Pretrial procedures - Discovery (including e-discovery), dis...

Learning Outcomes

This article explains pretrial discovery and disclosure in federal civil litigation, including:

• Identifying the scope, relevance, and proportionality limits of discovery under Rule 26(b), and distinguishing nonprivileged information from privileged and work‑product material on exam hypotheticals.
• Distinguishing among main discovery devices—depositions, interrogatories, requests for production, RFAs, and examinations—and selecting the procedurally proper device for parties versus nonparties.
• Understanding the rules governing electronic discovery and preservation, including reasonably accessible ESI, forms of production, clawback arrangements, and sanctions for spoliation under Rule 37(e).
• Explaining initial, expert, and pretrial disclosure obligations under Rule 26(a), calculating deadlines from the Rule 26(f) conference and scheduling order, and spotting common exam traps on timing.
• Recognizing when and how courts impose sanctions for failures to disclose, obey discovery orders, attend depositions, or respond to RFAs, and matching those sanctions to the correct rule provisions.
• Applying work‑product and privilege concepts, including opinion versus ordinary work product and privilege logs, to determine what must be produced or may be withheld in FRCP‑based questions.
• Evaluating when to seek protective orders, move to compel, or request cost‑shifting, and predicting how courts will balance burden, need, and fairness in typical bar‑exam scenarios.

MBE Syllabus

For the MBE, you are required to understand the rules and procedures governing pretrial discovery and disclosure in federal civil cases, with a focus on the following syllabus points:

• 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, privileges, work product, 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 (FRCP) provide a structured process for parties to obtain information from each other before trial so that cases are decided on the merits, not by surprise. This process includes both mandatory disclosures (which must be made without a request) and formal discovery devices (such as depositions and interrogatories).

The rules also regulate the handling of electronic information, and they provide a detailed sanction framework when parties ignore their obligations. Discovery questions on the MBE often hinge on seemingly small details—such as who can be served with interrogatories, how many depositions are allowed, whether a physical examination requires court order, or what must be preserved in e‑discovery—so precision matters.

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.

Two themes run through almost every discovery question:

• Scope: Is the information within the proper scope of discovery (relevance, proportionality, and privilege)?
• Procedure: Has the party complied with the technical rules (timing, numerical limits, and required motions)?

Understanding both dimensions is essential.

Scope of Discovery

Under Rule 26(b)(1), parties may obtain discovery regarding any nonprivileged matter that is:

• Relevant to any party’s claim or defense; and
• Proportional to the needs of the case.

Information need not be admissible to be discoverable, as long as it meets these standards. Hearsay, for example, may be discoverable even if it might never be admissible at trial.

Relevance in discovery is broader than at trial: if information might lead to admissible evidence on a claim or defense, it is usually within scope unless limited for proportionality or privilege reasons.

Key Term: Proportionality
The requirement that discovery requests be balanced against the needs of the case, considering the importance of the issues, amount in controversy, parties’ relative access to information, their resources, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs its likely benefit.

The court must limit discovery on motion or on its own if it is:

• Unreasonably cumulative or duplicative
• Obtainable from a more convenient, less burdensome, or less expensive source
• Outside the proportionality limits

Other important scope rules:

• Parties may obtain discovery of the existence and contents of insurance agreements that may cover all or part of a judgment, even though the insurance would not itself be admissible at trial.
• Privileged material (e.g., attorney‑client communications) is outside the scope altogether.
• Trial‑preparation materials are covered by the work product doctrine, discussed below.

Discovery scope is always tied to the claims and defenses actually pleaded. Broad “subject‑matter” discovery beyond those claims is no longer allowed as of the 2015 amendments, unless the court orders it for good cause.

Discovery Devices and Basic Limits

The main discovery devices are:

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

Each device has specific rules and limits.

Depositions

Depositions allow parties to question a witness under oath before trial. They are an extremely common MBE topic.

Basic limits:

• A party may take up to 10 depositions without leave of court.
• A person generally may not be deposed more than once in the same case without leave or stipulation.
• A deposition is limited to one day of 7 hours unless the court orders or the parties stipulate otherwise.

Compelling attendance:

• Party witnesses and officers, directors, or managing agents of a party can be compelled to attend by notice of deposition alone (no subpoena).
• For organizations, a notice under Rule 30(b)(6) can name the organization and state with reasonable particularity the matters for examination; the organization must then designate one or more persons to testify.
• Nonparty witnesses must be subpoenaed under Rule 45, and generally cannot be required to travel more than 100 miles from where they reside, work, or regularly transact business in person.

Depositions may also be taken on written questions, but the deponent still answers orally under oath, with a court reporter recording the testimony.

Use at trial:

• If a witness is unavailable (e.g., more than 100 miles away), specified deposition testimony may be used at trial under Rule 32.
• Depositions can also be used to impeach a witness who testifies inconsistently at trial.

Objections during depositions must be concise and non‑argumentative. Certain objections (e.g., to form of the question) are waived if not made at the deposition; others (e.g., relevance) may be preserved for trial.

Interrogatories

Interrogatories are written questions served only on parties.

• They must be answered in writing under oath within 30 days of service (unless another time is set by stipulation or court order).
• A party may serve no more than 25 interrogatories, including all discrete subparts, without court permission or stipulation.

Interrogatories can seek:

• Facts and data
• Contentions and the application of law to fact (e.g., “State all facts supporting your contention that the product was defective.”)

They cannot be used on nonparties. If a party needs written responses from a nonparty, the proper device is a subpoena duces tecum plus a deposition on written questions, not interrogatories.

Option to produce business records:

If the answer to an interrogatory can be found in business records (including ESI), and the burden of locating the information would be substantially the same for either party, the responding party may:

• Specify the records in sufficient detail, and
• Give the interrogating party a reasonable opportunity to inspect and copy or summarize them.

Requests for Production

Requests for production (RFPs) ask a party (or a nonparty via subpoena) to:

• Produce documents, ESI, or tangible items, or
• Permit entry onto land for inspection and testing.

Key points:

• A party may serve an RFP after the Rule 26(f) conference; if served earlier, it is treated as served on the date of that conference.
• Responses are due within 30 days of service (or 30 days after the Rule 26(f) conference if served earlier).
• For ESI, the requesting party may specify the desired form (e.g., native files vs. PDFs). If no form is specified, the producing party may provide the information as kept in the usual course of business or in any reasonably usable form.
• A party must either permit inspection or state with specificity the grounds for objection, including whether any responsive materials are being withheld on the basis of that objection.

Nonparties can be required to produce documents or ESI only via subpoena under Rule 45.

Requests for Admission

Requests for admission (RFAs) ask a party to admit or deny:

• Specific facts,
• The application of law to fact, or
• The genuineness of documents.

Key features:

• A response (admit, deny, or state in detail why the party cannot truthfully admit or deny) is due within 30 days.
• Failure to answer or object timely generally results in the matter being deemed admitted.
• Admissions are binding in the pending action only; they cannot be used against the party in any other proceeding.

RFAs are a powerful tool to narrow issues for trial and to establish facts conclusively where not withdrawn or amended. They also connect to a specific cost‑shifting sanction: if a party unreasonably refuses to admit a fact and the requesting party later proves that fact, the court must order the non‑admitting party to pay the expenses of proof, with narrow exceptions.

Physical and Mental Examinations

A physical or mental examination is unique among discovery devices: it requires a court order.

• Available only when the party’s (or, in some cases, a person in the party’s custody or control) condition is in controversy and good cause is shown.
• The exam must be conducted by a “suitably licensed or certified examiner.”
• Exams of nonparties almost always require both a subpoena and satisfaction of the “in controversy” and “good cause” standards as to a party’s claim or defense.

The examined person may request a copy of the examiner’s report; doing so waives any privilege regarding reports of other examinations of the same condition, and entitles the other party to any such reports in return.

Discovery Conference and Timing

Discovery does not begin immediately upon filing. Two kinds of early conferences matter.

Key Term: Rule 26(f) Conference
The early meeting of the parties to discuss claims, defenses, settlement, preservation of ESI, and a discovery plan; discovery generally cannot be served until after this conference.

• The parties must first hold a Rule 26(f) conference “as soon as practicable,” and at least 21 days before a scheduling order is due under Rule 16(b). They must discuss claims, defenses, settlement, possible motions, preservation of ESI, and develop a proposed discovery plan.
• The parties must submit a written discovery plan to the court within 14 days after the conference.

Except for certain early requests for production, a party generally may not serve discovery until after this conference. Interrogatories or deposition notices served with the complaint are premature and subject to a protective order.

The court will then issue a Rule 16(b) scheduling order, usually after a scheduling conference, setting deadlines for:

• Joinder of parties
• Amendments to pleadings
• Completion of discovery
• Filing of pretrial motions
• Sometimes the trial date

This scheduling order can be modified only for good cause, so it effectively controls the pace and scope of discovery.

Key Term: Motion to Compel
A request asking the court to order a party or deponent to provide discovery that was improperly withheld, inadequately answered, or ignored.

If a party believes an opponent’s response is incomplete or evasive, the next step is usually to confer in good faith and then file a motion to compel under Rule 37(a). The moving party must certify that it attempted in good faith to resolve the dispute without court action.

Cost‑shifting usually follows: the loser on the motion pays the other side’s reasonable expenses, including attorney’s fees, unless the losing position was substantially justified or other circumstances make an award unjust.

Electronic Discovery (E‑Discovery)

Electronically stored information is pervasive and heavily tested.

Key Term: Electronically Stored Information (ESI)
Data or documents stored in electronic form, such as emails, databases, spreadsheets, logs, and digital files, subject to discovery under the Federal Rules.

Key e‑discovery points:

• At the Rule 26(f) conference, parties must address ESI preservation, potential sources, and preferred forms of production.
• A responding party need not provide ESI from sources that are not reasonably accessible because of undue burden or cost (e.g., obsolete backup tapes), but must identify such sources if it is withholding ESI on that basis.
• Even if ESI is not reasonably accessible, the court may still order production for good cause, often with cost‑shifting or cost‑sharing conditions under Rule 26(b)(2)(B).
• The requesting party may specify the form of production. If the request is silent, the responding party may produce ESI:
  • As it is ordinarily maintained in the usual course of business, or
  • In another reasonably usable form.
    The producing party need not produce the same ESI in more than one form.

Privilege issues are amplified in ESI because large volumes are produced. The rules address this in two ways:

Key Term: Clawback Agreement
An agreement, often incorporated into a court order, that allows parties to retrieve inadvertently produced privileged or work‑product materials without waiving the protection.

• Under Rule 26(b)(5)(B), if privileged or work‑product material is inadvertently produced, the producing party may notify the recipient, who must promptly return, sequester, or destroy the information and may not use or disclose it until the claim is resolved.
• Parties often negotiate clawback agreements or seek “Rule 502(d) orders” under the Evidence Rules, which provide that inadvertent disclosure does not effect a subject‑matter waiver.

Loss of ESI (spoliation) triggers specific sanctions under Rule 37(e), discussed below.

Mandatory Disclosures

Rule 26(a) requires three main categories of disclosures without awaiting discovery requests:

1. Initial disclosures
2. Expert disclosures
3. Pretrial disclosures

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

Certain proceedings are exempt from initial disclosures, including:

• Actions for review on an administrative record
• Forfeiture actions in rem arising from a federal statute
• Petitions for habeas corpus or other proceedings to challenge criminal convictions or sentences
• Actions brought without an attorney by a person in the custody of the United States, a state, or a state subdivision
• Actions by the United States to recover benefit payments or collect student loans
• Proceedings ancillary to another action
• Actions to enforce an arbitration award

Unless the court orders otherwise, these cases do not require Rule 26(a)(1) initial disclosures, though other discovery rules still apply.

Initial Disclosures

Unless an action is exempt, each party must provide:

• The name and contact information of each individual likely to have discoverable information that the party may use to support its claims or defenses (other than solely for impeachment), along with the subjects of that information.
• A copy or description by category and location of all documents, ESI, and tangible things in its possession, custody, or control that it may use to support its claims or defenses (again, not including materials used solely for impeachment).
• A computation of each category of damages claimed, along with the documents or other evidentiary material on which the computation is based.
• Any applicable insurance agreements that may cover all or part of a judgment or indemnify for payments made to satisfy the judgment.

Timing:

• Initial disclosures are due within 14 days after the Rule 26(f) conference, unless a different time is set by stipulation or court order.

Note: Parties need not identify pure impeachment witnesses or documents in initial disclosures or other mandatory lists, although strategic considerations might lead to broader disclosure.

Expert Disclosures

Parties must disclose the identity of any expert witnesses who will present evidence at trial and provide additional information depending on the type of expert.

For retained or specially employed experts (and certain employee experts), the disclosing party must provide a written report prepared and signed by the expert, containing:

• A complete statement of all opinions the witness will express and the bases and reasons for them
• The facts or data considered in forming them
• Any exhibits that will be used to summarize or support them
• The expert’s qualifications, including a list of publications authored in the previous 10 years
• A list of other cases in which the expert has testified as an expert at trial or by deposition in the previous 4 years
• A statement of the compensation to be paid for the study and testimony

For non‑reporting experts (e.g., treating physicians who are not specially retained to testify), the party must disclose:

• The subject matter on which the witness is expected to present evidence, and
• A summary of the facts and opinions to which the witness is expected to testify.

Timing:

• Typically 90 days before trial for experts on an issue for which the party bears the burden of proof
• 30 days after the other side’s disclosure for rebuttal experts whose testimony is intended solely to contradict or rebut evidence on the same subject matter

Draft expert reports and most communications between expert and counsel are protected as work product, with narrow exceptions for communications about compensation, facts/data provided by counsel, and assumptions counsel asked the expert to consider.

Pretrial Disclosures

At least 30 days before trial, each party must disclose:

• The witnesses it expects to call and those it may call if needed (other than solely for impeachment)
• The witnesses whose testimony it expects to present by deposition, with relevant deposition excerpts
• Lists of documents and exhibits it expects to offer and may offer if needed

Opposing parties have 14 days to serve list‑specific objections; failure to object typically waives all objections other than relevance, Rule 403 concerns, and authenticity.

Duty to Supplement

Parties have a continuing duty to correct or supplement:

• Initial disclosures
• Responses to interrogatories, RFPs, and RFAs
• Expert reports and expert deposition testimony

if they learn that material information was incomplete or incorrect in some material respect and the additional or corrective information has not otherwise been made known to the other parties during discovery or in writing.

The duty to supplement is ongoing; a party cannot rely on having been accurate at the time of the original response if later developments make that response materially misleading.

Failure to supplement can trigger exclusion of evidence and other sanctions under Rule 37(c).

Discovery Procedure, Objections, and Protective Orders

A responding party must serve answers and objections within the time set by the rules (usually 30 days). Objections must be specific; boilerplate objections (“overly broad and unduly burdensome”) without explanation are improper and may themselves lead to sanctions.

If a discovery request is improper—for example, it seeks privileged material, is unduly burdensome, or seeks confidential trade secrets—a party can:

• Object in its written response, and/or
• Move for a protective order under Rule 26(c).

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

The court may, for example:

• Forbid the discovery
• Limit the scope, time, or place of discovery
• Require that discovery be had only by certain methods (e.g., written interrogatories instead of deposition)
• Require that confidential information be revealed only in specified ways (e.g., attorneys’ eyes only)
• Order that trade secrets or confidential research be disclosed only under specified conditions
• Allocate discovery expenses among the parties

A party moving for a protective order should show “good cause” by specific facts, not mere conclusory assertions.

Failure to timely object or seek a protective order usually waives objections other than privilege and certain work‑product protections.

Key Term: Privilege Log
A document that identifies materials withheld as privileged or work product and describes them in sufficient detail to allow other parties and the court to assess the claim of protection without revealing the privileged content.

When claiming privilege or work‑product protection, a party must expressly make the claim and describe the nature of the documents or communications in a privilege log.

Exam Warning

Failing to timely object to improper discovery requests or to seek a protective order may waive objections. On the MBE, be alert to fact patterns where a party simply ignores an improper request; that party is usually in the wrong.

Physical and Mental Examinations (Revisited)

As noted above, a party may obtain a court‑ordered physical or mental exam of another party (or a person in that party’s custody or control) only when:

• The person’s condition is genuinely in controversy; and
• The movant shows good cause.

Examples where the condition is “in controversy” include personal‑injury claims, emotional‑distress claims (beyond “garden variety” distress), or defenses based on mental capacity.

The order must specify the time, place, manner, conditions, and scope of the examination, as well as the examiner.

Refusal to submit to an ordered exam can lead to sanctions, but not contempt; instead, the court may issue evidentiary or terminating sanctions under Rule 37(b).

Discovery from Nonparties

Nonparties may be required to:

• Sit for depositions (by subpoena)
• Produce documents or ESI
• Permit entry onto property for inspection and testing

However, interrogatories and RFAs may only be served on parties, not nonparties. This is a frequently tested distinction.

Subpoenas under Rule 45:

• Must be served by a nonparty who is at least 18 years old.
• May command attendance at a deposition or production of documents at a specified time and place.
• May command appearance within 100 miles of where the person resides, is employed, or regularly transacts business in person (or anywhere in the state if no substantial expense would result).

A nonparty served with a subpoena may object or move to quash or modify it on grounds such as undue burden, privilege, or failure to allow reasonable time to comply. Courts must protect nonparties from significant expense resulting from compliance.

Revision Tip

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

Work Product Doctrine

Rule 26(b)(3) protects trial‑preparation materials, often called work product.

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

Work product includes documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative (lawyer, consultant, insurer, etc.).

Two levels of protection:

• Ordinary work product (e.g., witness interviews, factual investigations, chronologies) may be discovered only on a showing of:

  • Substantial need; and
  • Inability, without undue hardship, to obtain the substantial equivalent by other means.

• Opinion work product (mental impressions, conclusions, opinions, legal theories of counsel or representatives) is given near‑absolute protection; courts rarely order its disclosure even with substantial need.

Importantly:

• A party is always entitled, without need or hardship, to obtain a copy of its own prior statement, even if it qualifies as work product.
• Draft expert reports and most attorney‑expert communications for trial experts are treated as work product.

When invoking work‑product protection, a party must describe the nature of the materials (often via a privilege log) in sufficient detail to allow the other side to assess the claim without revealing the protected content.

Inadvertent disclosure of work product or privileged material does not necessarily waive protection if promptly addressed under Rule 26(b)(5)(B) and, where applicable, Evidence Rule 502.

E‑Discovery Sanctions for Lost ESI

Key Term: Spoliation
The destruction or significant alteration of evidence, or failure to preserve evidence, that is relevant to pending or reasonably foreseeable litigation.

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

Rule 37(e) governs loss of ESI that should have been preserved in the anticipation or conduct of litigation.

If:

1. ESI that should have been preserved is lost,
2. Because a party failed to take reasonable steps to preserve it, and
3. It cannot be restored or replaced through additional discovery,

then the court has two tiers of response:

• If there is prejudice to another party, the court may order measures no greater than necessary to cure the prejudice (e.g., permitting additional discovery, precluding certain arguments or evidence, or ordering cost‑shifting).
• If the court finds that the party acted with intent to deprive another party of the information’s use in the litigation, it may impose severe sanctions, such as:
  • Presuming the lost information was unfavorable to the party
  • Instructing the jury that it may or must presume the information was unfavorable
  • Dismissing the action or entering default judgment

Severe sanctions thus require a finding of intent to deprive, not mere negligence or even gross negligence.

Note that Rule 37(e) applies only to ESI. Destruction of physical evidence is handled under the court’s supervisory authority and other provisions and can still result in adverse‑inference instructions or terminating sanctions if bad faith is shown.

Sanctions for Discovery Violations (General)

Beyond ESI‑specific rules, Rule 37 provides a broad range of sanctions for discovery failures.

1. Failure to make disclosures or to cooperate in discovery (Rule 37(c)(1))
   If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the court may:

   • Prohibit the party from using the withheld information or witness at motion, hearing, or trial, unless the failure was substantially justified or harmless.
   • Additionally, the court may:
     • Order payment of reasonable expenses, including attorney’s fees
     • Inform the jury of the party’s failure
     • Impose any of the more severe sanctions described below

2. Failure to obey a discovery order (Rule 37(b))
   After a party disobeys an order compelling discovery, the court may:

   • Take designated facts as established for purposes of the action
   • Prohibit the disobedient party from supporting or opposing claims or defenses, or from introducing designated matters into evidence
   • Strike pleadings in whole or in part
   • Stay further proceedings until the order is obeyed
   • Dismiss the action in whole or in part
   • Enter default judgment
   • Treat the failure as contempt of court (except for refusal to submit to a physical/mental exam)

3. Failure to attend deposition, answer interrogatories, or respond to RFPs (Rule 37(d))
   If a party:

   • Fails, after proper notice, to appear for its deposition
   • Fails to answer interrogatories
   • Fails to respond to a request for inspection

   the court may impose the same sanctions as for violation of a discovery order, and also require payment of expenses caused by the failure. A prior order compelling discovery is not required.

4. Failure to admit (RFAs) (Rule 37(c)(2))
   If a party fails to admit a fact or the genuineness of a document that the requesting party later proves, the court must order the non‑admitting party to pay the reasonable expenses, including attorney’s fees, incurred in making that proof, unless:

   • The request was objectionable
   • The admission sought was of no substantial importance
   • The party had reasonable ground to believe it might prevail on the matter
   • There was other good reason for the failure to admit

In addition, Rule 26(g) requires that discovery requests, responses, and objections be signed by counsel, certifying that they are consistent with the rules, not interposed for improper purposes, and not unreasonable or unduly burdensome. Violations can lead to sanctions similar to those under Rule 11.

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 discrete subparts. The defendant need only answer the first 25 and may object to the remainder as exceeding the limit.

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 and the ESI cannot be restored or replaced, the court may presume the lost information was unfavorable, instruct the jury that it may or must so presume, or dismiss the action or enter default. If the deletion was negligent but not intentional, the court may impose measures no greater than necessary to cure any prejudice (such as additional discovery, cost‑shifting, or preclusion), but not adverse‑inference or terminating sanctions under Rule 37(e).

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. Exclusion is the default sanction for nondisclosure of information or witnesses under Rule 37(c)(1), though the court has discretion to impose or combine other sanctions.

Worked Example 1.4

A plaintiff in a diversity products‑liability case wants information from a former employee of the defendant manufacturer regarding installation of engine parts. The employee was fired years before the lawsuit and is not a party. What discovery device may the plaintiff properly use?

Answer:
An oral deposition (by subpoena) is proper. Interrogatories and requests for admission may only be served on parties, not nonparties. A physical examination would be irrelevant to the employee’s knowledge.

Worked Example 1.5

The plaintiff files a complaint in federal court and, the same day, serves the defendant with 15 interrogatories. No Rule 26(f) conference has occurred. The defendant moves for a protective order. How should the court rule?

Answer:
The court should grant the protective order. Except for certain early requests for production, parties generally may not serve discovery until after the Rule 26(f) conference. The interrogatories are premature.

Worked Example 1.6

A fire destroys a bakery. The baker’s insurer promptly sends an investigator, who takes photographs and writes a memorandum analyzing the cause of the fire, anticipating subrogation litigation. The baker sues the roofer who recently worked on the roof. The roofer seeks the photographs and memo in discovery. The baker claims work‑product protection. How should the court rule?

Answer:
The photos and memo are work product because they were prepared in anticipation of litigation by the insurer, a party representative. However, the roofer may obtain ordinary factual work product (such as photos and objective observations) on a showing of substantial need and undue hardship in obtaining equivalent information (e.g., the scene has changed). The roofer almost certainly cannot obtain the investigator’s mental impressions and legal theories, which are opinion work product.

Worked Example 1.7

In a federal employment‑discrimination case, the plaintiff designates a treating physician to testify about diagnosis and prognosis, but does not serve an expert report. The defendant moves to exclude the doctor’s testimony, arguing that no Rule 26(a)(2)(B) report was provided. How should the court rule?

Answer:
The court should deny the motion to the extent the physician is a non‑retained expert whose opinions are based on treatment. For such witnesses, the party must provide only the subject matter and a summary of facts and opinions, not a full written report. A full report is required only for retained or specially employed experts (and certain employee experts) testifying primarily for litigation.

Worked Example 1.8

A party serves RFAs asking the opponent to admit that a contract was signed and that a specific signature is genuine. The opponent denies both requests without explanation. At trial, the requesting party proves the authenticity of the signature with a handwriting expert. What can the court do?

Answer:
Under Rule 37(c)(2), if a party fails to admit a matter that is later proved, the court must order that party to pay the reasonable expenses, including attorney’s fees, incurred in making that proof, unless the matter was of no substantial importance, the request was objectionable, the party had reasonable ground to believe it might prevail, or there was other good reason for the failure to admit. Here, none of the exceptions appears to apply, so the court should award expenses.

Worked Example 1.9

A defendant objects to producing certain ESI, stating that responsive emails exist only on legacy backup tapes that would be extremely expensive to restore. The plaintiff moves to compel. How should the court analyze this dispute?

Answer:
The defendant has identified ESI from sources that are not reasonably accessible due to undue burden or cost. Under Rule 26(b)(2)(B), the defendant must show that the sources are in fact not reasonably accessible. If that showing is made, the court may still order discovery if the plaintiff shows good cause, possibly with conditions such as cost‑shifting or sampling. Proportionality—including the likely importance of the emails, amount in controversy, and availability of alternative sources—will drive the decision.

Worked Example 1.10

A nonparty engineer is subpoenaed to testify at a deposition and to produce design documents. The subpoena commands appearance and production 250 miles away from the engineer’s home and workplace. The engineer moves to quash. What is the likely outcome?

Answer:
The court should quash or modify the subpoena. Under Rule 45, a nonparty can be compelled to attend a deposition or produce documents only within 100 miles of where the person resides, is employed, or regularly transacts business in person, unless certain in‑state conditions are met and no substantial expense would result. Requiring travel 250 miles is beyond the permitted range and imposes undue burden on a nonparty.

Key Point Checklist

This article has covered the following key knowledge points:

• Discovery is available for any nonprivileged matter relevant to a party’s claim or defense and proportional to the needs of the case.
• FRCP limits and the court’s discretion prevent discovery that is unreasonably cumulative, duplicative, or unduly burdensome.
• 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 nonparty depositions and document production.
• The Rule 26(f) conference must occur before most discovery, and initial disclosures follow within 14 days.
• Rule 26(a) requires initial, expert, and pretrial disclosures without awaiting a discovery request, and parties have a continuing duty to supplement.
• The work‑product doctrine protects materials prepared in anticipation of litigation, especially attorney mental impressions and legal theories.
• Privileged and work‑product materials withheld in discovery must be described in a privilege log sufficient to assess the claim of protection.
• E‑discovery rules govern the preservation, accessibility, form of production, and sanctions for loss of ESI, including the “not reasonably accessible” limitation.
• Severe sanctions for lost ESI (adverse inferences, dismissal, default) require a finding of intent to deprive under Rule 37(e).
• Motions to compel and protective orders are the main tools for enforcing and limiting discovery, and Rule 37 provides a range of sanctions for violations.
• Failure to disclose or supplement required information can lead to exclusion of evidence and additional sanctions unless the failure was substantially justified or harmless.
• RFAs can conclusively establish facts for the case, and unjustified failures to admit can result in mandatory fee‑shifting.

Key Terms and Concepts

• Discovery
• Proportionality
• Electronically Stored Information (ESI)
• Initial Disclosure
• Protective Order
• Work Product
• Sanction
• Motion to Compel
• Privilege Log
• Rule 26(f) Conference
• Clawback Agreement
• Spoliation