Black-letter propositions
- 01
Proportionality considers importance, amount, access, resources, importance to resolving issues, and burden versus benefit.
- 02
Attorney-client privilege protects qualifying confidential legal communications; work product protects litigation-prepared materials.
- 03
Ordinary work product may be discovered for substantial need and undue hardship, while mental impressions receive near-absolute protection.
- 04
Experts expected to testify are discoverable under specified rules; consulting experts receive stronger protection.
- 05
Spoliation sanctions depend on preservation duty, culpability, prejudice, and for severe electronically stored information sanctions, intent to deprive.
Use this attack sequence under time
Frame the issue
Identify the discovery device and proper recipient.
Resolve the next checkpoint
Test relevance, privilege, and proportionality.
Resolve the next checkpoint
For work product, ask why and when the material was prepared.
Resolve the next checkpoint
Use a motion to compel and certification when required before sanctions.
Finish the conclusion
For lost ESI, apply the specialized rule.
Common wrong turns
- Relevance in discovery is broader than trial admissibility but not unlimited.
- Underlying facts do not become privileged merely because communicated to counsel.
- Routine business reports do not become work product because litigation later occurs.
Worked example
A company creates the same incident report after every accident, whether or not anyone threatens suit.
The report is likely an ordinary business record rather than work product because it was created under a routine policy, not because of anticipated litigation. Privileged legal communications embedded in it require separate analysis.
Practice this topic
Scope of discovery
Rule 26(b)(1) allows discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. Proportionality considers the importance of the issues, the amount in controversy, the parties' relative access to information, their resources, the importance of the discovery and whether the burden or expense outweighs the likely benefit. Information within the scope need not be admissible to be discoverable.
Rule 26(a)(1) requires initial disclosures without awaiting a request, including witnesses and documents the party may use, damages computations and insurance agreements, generally within 14 days after the Rule 26(f) conference.
Work product and sanctions
Rule 26(b)(3)(A) says a party ordinarily may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative. They may be discovered if otherwise discoverable and the party shows substantial need and inability to obtain the substantial equivalent without undue hardship. Rule 26(b)(3)(B) requires protection of an attorney's mental impressions, conclusions, opinions and legal theories.
Rule 37(a) lets a party move to compel disclosure or discovery, and the motion must include a certification of a good-faith effort to confer. Rule 37 also provides sanctions for failure to disclose or cooperate.
Frequently asked questions
What is the controlling rule for scope, privileges, work product, and sanctions?+
Discovery reaches proportional, relevant, nonprivileged matter, while privilege, work product, and preservation rules require issue-specific protection and remedies.
How should I analyze scope, privileges, work product, and sanctions on the bar exam?+
Identify the discovery device and proper recipient. Test relevance, privilege, and proportionality. For lost ESI, apply the specialized rule.
What is the scope of discovery under Rule 26(b)(1)?+
Any nonprivileged matter relevant to a claim or defense and proportional to the needs of the case, and it need not be admissible to be discoverable.
What factors define proportionality?+
The importance of the issues, the amount in controversy, relative access to information, the parties' resources, the importance of the discovery and whether burden or expense outweighs likely benefit.
What is the work-product rule?+
Documents prepared in anticipation of litigation or for trial by or for a party are ordinarily not discoverable, unless there is substantial need and no substantial equivalent, under Rule 26(b)(3).
Does work product protect an attorney's opinions?+
Yes. If discovery is ordered, the court must protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party's attorney or representative.
What must a motion to compel include?+
A certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery, under Rule 37(a)(1).