Civil Procedure I

Discovery


Class Info

Law School: Liberty University School of Law

Course ID: LAW 521

Term: Fall 2017

Instructor: Prof. Hesch

My Grade Earned: B


There are three categories of required disclosures:

  1. Initial Disclosures

    The required initial disclosures are witnesses, documents, and damage that you intend to use at trial as well as insurance coverage. Rule 26(a)(1).

    If a party learns of new information after producing information, they have a duty to supplement. Rule 26(e).

    Initial disclosures must be made within 14 days of the Rule 26(f) conference with the court.

  2. Expert Disclosures
  3. Pretrial Disclosures
Timeline of Discovery and Initial Disclosures

Initial Order

Early in the case, the court will typically issue an initial order. Among other things, this will include the date of a scheduling conference.

Meet and Confer

At least 21 days before the date of the scheduling conference with the court, the parties must "meet and confer" together to work towards agreeing upon a joint discovery schedule and preparing a joint proposed discovery plan. Rule 26(f)(1).

Initial Disclosures

Within 14 days after the “meet and confer,” the parties must exchange initial disclosures unless:

  1. The parties stipulate to a different date
  2. The Court directs a different date
  3. One of the parties objects that the initial disclosures are not appropriate and states the objections in the joint discovery plan.

Rule 26(a)(1)(C).

Discovery Plan

Also within 14 days after the "meet and confer," the parties must file a joint proposed discovery plan for the court to consider before issuing its scheduling order. Rule 26(f)(1) & 2.




Scheduling Conference

The court holds a scheduling conference to consider the parties' proposed discovery plan and hear any differences or disputes within 60 days after the defendant appears and within 90 days after the complaint is served. Rule 16(b).



Scheduling Order

After the scheduling conference, the court issues a discovery "scheduling order." Rule 16(b).

Methods of Formal Discovery
  1. Deposition

    A deposition allows a party to take a witness's oral testimony outside of the court.

    Each party gets 10 depositions by default. Each deposition can last for up to seven hours on one day.

    Rule 30.

  2. Interrogatory

    An interrogatory is a written question that is formally put to the opposing party that must be answered.

    Each party gets 25 interrogatories by default.

    An interrogatory must be signed by the person with the knowledge, not by the attorney.

    A party has 30 days to respond to an interrogatory.

    A party has the option to produce "business records" that answer the question instead of answering himself.

    Rule 33.

  3. Document Request

    A document request allows a party to force the opposing party to produce any requested documents that are not privileged.

    Each party gets unlimited document requests, as long as they are not unduly burdensome.

    A party has 30 days to respond to a document request.

    A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request

    Rule 34.

    For non-parties, Rule 45 must be used instead.

  4. Examination

    The court may order a party whose mental or physical condition is in controversy to submit to a physical or mental examination for good cause. Rule 35.

  5. Admission

    A party may serve any other party a written request to admit the truth of facts, contentions, or document authenticity.

    Each party gets unlimited admission requests, as long as they are not unduly burdensome.

    A party has 30 days to respond to an admission.

    A party must deny the admission request or it will be deemed admitted and conclusively established unless the party is granted leave to deny.

    Rule 36.

In addition, there is always informal discovery. e.g., Google

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, considering 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 benefits. Rule 26(b)(1).

  • Information within this scope of discovery need not be admissible in evidence to be discoverable.
Protective Order

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

  1. forbidding the disclosure or discovery;
  2. specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
  3. prescribing a discovery method other than the one selected by the party seeking discovery;
  4. forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
  5. designating the persons who may be present while the discovery is conducted;
  6. requiring that a deposition be sealed and opened only on court order;
  7. requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
  8. requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

Rule 26(c).