Black-letter propositions
- 01
Parties may discover 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, the amount in controversy, the parties' relative access to information, their resources, the importance of the discovery, and whether burden or expense outweighs likely benefit; information within that scope need not be admissible to be discoverable.
- 02
Without waiting for a request, a party must provide initial disclosures: witnesses likely to have discoverable information that it may use, documents and electronically stored information it may use, a computation of damages, and any insurance agreement that may satisfy a judgment; they are due at or within 14 days after the Rule 26(f) conference unless the court or the parties set another time.
- 03
A party may not seek discovery from any source before the parties have conferred under Rule 26(f), except in proceedings exempt from initial disclosure or when authorized by rule, stipulation or court order.
- 04
Documents and tangible things prepared in anticipation of litigation by or for another party or its representative are ordinarily not discoverable, but they may be obtained on a showing of substantial need and inability, without undue hardship, to obtain the substantial equivalent; even then the court must protect the mental impressions, conclusions, opinions and legal theories of the party's attorney.
- 05
Any party or other person may obtain, without the substantial-need showing, that person's own previous statement about the action.
- 06
An expert who may testify must be disclosed, and a retained expert must give a signed report containing all opinions and their basis, the facts or data considered, exhibits, qualifications including publications in the past 10 years, other testimony in the past 4 years, and compensation; absent a court order the disclosure is due at least 90 days before trial, or within 30 days after the other party's disclosure if it only rebuts.
- 07
Drafts of expert reports and most attorney-expert communications are protected, except communications about compensation, facts or data the attorney supplied and the expert considered, and assumptions the attorney supplied and the expert relied on; an expert retained only for trial preparation and not expected to testify is discoverable only on a showing of exceptional circumstances.
- 08
Unless stipulated or ordered, each side may take no more than 10 depositions, a deposition is limited to 1 day of 7 hours, and a party may serve no more than 25 written interrogatories, counting discrete subparts.
- 09
Responses to interrogatories, requests for production and requests for admission are due within 30 days after service; a matter in a request for admission is admitted unless the party serves a written answer or objection within that time, and an admitted matter is conclusively established unless the court permits withdrawal or amendment.
- 10
A court may order a party whose physical or mental condition is in controversy to submit to an examination by a suitably licensed examiner, but only on motion for good cause and notice to all parties.
- 11
On good cause, and after a good-faith conference, the court may issue a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including forbidding the discovery, limiting its scope, or requiring that trade secrets not be revealed or be revealed only in a specified way.
- 12
A party that fails to make a required disclosure or supplement may not use the information or witness at a motion, hearing or trial unless the failure was substantially justified or harmless; a party must supplement disclosures and responses in a timely manner when it learns they are incomplete or incorrect.
Use this attack sequence under time
Frame the issue
Ask whether the matter is nonprivileged, relevant to a claim or defense, and proportional; admissibility is not the test.
Resolve the next checkpoint
Identify the device (deposition, interrogatory, request for production, request for admission, examination) and check its numerical and timing limits.
Resolve the next checkpoint
For documents prepared for the litigation, run the work-product test: substantial need plus no equivalent, with opinion work product protected.
Finish the conclusion
For experts, decide whether the witness is retained or a trial-preparation-only expert, and check report, timing and communication protections.
Common wrong turns
- Inadmissible information can still be discoverable if it falls within the scope of Rule 26(b)(1).
- Silence to a request for admission is an admission, while silence to an interrogatory is a sanctionable failure.
- Work product is not absolute, because substantial need can reach fact work product, but attorney opinions stay protected.
Worked example
A plaintiff's lawyer asks the defendant's insurer for an accident report the insurer prepared right after a crash. The defendant refuses.
The report was prepared in anticipation of litigation by a party's insurer, so it is ordinarily protected. The plaintiff can obtain it only by showing substantial need and inability without undue hardship to get the substantial equivalent elsewhere.
Practice this topic
Scope, proportionality, and required disclosures
Federal Rule of Civil Procedure 26(b)(1) permits discovery of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. The rule lists the proportionality factors as the importance of the issues at stake, 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, and it says information within the scope need not be admissible in evidence to be discoverable.
Rule 26(a)(1) requires initial disclosures without a request: individuals likely to have discoverable information that the party may use, documents and electronically stored information it may use, a computation of each category of damages, and insurance agreements. Rule 26(a)(1)(C) sets the time at or within 14 days after the Rule 26(f) conference, and Rule 26(a)(3) requires pretrial disclosures of witnesses and exhibits at least 30 days before trial unless the court orders otherwise.
Work product, experts, and privilege logs
Rule 26(b)(3)(A) ordinarily bars discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative, including its attorney, consultant, surety, indemnitor, insurer or agent. They may be discovered if otherwise discoverable and the party shows substantial need and inability, without undue hardship, to obtain the substantial equivalent by other means, and Rule 26(b)(3)(B) requires the court to protect the mental impressions, conclusions, opinions or legal theories of an attorney or other representative.
Rule 26(b)(4) allows deposition of a testifying expert, and if a report is required the deposition may be conducted only after the report is provided. It protects draft reports and attorney-expert communications except those relating to compensation, facts or data provided by the attorney and considered by the expert, and assumptions provided by the attorney and relied on, and it limits discovery from a non-testifying retained expert to exceptional circumstances. A party withholding material as privileged must expressly make the claim and describe what was withheld so others can assess it, and Rule 26(b)(5)(B) provides a clawback procedure for privileged material produced by mistake.
Devices, limits, and sanctions
Rule 30(a)(2) requires leave for a deposition that would produce more than 10 depositions by the plaintiffs, by the defendants, or by the third-party defendants, or of a person already deposed, and Rule 30(d)(1) limits a deposition to 1 day of 7 hours. Rule 33(a)(1) limits a party to 25 written interrogatories including discrete subparts, and Rule 33(b)(2) and Rule 34(b)(2)(A) give 30 days to answer or respond, while Rule 36(a)(3) provides that a matter is admitted unless a written answer or objection is served within 30 days.
Rule 37(a)(5)(A) requires a party whose conduct necessitated a successful motion to compel to pay the movant's reasonable expenses unless the movant did not first try in good faith to obtain the discovery, the opposing position was substantially justified, or other circumstances make an award unjust. Rule 37(c)(1) bars use of undisclosed information or witnesses unless the failure was substantially justified or harmless, and Rule 37(e) allows measures no greater than necessary to cure prejudice from lost electronically stored information, but adverse-inference instructions and similar severe measures only on a finding of intent to deprive.
Frequently asked questions
What is the controlling rule for discovery: scope, disclosures, work product, experts, and the discovery devices?+
State the Rule 26(b)(1) scope, apply privilege and work product, check the device's limits and deadlines, and finish with protective orders and Rule 37 sanctions.
Is inadmissible evidence discoverable?+
Yes, if it is nonprivileged, relevant to a claim or defense, and proportional, because Rule 26(b)(1) says information within the scope need not be admissible to be discoverable.
How many interrogatories may a party serve?+
No more than 25, including discrete subparts, unless the court grants leave or the parties stipulate, under Rule 33(a)(1).
What happens if a party ignores a request for admission?+
The matter is admitted after 30 days unless a written answer or objection is served, and it is then conclusively established under Rule 36(b).
When can work product be discovered?+
On a showing of substantial need and inability without undue hardship to obtain the substantial equivalent, but attorney mental impressions and opinions remain protected under Rule 26(b)(3).
How long may a deposition last?+
One day of 7 hours unless the parties stipulate or the court orders more time, under Rule 30(d)(1).