DISCOVER: FRCP 26

 Used for: forcing the other side to turnover evidence bearing on the claims and
defenses of the case.
 Mandatory Disclosure: prior to discovery process begins (at or 14 days after Rule
26(f) conference)
o 26(b)(1) – forces the other side to turnover information relevant to the
underlying claims and defenses AND is non-privileged
 “Discoverable” evidence—any relevant information including:
 Probative on the merits (tends to move needle one way or
another on merits)
 Reasonable chance to leading to probative evidence.
 Any non-privileged information unless considered unduly
burdensome (unproportionable to needs and stakes of case)
o Parties must disclose info favorable to them
 Discovery requests are used by opponent to disclose information
favorable to them
o Immune from Discovery
Attorney Client Privileges Work Product Immunity
 Protects only communication between  Interview notes, drafts of memos,
facts relating to the underlying claim strategy memos, photos taken by
o Can be waived by not keeping lawyer’s investigator.
quiet about conversation  Exception:
o If evidence can’t be obtained by
other means. (Photo at scene of
crime before it was disturbed)
o Doesn’t disclose attorney’s
thoughts or strategy.

DISCOVERY PROCESS
Parties Conference  Begins with mandatory 26(f) conference
 Discovery plan between parties outside court
(by phone maybe)

Initial Disclosure  Occurs within 14 days of the party’s conference

Scheduling conference (Rule 16)
Discovery
 All parties lay any evidence on table to speed
things up.
 Held NO LATER than 120 days after filing
the complaint OR 90 days after D has
appeared.
 Set SJ date, trial date, status conference,
approve discovery plan
 Court had broad discretion over discovery
process here.
 26(a): all parties must disclose evidence that
they may use to support their claims or defenses
DISCOVER: FRCP 26

o Favorable witnesses, documents (list

with location), evidence supporting
damage calculations
o Exception: impeachment evidence—
evidence you don’t plan to submit
unless the other sides witness testifies
 26(e): continuing duty to supplement—update
mandatory disclosure to other side as it
becomes known
o Interrogatories, document production
requests, depositions

 Three types of evidence.

o Interrogatories (first wave of discovery requests sent out)
 Set of written questions that can be sent to a party that must be answered
by that party under oath and in writing
 Used to identify the Identity and location of additional witnesses not
disclosed during mandatory disclosure
 Used to further discover other side’s position—why they denied a claim,
for example
o Document production requests
 Documents under the control of the party that shed light on what those
people have donepiece together the paper trail/ the decision making
 Ex. emails, written memo, photos, videos
 Most expensive type of discovery tool to respond to
o Depositions
 Interviews under oath.
 Conducted like examination of witness at trial (opposing lawyer can
object to form of answer—party must still answer)
 Witness deposition can be submitted into evidence in lieu of live
testimony if witness becomes incapacity before trial…used for
impeachment purposes
 Only privileged information is a basis for instructing witness not to
answer
 Used to pin down a sense of key witness’s demeanor/personality in
advance of trial—useful for both sides (possible settlement)
 Sanctions
o 26(g)— failure to participate or abuse of discovery (i.e. seeking nonrelevant
material) are sanctionable; award of attorney’s fee from guilty party
o 37 –if there’s information that falls within the mandatory disclosure rule, but you
don’t then Rule 37 prevents you from using that information at trial