court stated that in assessing whether plaintiff had met burden of showing good cause, court
could consider fact that discovery was initially obtained through plaintiff's reliance on protective order, which benefited
both parties and public in general. Tavoulareas v Washington Post Co. (1986, DC Dist Col) 111 FRD 653, 5 FR Serv
3d 1446.
Magistrate's conclusion that COALEX electronic data base was confidential research system and therefore protected
by qualified privilege from discovery was erroneous where magistrate gave no reasons for his conclusion and review of
law did not support it. Indiana Coal Council v Hodel (1988, DC Dist Col) 118 FRD 264.
Confidential designations assigned to defendants' depositions pursuant to predeposition stipulations would be
removed since asserted embarrassment resulting from public disclosure of fact that defendants invoked Fifth
Amendment is insufficient justification for confidentiality designations. Litton Industries, Inc. v Lehman Bros. Kuhn
Loeb, Inc. (1988, SD NY) 122 FRD 433.
Although civil rights plaintiff was entitled to order compelling disclosure of certain police personnel records, order
compelling disclosure would be subject to confidentiality agreement. Askew v Rigler (1990, SD NY) 130 FRD 26.
In suit alleging that plaintiff acquired AIDS after she received contaminated blood collected and supplied by
defendant, defendant would not be entitled to protective order precluding public disclosure of its documents concerning
policies and procedures for collection, processing and distribution of blood, despite its concern that release of records
may mislead and confuse public as to its current blood collection practices since release of information about past
practices and procedures will not mislead public as to current practices and procedures. Bradway v American Nat'l Red
Cross (1990, ND Ga) 132 FRD 78, 17 FR Serv 3d 1444.
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Cigarette manufacturers were not entitled to "umbrella" protective order prohibiting dissemination of both
confidential and non-confidential documents to litigants and counsel in other so-called "tobacco tort" cases in absence
of particularized showing that lack of blanket protective order would lead to such adverse pretrial publicity and
embarrassment for defendants that it would impair furnace of trial process. Baker v Liggett Group, Inc. (1990, DC
Mass) 132 FRD 123.
Suppression was appropriate remedy for documents which had been ordered expunged by state judge but
inexplicably had not been, and were therefore discovered by product liability defendants who served subpoena duces
tecum without notice to plaintiffs. Ann L. v X Corp. (1990, WD NY) 133 FRD 433.
Plaintiff alleging that decedent's wrongful death was caused by AIDS acquired from tainted blood supplied by
defendant was entitled to question donor; donor's constitutional right of privacy would be protected by questioning
donor without plaintiff or plaintiff's counsel learning donor's identity, and by order of confidentiality imposed on donor,
parties, and counsel. Borzillieri v American Nat'l Red Cross (1991, WD NY) 139 FRD 284, 23 FR Serv 3d 795.
Parties in action by manufacturer of diethylstilbestrol (DES) against its excess liability carrier for coverage arising
out of product liability actions are directed to file publicly available copies of memoranda of law omitting material
certified under Rule 11 to contain genuinely confidential material, where protective order issued was designed to insure
confidentiality of information disclosure of which would be harmful to parties, but where almost all items filed with
court were being filed under seal, because situation was burdensome to court and denied ready access to information
about decisionmaking processes of judiciary and nonconfidential material was being filed under seal. E.R. Squibb &
Sons v Accident & Casualty Ins. Co. (1994, SD NY) 853 F Supp 98.
Neither personnel records nor employment agreements are, without more, legitimate categories of confidential
information for purposes of protective order. Pierson v Indianapolis Power & Light Co. (2002, SD Ind) 205 FRD 646.
Legal publisher's motion to unseal documents was granted because documents were clearly used in judicial process
and were therefore subject to right of public access and company's and defendants' alleged reliance on protective order
was insufficient to outweigh strong presumption in favor of public access; because some of communications contained
in documents could be privileged attorney-client communications, record had to be unsealed so that those
communications could be carefully reviewed and, therefore, pursuant to Fed. R. Civ. P. 53 special master was appointed
to determine which documents contained privileged attorney-client communications, redact privileged sections, if any,
and provide court and parties with specific findings to support redactions. Diversified Group, Inc. v Daugerdas (2003,
SD NY) 217 FRD 152.
Although court could not enter stipulated protective order under Rule 26 of Federal Rules of Civil Procedure since
there was not any pending adversary or contested matter under which discovery was being sought, it could enter order
under Bankruptcy Rule 9018 which does not contain good cause showing or filing requirement. In re Handy Andy
Home Improvement Ctrs. (1996, BC ND Ill) 199 BR 376, 29 BCD 643, 36 CBC2d 860, CCH Bankr L Rptr P 77133.
7. Other Protective Orders
486. Generally
Defendant may not condition its compliance with court order compelling discovery upon acceptance of protective
order which contains counter-request for discovery from plaintiff. Roper Corp. v Litton Systems, Inc. (1984, ND Ill)
106 FRD 1.
487. Costs, fees and expenses
Allowing plaintiff expenses of his attorney in representing him at deposition of a defense witness taken in Chicago is
permitted where plaintiff's offer to save expense by having the deposition taken through written interrogatories was
rejected by defense and witness was actually produced and testified in person at the trial. Gibson v International
Freighting Corp. (1949, CA3 Pa) 173 F2d 591, cert den (1949) 338 US 832, 94 L Ed 507, 70 S Ct 78, reh den (1949)
338 US 882, 94 L Ed 541, 70 S Ct 157.
Taxpayer successful in obtaining refund of income taxes not entitled to costs where it did not obtain protective order
prior to taking of depositions. United States v Portland Cement Co. (1964, CA10 Utah) 338 F2d 798, 64-2 USTC P
9869, 9 FR Serv 2d 54D.151, Case 1, 15 AFTR 2d 1.
In private antitrust action, trial judge did not abuse its discretion in granting plaintiff's motion for protective order
requiring defense to reschedule deposition of key witness, conditioned on plaintiff's payment of one-half of defense
counsel's round-trip air fare to New York City from Atlanta, where counsel for both sides were in midst of trial in
related case, where plaintiffs did not move for protective order until late afternoon of day before deposition, after
defense counsel had already arrived in New York for deposition, and where plaintiff's attorneys could have avoided
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situation by advising opposing counsel about their problem before counsel departed for New York City. National
Independent Theatre Exhibitors, Inc. v Buena Vista Distribution Co. (1984, CA11 Ga) 748 F2d 602, 1984-2 CCH Trade
Cases P 66311, 40 FR Serv 2d 954, reh den, en banc (1985, CA11 Ga) 755 F2d 176 and cert den (1985) 471 US 1056,
85 L Ed 2d 484, 105 S Ct 2120.
An order permitting plaintiff in accounting action to take deposition of bank which was depository for defendant was
upheld but was conditioned upon plaintiff's advancing to the bank reasonable cost for producing the papers, books, and
documents called for in connection with subpoena duces tecum issued in connection therewith, where it appeared that
compliance with order by the bank would require employment of additional help or seriously interrupt its regular
employees in performance of their duties. Fox v House (1939, DC Okla) 29 F Supp 673, affd (1940, CA3 Del) 110
F2d 813.
Motion that plaintiff be required to pay reasonable expenses incurred by defendant in bringing an employee to New
York from Iowa for examination by plaintiff was denied; ordinarily a plaintiff might be required to advance reasonable
expenses to defendant for bringing an employee from his residence for examination, in this case it appeared that the
particular employee had been present in New York from time to time after the notice of examination had been served
and defendant could have avoided much of the expense involved by notifying plaintiff of the employee's presence in
New York. Banana Distributors, Inc. v United Fruit Co. (1956, DC NY) 19 FRD 532.
Where employee brought libel action against former employer and former supervisor, alleging that prospective
employer had asked former employer and supervisor for information concerning him, and that supervisor had written
letter which was defamatory, and former employer and supervisor, as third-party plaintiffs, joined prospective employer
as third-party defendant, alleging it had negligently breached its contractual obligations and disclosed letter to plaintiff,
original and third-party actions being severed for purposes of trial, third-party defendant's motion for protective order to
prohibit or regulate taking of oral deposition of plaintiff requested by third-party plaintiffs, in Tampa, Florida, was
allowed but, as part of deposition, preliminary inquiry by third-party defendant regarding plaintiff's mental capacity was
to be permitted and psychiatrist could be present at deposition so that he would be in position to testify as to plaintiff's
mental competency if deposition was offered; third party plaintiffs had to pay third-party defendant in advance of
deposition reasonable expenses and fees of psychiatrist who was to attend deposition on behalf of third-party defendant
and to pay reasonable expenses incurred by counsel for third-party defendant in attending deposition in Florida. Clark
v Geiger (1962, ED Pa) 31 FRD 268, 6 FR Serv 2d 576.
In allowing discovery of surveillance films taken by defendant, plaintiff would be ordered to pay reasonable
expenses, not to exceed $ 200, which might be incurred by defendant in pretrial discovery process. Blyther v Northern
Lines, Inc. (1973, ED Pa) 61 FRD 610, 17 FR Serv 2d 1186.
Rule 37(a)(4) does not apply only to expenses incurred in opposing motion for protective order where court not only
denies protective order but also orders discovery to proceed, since plain language of Rule 26(c) makes expenses
provision of Rule 37(a)(4) applicable whenever motion for protective order is successfully opposed. Wood v Breier
(1975, ED Wis) 66 FRD 8, 20 FR Serv 2d 782, dismd without op (1976, CA7 Wis) 534 F2d 330.
Although protective order against continuing possession and use of evidence obtained from transcripts of interviews
conducted by plaintiff's counsel with employees of former division of plaintiff corporation was not appropriate because
transcripts would have been discoverable if motion for discovery had been filed, plaintiff would be entitled to award of
portion of expenses it incurred in procuring transcripts and to award of expenses it incurred in seeking protective order,
where defendant's action in obtaining transcripts from former officer of plaintiff's former division was improper.
American Standard, Inc. v Bendix Corp. (1976, WD Mo) 71 FRD 443, 1976-2 CCH Trade Cases P 61205, 23 FR Serv
2d 1513.
Dispute concerning relevancy of information sought from persons whose depositions plaintiff desired was
sufficiently substantial to preclude award of costs to plaintiff for costs incurred in opposing defendant's motions to
vacate notices of depositions, and court would not award costs in connection with its successful opposition to motion to
vacate order of deposition for reason that defendant had instigated departure of one of witnesses whom plaintiff sought
to depose in order to impede efforts to take deposition. Quaker Chair Corp. v Litton Business Systems, Inc. (1976, SD
NY) 71 FRD 527, 191 USPQ 138.
Expense of $ 15,000 in assigning full-time employee to task of compiling information sought by defendant in
antitrust suit is not so unreasonable as to merit protective order when defendant is exposed to potential liability of $
6,000,000. G. O. Coin Service, Inc. v Ace Vending Co. (1978, SD Ohio) 25 FR Serv 2d 775.
In context of action under Age Discrimination in Employment Act, District Court properly denies defendant's motion
for order requiring plaintiffs to pay cost incurred in producing computer printout, which cost amounts to $ 5,411.25,
where (1) amount of money involved is not excessive or inordinate, (2) relative expense and burden in obtaining data
would be substantially greater to requesting party as compared with responding party, (3) amount of money required to
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USCS Fed Rules Civ Proc R 26
obtain data would be substantial burden to plaintiffs, and (4) responding party is benefited in its case to some degree by
producing data in question. Bills v Kennecott Corp. (1985, DC Utah) 108 FRD 459, 40 BNA FEP Cas 1182, 42 CCH
EPD P 36732.
Cost of production of defendant's computer printout is not shifted to plaintiffs under Rules 26(c) and 34, where court
determines that amount of money involved is not excessive or inordinate, relative expense and burden in obtaining data
would be substantially greater to requesting party as compared with responding party, amount of money required to
obtain data as set forth by defendant would be substantial burden to plaintiffs, and responding party is benefited in its
case to some degree by producing data in question. Bills v Kennecott Corp. (1985, DC Utah) 108 FRD 459, 40 BNA
FEP Cas 1182, 42 CCH EPD P 36732.
Defendant was not entitled to protective order that would require plaintiffs to reimburse it for costs of translating
requested documents since plaintiffs did not request translated documents, defendant failed to show that formal
translation was required in order to protect privileges and proprietary information, and translation expenses could be
awarded at end of trial. In re Fialuridine Prods. Liab. Litig. (1995, DC Dist Col) 163 FRD 386, 34 FR Serv 3d 132.
Less specific requesting party's discovery demands are, more appropriate it is to shift costs of production to that
party. 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).
Where party multiplies litigation costs by seeking expansive rather than targeted discovery, that party should bear
expense. 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).
Where responding party itself benefits from production, there is less rationale for shifting costs to requesting party.
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).
If party maintains electronic data for purpose of utilizing it in connection with current activities, it may be expected
to respond to discovery requests at its own expense; however, party that happens to retain vestigial data for no current
business purposes, but only in case of emergency or simply because it has neglected to discard it, should not be put to
expense of producing it. 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).
In action by former employee against her former employer alleging gender discrimination, failure to promote, and
retaliation under Title VII of Civil Rights Act of 1964, 42 USCS § 2000e et seq., N.Y. Exec. Law § 296, and New
York City law, following employer's production of sample of e-mails from restored computer backup tapes, employee's
motion to compel production of all remaining backup e-mails was granted and one quarter of cost of any further
production concerning computer backup tapes requested under Fed. R. Civ. P. 34(a) was shifted to employee pursuant
to Fed. R. Civ. P. 26(b)(2) and (c) because employee demonstrated that marginal utility of backup tapes was potentially
high, cost of restoration was not significantly disproportionate to projected value of case, employee probably had
financial wherewithal to cover at least some of cost of restoration, and, although employee did not show that there was
indispensable evidence on backup tapes, there was plainly relevant evidence that was only available on backup tapes.
Zubulake v UBS Warburg LLC (2003, SD NY) 216 FRD 280, 92 BNA FEP Cas 684.
488. --Attorneys' fees or expenses
Attorney's fees, allowed by the court as condition to the taking of deposition for government, were properly allowed
as costs despite the provision of Tort Claims Act that costs allowed in actions under such act shall not include attorneys'
fees, where it appeared that trial court, as condition of permitting government to take deposition of witness in San
Francisco, ordered that expenses of one attorney for plaintiff and fee for each day actually spent at taking of the
deposition must be paid not less than 7 days before day on which deposition was to be taken, but had eliminated
requirement of payment prior to taking the deposition upon representation that government then had no funds available
for payment before deposition was taken. North Atlantic & Gulf S.S. Co. v United States (1954, CA2 NY) 209 F2d 487.
Magistrate judge properly ordered protective order and $ 1,600 in attorneys' fees and expenses for plaintiff's
obstructive refusal to make reasonable accommodation to defense counsel's schedule in taking depositions; plaintiff
noticed two dates for depositions, first of which was legal holiday and second was first day of trial in matter which
defense counsel had been handling exclusively for many years, defense counsel asked for change in dates and offered
numerous alternatives. Hauser v Farrell (1994, CA9 Nev) 14 F3d 1338, 94 CDOS 304, 94 Daily Journal DAR 542,
CCH Fed Secur L Rep P 98024, 28 FR Serv 3d 841.
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USCS Fed Rules Civ Proc R 26
Litigant who served discovery requests on nonparty was properly required to pay nonparty's expenses in obtaining
protective order since dispute between litigant and nonparty was unrelated to his federal litigation and had no
independent basis of federal jurisdiction; fee shirting when judge must rule on discovery disputes encourages their
voluntary resolution and curtails ability of litigants to use legal processes to heap detriments on adversaries or third
parties without regard to merits of their claims. Rickels v City of South Bend (1994, CA7 Ind) 33 F3d 785, 29 FR Serv
3d 1336.
Request by plaintiff that right of defendant to take oral depositions of various persons in Italy, the place of accident
upon which the action was founded, be conditioned upon the advancement to plaintiff of sum of $ 5,500 to cover
expenses of the plaintiff's attorney in traveling to and about Italy in connection with cross-examination of the witnesses
examined, was denied; while undue expense to other party might, under certain circumstances, justify denial of, or a
qualified, oral examination, conditions in this case did not demand such action. Gitto v "Italia", Societa' Anonima Di
Navigazione (1939, DC NY) 28 F Supp 309.
Allowance of travel expenses and counsel fees incident to depositions is in court's discretion and where no special
circumstances appeared justifying order that plaintiff pay counsel fees and expenses to defendants, order for such fees
and expenses would not be granted. Weeks v Baltimore & O. R. Co. (1945, DC Pa) 5 FRD 17; Interlego A. G. v
Leslie-Henry Co. (1963, MD Pa) 32 FRD 9, 6 FR Serv 2d 580.
Defendant's motion for order directing that plaintiff be permitted to take oral depositions of witnesses in Ohio only if
plaintiff advanced to defendant expenses of attendance by defendant's attorneys at such examination, including
reasonable counsel fee, or in the alternative, that plaintiff proceed on written interrogatories, was denied. Stierhoff v
Chesapeake & O. R. Co. (1947, DC NY) 8 FRD 54.
Motion by defendant to vacate plaintiff's notice for deposition to be taken in San Francisco and request for counsel
fees for the attendance of defendant's attorney at place where deposition was to be taken are denied; although counsel
fees may be granted at court's discretion, because of failure of defendant on demand to make any payments for
maintenance and cure due to plaintiff, who is suing for alleged injuries due to defendant's negligence, and in view of
financial circumstances of the parties, defendant is not entitled to any counsel fees. Velasquez v South Atlantic S.S.
Line, Inc. (1951, DC NY) 11 FRD 196.
The courts are generally reluctant to require that moving party be required to pay expenses of opposing party's
counsel in connection with taking of depositions and will usually require that parties bear their own expenses unless the
circumstances are such as to strongly indicate that the discretion should be exercised to the opposite effect.
Continental Casualty Co. v Houdry Process Corp. (1955, DC Pa) 18 FRD 75.
In civil rights action where court previously denied defendant's motion for protective order preventing discovery of
police investigation file, court would deny motion of plaintiff for order requiring defendants to pay reasonable attorney's
fees for time spent in opposing defendant's protective order motion, since motion for protective order was substantially
justified in view of fact that defendant's motion for protective order was premised on executive privilege. Wood v
Breier (1975, ED Wis) 66 FRD 8, 20 FR Serv 2d 782, dismd without op (1976, CA7 Wis) 534 F2d 330.
489. --Deposition expenses
Request by plaintiff that defendants be required to pay all expenses necessarily entailed in connection with taking of
depositions of plaintiff's officials and employees and others residing in England was denied where defendants, seeking
the depositions, were American corporations, and, by making motion for the depositions, evidenced their willingness to
pay their full share of the expenses, which would greatly exceed those of plaintiff. Alfred Bell & Co. v Catalda Fine
Arts, Inc. (1946, DC NY) 5 FRD 327, 68 USPQ 447.
Motion by defendant for protective order requiring plaintiff to reimburse him for his travel and expenses in coming
from Massachusetts to Philadelphia to have his deposition taken by plaintiff was denied where it appeared that
defendant, who was in the Navy, had previously been ordered to notify counsel for plaintiff whenever he was stationed
within 350 miles of Philadelphia so that his deposition might be taken and had neglected to do so when stationed in
Rhode Island; defendant had flagrantly disregarded court's order and was therefore not entitled to protective order
sought by this motion. Page v Hooper (1955, DC Pa) 18 FRD 235.
Court may, in its discretion, grant costs for furnishing copy of deposition to adverse party. Lockett v Hellenic Sea
Transports, Ltd. (1973, ED Pa) 60 FRD 469, 18 FR Serv 2d 162.
District Courts can provide for payment in first instance of expense of taking depositions; such determination as to
which party will pay transportation and related expenses incurred in course of deposing individual rests in court's sound
discretion; facts and circumstances of each individual case determine how court will exercise this discretion. Haymes v
Smith (1976, WD NY) 73 FRD 572.
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USCS Fed Rules Civ Proc R 26
Although generally parties seeking to take deposition must bear expense associated therewith, District Court would
exercise its discretion to require deponent to bear expense incident to deposition under Rule 26 where suit was initiated
by pro se complaint of indigent prisoner, present counsel was Legal Assistance Corporation without sufficient funds to
finance litigation and deposition was necessary for proper litigation of matter. Haymes v Smith (1976, WD NY) 73
FRD 572.
Where Securities and Exchange Commission in action alleging violations of securities laws took depositions of
investors who, albeit located across country, had been sought out originally by defendants, defendants have not
demonstrated good cause, annoyance, oppression, or undue burden and expenses cannot be awarded under Rule 26(c).
SEC v Aqua-Sonic Products Corp. (1981, SD NY) 93 FRD 326, CCH Fed Secur L Rep P 98027.
490. --Expert witness fee or expense
Order compelling defendant to pay plaintiff's expert for time preparing for deposition was not appropriate where case
was not complex, expert was testifying only as to damages, and expert had produced written report with which he could
easily refresh any lapses in memory arising in period between completion of report and deposition. Rhee v Witco
Chemical Corp. (1989, ND Ill) 126 FRD 45, 51 BNA FEP Cas 526, 14 FR Serv 3d 576.
491. Miscellaneous
Order by district judge precluding defendant from transmitting to Hungary five questions and answers in pretrial
deposition of one of plaintiff partners, which questions related to bribery of Hungarian Communist officials by deponent
and his brother, who was still in Hungary, was upheld by appellate court. Zwack v Kraus Bros. & Co. (1956, CA2 NY)
237 F2d 255.
In action involving settlement of testamentary trust involving 4 beneficiaries, where claims to the assets were made
by various assignees of the beneficiaries, such claims with regard to the particular beneficiary for whose benefit
so-called "protective" order was made amounting to more than his total share, trial court had no authority to direct
trustee of testamentary trust estate to pay support money to the beneficiary pending determination of case on the merits.
De Korwin v First Nat'l Bank (1959, CA7 Ill) 267 F2d 337, 2 FR Serv 2d 462, cert den (1960) 361 US 931, 4 L Ed 2d
352, 80 S Ct 369.
Motion by defendant, following service of notice of examination before trial, that the order be vacated or, in the
alternative, an order be made directing plaintiff to serve notice setting forth items on which the defendants were
expected to be examined, was denied. Jacobowitz v Kremer (1946, DC NY) 7 FRD 110.
Motion for an order that no witness called in response to defendant's taking of depositions of plaintiff's personnel
should be required, or called upon, to produce any records to refresh his recollection, was granted; while judicial
discretion could be exercised in requiring witness before court to consult document to refresh his recollection, this
should not be done where the examination was being conducted outside of a court, inasmuch as in such situation there
could be no exercise of judicial discretion. Cities Service Oil Co. v Celanese Corp. of America (1953, DC Del) 14
FRD 246.
Defendant's motion for protective order against having to answer over 200 interrogatories in ordinary rear-end
collision damage suit would be granted, subject to plaintiff's right to file reasonable set of interrogatories, where many
of the requested interrogatories were frivolous and oppressive. Frost v Williams (1969, DC Md) 46 FRD 484, 13 FR
Serv 2d 908.
Interrogatories served on one defendant by two other defendants were struck as unduly burdensome and oppressive
when viewed with relation to case, where some of 2,736 questions and subparts were pertinent to defending against
cross-claim, but effective disclosure could be accomplished by less voluminous and detailed interrogatories. Re U. S.
Financial Secur. In re U. S. Financial Sec. Litigation (1975, SD Cal) 74 FRD 497, 22 FR Serv 2d 710.
Prisoner is entitled to protective order which denies prison right to require him to submit to body cavity search before
or after his deposition or before or after attorney visit in preparation for deposition for civil right suit brought against
prison officials by non-prisoner alleging that requirement that certain prison visitors submit to either strip search or
"spread leg" search prior to entry to prison violates their constitutional rights. Sims v Brierton (1980, ND Ill) 500 F
Supp 813.
Protective order requiring parties to retain all confidential materials obtained through discovery within 60 days after
termination of action would not be modified at plaintiff's request to direct defendants' counsel to retain all documents
returned by plaintiff in central location so plaintiff could reach documents in event they were needed in some future
case, where parties drafted language of protective order and submitted it to court as stipulation, case had already been
dismissed, and plaintiff failed to show either that documents were or would become relevant in other proceeding or that
plaintiff could not obtain all information to which it was entitled through discovery processes of court handling other
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USCS Fed Rules Civ Proc R 26
proceeding, despite possibility that documents might be lost or destroyed before they could be obtained. Cedars-Sinai
Medical Center v Revlon, Inc. (1987, DC Del) 113 FRD 632.
Civil environmental enforcement action is stayed for 6 months or until criminal environmental proceedings are
concluded against corporation, because liberal discovery rules in civil proceeding would expose prosecution strategy
and identify confidential informants, and thus need for stay outweighs potential harm to corporate defendant. United
States v Hugo Key & Son, Inc. (1987, DC RI) 672 F Supp 656, 18 ELR 20272.
Defendant's motion to stay discovery pending resolution of motion to transfer case was tantamount to protective
order and defendant failed to establish good cause for stay; discovery under any scenario would be conducted in both
states involved and court could not perceive any substantial benefit in staying discovery. Kron Medical Corp. v Groth
(1988, MD NC) 119 FRD 636.
Defendant in patent infringement suit was entitled to protective order barring plaintiff and its attorneys from
contacting any of defendant's actual and prospective customers except through defendant's attorneys for reasonably
necessary discovery, upon showing that plaintiff was attempting to prejudice defendant's customers by offering full
release in exchange for their cooperation in litigation. May Coating Technologies v Illinois Tool Works (1994, DC
Minn) 157 FRD 55, 34 USPQ2d 1094.
VIII. SEQUENCE AND TIMING OF DISCOVERY [RULE 26(d)]
492. Generally
There are limits upon power of District Court to accelerate pretrial discovery and it may well be that accelerated
discovery schedule would be unreasonable exercise of District Court's discretion unless it was coupled with express
preservation of claims of privilege. 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).
When plaintiff moves for leave to examine defendant before issue joined, such examination should not be deferred
until completion of the examination of plaintiff previously ordered on defendant's motion, in view of the requirement
that the rules be construed to secure a just, speedy, and inexpensive determination of every action. Thomas v
Goldstone (1939, DC NY) 27 F Supp 297.
Fact that desired information may later be obtained by interrogatories is not a valid objection to the taking of
depositions. Samuel Goldwyn, Inc. v United Artists Corp. (1940, DC NY) 35 F Supp 633.
Defendant who initiated discovery by depositions is not permitted to complete all discovery before answering written
interrogatories propounded by plaintiff. Sturdevant v Sears, Roebuck & Co. (1963, WD Mo) 32 FRD 426, 7 FR Serv
2d 547.
Ruling on interrogatories which might relate to defenses of lack of invention or undisclosed prior art should be
postponed until after the answer has been filed. Meese v Eaton Mfg. Co. (1964, ND Ohio) 35 FRD 162, 142 USPQ 16,
8 FR Serv 2d 19A.1, Case 8, 8 FR Serv 2d 33.319, Case 1.
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
burdensome, irrelevant, or which invades privileged or confidential areas; discovery is not to be used as weapon, nor
must discovery on merits be completed precedent to class certification. 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.
Bare assertions that discovery will be unduly burdensome or should be stayed because pending dispositive motions
will probably be sustained, are insufficient to justify entry of order staying discovery generally. Continental Illinois
Nat'l Bank & Trust Co. v Caton (1990, DC Kan) 130 FRD 145.
Discovery priority is not established based upon which party noticed deposition first, but rather, FRCP 26(d)
authorizes court to order sequence of discovery upon motion; order regarding sequence of discovery is at discretion of
trial judge. Occidental Chem. Corp. v OHM Remediation Servs. (1996, WD NY) 168 FRD 13, 36 FR Serv 3d 1383.
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.
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.
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USCS Fed Rules Civ Proc R 26
Party's failure to respond to other party's requests for documents does not excuse that other party from complying
with first party's discovery requests; there is no authority which, absent court order, permits conditioning compliance
with properly served discovery requests. Land Ocean Logistics v Aqua Gulf Corp. (1998, WD NY) 181 FRD 229.
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.
Good cause must be shown to warrant granting of any expedited discovery prior to FRCP 26(f) scheduling
conference. Yokohama Tire Corp. v Dealers Tire Supply, Inc. (2001, DC Ariz) 202 FRD 612.
Pursuant to FRCP 26(d), court may order expedited discovery upon showing of good cause, which frequently exists
in cases involving claims of infringement and unfair competition; additionally, expedited discovery may be appropriate
in cases where plaintiff seeks preliminary injunction. Pod-Ners, LLC v Northern Feed & Bean (2002, DC Colo) 204
FRD 675.
Expedited discovery may be inappropriate where defendants are required to unwarily incriminate themselves before
they have chance to review facts of case and to retain counsel. Pod-Ners, LLC v Northern Feed & Bean (2002, DC
Colo) 204 FRD 675.
Plaintiff was entitled to expedited discovery in patent infringement action upon showing of good cause, where need
for expedited discovery was outweighed by any prejudice to defendants, plaintiff made clear showing that the narrow
categories of the requests would contribute to moving case forward, and defendants admitted that material requested
was relevant and would be produced during normal course of litigation. Semitool, Inc. v Tokyo Electron Am. (2002, ND
Cal) 208 FRD 273.
Trademark and service mark owner's ex parte motion for leave to take accelerated discovery, which was based on
owner's professed need to determine whether it had to file motion for preliminary injunction to prevent irreparable
harm, was denied without prejudice where owner failed to establish requisite good cause for expedited discovery under
Fed. R. Civ. P. 26(d) because (1) original complaint did not seek preliminary injunctive relief, (2) notwithstanding
urgency expressed in motion, owner had not served alleged infringer with original or amended complaint, (3) on
balance, owner presented less-than-compelling reasons for departing from orderly approach to discovery contemplated
by Rule 26, (4) court was hard pressed to define outer boundary of owner's requests, and (5) much of expedited
discovery that owner sought addressed conduct that had already occurred, which would have had little, if any, bearing
on irreparable injuries that may have occurred pendente lite. Qwest Communs. Int'l Inc. v Worldquest Networks, Inc.
(2003, DC Colo) 213 FRD 418.
493. Sequence and timing of discovery under particular circumstances
The court erred in refusing plaintiff's permission to take depositions for the purpose of disproving allegations of
defendant's affidavits on the theory that Rule 26 permits discovery only after jurisdiction has been obtained. Urquhart
v American-La France Foamite Corp. (1944) 79 US App DC 219, 144 F2d 542, 62 USPQ 328, cert den (1944) 323 US
783, 89 L Ed 625, 65 S Ct 273, 63 USPQ 358.
If defendant in good faith believed that district court's order was not intended to compel production of relevant
document, appropriate remedy was to seek ruling by district court at that point and not one year after trial and then only
when, by chance, plaintiff learned about it. Rozier v Ford Motor Co. (1978, CA5 Ga) 573 F2d 1332, 3 Fed Rules Evid
Serv 119, 25 FR Serv 2d 1133, 50 ALR Fed 914, reh den (1978, CA5 Ga) 578 F2d 871.
Party opposing arbitration award was not entitled to discovery where some information sought could and should
have been requested prior to hearing and other information would have been available had party requested stenographic
minutes of arbitration hearing. Lyeth v Chrysler Corp. (1991, CA2 NY) 929 F2d 891.
District court did not err in resolving preliminary injunction without providing plaintiff opportunity to conduct
discovery, since plaintiff did not file request for continuance in order to complete discovery prior to hearing on motion
for preliminary injunction, hence was not denied opportunity to conduct discovery rather did not avail herself of it.
Stanley v University of S. Cal. (1994, CA9 Cal) 13 F3d 1313, 94 CDOS 152, 94 Daily Journal DAR 297, 63 BNA FEP
Cas 1021, 1 BNA WH Cas 2d 1394, 63 CCH EPD P 42757, 127 CCH LC P 33045.
Where counsel are unable to agree on taking of depositions by each party and have become unusually bitter at an
early stage of the proceeding, all rights of agreement on preliminary matters are forfeited and plaintiff will be permitted
to complete deposition of defendant's officers and when it finishes with them, defendant will be permitted to examine
such of plaintiff's officers and directors as it desires. Sprague Electric Co. v Cornell-Dubilier Electric Corp. (1944,
DC Del) 4 FRD 113.
Motions by each side to vacate notices for taking of depositions served by the other were denied where real issue
involved was question of priority in taking of the depositions, which admittedly might extend over period of a year;
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defendant might first examine plaintiff for 2 weeks, with plaintiff thereafter examining defendant for 4-week period,
after which the other defendant might examine the plaintiff for period of 2 weeks, with same cycle being repeated until
completion of all the examinations. Caldwell-Clements, Inc. v McGraw-Hill Pub. Co. (1951, DC NY) 11 FRD 156.
In action to recover civil penalties for violation of cease and desist order of Federal Trade Commission where
complaint gave defendant adequate notice of alleged violation, there was no reason for compelling plaintiff to answer
defendant's propounded interrogatories prior to commencement of pre-trial oral deposition of defendant by plaintiff.
United States v Time, Inc. (1962, SD NY) 31 FRD 179, 6 FR Serv 2d 527.
Motion to stay plaintiff's deposition of defendant's employee until plaintiff had fully answered defendant's
interrogatories denied. United States Steel Corp. v United States (1968, SD NY) 43 FRD 447, 68-1 USTC P 9193, 11
FR Serv 2d 807, 21 AFTR 2d 1164.
In action by retired miners contesting union's failure to have payments made into health and welfare fund, motion by
plaintiffs seeking to stay taking of depositions sought by defendant trustees pending answer to plaintiffs' interrogatories
would be denied as causing unnecessary delay. Nedd v Thomas (1969, MD Pa) 47 FRD 551, 71 BNA LRRM 3140, 13
FR Serv 2d 799.
District Court allowed school desegregation case to be reopened for limited purpose of allowing further discovery by
amici curiae with respect to ultimate issue of segregatory intent since it involves a matter of important public interest.
Northside Independent School Dist. v Texas Education Agency (1975, WD Tex) 410 F Supp 360.
In action against three large corporations alleging price-fixing in violation of antitrust laws, there was no merit to
suggestions that plaintiffs need not grant discovery until after defendants had filed their answers to complaint or until
after defendants had complied with plaintiffs' later-filed request for discovery, but in order to minimize burdens of
discovery process in view of fact that there were three defendants, defendants should coordinate their discovery efforts
by deposing particular witnesses at same time, using joint interrogatories insofar as practicable, and filing
simultaneously requests for production of documents bearing on same aspect of litigation. Rochester Gypsum
Cooperative, Inc. v National Gypsum Co. (1976, ED Pa) 23 FR Serv 2d 355.
In antitrust suit government's request for admissions procedure to replace ongoing stipulation process cannot be
favored because whatever may be merits of requests for admissions procedure in other respects, they do not generate
discovery; where defendants have already submitted to court detailed analysis of government's Statement of
Contentions and Proof and absent good cause, it would be neither appropriate nor fair to defendants to substitute at
pre-trial proceeding point in case new procedure which would perpetrate this disparity; even if stipulation process does
not ultimately yield all of fruits that may be expected of it under optimum conditions, its potential has by no means been
exhausted; and admissions process has not been shown, as required by burden of persuasion, to be so superior that it
should at pre-trial proceeding point in case displace stipulation procedure. United States v American Tel. & Tel. Co.
(1979, DC Dist Col) 83 FRD 323.
No compelling reason to destroy confidentiality exists where defendants' motion to produce documents is in large
part predicated on presumption that court would need to refer to confidential materials in order to rule on combined
motions before it, presumption that has not yet occurred, and is therefore premature. Citicorp v Interbank Card Asso.
(1979, SD NY) 478 F Supp 756, 1980-1 CCH Trade Cases P 63108.
Trustee in bankruptcy is entitled to discovery of all documents and files in possession, custody, or control of
independent auditing firm even though such documents had previously been made available to and were actually
examined by Trustee since Trustee's prior inspection occurred before independent auditing firm became party to action
and, thus, careful consideration may not have been given to documents relevant to possible claims against auditing firm
and important information may have been overlooked; fairness demands that Trustee bear costs reasonably associated
with auditing firm's employees who are required to oversee inspection of working papers. In re Hawaii Corp. (1980,
DC Hawaii) 88 FRD 518, 30 FR Serv 2d 761.
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.
In action by United States Government to denaturalize defendant, where government scheduled deposition of
defendant to be held before date when government was required to provide documents containing defendant's prior
statements and where defendant wished to obtain those documents before his deposition, District Court granted
defendant's request under Rule 26(d) where government's interest in determining extent of defendant's present
unrefreshed recollection of certain events was lessened since 40 years had passed since events defendant had to recall,
and where defendant had great interest in examining documents that he signed or swore to 40 years ago, so that he could
honestly explain any inaccuracies or errors. United States v Bartesch (1986, ND Ill) 110 FRD 128.
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Task force's response to discovery was condemned by court, where, in response to discovery request for list of
members, task force supplied incomplete list and stated that there might be additional names added pending continuing
search, because this allowed task force to respond to discovery in dribbles and drabs and divested court of control over
discovery process; task force should have filed incomplete response and moved for enlargement of time, with estimate
of time needed to provide complete response to discovery request. Association of Am. Physicians & Surgeons v
Clinton (1993, DC Dist Col) 837 F Supp 454.
If third party has entered case, that party may request that opposing parties meet and attempt to work out discovery
schedule as to third party's situation, and third party may move court for scheduling order if necessary; discovery need
not wait any period or holding of planning conference, but if there is need to restrict or limit discovery, third party may
seek protective order or otherwise seek assistance of court. Steppes Apt., Ltd. v Armstrong (1999, DC Utah) 188 FRD
642.
Under the court's authority pursuant to Fed. R. Civ. P. 26(b)(2) and 26(c)(1-3) to resolve issues regarding the
sequence and timing of deposition discovery, the deposition of a doctor was compelled prior to the depositions of the
plaintiffs or their certifying expert in a medical malpractice action. Keller v Edwards (2002, DC Md) 206 FRD 412.
District court granted motion to dismiss complaint with prejudice for repeated violations of deadlines, rules, and
court orders concerning discovery without any legitimate justification or excuse, and took deposition of fact witness
without notice and prior to serving complaint upon defendants, in blatant violation of Fed. R. Civ. P. 26(d). Ortiz-Rivera
v Mun. Gov't of Toa Alta (2003, DC Puerto Rico) 214 FRD 51.
IX. SUPPLEMENTATION OF RESPONSES [RULE 26(e)]
494. Generally
Determination whether to admit testimony over Rule 26(e) objection entails careful balancing; trial and appellate
courts should look to conduct of trial, importance of evidence to its proponent, and ability of objecting party to
formulate response. Johnson v H. K. Webster, Inc. (1985, CA1 NH) 775 F2d 1, 3 FR Serv 3d 209.
There is no exclusionary rule in Rule 26(e)(1) itself, and party moving to exclude testimony of expert witness who
was not properly identified by supplementation to interrogatory has burden of establishing justification for such
exclusion. Dychalo v Copperloy Corp. (1978, ED Pa) 78 FRD 146, 2 Fed Rules Evid Serv 1024, 24 FR Serv 2d 1383,
affd without op (1978, CA3 Pa) 588 F2d 819 and affd without op (1978, CA3 Pa) 588 F2d 820.
495. Party's duty to supplement response
Parties are under continuing duty to supplement their responses; Rule 26 clearly requires such. Price v Lake Sales
Supply R. M., Inc. (1974, CA10 Colo) 510 F2d 388, 183 USPQ 519.
In products liability action arising out of automobile accident, defendant auto manufacturer had continuing obligation
to supplement its response to interrogatories on subject matter and substance of expert testimony, notwithstanding
manufacturer's contention that its duty to respond to interrogatories concerning expert testimony ended when trial began
because tests on which it was based were not completed until after trial had begun, where nothing in Rule 26(e) or trial
judge's direction to parties indicated that obligation contained any limitation of time; particularly where trial was
reached nearly 9 years after accident, there was no justification for discovery to be incomplete prior to trial because data
for expert testimony had not been compiled, and court would refuse to give interpretation to Rule 26(e) that would
provide such tactical justification. Weiss v Chrysler Motors Corp. (1975, CA2 NY) 515 F2d 449, 20 FR Serv 2d 208.
Rule 26(e) expressly imposes upon party who has responded to discovery request continuing duty to make
reasonable supplementary responses with respect to identity of each person expected to be called as expert witness at
trial, subject matter on which he is expected to testify, and substance of his testimony; similarly, there is duty to amend
prior response seasonably if party obtains information upon basis of which he knows that response was incorrect when
made. Voegeli v Lewis (1977, CA8 SD) 568 F2d 89, 24 FR Serv 2d 913.
Determining existence of duty to supplement or amend answers previously given in response to other party's
discovery requests and imposing sanctions for breach of such duty are matters properly committed to sound discretion
of trial judge; on review, appellate court will be most unlikely to fault judgment of trial court as to order of
supplementation unless, in totality of circumstances, its rulings are seen to be gross abuse of discretion resulting in
fundamental unfairness. Phil Crowley Steel Corp. v Macomber, Inc. (1979, CA8 Mo) 601 F2d 342, 27 FR Serv 2d
1088.
Party is under duty to seasonably supplement response to discovery as to identity of persons expected to be called as
expert witnesses at trial, subject matter of their expected testimony, and substance of their testimony; failure to comply
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may lead to finding of prejudice resulting in exclusion of proffered evidence. Smith v Ford Motor Co. (1980, CA10
Wyo) 626 F2d 784, 29 FR Serv 2d 1462, cert den (1981) 450 US 918, 67 L Ed 2d 344, 101 S Ct 1363.
Despite fact that duty to supplement answers to interrogatories is breached by failing to supply name of expert
witness, it is abuse of discretion to refuse to permit expert to testify as rebuttal witness where interrogatory stated that
expert would be retained and opposing counsel knew name of expert at least 10 days prior to trial; when determining
whether to exclude evidence consideration must be given to explanation for failure to name witness, importance of
testimony of witness, need for time to prepare to meet testimony, and possibility of continuance. Murphy v Magnolia
Electric Power Asso. (1981, CA5 Miss) 639 F2d 232, 31 FR Serv 2d 429.
In product liability action against manufacturer of machinery on which plaintiff was working when he was injured, it
was not abuse of discretion for District Court to deny motion to strike testimony of plaintiff's expert relative to feasible
safety features where, although expert's testimony at trial related to apparatus different from device discussed in detail at
his deposition, plaintiff clearly responded correctly to interrogatory and adequately informed defendant of general
technology on which it would, and in fact did, rely. Johnson v H. K. Webster, Inc. (1985, CA1 NH) 775 F2d 1, 3 FR
Serv 3d 209.
Supplementation requirement of Rule 26(e) is not absolute; for instance, nothing in rule forecloses expert from
revising or further clarifying opinions during redirect examination or surrebuttal in response to points raised by
opposing party during cross-examination or presentation of its case. Johnson v H. K. Webster, Inc. (1985, CA1 NH)
775 F2d 1, 3 FR Serv 3d 209.
Party's possible failure to provide names of two witnesses in its self-executing disclosures or to disclose them in
response to interrogatories was not in bad faith and opponent knew names of witnesses and scope of their relevant
knowledge well before trial; therefore, district court did not err in refusing to exclude their testimony. Newman v GHS
Osteopathic (1995, CA3 Pa) 60 F3d 153, 11 ADD 106, 4 AD Cas 1051, 32 FR Serv 3d 71.
Worker who claimed he was terminated for exercising his workers' compensation rights had continuing duty to
disclose information regarding his Social Security disability benefits even after discovery closed, and thus could be
sanctioned for failure to comply with post-trial discovery order that he execute release of Social Security records.
Rodriguez v IBP, Inc. (2001, CA10 Kan) 243 F3d 1221, 2001 Colo J C A R 1341.
Rule 26(e) imposes limited duty to supplement responses to request for discovery only on parties to action; it
imposes no similar duty on nonparty. Financial General Bankshares, Inc. v Lance (1979, SD NY) 28 FR Serv 2d 538.
Rule 26(e) is designed to prevent party from surprising his adversary in setting forth new acts at trial not disclosed
during discovery; before any duty to supplement responses arises, it must be shown that failure to disclose new facts
will amount to knowing concealment; Rule 26(e) cannot be used to bring in "new contentions" rather than "new facts."
PIC, Inc. v Prescon Corp. (1980, DC Del) 485 F Supp 1299, 209 USPQ 642, 29 FR Serv 2d 1486.
In products liability action arising out of fire allegedly caused by failure of heating unit manufactured by defendant,
in which interrogatories addressed to plaintiff request materials on which plaintiff's expert bases his opinion, including
physical evidence, objects, and test results, inter alia, Rule 26(e)(1)(B) places plaintiff under duty to supplement its
answers and provide copy of videotape of test performed by plaintiff's expert where, although plaintiff's experts did not
rely on videotape and test to reach their initial opinions, it cannot be said that such test had no effect on expert's
pre-existing opinions, since at very least it confirmed, buttressed, or strengthened them and is evidence of them. E.J.
Stewart, Inc. v Aitken Products, Inc. (1985, ED Pa) 607 F Supp 883, CCH Prod Liab Rep P 10711, affd without op
(1985, CA3 Pa) 779 F2d 42 and affd without op (1985, CA3 Pa) 779 F2d 42 and affd without op (1985, CA3 Pa) 779
F2d 43 and affd without op (1985, CA3 Pa) 779 F2d 44 and affd without op (1985, CA3 Pa) 779 F2d 44.
Plaintiff had continuing obligation to supplement answers to interrogatories which directly addressed identity of
persons having knowledge of discoverable matters and no additional interrogatories needed to be proffered to obtain
this information. Pasant v Jackson Nat'l Life Ins. Co. (1991, ND Ill) 137 FRD 255.
Duty to supplement discovery request did not apply to cover documents regarding merger conversations since
request predated merger conversations and response was complete when made. Rayman v American Charter Fed. Sav.
& Loan Ass'n (1993, DC Neb) 150 FRD 634, 27 FR Serv 3d 136, motion gr, in part, motion den, in part, set aside in part
on other grounds, motion gr (1994, DC Neb) 866 F Supp 1252, affd in part and revd in part on other grounds, remanded
(1996, CA8 Neb) 75 F3d 349.
Party is not entitled to protective order that she was not required to respond to numerous supplement requests where
she has made no showing that opposing party's requests for supplementation are inappropriate or oppressive. Jackson v
United States (1993, DC Colo) 153 FRD 646.
FRCP 26(e)(1) does not bestow upon litigants unfettered freedom to rely on supplements produced after
court-imposed deadline, even if rule's pretrial time limit is satisfied; thus, rule imposes duty on parties, but does not
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grant them right to produce information in belated fashion. Reid v Lockheed Martin Aero. Co. (2001, ND Ga) 205 FRD
655, 86 BNA FEP Cas 631.
496. --Seasonable supplement
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.
In action brought upon claim of injury from use of oral contraceptives where, at discovery stage, orders were
complied with for one expert witness who was not treating physician, and where plaintiffs, after trial began, sought to
call new, additional expert to provide foundation for testimony of noticed expert, notice of proposed new expert was not
in compliance with pre-trial order for disclosure as soon as feasible since order was entered more than one year before
trial, and notice was not "seasonable" compliance with continuing duty imposed by Rule 26(e)(1). Tabatchnick v G. D.
Searle & Co. (1975, DC NJ) 67 FRD 49, 1 Fed Rules Evid Serv 113, 20 FR Serv 2d 980.
For purposes of Rule 26(e)(1), supplementation after jury has been drawn cannot be considered to have been made
"seasonably," and substantive explanation for default is irrelevant, so that it makes no difference whether it was due to
failure to prepare for trial or for intentional purpose to gain benefit of surprise; rule bars result without regard to cause,
except for those beyond control. Tabatchnick v G. D. Searle & Co. (1975, DC NJ) 67 FRD 49, 1 Fed Rules Evid Serv
113, 20 FR Serv 2d 980.
Counsel may not postpone supplementation indefinitely by delaying retaining of experts and expect that he will be
able to supplement at last possible moment before trial is to start; counsel may not postpone supplementation by not
obtaining from experts which have been retained information which is to be supplied in answer to expert interrogatories.
Ferrara v Balistreri & Di Maio, Inc. (1985, DC Mass) 105 FRD 147, 2 FR Serv 3d 333.
Where plaintiff supplemented answers to interrogatories within discovery period, no trial date had been set, there
was no indication of prejudice to defendant from supplementation, there were no grounds upon which to strike
supplemental responses. Combined Ins. Co. v Hansen (1990, DC Or) 130 FRD 447.
FRCP 26(e)(1) does not bestow upon litigants unfettered freedom to rely on supplements produced after
court-imposed deadline, even if rule's pretrial time limit is satisfied; thus, rule imposes duty on parties, but does not
grant them right to produce information in belated fashion. Reid v Lockheed Martin Aero. Co. (2001, ND Ga) 205 FRD
655, 86 BNA FEP Cas 631.
497. Party's duty to amend prior response for correction
Before any duty arises for party to disclose newly discovered facts which render prior answer incorrect, it must be
shown that failure to disclose new facts would amount to knowing concealment. Havenfield Corp. v H & R Block, Inc.
(1975, CA8 Mo) 509 F2d 1263, 20 FR Serv 2d 462, cert den (1975) 421 US 999, 44 L Ed 2d 665, 95 S Ct 2395.
In job discrimination action, testimony by successful candidate for position which plaintiff had sought with respect to
statements of employer's executive director, made contemporaneously with allegedly discriminatory acts and
concerning plaintiff, employer's action toward her, and qualifications deemed important for position, need not be
excluded pursuant to Rule 26(e)(2), notwithstanding that plaintiff stated in her pretrial deposition that no one employed
by defendant had stated, intimated, or acknowledged that she had been discriminated against because of her age, since
(1) plaintiff did not state that no hospital employee had intimated such information to anyone else, (2) plaintiff's counsel
told District Court that this testimony came to his attention on night before it was offered, (3) witness was included in
plaintiff's pretrial witness list, and (4) witness gave her testimony on Friday, District Court allowed hospital to offer
rebuttal testimony on following Monday morning before case went to jury, and employer therefore had sufficient time
to overcome any possible surprise. O'Donnell v Georgia Osteopathic Hosp. (1984, CA11 Ga) 748 F2d 1543, 36 BNA
FEP Cas 953, 35 CCH EPD P 34863, 17 Fed Rules Evid Serv 439, 1 FR Serv 3d 115.
When defendant's original answers to interrogatories make certain admissions, but they are seasonably amended to
deny the statements in original interrogatories, the original answer is admissible, but the amended answer must be
offered into evidence at the same time if the defendant so requires. Mangual v Prudential Lines, Inc. (1971, ED Pa) 53
FRD 301, 15 FR Serv 2d 503.
498. --Seasonable amendment
In action brought to recover finder's fee, where District Court had refused to allow defendant to file supplemental
answers to plaintiff's interrogatories in which defendant sought to make basic change in its contentions on issue of
liability because of information it received from deposition it had taken, defendant did not act seasonably in making
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amendment when defendant had 2 1/2 months from time it got new information from deposition until final closing of
discovery, and had waited another 5 or 6 weeks after that before filing supplemental answers. Havenfield Corp. v H &
R Block, Inc. (1975, CA8 Mo) 509 F2d 1263, 20 FR Serv 2d 462, cert den (1975) 421 US 999, 44 L Ed 2d 665, 95 S Ct
2395.
Neither general allegations of negligence in pleadings, filed before interrogatory, nor post-interrogatory letter
vaguely mentioning that design of contested appliance left something to be desired, were sources of sufficient
supplementation to interrogatory concerning alternative theories of negligence for purposes of Rule 26(e)(2). Holiday
Inns, Inc. v Robertshaw Controls Co. (1977, CA7 Ill) 560 F2d 856, 24 FR Serv 2d 157.
499. --Knowing concealment
In action brought to recover finder's fees, where District Court had refused to allow defendant to file supplemental
answers to plaintiff's interrogatories in which defendant sought to make basic change to its contentions on issue of
liability because of deposition it had taken from one of its former employees, since new facts were discovered from
former employee and pertained to his actions on behalf of plaintiff, failure to disclose such facts to plaintiff would not
come within definition of knowing concealment that is required before any duty to disclose newly discovered facts
arises. Havenfield Corp. v H & R Block, Inc. (1975, CA8 Mo) 509 F2d 1263, 20 FR Serv 2d 462, cert den (1975) 421
US 999, 44 L Ed 2d 665, 95 S Ct 2395.
In action for personal injuries against snowmobile manufacturer, District Court did not abuse its discretion in
permitting testimony of two witnesses to be presented to jury where the two witnesses were listed in pretrial report,
although not as experts, notwithstanding that plaintiff's counsel were skating very close to line dividing expert from lay
testimony and that total candor might have required them to indicate that the witnesses had some expert ability, since
record did not support conclusion that there was knowing concealment such as is prohibited by Rule 26(e) and even
assuming witnesses were undisclosed experts, Court of Appeals would not interfere with trial court's determination not
to hold plaintiff to pretrial order unless there was clear abuse of discretion or manifest injustice. Sadowski v
Bombardier, Ltd. (1976, CA7 Wis) 539 F2d 615, 21 FR Serv 2d 1262.
Plaintiff's failure to establish that depositions given by witnesses were "no longer true" and further that government's
failure to disclose new facts "is in substance a knowing concealment" justifies court's denial of plaintiff's motion for
sanctions against government under Rule 26(e). Bunch v United States (1982, CA9 Wash) 680 F2d 1271, 29 BNA FEP
Cas 547, 29 CCH EPD P 32946.
Failure to amend employee's erroneous answer to interrogatory, to effect that he worked at one shipyard but not
another, following employee's death when it became clear to his widow and her counsel that answer was incorrect, does
not constitute knowing concealment for purposes of Rule 26(e)(2), where defendant employer was (1) supplied with
copies of employee's social security records which showed his employment at second shipyard, (2) informed by
appropriate pre-trial notice of plaintiff's intent to call as witnesses 2 former employees from second shipyard, and (3)
afforded proper notice of plaintiff's intent to call employee's cousin, who testified that employee worked at second
shipyard, as witness. Halphen v Johns-Manville Sales Corp. (1984, CA5 La) 737 F2d 462, CCH Prod Liab Rep P
10133, 39 FR Serv 2d 673.
Court did not abuse its discretion in not sanctioning personal injury defendant for failing to supplement
interrogatories to list witness whom it offered at trial to rebut another witness's testimony with prior inconsistent
statement; there was no "knowing concealment" since defendants knew that plaintiffs had ascertained that witness had
spoken to unlisted witness before trial and assumed that witness had communicated to plaintiffs same thing he told
unlisted witness. Poulin v Greer (1994, CA1 Me) 18 F3d 979, 28 FR Serv 3d 591.
500. Sanctions for failure to supplement or amend
Assuming testimony of plaintiff in antitrust action regarding lost sales and profit figures constituted "knowing
concealment" within Rule 26(e)(2)(B), trial court's admission of testimony is not abuse of discretion where court orders
supporting sales data delivered to defendants and allows mid-trial deposition of plaintiff rather than excluding his
testimony concerning his damages. Moore v Boating Indus. Assocs. (1985, CA7 Ill) 754 F2d 698, 1985-1 CCH Trade
Cases P 66394, 40 FR Serv 2d 1263, vacated without opinion, remanded (1985) 474 US 895, 88 L Ed 2d 218, 106 S Ct
218, 1985-2 CCH Trade Cases P 66812.
Courts look with disfavor upon parties who claim surprise and prejudice resulting from failure to supplement but
who do not ask for recess so they may attempt to counter opponent's testimony. Johnson v H. K. Webster, Inc. (1985,
CA1 NH) 775 F2d 1, 3 FR Serv 3d 209.
Sanctions for failure to supplement or amend may be imposed under court's inherent power even though no order
compelling discovery was violated. Buffington v Baltimore County (1990, CA4 Md) 913 F2d 113, 17 FR Serv 3d 577,
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USCS Fed Rules Civ Proc R 26
reh den, en banc (1990, CA4) 1990 US App LEXIS 18429 and cert den (1991) 499 US 906, 113 L Ed 2d 216, 111 S Ct
1106.
Imposition of sanctions on attorney for failure to timely supplement interrogatory responses was abuse of discretion
since attorney, to whom case was referred, acted reasonably in relying on referring attorneys and their investigation of
plaintiff's claims, defense counsel knew far more than sanctioned attorney did by time of plaintiff's deposition, and
remainder of information for which attorney was sanctioned was in defendants' hands months before trial. Reed v Iowa
Marine & Repair Corp. (1994, CA5 La) 16 F3d 82, 28 FR Serv 3d 415.
Sanctions against insured's counsel for failure to admit that insured died in foreign country of acute myocardial
infarction were proper under Rule 26(g), even if Rules 36 and 37 permit sanctions only against parties and not counsel;
failure to admit was inexplicable given that beneficiary-employer asserted fact as true when it made insurance claim,
and failure to admit added unnecessary delay and expense to litigation. Johnson Int'l Co. v Jackson Nat'l Life Ins. Co.
(1994, CA8 Neb) 19 F3d 431, 28 FR Serv 3d 514.
Although former employee in action against employer for breach of contract failed to supplement his initial
disclosures by not disclosing that he had applied for Social Security disability benefits, sanctions were not warranted
given previous ambiguity in whether disability for Social Security purposes precluded one from qualifying as "disabled"
for purposes of Americans with Disabilities Act claim, general lack of culpability of plaintiff and his attorneys, and lack
of harm to defendant employer. Townsend v Daniel, Mann, Johnson & Mendenhall (1999, CA10 Colo) 196 F3d 1140,
23 EBC 2118, 1999 Colo J C A R 6288.
Discovery sanction in form of cost, expert and attorney fees against defendant in employment discrimination action
is appropriate where waste of time is occasioned by defendant's failure to promptly supplement response to discovery
request by disclosing system by which it had computerized its personnel records or codes essential to understanding
system, and where defendant counsel's affidavit contains materials that are demonstrably false because individual in
defendant's corporate hierarchy intentionally, recklessly or negligently supplied counsel with misinformation. Fautek v
Montgomery Ward & Co. (1982, ND Ill) 96 FRD 141, 42 BNA FEP Cas 1395, 36 FR Serv 2d 835.
Although neither Rule 26(e)(2), Rule 37(b), Rule 37(d), nor 28 USCS § 1927 authorizes imposition of sanction for
plaintiff's failure to produce certain documents and to fully answer certain interrogatories where no order compelling
discovery was issued and where plaintiff's conduct was negligent but not intentional, court has inherent power to order
continuance and to require plaintiff and plaintiff's counsel to pay reasonable expenses, including attorneys' fees, which
will be incurred by defendants in re-preparing their case during continuance. Petroleum Ins. Agency, Inc. v Hartford
Acci. & Indem. Co. (1985, DC Mass) 106 FRD 59, 1 FR Serv 3d 1531.
Where violation of supplementation requirement arose during motion for partial summary judgment, appropriate
sanction would be to require violating party to produce witnesses at depositions and monetary sanction if any would be
held in abeyance until after depositions when moving party would have chance to reassess its motion for partial
summary judgment. Chalmers v Petty (1991, MD NC) 136 FRD 399.
Government attorneys who violated their duty of candor to court by repeatedly obstructing defendants' attempts to
uncover fact that EPA's on-scene coordinator had misrepresented his credentials and given perjured testimony in other
matters, and by failing to reveal what they knew of coordinator's misrepresentations once they learned of it, would be
ordered to pay from their personal funds $ 2000 and $ 2500 respectively to reimburse Superfund. United States v
Shaffer Equip. Co. (1994, SD W Va) 158 FRD 80, 39 Envt Rep Cas 1904, 31 FR Serv 3d 212.
Patent infringement plaintiff is sanctioned by preclusion from contesting that claims 7 and 8 are limited to methods
of operating structure of claim one, where defendant would be substantially prejudiced by plaintiff's new theory of
liability, particularly in absence of proper notice as to opinions of plaintiff's experts on new theory, because court has
cautioned plaintiff in past concerning its discovery responses and content of its expert reports but it has not complied
with FRCP 26(e). Loral Fairchild Corp. v Victor Co. of Japan (1996, ED NY) 911 F Supp 76.
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.
501. --Exclusion of evidence
It is questionable whether exclusion of evidence is only proper penalty for failing to comply with requirement that
parties supplement their responses to interrogatories; trial judge has some discretion in selecting sanctions, and such
discretion was not abused in action involving validity of patent where court, in order to prevent manifest injustice,
received evidence not brought to attention of defendant by plaintiff's supplementing defendant's interrogatory, and
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where there was no indication that trial court believed failure to amend was knowing concealment. Price v Lake Sales
Supply R. M., Inc. (1974, CA10 Colo) 510 F2d 388, 183 USPQ 519.
Imposition of sanction barring introduction of evidence based on defendant's failure to amend ambiguous or
misleading discovery responses was abuse of discretion where failure to amend was at worst product of neglect and
perhaps lack of professional courtesy, and defendant did not flout specific order of court nor exhibit pattern of repeated
misconduct and defiance of court order, nor was there evidence of bad faith; more appropriate sanction would probably
have been mistrial with costs taxed to defendant. Dudley v South Jersey Metal, Inc. (1977, CA3 NJ) 555 F2d 96, 23 FR
Serv 2d 356.
Drastic sanction of exclusion of evidence will not be imposed for failure to supplement or amend response to
discovery in accordance with Rule 26(e)(2) where party to whom duty to amend or supplement is owed makes no
attempt to cure alleged surprise or prejudice resulting from that failure by seeking a summary of anticipated testimony,
by requesting to depose witness whose testimony is at issue, or by seeking a continuance to prepare response to
testimony. K.M.C. Co. v Irving Trust Co. (1985, CA6 Tenn) 757 F2d 752, 1 FR Serv 3d 1095, 92 ALR Fed 661
(criticized in Ed Schory & Sons v Francis (1996) 75 Ohio St 3d 433, 662 NE2d 1074) and (criticized in Needham v
Provident Bank (1996, Cuyahoga Co) 110 Ohio App 3d 817, 675 NE2d 514, 32 UCCRS2d 48) and (criticized in Pierce
v Atchison, T. & S.F. Ry. (1997, CA7 Ill) 110 F3d 431, 73 BNA FEP Cas 1062, 70 CCH EPD P 44578, 46 Fed Rules
Evid Serv 1012).
Sanction of excluding eyewitness' testimony for plaintiff's failure to supplement defendant's interrogatories was
inappropriately harsh sanction since failure to supplement appeared to be nothing more than good faith oversight of
inexperienced practitioner, defense counsel made no request for supplementary information during 2-year period
between date of incomplete answers and trial, and testimony of excluded witnesses was essential to plaintiff's case;
continuance would have been more appropriate. Outley v New York (1988, CA2 NY) 837 F2d 587, 25 Fed Rules Evid
Serv 418, 10 FR Serv 3d 128.
In products liability case against automobile manufacturer, court properly excluded videotape showing slow motion,
close up impact fracture of ball stud filmed at close range since it fell within manufacturer's duty to supplement
discovery responses given its close connection to expert's testimony and fact that it was not previously known to
plaintiff, even if defendant's timing in disclosing it to plaintiff one month before trial was not in bad faith. Fusco v
General Motors Corp. (1993, CA1 NH) 11 F3d 259, CCH Prod Liab Rep P 13786, 38 Fed Rules Evid Serv 677, 28 FR
Serv 3d 342.
Although defendant's failure to disclose expert meteorological evidence in slip and fall case until night before trial
was not done in bad faith, it violated both letter and spirit of discovery rules, clearly formed basis for district court's
decision in defendant's favor, and district court should have given plaintiff promised opportunity to present rebuttal
evidence. Mawby v United States (1993, CA8 Mo) 999 F2d 1252, 27 FR Serv 3d 1412.
In action against police officers and police department for violation of plaintiffs' civil rights during traffic stop,
district court should not have admitted evidence of one defendant's later traffic stop and arrest in another jurisdiction,
since counsel for defendants failed to amend response to interrogatory, information was well within scope of
interrogatory, and counsel's failure to disclose was extremely prejudicial to preparation and presentation of plaintiffs'
case. Ryan v Board of Police Comm'rs (1996, CA8 Mo) 96 F3d 1076, 36 FR Serv 3d 81, reh den (1996, CA8 Mo) 1996
US App LEXIS 27734.
District court properly excluded evidence due to plaintiff's failure to allege trade secrets in its rolling loop projectors
in precise numerical dimensions and tolerances with sufficient particularity, as ordered to supplement its responses to
interrogatories; because plaintiff's trade secrets claim involved sophisticated and highly complex projector system, it
was unlikely that district court or any trier of fact would have expertise in discerning exactly which of projector
system's many dimensions and tolerances were trade secrets, and defendant could not be expected to prepare its rebuttal
without some concrete identification of which dimensions and tolerances it allegedly incorporated into its own projector
system. Imax Corp. v Cinema Techs. (1998, CA9 Cal) 152 F3d 1161, 98 CDOS 6424, 98 Daily Journal DAR 8903, 47
USPQ2d 1821.
District court did not abuse its discretion in imposing discovery sanction of excluding any evidence of tenured
university professor's future lost earnings at damages phase of trial for wrongful termination where he waited until one
month before trial of damages phase to inform defendants that his part-time position as emergency room physician was
being eliminated, although he knew of this 7 months earlier, and court found that permitting evidence would
substantially prejudice defendants and would likely require lengthy stay and disrupt orderly conclusion of trial already
in progress. Nicholas v Pennsylvania State Univ. (2000, CA3 Pa) 227 F3d 133.
In deciding whether evidence which violated Fed. R. Civ. P. 26(a) should be allowed because violation was justified
or harmless, trial court was to consider (1) prejudice or surprise to party against whom evidence was offered; (2) ability
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of party to cure prejudice; (3) extent to which introducing such testimony would disrupt trial; and (4) moving party's
bad faith or willfulness. Jacobsen v Deseret Book Co. (2002, CA10 Utah) 287 F3d 936, 62 USPQ2d 1491.
Testimony of nine witnesses was excluded from trial pursuant to Fed. R. Civ. P. 37(c)(1) because company failed to
show substantial justification for its failure to disclose witnesses earlier under Fed. R. Civ. P. 26(a)(1) and 26(e)(1), and
it did not show that its failure to do so was harmless where there was no time to depose witnesses before trial. Roger
Edwards, LLC v Fiddes & Son, Ltd. (2003, DC Me) 216 FRD 18.
502. ----Expert witness
District court properly denied motion to strike expert's testimony regarding "separate circuit" theory under Rule 26(e)
in products liability action, where district court could reasonably have found that answers given by plaintiffs
satisfactorily apprised defendants of issues to which expert testified, and where defendants conceded at trial that they
discussed separate circuit theory 2 weeks prior to trial, so defendants were not surprised by new theory when expert
brought issue up at trial. Laaperi v Sears, Roebuck & Co. (1986, CA1 Mass) 787 F2d 726, CCH Prod Liab Rep P
10972, 4 FR Serv 3d 678.
District Court did not err in striking that portion of plaintiff's expert witness' testimony representing opinions
developed subsequent to his deposition where plaintiff had not supplement discovery response and was not prejudiced
by omission of testimony because its substance was furnished by other witnesses for plaintiff. Hines v Joy Mfg. Co.
(1988, CA6 Ky) 850 F2d 1146, CCH Prod Liab Rep P 11842, 25 Fed Rules Evid Serv 1452, 11 FR Serv 3d 838.
Prohibiting wrongful death plaintiff's expert from testifying as sanction for failure to seasonably supplement was
appropriate since there was no satisfactory explanation for delay, and potential prejudice to defendants was serious since
matter about which they had not been apprised was not anticipated in their planning of case. Freund v Fleetwood
Enterprises, Inc. (1992, CA1 Me) 956 F2d 354, 21 FR Serv 3d 1107.
Trial court did not abuse its discretion in precluding products liability plaintiff's use of proffered expert testimony as
sanction for tardy supplementation of his interrogatory answers for which there was no good reason and for plaintiff's
changing theory of case at eleventh hour. Thibeault v Square D Co. (1992, CA1 Mass) 960 F2d 239, 22 FR Serv 3d
1355.
District court did not err in allowing testimony of expert witness whose identity was not disclosed until day before
trial since proponent did provide advance notice of intent to call witness and district court had required proponent to
make expert available to adverse party for interview prior to his testimony. Nehi Bottling Co. v All-American Bottling
Corp. (1993, CA4 Va) 8 F3d 157.
Court did not err in excluding expert testimony for party's failure of duty to supplement expert interrogatory
responses; information claimed by party to be critical to its understanding of proposed testimony was first provided nine
months after close of discovery and only two weeks prior to trial, and it did not appear that expert's testimony was
critical to party's case. Alldread v Grenada (1993, CA5 Miss) 988 F2d 1425, 1 BNA WH Cas 2d 629, 125 CCH LC P
35803, 25 FR Serv 3d 786, 51 ALR5th 879 (criticized in Sierra Club, Lone Star Chapter v Cedar Point Oil Co. (1996,
CA5 Tex) 73 F3d 546, 41 Envt Rep Cas 1897, 34 FR Serv 3d 874, 26 ELR 20522).
District court did not abuse its discretion in barring two supplemental reports offered by plaintiffs' accounting expert
because expert's prior report had not been supplemented 30 days prior to trial and supplemental reports contained expert
testimony that was being offered for entirely new purpose. Grassi v Information Resources (1995, CA7 Ill) 63 F3d 596,
CCH Fed Secur L Rep P 98834, 33 FR Serv 3d 486.
Defendant's failure to inform plaintiff of its expert's changes in his testimony about cause of plaintiff's carpal tunnel
syndrome denied plaintiff opportunity to develop his cross-examination of expert or to present additional expert
witnesses to counter expert's newly arrived at conclusions, causing fundamental unfairness since cause of plaintiff's
carpal tunnel syndrome was key issue at trial, requiring that new trial be ordered. Tenbarge v Ames Taping Tool Sys.
(1999, CA8 Mo) 190 F3d 862, CCH Prod Liab Rep P 15569, 44 FR Serv 3d 322.
District court did not abuse its discretion in excluding expert's testimony about his site work on defendant's property,
in action by adjacent property owner for cleanup costs incurred as result of defendant's dumping wastewater containing
volatile organic compounds on its and plaintiff's property, since defendant failed to supplement its expert's report even
though trial date was approaching, and without even preliminary or draft supplemental expert witness report from
defendant, plaintiff was greatly hampered in its ability to examine him about this aspect of his work. NutraSweet Co. v
X-L Eng'g Co. (2000, CA7 Ill) 227 F3d 776, 51 ERC 1161.
In copyright infringement case, plaintiff was prejudiced by defendant's failure to supplement its incomplete expert
reports, and, as result, trial court erred in denying plaintiff's motion to strike those reports. Jacobsen v Deseret Book Co.
(2002, CA10 Utah) 287 F3d 936, 62 USPQ2d 1491.
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USCS Fed Rules Civ Proc R 26
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, which district court determined were supplemental report. 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.
Pursuant to Rule 26(e)(1)(B) and Rule 615, Federal Rules of Evidence, trial court properly precluded defendant's
expert witness from testifying with respect to matters of substance which had arisen subsequent to his deposition, where
witness had been reading daily copy of trial transcript in violation of Rule 615 and defendant did not move to qualify
witness as person whose presence was essential to presentation of its case within meaning of Rule 615. Central
Telecommunications, Inc. v TCI Cablevision, Inc. (1985, WD Mo) 610 F Supp 891, 1985-2 CCH Trade Cases P 66806,
affd (1986, CA8 Mo) 800 F2d 711, 1986-2 CCH Trade Cases P 67247, cert den (1987) 480 US 910, 94 L Ed 2d 528,
107 S Ct 1358.
Since discovery was still open and building owner could supplement discovery under Fed. R. Civ. P. 26(e)(1), court
denied insurance company's motion to strike, filed pursuant to Fed. R. Civ. P. 37(c)(1), building owner's expert witness'
affidavit where insurance company had argued that building owner had not named expert, nor produced expert's resume
or report, or qualified expert in any way in building owner's Fed. R. Civ. P. 26(a)(2) expert witness disclosures.
Montefiore Med. Ctr. v Am. Prot. Ins. Co. (2002, SD NY) 226 F Supp 2d 470.
Where insurance company alleged building owner's expert witness' affidavit should be stricken because conclusions
in it were based on information not provided to insurance company allegedly in violation of Fed. R. Civ. P. 26(a)(2),
court denied motion to strike, filed pursuant to Fed. R. Civ. P. 37(c)(1), because discovery was still open, and building
owner could supplement its disclosures by producing historical timeline during remaining course of discovery in
compliance with Fed. R. Civ. P. 26(e). Montefiore Med. Ctr. v Am. Prot. Ins. Co. (2002, SD NY) 226 F Supp 2d 470.
In employment discrimination case, supplemental report prepared by employer's expert after discovery deadline was
stricken because employer did not advise employee that it corrected any information in expert's previous report, under
Fed. R. Civ. P. 26(e). Coles v Perry (2003, DC Dist Col) 217 FRD 1.
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 supplement expert's opinion as required by
Fed. R. Civ. P. 26(e), 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.
503. Miscellaneous
District court acted properly in refusing to let plaintiff present alternative theory at trial where plaintiff's failure to
supplement answers to interrogatories concerning alternatives resulted in defendants being surprised at trial by
plaintiff's alternative theory. Holiday Inns, Inc. v Robertshaw Controls Co. (1977, CA7 Ill) 560 F2d 856, 24 FR Serv
2d 157.
Plaintiff's failure to supplement answers to government's interrogatories in suit under Federal Tort Claims Act
resulted in dismissal of plaintiff's complaint. Szilvassy v United States (1979, SD NY) 82 FRD 752, 27 FR Serv 2d
1404.
Responsive documents created after return date of subpoena duces tecum may be subject to production until all
testimony of particular witness is completed as ongoing obligation, where there is continuing antitrust violation, nature
of litigation warrants continuing obligation to produce documents, and because of inconclusiveness of scheduling of
particular witness' trial testimony. United States v International Business Machines Corp. (1979, SD NY) 83 FRD 92,
1980-1 CCH Trade Cases P 63048, 28 FR Serv 2d 365.
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.
Parties may not circumvent requirement that rebuttal report be filed by arguing that report is merely Fed. R. Civ. P.
26(e)(1) supplementation; if report is intended to contradict or rebut report prepared by opposing party's expert, it must
be filed within 30 days of receipt of opposing party's expert report. 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.
Where alleged patent infringers challenged patent holder's use of term plastics but did not comply with requirements
of Fed. R. Civ. P. 26(e) regarding additional invalidity challenges under 35 USCS § 112, court declined to consider
additional challenges and granted holder's summary judgment motion on issue of invalidity. Genlyte Thomas Group
LLC v Nat'l Serv. Indus. (2003, WD Ky) 262 F Supp 2d 762.
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X. DISCOVERY CONFERENCE [RULE 26(f)]
504. Generally
Plaintiff is not entitled to discovery conference under Rule 26(f) even though he is not satisfied with defendant's
responses to various interrogatories since better course to obtain discovery is motion to compel discovery pursuant to
FRCivP 37(a). McCluney v Jos. Schlitz Brewing Co. (1981, ED Wis) 504 F Supp 1264, 29 BNA FEP Cas 1286, 31 FR
Serv 2d 432.
Court has discretion to deny without prejudice motion for protective order until parties hold discovery conference
pursuant to local rule. Craft v Board of Trustees (1981, ND Ill) 516 F Supp 1317.
Joint report submitted from FRCP 26(f) meeting is not merely proposal designed to prepare parties for FRCP 16
conference subsequently to be held by court; thus, if parties do not request FRCP 16 conference, and if joint report is
satisfactory to court, it may be "so ordered" by court. Lombardo v Greyhound Lines (1998, DC Conn) 179 FRD 83.
505. Effect of motion for conference
Filing of motion for discovery conference pursuant to Rule 26(f) does not have effect of holding in abeyance any
requirement to answer interrogatories. Chubb Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103
FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
506. Duty to hold requested conference
Where party requested discovery conference pursuant to Rule 26(f), District Court was mandated by language of rule
itself to hold conference, but error was harmless because no additional discovery could have alleviated legal
deficiencies of plaintiff's claims, so no purpose would be served in reversing and requiring defendants to attend
discovery conference. Union City Barge Line, Inc. v Union Carbide Corp. (1987, CA5 Tex) 823 F2d 129, 1987-2 CCH
Trade Cases P 67657, 8 FR Serv 3d 557.
507. Miscellaneous
District Court did not abuse its discretion by dismissing plaintiff's employment discrimination action for failure to
adequately respond to certain interrogatories, pursuant to Rules 16(f), 26(f), and 37(b)(2), where District Court
specifically found that plaintiff's and plaintiff's attorney's failure to comply with discovery orders resulted from
willfulness or bad faith, it found that sanction less harsh than dismissal would be of no avail because previous orders
had been disregarded, and it had given plaintiff's attorney explicit warnings that failure to comply with its orders would
result in dismissal. Bluitt v Arco Chemical Co., Div. of Atlantic Richfield Co. (1985, CA5 Tex) 777 F2d 188, 39 CCH
EPD P 35842, 3 FR Serv 3d 893.
In complex litigation in which over 2,000 depositions were estimated to be required, order that parties taking
depositions identify exhibits they intended to use at depositions 5 days beforehand stemmed from court's power to
control and manage litigation and course of discovery and did not impermissibly require disclosure of opinion work
product; information provided was ordinary work product and in context of complex litigation court has broad
discretion to command production of material constituting ordinary work product; order merely changed timing of
disclosure, since choice of exhibits would undeniably be revealed during course of deposition. In re San Juan Dupont
Plaza Hotel Fire Litig. (1988, CA1 Puerto Rico) 859 F2d 1007.
Discovery can go forward against later-joined parties without further FRCP 26(f) conference after initial conference.
Steppes Apt., Ltd. v Armstrong (1999, DC Utah) 188 FRD 642.
Good cause must be shown to warrant granting of any expedited discovery prior to FRCP 26(f) scheduling
conference. Yokohama Tire Corp. v Dealers Tire Supply, Inc. (2001, DC Ariz) 202 FRD 612.
In electronic age, "meet and confer" requirement of FRCP 26(f) should include discussion on whether each side
possesses information in electronic form, whether they intend to produce such material, whether each other's software is
compatible, whether there exists any privilege issue requiring redaction, and how to allocate costs involved. In re
Bristol-Myers Squibb (2002, DC NJ) 205 FRD 437.
In patent infringement action, although one of patent holder's untimely expert's reports was not excluded due to its
importance and lack of bad faith by patent holder, patent holder was required to pay deposition costs and attorney's fees
for violation of FRCivP 26(f) because discovery order governed parties' disclosures. Akeva L.L.C. v Mizuno Corp.
(2002, MD NC) 212 FRD 306.
Failure to present evidence under pretrial schedule was cause for striking evidence. Mallinckrodt, Inc. v Masimo
Corp. (2003, CD Cal) 254 F Supp 2d 1140.
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USCS Fed Rules Civ Proc R 26
When creditor's request for admissions was served before conference required by Fed. R. Bankr. P. 7026 and Fed. R.
Civ. P. 26(f), debtor could not be deemed to have admitted any matters contained therein; therefore, request for
admissions and creditor's motion for summary judgment on its claim of nondischargeability under 11 USCS §
523(a)(2)(A) were both denied. Fleet Credit Card Servs., L.P. v Harden (In re Harden) (2002, BC MD Ga) 282 BR 543.
XI. REQUIREMENT OF SIGNATURE [RULE 26(g)]
508. Generally
Rule 11 case law will be applied in interpreting sanctions language of Rule 26(g), and appropriate standard of review
is abuse of discretion and court must judge attorney's conduct under objective standard of reasonableness. In re Byrd,
Inc. (1991, CA10 NM) 927 F2d 1135, 19 FR Serv 3d 301.
For purposes of FRCP 26(g), what is "reasonable" is matter for court to decide on totality of circumstances. Poole v
Textron, Inc. (2000, DC Md) 192 FRD 494, 46 FR Serv 3d 572.
FRCP 26(g) is designed to curb discovery abuse by explicitly encouraging imposition of sanctions. Poole v Textron,
Inc. (2000, DC Md) 192 FRD 494, 46 FR Serv 3d 572.
509. Liability for sanctions
Attorney could be assessed with monetary sanctions based on party's failure to admit, on basis of Rule 26(g) making
attorney's signature a certification of accuracy and propriety of party's response, consistent with law and Federal Rules
of Civil Procedure. Apex Oil Co. v Belcher Co. of N.Y. (1988, CA2 NY) 855 F2d 1009, 11 FR Serv 3d 1382.
Sanctions against defendant and its attorneys were appropriate where they were imposed for massive and
unnecessary discovery requests after defendant found no additional evidence to support its counterclaim, in what
District Court characterized as straightforward breach of contract case, and for failure to disclose existence of taped
conversation between one of defendant's attorneys and witness. Chapman & Cole v Itel Container Int'l B.V. (1989,
CA5 Tex) 865 F2d 676, 13 FR Serv 3d 124, cert den (1989) 493 US 872, 107 L Ed 2d 155, 110 S Ct 201.
Sanctions were properly levied against attorney for delay in responding to opposing party's discovery request for
purchase agreement on grounds that it contained confidential information, since agreement had already been filed with
Federal Communications Commission and was thus public document. Oregon RSA No. 6 v Castle Rock Cellular Ltd.
Partnership (1996, CA9 Or) 76 F3d 1003, 96 CDOS 986, 96 Daily Journal DAR 1619, 34 FR Serv 3d 1149.
Trial court in employment discrimination case did not abuse its discretion in imposing sanctions under Rule 26(g) on
defendant and his attorney where, either as result of deliberate intent or gross negligence in failing to inquire into real
facts, discovery responses were inconsistent with rules, were interposed to harass and cause delay, and were
unreasonable. Legault v Zambarano (1997, CA1 RI) 105 F3d 24, 72 BNA FEP Cas 1652, 70 CCH EPD P 44632, 36 FR
Serv 3d 1229.
Imposition of sanctions against counsel for discovery violations was improper under Fed. R. Civ. P. 37; moreover,
sanctions were not permitted under Fed. R. Civ. P. 26(g), because evidence did not show that attorneys knowingly failed
to disclose document during discovery. Maynard v Nygren (2003, CA7 Ill) 332 F3d 462, 14 AD Cas 777, 55 FR Serv 3d
1184.
Plaintiff is entitled to award of expenses in amount of $ 1,250, pursuant to Rule 26(g), where defendant's response to
discovery requests was generally perfunctory and was done without any investigation, and defendant's counsel did not
determine location of documents requested and asserted attorney-client privilege objection with respect to one
document without any knowledge as to whether such document was in existence. Tise v Kule (1983, SD NY) 37 FR
Serv 2d 846.
Because defendant's counsel's conduct was improper and caused unreasonable and unnecessary increase to costs of
litigation, defendant's counsel is properly assessed reasonable expenses, including reasonable attorneys' fees, incurred
on account of duplicative interrogatories and duplicative motions to compel answers and failure to meet standards of
good faith set forth in Rule 26(g). Hayes v National Gypsum Co. (1984, ED Pa) 38 FR Serv 2d 645.
Defendant's counsel are properly ordered to pay $ 5,000 to Government as sanction for violations of Federal Rules of
Civil Procedure 7, 11, and 26(g), and 28 USCS § 1927, which violations occurred in context of defendant's counsel's
election to pursue litigation strategy of actively concealing from plaintiff and court as long as possible fact that court
was without subject matter jurisdiction over action. Itel Containers International Corp. v Puerto Rico Marine
Management, Inc. (1985, DC NJ) 108 FRD 96, 3 FR Serv 3d 671.
Defendant and defense counsel in personal injury action resulting in 2 trials must pay plaintiff amount of her costs,
including attorney's fees, from institution of suit to present as sanctions award under Rules 11, 26(g) and 37(b) for time
and energy plaintiff was forced to expend as result of defendant's and defense counsel's discovery abuses, where
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USCS Fed Rules Civ Proc R 26
magistrate found that defendant deliberately failed to comply with discovery requests, was unnecessarily obstructive in
providing pertinent documents and witnesses for depositions, failed to obey court orders, failed to maintain files
relevant to litigation, and defendant's counsel regularly exceeded bounds of zealous representation and ignored
obligations to cooperate in good faith during discovery process. Perkinson v Houlihan's/D.C., Inc. (1985, DC Dist
Col) 108 FRD 667, 4 FR Serv 3d 219.
Sanction of default or granting of new trial is not warranted under Rules 11, 26(g), and 37(b) where 2 previous trials
in personal injury litigation resulted in verdicts for defendant, and defendant and defendant's counsel have been
sanctioned with award of costs for blatant discovery abuses. Perkinson v Houlihan's/D.C., Inc. (1985, DC Dist Col)
108 FRD 667, 4 FR Serv 3d 219.
Plaintiff's counsel is liable for sanctions in amount of $ 500 for arguing that attorney-client privilege protected from
disclosure tape recordings of conversations between his client and third parties, when conversations were neither
confidential nor between attorney and client. H.L. Hayden Co. v Siemens Medical Systems, Inc. (1985, SD NY) 108
FRD 686.
Plaintiffs are entitled to award of reasonable expenses incurred because of defendant's incorrect response to request
for production of documents and things as sanction under Rule 26(g), where defendant's initial response was that "none
exist" and plaintiffs later discovered that such documents did in fact exist and court finds response neither reasonable
nor based on reasonable inquiry considering clear language of request. Fretz v Keltner (1985, DC Kan) 109 FRD 303.
In action by veterans, who had been exposed to ionizing radiation, against Veterans Administration claiming that
VA's adjudication procedure violated due process, where plaintiffs established that defendant failed to produce clearly
responsive documentary evidence over course of discovery, which reflected consistent failure of defendant and council
to conduct reasonable factual inquiry prior to filing various discovery responses as required by Rule 26(g), court
imposed sanctions in form of monetary reimbursement for all fees and costs incurred in depositions, discovery,
preparation, hearing, and other matters related to bringing motion for sanctions and earlier motions for protective orders,
reimbursement for all fees and costs incurred in ascertaining whether documents were destroyed and in reconstructing
those documents, reimbursement for all fees and costs incurred as result of defendant's failure to produce documents
and information, fine of $ 15,000 to clerk of court for unnecessary consumption of court's time and resources, and
additional requirements to insure future compliance and complete discovery. National Ass'n of Radiation Survivors v
Turnage (1987, ND Cal) 115 FRD 543.
Discovery sanctions would be imposed on defendant's attorneys since much of discovery was unreasonable,
unnecessary, and unduly burdensome given facts known to them early in case. Chapman & Cole v Itel Container Int'l
B.V. (1987, SD Tex) 116 FRD 550.
Sanctions against attorneys were appropriate where they served notices for simultaneous depositions of 6 expert
witnesses, 4 of whom would be required to travel from overseas, and specified on unreasonably short notice most
expensive method of discovery for matters not shown to be in dispute. Imperial Chems. Indus., PLC v Barr Labs.
(1989, SD NY) 126 FRD 467.
Plaintiff bank is entitled to recover expenses and attorney's fees incurred in deposing defendant's employees under
Rule 26(g), where defendant's flat denial of business conduct in forum state in answering interrogatories forced travel to
defendant's state of residence to take depositions which in turn prompted supplemental responses to interrogatories,
several of which completely contradict defendant's initial answers, because original answers did not meet "objective
reasonableness" standard developed under Rule 11 and applicable here under Rule 26(g). United Missouri Bank, N.A.
v Bank of New York (1989, WD Mo) 723 F Supp 408.
RICO plaintiff who knowingly signed false verification to interrogatory answers would be sanctioned in amount of $
100,000, given his involvement in other real estate ventures and need to deter other real estate purchasers from filing
RICO claims as delaying tactic to forestall foreclosure. Project 74 Allentown, Inc. v Frost (1992, ED Pa) 143 FRD 77,
RICO Bus Disp Guide (CCH) P 8176, 24 FR Serv 3d 489, affd without op (1993, CA3 Pa) 998 F2d 1004.
Party's continued assertion of privileges, after once being warned of impropriety of such assertions, was "without
substantial justification" for purposes of sanction under FRCP 26(g)(3). St. Paul Reinsurance Co. v Commercial Fin.
Corp. (2000, ND Iowa) 197 FRD 620.
FRCP 26(g) allows court to impose sanctions on signer of discovery response when signing of response is
incomplete, evasive or objectively unreasonable under circumstances. St. Paul Reinsurance Co. v Commer. Fin. Corp.
(2000, ND Iowa) 198 FRD 508, 48 FR Serv 3d 1232.
Standard for imposing FRCP 26(g) sanctions is objective. St. Paul Reinsurance Co. v Commer. Fin. Corp. (2000,
ND Iowa) 198 FRD 508, 48 FR Serv 3d 1232.
Exclusion of supplemental expert report on consequential damages is not warranted under FRCP 26(g)(3), even if
plaintiff improperly certified its initial responses to defendant's discovery requests as complete and raised relevancy
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USCS Fed Rules Civ Proc R 26
objections to requests for production of documents it now attempts to introduce, because only remedy allowed under
26(g)(3) is monetary sanctions against disclosing or objecting party's lawyer, which is of little avail on motion in limine.
Total Containment, Inc. v Dayco Prods. (2001, ED Pa) 177 F Supp 2d 332.
In action in which opera association filed suit against international union et al., asserting causes of action for, inter
alia, defamation, violation of Lanham Act, product disparagement, and unlawful secondary boycotting, union's counsel
violated FRCP 26, where counsel failed in their duty to explain to their client what types of information would be
relevant and responsive to document requests and ask how and where relevant documents may be maintained. Metro.
Opera Ass'n v Local 100, Hotel Emples. & Rest. Emples. Int'l Union (2003, SD NY) 212 FRD 178, 171 BNA LRRM
2897.
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.
510. Miscellaneous
Redaction of videotapes in litigation is critical matter, and party's action of redacting tapes without disclosing fact of
redactions must be thoroughly condemned as violation of discovery rules. Food Lion v Capital Cities/ABC (1996, MD
NC) 165 FRD 454, motions ruled upon (1996, MD NC) 24 Media L R 2431, affd (1996, MD NC) 951 F Supp 1211, 25
Media L R 1182.
For purposes of FRCP 26(g)(2), duty to make "reasonable inquiry" is satisfied if investigation undertaken by
attorney and conclusions drawn therefrom are reasonable under circumstances. Phinney v Paulshock (1998, DC NH)
181 FRD 185.
FRCP 26(g)(2) is limited; it applies only to written discovery requests, responses or objections. Starlight Int'l, Inc. v
Herlihy (1999, DC Kan) 186 FRD 626.
Court's inherent authority is not displaced or limited by discovery sanctioning scheme of Federal Rules of Civil
Procedure. Poole v Textron, Inc. (2000, DC Md) 192 FRD 494, 46 FR Serv 3d 572.
Although FRCP 26(g) explicitly permits court to require one who violates rule to pay opponent's attorney's fees and
costs, such order is not only possible sanction; nature of sanctions is matter of judicial discretion to be exercised in light
of particular circumstances. St. Paul Reinsurance Co. v Commer. Fin. Corp. (2000, ND Iowa) 198 FRD 508, 48 FR
Serv 3d 1232.
Because attorney neither withheld documents or failed to make reasonable efforts to locate documents, as required
by Or. Code Prof. Resp. D.R. 7-102(A), 7-106(A), 7-106(C)(7), and Fed. R. Civ. P. 26(g), as her role in discovery
process was limited to copying and producing documents chosen by her supervisor, court granted motion for pro hoc
vice readmission. Dacosta v Novartis AG (2002, DC Or) 242 F Supp 2d 765.
Even though attorney should have conducted diligent search for two prior court orders involving his client's
predecessors and personal jurisdiction, as required by Or. Code Prof. Resp. D.R. 7-102(A), 7-106(A), 7-106(C)(7), and
Fed. R. Civ. P. 26(g), it was not done in bad faith because he did not file motion to dismiss that resulted in finding in
one case; because court had limited discovery to documents generated after 1992, his failure to produce 1952 licensing
agreement was warranted, and motion for pro hac vice readmission was granted. Dacosta v Novartis AG (2002, DC Or)
242 F Supp 2d 765.