Pretrial procedures - Discovery (including e-discovery), disclosure, and sanctions

Learning Outcomes

After reading this article, you will be able to identify the scope and limits of discovery in federal civil litigation, distinguish between different discovery devices, understand the rules for electronic discovery, explain disclosure obligations, and recognize when sanctions may be imposed for discovery violations. You will be equipped to apply these principles to MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the rules and procedures governing pretrial discovery and disclosure in federal civil cases. This includes:

• Identifying the types and scope of discovery devices available under the Federal Rules of Civil Procedure.
• Understanding the rules for electronic discovery (e-discovery) and the handling of electronically stored information (ESI).
• Recognizing the mandatory disclosure requirements and the timing of initial, expert, and pretrial disclosures.
• Knowing the grounds for objections, protective orders, and limitations on discovery.
• Explaining the sanctions available for failure to comply with discovery or disclosure obligations.
• Applying these principles to fact patterns involving discovery disputes and sanctions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a permissible discovery device under the Federal Rules of Civil Procedure?
   1. Interrogatories to parties
   2. Requests for admission
   3. Physical examination of a nonparty without court order
   4. Requests for production of documents
2. If a party fails to preserve relevant electronically stored information (ESI) when litigation is reasonably foreseeable, which of the following is true?
   1. The court must always dismiss the action.
   2. The court may order measures no greater than necessary to cure any prejudice.
   3. The court may never impose sanctions.
   4. The court must presume the lost information was unfavorable.
3. A party serves 30 interrogatories on an opposing party without leave of court or stipulation. What is the likely result?
   1. All interrogatories must be answered.
   2. Only the first 25 must be answered.
   3. None need be answered.
   4. The court must issue sanctions automatically.
4. Which of the following is a required initial disclosure under Rule 26(a)?
   1. The identity of all witnesses the party may use to support its claims or defenses
   2. The identity of all witnesses the party may use solely for impeachment
   3. All documents in the party’s possession, regardless of relevance
   4. All expert reports, regardless of whether the expert will testify

Introduction

Pretrial discovery and disclosure are central to federal civil litigation. The Federal Rules of Civil Procedure provide a structured process for parties to obtain information from each other before trial. This includes both formal discovery devices and mandatory disclosures. The rules also address the handling of electronic information and set out remedies and sanctions for noncompliance. Understanding these procedures is essential for success on the MBE.

Types and Scope of Discovery

Discovery allows parties to obtain information relevant to any party’s claim or defense, provided it is not privileged and is proportional to the needs of the case. The main discovery devices are:

• Depositions (oral or written)
• Interrogatories (written questions to parties)
• Requests for production of documents or ESI
• Physical or mental examinations (by court order)
• Requests for admission

Key Term: Discovery The formal process by which parties obtain information from each other before trial, using methods authorized by the Federal Rules of Civil Procedure.

Proportionality and Limits

Discovery must be proportional to the needs of the case, considering factors such as the importance of the issues, the amount in controversy, and the parties’ resources. The court may limit discovery if it is unreasonably cumulative, duplicative, or can be obtained from a more convenient source.

Key Term: Proportionality The requirement that discovery requests be balanced against the needs of the case, avoiding undue burden or expense.

Electronic Discovery (E-Discovery)

Discovery of electronically stored information (ESI) is governed by specific rules. Parties must discuss ESI preservation and production at the initial discovery conference. If ESI is lost because a party failed to take reasonable steps to preserve it when litigation was reasonably foreseeable, the court may order measures to cure any prejudice. Severe sanctions (like dismissal or adverse inference) are reserved for intentional deprivation.

Key Term: Electronically Stored Information (ESI) Data or documents stored in electronic form, subject to discovery under the Federal Rules.

Mandatory Disclosures

Rule 26(a) requires parties to make certain disclosures without awaiting a discovery request:

• Initial disclosures: Names and contact information for individuals likely to have discoverable information, copies or descriptions of documents or ESI, computation of damages, and insurance agreements.
• Expert disclosures: Identities and reports of testifying experts.
• Pretrial disclosures: Witness lists, exhibit lists, and deposition designations.

Key Term: Initial Disclosure The required exchange of basic information about the case, made early in litigation without awaiting a discovery request.

Discovery Procedure and Objections

Discovery requests must be answered or objected to within the time set by the rules (usually 30 days). Objections must state the grounds with specificity. If a party believes a discovery request is improper, it may seek a protective order from the court.

Key Term: Protective Order A court order limiting or prohibiting discovery to protect a party from annoyance, embarrassment, oppression, or undue burden.

Physical and Mental Examinations

A party may obtain a court order for a physical or mental examination of another party only if the party’s condition is in controversy and good cause is shown. Examinations of nonparties require their consent or a court order.

Discovery from Nonparties

Nonparties may be required to produce documents or submit to depositions by subpoena. Interrogatories and requests for admission may only be served on parties.

Work Product Doctrine

Certain materials prepared in anticipation of litigation are protected from discovery unless the requesting party shows substantial need and cannot obtain the substantial equivalent by other means. However, mental impressions, conclusions, and legal theories of attorneys are absolutely protected.

Key Term: Work Product Materials prepared by or for a party or attorney in anticipation of litigation, generally protected from discovery.

E-Discovery Sanctions

If a party fails to preserve relevant ESI, the court may:

• Order measures no greater than necessary to cure prejudice.
• Presume the lost information was unfavorable, instruct the jury accordingly, or dismiss the action, but only if the party acted with intent to deprive.

Sanctions for Discovery Violations

If a party fails to comply with discovery or disclosure obligations, the court may impose sanctions, including:

• Ordering payment of expenses and attorney’s fees.
• Precluding the party from using certain evidence.
• Striking pleadings, dismissing the action, or entering default judgment.
• Contempt of court (for failure to obey a court order).

Key Term: Sanction A penalty imposed by the court for failure to comply with discovery or disclosure rules.

Worked Example 1.1

A plaintiff serves 30 interrogatories on the defendant without leave of court. The defendant answers only the first 25 and objects to the rest. Is the defendant’s response proper?

Answer: Yes. Without court order or stipulation, a party may serve no more than 25 interrogatories, including subparts. The defendant need only answer the first 25.

Worked Example 1.2

During discovery, a party deletes emails relevant to the case after learning that litigation is likely. The opposing party later requests those emails, but they are unavailable. What may the court do?

Answer: If the deletion was intentional, the court may presume the lost information was unfavorable, instruct the jury to do so, or dismiss the action. If the deletion was not intentional, the court may only order measures necessary to cure any prejudice.

Worked Example 1.3

A party fails to disclose a testifying expert’s report by the deadline set in the scheduling order. The opposing party objects at trial to the expert’s testimony. What is the likely result?

Answer: The court may exclude the expert’s testimony unless the failure to disclose was substantially justified or harmless.

Exam Warning

Failing to timely object to improper discovery requests or to seek a protective order may waive objections. Always respond or object within the time limits.

Revision Tip

Remember: Interrogatories, requests for admission, and requests for production may only be served on parties, not nonparties. Use subpoenas for nonparty discovery.

Key Point Checklist

This article has covered the following key knowledge points:

• Discovery allows parties to obtain relevant, nonprivileged information proportional to the needs of the case.
• E-discovery rules govern the preservation and production of electronically stored information (ESI).
• Rule 26(a) requires initial, expert, and pretrial disclosures without awaiting a discovery request.
• Discovery devices include depositions, interrogatories, requests for production, requests for admission, and physical/mental examinations (by court order).
• Interrogatories and requests for admission are limited to parties; subpoenas are used for nonparties.
• The work product doctrine protects materials prepared in anticipation of litigation.
• Courts may issue protective orders to limit or prevent discovery causing undue burden.
• Sanctions for discovery violations range from expense-shifting to dismissal or default judgment.
• Severe sanctions for lost ESI require a finding of intent to deprive.

Key Terms and Concepts

• Discovery
• Proportionality
• Electronically Stored Information (ESI)
• Initial Disclosure
• Protective Order
• Work Product
• Sanction