AuthorStewart I. Edelstein
ProfessionCommercial trial lawyer
Many cases are won or lost in the discovery phase of litigation. Accord-
ingly, you need to know the purpose and scope of federal discover y
rules; tim ing of discovery; effect of the most recent amendments to the
discovery rules; how to draft interrogatories, document requests, a nd
requests for admissions; the basics of e- discovery; how to conduct infor-
mal discovery; and how to take and defend depositions. This discussion
assumes that you are in federal court. If your action is in st ate court,
comply with all applicable state court ru les.
A fundamental reason t hat a great majority of cases are resolved before
trial is that each party has conducted effec tive discovery, enabling each
party to anticipate with some predictability how the case will play out
at trial. Before delving into the intricacies of the Federal Rules of Civil
Procedure pertaining to discovery, you need to understand their pur-
pose and scope.
The discussion below is based on the Federal Rules of Civil Proce-
dure amended as of December 1, 2015.
The purpose of the Federal Rules of Civil Procedure generally is “to
secure the just , speedy and inexpensive determination of ever y action
and proceeding” in federal court. Rule 1.
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The scope of discovery is broad: Unless lim ited by court order, par-
ties 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 impor tance of the issues at stake in the
action, the amount in controvers y, the parties’ relative access to relevant
information, the par ties’ resources, the importance of the discovery in
resolving the issues , and whether the burden or expense of the proposed
discovery outweighs its li kely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.” Rule
26( b)(1) .
However, a judge has the power to limit the frequency or extent of
discovery otherw ise allowed by the rules, or by local rule, if the discov-
ery sought is unreasonably cu mulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or
less expensive; the party seeking discovery has had ample opportunity
to obtain the information by discovery in the act ion; or the proposed
discovery is outside the scope of Rule 26(b)(1).
Be aware that even in the absence of any discovery requests by
opposing counsel, you must make in itial disclosures pursuant to
Rule 26(a)(1), expert disclosures pursua nt to Rule 26(a)(2), and pretrial dis-
closures pursuant to Rule 26(a)(3).
Effective December 1, 2015, the Federal Rules of Civil Procedure per-
taining to d iscovery were amended to encourage greater cooperation
among counsel, focus dis covery on what is truly necessary to res olve the
case, engage judges in early and act ive case management, and address
problems associated with vast amounts of ESI.
You not only must understand what these amended rules require,
as set forth above, but also must also u nderstand the judicial philoso-
phy driving them. Why? Because any judge before whom you appear
will expect you to comply with the spirit as well as the letter of these
Caveat: In doing research, keep in mind that pre-December 1, 2015,
cases applying the r ules before the most recent amendments may very
well be subject to effective distinction by opposing counsel, depending
on the proposition for which you cite them.
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Discover y | 97
Chief Justice John Roberts, in his 2015 Year-End Report on the
Judiciary, praised these amendments, emphasizing lawyers’ obligation
to their clients and to the judicial system “to avoid antagonistic tactics,
wasteful procedural maneuvers, and teetering brinksmanship. I can not
believe that many members of the bar went to law school because of a
burning desire to spend their professional life wearing down opponents
with creatively burdensome discover y requests or evading legitimate
requests through dilatory tactics.”
The test for all trial lawyers, Roberts concluded, is “whether they
will aff irmatively search out cooperative solutions, chart a cost-ef fective
course of litigation, and assume shared responsibility w ith opposing
counsel to achieve just results .” You should expect that any federa l judge
before whom you appear will apply this test to your conduct, especially
in light of these recent amendments.
Indeed, the amendment to Rule 1 (that the rules should be “employed
by the court and t he parties” to accomplish their purpose) makes expl icit
that the part ies—and, of course, their law yers—share with the cour t the
responsibility to secu re a just, speedy, and inexpensive determination
of every action. As Just ice Roberts put it, this amendment “highlights
the point that lawyers —though representing adverse part ies—have an
affir mative duty to work together, and with the court, to achieve prompt
and efficient resolutions of disputes.”
What does this amendment to Rule 1 mean to you? Even though
you have an ethical obligation to be a zealous advocate, you must
balance adversarial zealotry with cooperation. If a judge believes
that you are being overly aggressive in representi ng your client, you
and your client will pay a price, whether in t he form of sanctions or
otherw ise.
These amendments principally ser ve to expedite the initial stages
of litigation; require proport ionality, reasonableness, and specificity i n
propounding and defending discover y requests; and foster preservation
of ESI.
Amendments to Rules 4(m), 16, and 26(f) are to reduce delay early in
litigation. Rule 4(m) reduces from 120 days to 90 days the presu mptive
time to serve a defendant. Rule 16(b)(2) reduces the time for a judge to
issue a scheduling order to 90 days af ter any defendant has been served,
or 60 days after a defendant has appeared, whichever is earl ier, both time
periods reduced by 30 days from the prior rule.
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