Civil discovery under United States federal law
Encyclopedia
Civil discovery under United States federal law
is wide-ranging and can involve any material which is relevant to the case except information which is privileged
, information which is the work product of the opposing party, or certain kinds of expert opinions. (Criminal discovery rules may differ from those discussed here.) Electronic discovery
or "e-discovery" is used when the material is stored on electronic media
.
In practice, most civil cases in the United States are settled after discovery. After discovery, both sides often are in agreement about the relative strength and weaknesses of each side's case and this often results in a settlement
which eliminates the expense and risks of a trial.
countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure
guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" http://www.law.cornell.edu/rules/frcp/#chapter_v.
FRCP
Rule 26 provides general guidelines to the discovery process, it requires Plaintiff
to initiate a conference between the parties to plan the discovery process. The parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). The parties should attempt to agree on the proposed discovery plan, and submit it to the court within 14 days after the conference. The Discovery Plan must state the parties' proposals on subject of the discovery, limitations on discovery, case management schedule and timing deadlines for each stage of the discovery process, including the end-date of the discovery, dispositive motions and pre-trial order deadlines. Unless all parties agree otherwise, the parties should submit to each other the Initial Disclosures under Rule 26(a) within 14 days after the conference. Only after the Initial Disclosures have been send, the main discovery process begins, that includes: depositions
, interrogatories
, request for admissions
(RFA) and request for production
of documents(RFP). There are limitation on interrogatories to twenty-five requests per party each, but there is no limitations on RFAs and RFPs, unless there is a different Local Rule for the State.
Subdivision (a) provides for automatic disclosure, which first was added in 1993. Disclosure requires parties to share their own supporting evidence without being requested to by the other party. Failure to do so can preclude that evidence from being used at trial. This applies only to evidence that supports their own case, not anything that would harm their case. For example, a plaintiff brings a case alleging a negligent accident where the defendant damaged the plaintiff's boat. The plaintiff would then be required to automatically disclose repair bills for his damaged property (Since this would only support his case) (26(a)(1)(c)).
Subdivision (b) is the heart of the discovery rule, and defines what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or otherwise protected. Under §1, relevance is defined as anything more or less likely to prove a fact that affects the outcome of the claim. It does not have to be admissible in court as long as it could reasonably lead to admissible evidence.
However, there are limits to discovery. §2 allows the court to alter the limits of discovery on the number of depositions, interrogatories, and document requests if it determines that the discovery sought is overly burdensome, redundant, unnecessary, or disproportionately difficult to produce with respect to the importance of the case or specific issue. Enshrined in §3, the work-product doctrine protects tangible (and some intangible) items created in anticipation of the litigation (e.g., a memorandum from an attorney outlining his strategy in the case). Protecting work product is considered in the interest of justice because discovery of such work product would expose an attorney's complete legal strategy before trial. §4 allows discovery of experts whose opinions may be presented at trial, but limits discovery of experts not likely to testify during trial. §5 generally prohibits the discovery of any material legally privileged (attorney-client
, doctor-patient, etc.), and requires the production of a "privilege log
" which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material.
Subdivision (c) provides for protective orders.
Subdivision (d) specifies the times at which parties may employ the various methods of discovery.
Subdivision (e) provides for supplementation, which requires a person to correct any submitted information as it is necessary. For example, if you submit your medical records, and then your doctor calls you to say a crucial medical test just came in, you may be required to send that new report to the other party without being specifically requested to do so.
Subdivision (f) provides a special meeting between the parties to organize their discovery process; this is a required step.
Subdivision (g) is the good faith rule which provides sanctions to any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party.
taken before the suit begins or after the trial ends.
s of parties (e.g. Suing for health damages for asbestos, the defendant may require you to see their own doctor (usually only with a court order)).
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
is wide-ranging and can involve any material which is relevant to the case except information which is privileged
Attorney-client privilege
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....
, information which is the work product of the opposing party, or certain kinds of expert opinions. (Criminal discovery rules may differ from those discussed here.) Electronic discovery
Electronic Discovery
Electronic discovery refers to discovery in civil litigation which deals with the exchange of information in electronic format . Usually a digital forensics analysis is performed to recover evidence...
or "e-discovery" is used when the material is stored on electronic media
Electronic media
Electronic media are media that use electronics or electromechanical energy for the end-user to access the content. This is in contrast to static media , which today are most often created electronically, but don't require electronics to be accessed by the end-user in the printed form...
.
In practice, most civil cases in the United States are settled after discovery. After discovery, both sides often are in agreement about the relative strength and weaknesses of each side's case and this often results in a settlement
Settlement (law)
In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. The term "settlement" also has other meanings in the context of law.-Basis:...
which eliminates the expense and risks of a trial.
At the federal level
Discovery in the United States is unique compared to other common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries. In the United States, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
guide discovery in the U.S. federal court system. Most state courts follow a similar version based upon the FRCP, Chapter V "Depositions & Discovery" http://www.law.cornell.edu/rules/frcp/#chapter_v.
FRCP
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
Rule 26 provides general guidelines to the discovery process, it requires Plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
to initiate a conference between the parties to plan the discovery process. The parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). The parties should attempt to agree on the proposed discovery plan, and submit it to the court within 14 days after the conference. The Discovery Plan must state the parties' proposals on subject of the discovery, limitations on discovery, case management schedule and timing deadlines for each stage of the discovery process, including the end-date of the discovery, dispositive motions and pre-trial order deadlines. Unless all parties agree otherwise, the parties should submit to each other the Initial Disclosures under Rule 26(a) within 14 days after the conference. Only after the Initial Disclosures have been send, the main discovery process begins, that includes: depositions
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
, interrogatories
Interrogatories
In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...
, request for admissions
Request for admissions
A request for admissions are a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admissions are part of the discovery process in a civil case. In the U.S...
(RFA) and request for production
Request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items. In civil procedure, during the discovery phase of litigation, a party to a lawsuit may request that another party provide any documents that it has that pertain to the subject...
of documents(RFP). There are limitation on interrogatories to twenty-five requests per party each, but there is no limitations on RFAs and RFPs, unless there is a different Local Rule for the State.
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
http://www.law.cornell.edu/rules/frcp/Rule26.htm The most substantial rule, which guides the discovery process.Subdivision (a) provides for automatic disclosure, which first was added in 1993. Disclosure requires parties to share their own supporting evidence without being requested to by the other party. Failure to do so can preclude that evidence from being used at trial. This applies only to evidence that supports their own case, not anything that would harm their case. For example, a plaintiff brings a case alleging a negligent accident where the defendant damaged the plaintiff's boat. The plaintiff would then be required to automatically disclose repair bills for his damaged property (Since this would only support his case) (26(a)(1)(c)).
Subdivision (b) is the heart of the discovery rule, and defines what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or otherwise protected. Under §1, relevance is defined as anything more or less likely to prove a fact that affects the outcome of the claim. It does not have to be admissible in court as long as it could reasonably lead to admissible evidence.
However, there are limits to discovery. §2 allows the court to alter the limits of discovery on the number of depositions, interrogatories, and document requests if it determines that the discovery sought is overly burdensome, redundant, unnecessary, or disproportionately difficult to produce with respect to the importance of the case or specific issue. Enshrined in §3, the work-product doctrine protects tangible (and some intangible) items created in anticipation of the litigation (e.g., a memorandum from an attorney outlining his strategy in the case). Protecting work product is considered in the interest of justice because discovery of such work product would expose an attorney's complete legal strategy before trial. §4 allows discovery of experts whose opinions may be presented at trial, but limits discovery of experts not likely to testify during trial. §5 generally prohibits the discovery of any material legally privileged (attorney-client
Attorney-client privilege
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....
, doctor-patient, etc.), and requires the production of a "privilege log
Privilege log
A privilege log is a document that describes documents or other items withheld from production in a civil lawsuit under claims of attorney-client privilege, work product doctrine, or trade secrets....
" which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material.
Subdivision (c) provides for protective orders.
Subdivision (d) specifies the times at which parties may employ the various methods of discovery.
Subdivision (e) provides for supplementation, which requires a person to correct any submitted information as it is necessary. For example, if you submit your medical records, and then your doctor calls you to say a crucial medical test just came in, you may be required to send that new report to the other party without being specifically requested to do so.
Subdivision (f) provides a special meeting between the parties to organize their discovery process; this is a required step.
Subdivision (g) is the good faith rule which provides sanctions to any party that makes a discovery request or response designed to thwart justice, cause undue delay, or harass the other party.
Rule 27. Depositions Before Action or Pending Appeal
http://www.law.cornell.edu/rules/frcp/Rule27.htm Guides depositionsDeposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
taken before the suit begins or after the trial ends.
Rule 28. Persons Before Whom Depositions May Be Taken
http://www.law.cornell.edu/rules/frcp/Rule28.htm Further regulates basic requirements of a deposition. For example, this rule sets forth some of the requirements for oaths in depositions. Depositions are a relatively expensive method of discovery in part because of these official requirements.Rule 29. Stipulations Regarding Discovery Procedure
http://www.law.cornell.edu/rules/frcp/Rule29.htm Miscellaneous information.Rule 30. Deposition Upon Oral Examination
http://www.law.cornell.edu/rules/frcp/Rule30.htm Main deposition rule in regard to actual procedure. Limits depositions to only one day of questioning, for seven hours during that one day. Any more must be approved by court order or stipulation of the parties involved. Rule also provides for times when an attorney may intervene and direct his client not to answer the question. An attorney is restricted in objecting to only three factors: 1) To preserve a privilege, 2) preserve a court order, or 3) to prevent any harassing questions.Rule 31. Depositions Upon Written Questions
http://www.law.cornell.edu/rules/frcp/Rule31.htm A rarely used, borderline obsolete method of deposition by sending a court reporter with a written list of questions to a witness. The reporter, not an attorney, questions the witness. This rule is really a combination of a deposition with an interrogatory. Used in rare situations such as deposing someone in difficult to find places such as remote locations or prisons.Rule 32. Use of Depositions in Court Proceedings
http://www.law.cornell.edu/rules/frcp/Rule32.htm How the deposition can be used in court. Usually testimony in court is preferred, but if a witness dies or flees the country before trial, a deposition may be read into the record.Rule 33. Interrogatories to Parties
http://www.law.cornell.edu/rules/frcp/Rule33.htm Governs Interrogatories, which are written questions to an opposing party. Limited to twenty-five questions without special court order. May be completed by counsel, not the party himself; because of that, of limited use in most cases. (interrogatories are for use on PARTIES only)Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
http://www.law.cornell.edu/rules/frcp/Rule34.htm In some cases, a party may simply allow free access to enter its property and inspect its documents as it sees fit. For example, plaintiff requests some files which are part of a massive collection the defendant did not organize well. Defendant simply lets the plaintiff rummage through, placing the burden on the other party. In practice this rule is rarely used as it requires a party to give up control of their information and is therefore too risky for most lawyers. However it is a method of avoiding time and cost in responding to broad discovery requests. May also be used for land inspection in certain cases, e.g. so a plaintiff may enter the defendant's land to inspect a defective feature.Rule 35. Physical and Mental Examination of Persons
http://www.law.cornell.edu/rules/frcp/Rule35.htm Regulates physicals and psychological evaluationPsychological evaluation
A psychological evaluation or mental examination is an examination into a person's mental health by a mental health professional such as a psychologist. A psychological evaluation may result in a diagnosis of a mental illness...
s of parties (e.g. Suing for health damages for asbestos, the defendant may require you to see their own doctor (usually only with a court order)).