Overview of U.S. Discovery

    The Tools of Discovery. The federal rules set forth the tools of discovery. Rule 26 sets forth the general provisions, including the scope of discovery and the duty to make disclosures at the outset of the case. Rule 26 also provides for protective orders, expert testimony, and protection of litigation work product materials.

     Rules 27, 28, 30, 31, and 32 deal with depositions. Depositions are a procedure in which witnesses can be required to answer questions under oath much as if they were at trial. Rule 27 deals with the limited situation of using depositions to perpetuate testimony of someone who may not be able to testify at trial and allows such a deposition to take place before an action is filed. This represents a somewhat narrow exception to the rule that prefiling discovery is not available, and aside from the likely unavailability later of a witness requires that an identifiable action with federal subject matter jurisdiction appears likely to be filed. Rule 28 deals with the issue of before whom a deposition may be taken. Within the United States, the rule is simple: anyone qualified to administer an oath may preside at a deposition, so long as they do not have an interest in the litigation themselves. Outside of the United States, the situation gets a great deal more complicated, in large part due to the differing approaches other nations take towards allowing US discovery on their soil. We won't go deep into that but be aware that identifying a proper way to take a deposition might be an issue you will need to examine in the context of a specific case. Rule 30 governs depositions by oral examination, which is the main form of deposition testimony. The great advantage of deposition testimony is that the answers are given by the witness directly without intervention of the opposing attorney. This increases the likelihood of receiving candid and unpolished answers. Such depositions are used to determine what the underlying facts are and can be used at trial either for impeachment purposes or in some instances to substitute for live testimony. Rule 31 allows depositions by written questions, which are significantly less popular and of dubious utility going forward given the possibility of remotely conducted live depositions. In general, so long as a witness is available to testify live at trial such live testimony is preferred to use of either written or video deposition testimony. If deposition testimony is used in the place of live testimony, it is subject to the same rules of evidence that would be applied to live testimony, and it is of course essential that opposing parties had an opportunity to cross-examine the witness at the depositions. Depositions have proved very important, however, for determining what witnesses will say at trial, and therefore to determining whether and how the case might be settled. If a witness does appear at trial, deposition testimony can also be used to impeach the testimony, by showing that they said something different at an earlier date should their testimony take a different course.

     Rule 33 deals with written interrogatories. Interrogatories arose from equitable practice, and allow a litigant to pose questions to the other party which must be answered in writing, under oath. In practice, while the answers must be made by the party and the oath must be given by the party, most interrogatory answers are processed through the hands of an attorney, who in practice is careful to give the other party what they are entitled to and no more. The careful crafting of interrogatories and the equally careful crafting of answers can be an expensive and time-consuming process. Some attorneys feel that interrogatories are best used only for matters where the facts are unknown but not subject to debate, and are not used for points that are likely to be actively contested between the parties. A typical good use of interrogatories would be to get the names and addresses of all individuals who worked on a particular transaction or occurrence and a description of their roles. Interrogatories can also be used to ask if the other side will make certain contentions – for example, that the plaintiff was contributorily negligent. An answer to such an interrogatory can help direct the course of factual discovery. On the other hand, an interrogatory asking for all facts showing that the defendant was negligent is likely to be a complete waste of time because objections and careful drafting will render any response useless.

     Rule 34 deals with the production of documents and things. In modern large case litigation, the production of documents has changed materially since the situation that existed at the time the rules were adopted. At the time the rules were adopted, the documents relevant to a lawsuit could be expected to be relatively finite, and to exist in the form of actual written documents such as business records, memoranda, receipts, and other such pieces of paper. One imagines that the drafters of the rules expected a file folder or at most a box of documents being exchanged in average litigation. The invention of the xerographic copy machine changed that, and by the 1960s and 1970s production of documents could include hundreds or thousands of boxes of responsive documents that were pulled from corporate record depositories. The shift to digital documents has multiplied the scope of documents, and today document production can include terabytes of documents, and in formats ranging from emails to text messages to drafts of word processing documents to video recordings. Nonetheless, documents remain a core element of the discovery process. They are not easily subject to manipulation by attorneys but exist as they were created prior to the inception of litigation, and so tend to be persuasive with factfinders. Documents and interrogatories also provide a roadmap with regard to which witnesses should be deposed, as well as to what testimony they may be expected to give. In modern practice discovery of documents has shifted to e-discovery, in which outside vendors use technology to sift through vast quantities of electronic documents, creating a subset based on search and sometimes artificial intelligence technology that is further reviewed by the lawyers

     Rule 35 deals with physical and mental examinations. To give examples of the use of this rule, a plaintiff who claims physical injury may be required to submit to a physical examination to determine if the claimed injuries are real. Similarly, in the event that defects in an automobile are attributed as the cause for an accident, the vehicle may be examined by an expert to determine whether it was properly functioning at the time the accident occurred. In general, parties have a right to examine people and objects that might yield evidence relevant to the case but are not entitled to examinations that are merely burdensome and intrusive, and rule 35 provides the vehicle for doing that.

     Rule 36 deals with requests for admission. Requests for admission ask the other party to concede that a given fact is true. For example, in order to establish beyond doubt subject matter jurisdiction the plaintiff might ask the defendant to admit that it is incorporated under the laws of Delaware and headquartered in New York City. There also can be issues that at the outset of the case might have seemed possible to dispute, but as the case proceeds these issues may become indisputable based on the evidence or a party may decide for tactical reasons not to dispute that issue. In order to establish these points and to save trial time, a request to admit can be made, and the judge will instruct the jury if there is a jury to accept the fact of those matters that have been conceded in a request to admit. Failure to respond to a request to admit in a timely fashion is treated as an admission, so they cannot be ignored. Similarly, they cannot be denied without careful consideration, in part because of ethical duties and in part because if a request to admit is denied and that fact is later proved at trial, the party who wrongfully denied the request might under some circumstances be liable for the attorneys’ fees and costs incurred in proving the matter.  Requests to admit can also be somewhat treacherous for those making the request, because an admitted request to admit removes the need and the possibility to present trial testimony on that point. In some cases, parties would prefer to present testimony and other evidence in order to dramatize the situation in the theater-like environment of the live trial. If they have made a request to admit on the point, they lose that opportunity if the defendant admits the contention.

     Rule 37 deals with sanctions. The parties and attorneys in a federal lawsuit are required to cooperate in discovery matters, and if they withhold matters that should have been produced or otherwise fail to cooperate, they can be subject to court orders to make proper production. If they fail to comply properly with those orders they can be subject to sanctions. The sanctions can range from monetary penalties to the admission or waiver of certain issues, all the way to the court directing a finding of liability. Note that these duties and sanctions are in addition to and separate from the duties of Rule 11 and other rules applying to pleading that we looked at earlier, but also reflect an expectation that the parties and their attorneys will behave cooperatively and ethically in the course of the litigation.

     Stages of Discovery.  Discovery typically progresses in stages. The first stage begins before litigation even has been filed. When it becomes clear that litigation is likely to be filed, a party has an obligation to preserve any evidence it has within its control or possession. At a corporate level, this requires the issuance of a “hold order” so that all the employees of the Corporation retain materials relevant to the litigation. Failure to do this can lead to significant sanctions that can in some situations determine the outcome of the case. If you take nothing else from this chapter, be aware if you represent clients potentially subject to US litigation that ignoring this important obligation can have serious adverse consequences. We will discuss this in more detail later.

     The next stage of discovery involves the production of materials without request under rule 26. In effect, rule 26 requires each side to produce those materials that they expect to rely upon a trial. This includes documents, as well as the names and identities of witnesses. Failure to make this production can lead to the foreclosure of using that evidence at trial, which again can be determinative of the outcome of the case. Under this provision, parties are not required to produce evidence that they will not use at trial - in other words, there is no duty to produce the 'bad,' unhelpful evidence that they hope no one ever discovers. (Such 'bad' evidence must be produced in response to a proper inquiry, but the request must be made and be made in proper form.)

     The next stage of discovery normally involves exchanges of written documents. Interrogatories will be served, often alongside document requests. Once responses are served to these requests and there has been sufficient time to review what has been produced, the parties are likely to proceed to deposition testimony.

     Requests to admit may be served at any time after the Rule 16 conference at the outset of the case, but often they are not answered definitively until discovery is complete or nearly complete. Parties are required to admit to those things that are true, but denials, objections, and requests for additional time effectively allow additional time if the answer is not immediately amenable to an answer (e.g., plaintiff has no evidence showing that defendant was aware the product had defects). Also often answered late in the litigation are what are known as contention interrogatories. These request a party to state whether certain arguments or contentions will be made on their side of the case. A contention interrogatory might ask, for example, whether a defendant will claim the defendant was contributorily liable or whether defendant will claim some third party was in fact the tortfeasor. In many cases these do not need to be answered at the outset, but responses must be made in time for the other party taking discovery to be able to obtain evidence relative to the contentions that are being pursued.

     After all fact discovery is closed, the parties normally will turn to expert discovery. Experts will review the facts in the case, including the fruits of discovery, and prepare opinions based upon their expert knowledge. These opinions must be provided to the other side in a written report if the expert is designated as one who will be called to tesitfy at trial (if you read the rule, you will see that no such duty normally attaches if the expert will not be called, which may happen if the expert comes to no conclusion or a conclusion that does not help the party that retained her). Economists and scientists often serve as expert witnesses, especially in cases where issues related to their expertise are prominent.  Sometimes lawyers or law professors serve as experts, with one example being where issues of foreign law are involved. Expert testimony allows a factfinder to be informed on issues that are beyond the expertise of a layman. You might ask yourself, as many already have, whether lay juries are well equipped to weigh and balance the competing opinions of highly-credentialed witnesses presented with opposing opinions by the opposing sides.

     Scope of Discovery.  Rule 26 sets forth the scope of permissible discovery. Over time, the rules have reduced this scope. At one time, for example, discovery was proper into any matter related to the subject matter of the litigation. Now, discovery must be related to a specific cause of action or defense. This has the effect of foreclosing discovery that might allow, for example, a claimant on a contract claim to seek evidence relevant to a potentially more lucrative antitrust or fraud claim that might arise from the same transaction or occurrence if the requisite facts can be uncovered. The rules have also reduced the quantity. While at one time there was no limitation in the rules on, for example, the numbers of interrogatories or the number and length of depositions, there are now default limits. While these can be extended in complex cases, the effect of the caps is intended to keep a check on requests for discovery unless a court or the other parties are persuaded to lift the caps. We are not aware of studies that definitively answer whether these limits have had the intended effect, but anecdotal evidence from friends suggests that both the bargaining framework (How many depositions seem like too many? How many days can the deposition be scheduled for?) and the actual amount of such discovery has indeed been shifted downward. We also hear that the stricter limits might limit wasted efforts but also can reward evasive tactics that run out the clock.

     Material that will not be admissible at trial is not exempt from discovery. Instead, a much broader test applies – discovery requests need to be reasonably calculated to lead to admissible evidence. Under this standard documents and testimony that will be barred from being entered evidence at trial by the hearsay rule, for example, will be subject to discovery because it might lead to admissible evidence.

     The Rules also have moved proportionality front and center. While proportionality has long been an aspect of permissible discovery, recent amendments stress this concept. The idea is that vast discovery is inappropriate for a smaller value case. As an economic matter, it's not clear why parties would ever want to spend time and money on disproportionate discovery, nor are there any studies we are aware of showing that disproportionate discovery has in fact been a widespread problem, but the point remains that judges are explicitly charged today to be on guard against disproportionate discovery.

     Another aspect of the scope of discovery has to do with protective orders. Parties may seek protective orders to limit or prevent discovery into sensitive areas. They can also, failing that, seek protective orders that require all parties to keep the information shared in discovery strictly confidential, which in some cases will limit the sharing of discovered information with individuals at client companies who may be in a position to use the information for reasons aside from the litigation. In many commercial case, protective orders putting all fruits of discovery behind a protective order up to trial are entered into as a standard practice in order to avoid the releasing into the public domain business or technical information.

     Attorney Client Privilege and the Work Product doctrine are also important limitations on the scope of discovery. Parties are entitled to assert attorney-client privilege and to invoke the work product doctrine to cut off discovery requests. To do this, some record has to be made showing that the claim of privilege or work product is legitimate. In the case of documents, a ‘privilege log’ usually is given to the other side, showing what documents were withheld and very briefly stating the basis for not producing them. Judges or magistrates might be asked to look at the withheld documents and rule on the assertion that they should not be produced. At depositions, the attorney will typically instruct the witness not to answer questions that intrude on these doctrines; if the instruction is not well-founded (and sometimes they are not), a judge or magistrate might be asked to rule on the objection. Similarly, with regard to interrogatories, an objection on privilege grounds might be included in the response.

     Note that attorney client privilege can get tricky when foreign legal professionals are involved. In the U.S., only licensed lawyers can give case specific legal advice, creating a bright line for the application of the privilege. In other countries, those without law licenses or even law degrees might give legal advice, leaving their communications potentially unprotected by the privilege.

     Judicial Control and Sanctions.  Over time, the judicial role in discovery has grown. Rule 16 (b)(1) requires the judge, in most cases (there are exceptions), to issue a scheduling order for the case within 90 days of the last defendant being served. Prior to that, the parties will typically meet in a conference required by Rule 26(f) conference to discuss discovery and establish a discovery plan. While at one time the progress of a case through the system largely depended on the attorneys, today such judicial control means that the parties must constantly respond to court issued deadlines. As of June 30, 2021, the median time from filing of a civil suit to trial is 28.3 months, a short time to get a lot done. See  (https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2021.pdf).

     Judges also have the power to impose sanctions for discovery misconduct. While we know of no reliable empirical studies showing an increase in sanctions, we have heard anecdotal reports that judges have become more willing over time to impose sanctions when parties engage in discovery abuse – especially when they fail to produce materials that should have been produced, or allow the destruction of relevant materials such as documents. Judges have broad but not unlimited discretion to impose sanctions, with both the Due Process Clause and the Rules providing some limits. That said, in most situations, judges are free to respond flexibly and creatively to abuses. With any appeal normally held until the end of the case under the finality rule, and with many cases likely to settle rather than try and appeal the case, the trial judge holds substantial power over the parties in this context. Because those not familiar with U.S. litigation may not fully appreciate the risks and consequences of sanctionable behavior, we cover this in more detail below.

     Electronic Records and E-discovery.  At the time the Rules were adopted documents and other records existed only in physical format. As technology has progressed, the records relevant to discovery increasingly exist in electronic form.  Electronic records include not just word-processed documents but emails, texts, photographs, videos, social media posts, and so on. All of these are producible in discovery if otherwise qualified (and should be covered by any hold order issued by a competent legal department subject to US litigation). Electronic creation and storage of documents has also led to a vast increase in the numbers of possible documents. In a major case the producible documents can number in the billions. One aspect of the move to electronic documents is that technical expertise is needed to manage this information. Firms have arisen that handle electronic discovery, using offshored legal workers to review it and sometimes tools such as artificial intelligence to sort through it. Beyond that, major corporations that are subject to repeat litigation need to design their information technology systems at least in part with an eye to being able to respond to production demands in an economical and responsive fashion.