Discovery Under the Federal Rules of Civil Procedure
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CHAPTER II
DISCOVERY UNDER THE FEDERAL RULES OF
CIVIL PROCEDURE
A. Introduction
The legal provisions governing discovery in U.S. federal courts are set
forth in Rules 26 to 37 of the Federal Rules of Civil Procedure.1 The
advent of these discovery procedures has been described as “one of the
most significant innovations of the Federal Rules of Civil Procedure”2 and
a “striking and imaginative departure from tradition.”3 Pretrial discovery
rules are intended to advance fact finding and reduce the role of surprise
at trial without the costs and delays of judicial involvement.
In Société Nationale Industrielle Aérospatiale v. United States District
Court for the Southern District of Iowa,4 the Supreme Court upheld the
application of these discovery rules to the collection of evidence abroad.
The Court held that, at least for litigants within a federal court’s personal
jurisdiction, the Hague Evidence Convention5 does not provide exclusive
or mandatory procedures for obtaining evidence abroad and that the
Convention’s procedures are one method of seeking evidence that a court
may elect to employ.6 The Court noted that courts should closely supervise
the taking of evidence abroad in order to minimize undue costs and
burdens to foreign litigants.7 In addition, the Court cautioned against
discovery abuses, admonishing federal courts to “take care to demonstrate
due respect for any special problem confronted by the foreign litigant on
1. The discovery rules have been amended several times since the adoption
of the Rules in 1938. The rule-making authority and amendment procedure
2. Hickman v. Taylor, 329 U.S. 495, 500 (1947).
3. Advisory Committee’s Explanatory Statement concerning Amendments of
the Discovery Rules, 48 F.R.D. 487, 487 (1969).
4. Société Nationale Industrielle Aérospatiale v. United States Dist. Court,
482 U.S. 522 (1987).
5. Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted
in 8 I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].
6. 482 U.S. at 541.
7. Id. at 546.
Obtaining Discovery Abroad
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account of its nationality or the location of its operations, and for any
sovereign interest expressed by a foreign state.”8
Since Aérospatiale was decided, federal courts have routinely
compelled discovery against foreign litigants under the Federal Rules of
Civil Procedure.9 The taking of discovery abroad raises a number of
important questions, including appropriate limitations on jurisdictional
discovery; whether different standards apply to depositions of foreign
litigants as opposed to “less intrusive” demands such as document requ ests,
interrogatories, and requests to admit; how to balance limitations on
discovery imposed by foreign countries; and potential for discovery abuse
by or against foreign parties. In addition, the 2006 amendments to the
Federal Rules of Civil Procedure regarding electronically stored
information pose novel issues for foreign discovery, as does discovery
concerning nonparties. These issues and topics are discussed in more detail
below.
B. Initial Disclosures and the Discovery Conference
Under Rule 26(a), parties are required to disclose without any request
the names and contact information of individuals likely to have
discoverable information and to produce or describe documents,
electronically stored information, and tangible things that the disclosing
party may use to support its claims or defenses. 10 Parties also must disclose
damages computations and insurance information.11 Rule 26(f) requires
parties to confer regarding initial disclosures and a discovery plan,
including preparing a written report of a discovery plan.12 Failure to
8. Id.
Cir. 2004); Odone v. Croda Int’l PLC, 950 F. Supp. 10, 12 (D.D.C. 1997)
(“[W]here the American federal district court has in personam jurisdiction
over a foreign national, corporate entity or an individual, it is not
required . . . to defer to international comity. . . [T]he court can, and should,
mandate compliance by a foreign party with Rules 26, 33, 34 and 36 of the
Federal Rules of Civil Procedure for the giving of oral depositions,
answering interrogatories, the producing of documents and records, and
responding to requests for admissions.”) (quoting Work v. Bier, 106 F.R.D.
45, 55-56 (D.D.C. 1985)).
10. FED. R. CIV. P. 26(a).
11. Id.
12. FED. R. CIV. P. 26(f).
Discovery Under the Federal Rules of Civil Procedure
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comply with initial disclosure obligations may result in the court
precluding the use of the witness or information and other sanctions.13
The appropriate standards governing initial disclosures under Rule
26(f) by foreign litigants were explored in Milliken & Co. v. Bank of
China.14 In that case, the plaintiff served discovery requests on the
defendant, a Chinese bank. The defendant filed a motion for protective
order arguing, inter alia, that it was not required to respond to discovery
demands that were not made under the Hague Evidence Convention. The
magistrate judge denied the motion and the district court affirmed, holding
that requiring a party to follow the Hague Evidence Convention with
regard to initial disclosures was unwarranted. The court reasoned that
comity concerns relating to initial disclosures were attenuated because no
demand for production was required from the other party and no
compulsion was needed from the court in the event of a failure to comply.
As such, the “sovereignty of the foreign state is implicated to a lesser
extent than in traditional discovery where demands for production, often
backed by a court order, are directed to information within the borders of
a foreign nation.”15 In addition, equitable considerations militated against
allowing a party to decline to disclose information that it expects to use to
support the claims or defenses that it affirmatively asserts.16
C. Scope of Discovery—Relevancy
Under Rule 26(b)(1), parties generally may obtain discovery without
leave of the court regarding any nonprivileged matter that is relevant to
the claim or defense of any party. Moreover, for good cause shown, the
court may order discovery of any matter relevant to the subject matter
involved in the action.17 Relevant information need not be admissible at
13. FED. R. CIV. P. 37(c).
14. 758 F. Supp. 2d 238 (S.D.N.Y. 2010).
15. Id. at 245.
16. Id. The court also directed compliance with five interrogatories and eight
document requests. In evaluating these discovery requests, the court
considered evidence that responses to requests under the Hague Evidence
Convention had been extensively delayed by the Chinese authorities and
questioned whether the Chinese bank secrecy statute invoked by the
defendant was actually enforced. Id. at 251.
17. Prior to the 2000 amendments, Rule 26(b)(1) provided that a party could
obtain discovery regarding any matter relevant to the subject matter
involved in the action without an order of the court. The rule change was
intended to “involve the court more actively in regulating the breadth of
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