Discovery Outline PDF

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Discovery Outline with the rules and steps included ...

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Discovery Outline When there’s a dispute about discovery, one party wants information/documents and the other party doesn’t want to (or doesn’t think it has to) turn the requested materials over. Below is a proposed approach to analyzing discovery questions: I.

Is the information/document subject to FRCP 26(a) mandatory disclosures? a. If yes, then it must be turned over b. If no, then the question is whether it’s subject to discovery

II.

Is the information/document subject to discovery? a. Is it relevant (i.e., reasonably calculated to lead to the discovery of admissible evidence) under FRCP 26(b)(1)? i. If no, it’s not discoverable ii. If yes, then go to b b. Is it privileged? i. If yes, it’s not discoverable unless the privilege has been waived. If privilege has been waived, then go to c ii. If no, then go to c c. Is it proportional to the needs of the case? (consider the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit) i. If no, it’s not discoverable ii. If yes, then go to d d. Is it protected by the work product doctrine under FRCP 26(b)(3)? i. If no, then it’s discoverable ii. If yes, then does the requesting party have a substantial need for the information/document and is there no other way to get it? (see FRCP 26(b)(3)(ii)) 1. If no, then it’s not discoverable 2. If yes, then it’s discoverable but mental impressions, conclusions, opinions, and legal theories must be redacted (see FRCP 26(b)(3) (B))

III.

In response to a discovery request (interrogatory, document request, or deposition), the answering party (i.e., the party to whom the discovery request was propounded) may do the following: a. Respond in full b. Object in full 1

i. The requesting party (i.e., the party who propounded the discovery request) may then file a motion to compel under FRCP 37(a) 1. If motion to compel is granted (or if answering party responds after motion is filed), answering party must be sanctioned absent certain exceptions (see FRCP 37(a)(5)(A)) c. Object in part and respond in part i. The requesting party may still file a motion to compel (see above) d. Answering party may go to the court and seek a protective order under FRCP 26(c) IV.

By signing a discovery request, response, or objection, the attorney (or party) is making certain certifications under FRCP 26(g)(1) a. If a certification violates FRCP 26(g)(1) without substantial justification, the court must impose an appropriate sanction i. Court may impose sanctions sua sponte or in response to a motion from the opposing party

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