Discovery Scope and Disclosures

Discovery: two methods?

Automatic (26(a)(1) initial disclosures) and party-initiated.

Discovery: how are disputes handled?

Party-to-party negotiation first; motion to compel only if a party refuses.

Rule 26(b)(1): Three elements of scope?

(1) Non-privileged, (2) relevant to any party's claim or defense, (3) proportional to the needs of the case.

Rule 26(b)(1): Six proportionality factors?

Importance of issues, amount in controversy, relative access to info, parties' resources, importance of discovery, burden vs. benefit.

Rule 26(b)(1): Are the proportionality factors dispositive?

No.

Spoliation: When does the duty to preserve evidence begin?

As soon as a party reasonably anticipates litigation.

Spoliation: What must attorneys do once on notice?

Institute a litigation hold, speak to key employees, and advise employees to copy relevant information.

Discovery: Order of the main steps?

26(f) meeting & 26(a) initial disclosures -> 16(b) scheduling conference/order -> party-initiated discovery (interrogatories, RFPs, RFAs, depositions).

Rule 26(b)(1): Must discoverable info be admissible?

No.

Rule 26(b)(2)(C): When should the court limit discovery?

(1) Unreasonably cumulative or duplicative, (2) available from a more convenient source; (3) party had ample opportunity to get it already; (4) outside 26(b)(1) scope.

Rule 26(b)(2)(C): Can the court limit discovery on its own?

Yes, on motion or on its own.

Rule 26(f): When must the meeting be held?

At least 21 days before the scheduling conference or the date the scheduling order is due.

Rule 26(f): Three things parties must do at the meeting?

Make or arrange 26(a)(1) disclosures, discuss preserving discoverable info, and develop a proposed discovery plan.

Rule 26(f): Who is responsible for the conference?

The attorneys, jointly, in good faith.

Rule 26(f): Deadline for the written discovery plan?

14 days after the conference.

Rule 26(f): What must the discovery plan address?

Timing and form of disclosures, subjects and phasing of discovery, preservation and form of production, and privilege issues.

Rule 26(a)(1)(A): Four initial disclosures?

(1) Witnesses likely to have info you may use; (2) copies or descriptions of documents, ESI, and things you may use; (3) damages computation with supporting docs; (4) insurance agreements.

Rule 26(a)(1)(A): Do initial disclosures need a request?

No. They are made without awaiting a discovery request.

Rule 26(a)(1)(A): What info is excluded from initial disclosures?

Info used solely for impeachment.

Rule 26(a)(1)(C): Deadline for initial disclosures?

At or within 14 days after the 26(f) conference, unless the court sets another time.

Rule 26(a)(2): What must be disclosed about experts?

The identity of any expert witness.

Rule 26(a)(3): What are the pretrial disclosures?

Witness list, deposition designations, and exhibit list (except solely for impeachment),

Rule 26(a)(3): Pretrial disclosures deadline and objections?

Disclosures must be made at least 30 days before trial. Within 14 days after they are made, a party may file a list of objections