Planning discovery
| Author | William M. Audet/Kimberly A. Fanady |
| Pages | 17-54 |
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Determine Discovery Goals Task 1
CHAPTER 1: PLANNING DISCOVERY
TASKS
Task 1 Determine Discovery Goals
Task 2 Review Applicable Rules
Task 3 Calendar Deadlines
Task 4 Prepare Annotated Proof of Fact
Task 5 Prepare Discovery Plan
Task 6 Prepare Deposition Schedule
Task 6A Discover Electronically Stored Information (ESI)
Task 6B Request Initial Conference in Complex Litigation
Task 6C Draft and Submit Proposed Pre-Trial Order in
Complex Litigation
Task 6D Discovery After Removal
FORMS
Form 1 Timeline: FRCP 16 and 26
Form 2 Annotated Proof of Fact
Form 2.1 Request for Production of Electronic Documents
Form 2.2 Motion for Order Requiring Reconstruction of
Electronic Data
Form 2.3 Motion for Order Shifting Costs of Reconstructive
Data Discovery
TASK 1
Determine Discovery Goals
I. WHAT AND WHY
A. Federal discovery has four broad purposes. To:
1. Make a trial a fair contest by eliminating
unfair surprise.
2. Ascertain relevant facts and their sources.
3. Narrow and clarify issues.
4. Promote just and final resolution of disputes
according to the parties’ substantive rights.
B. Your discovery goals should complement your ulti-
mate goals in a case. Common discovery goals are to:
1. Learn more about the case.
2. Determine what is better for your client: pursu-
ing the case through judgment or settling.
3. Determine what evidence your opponent has.
4. Determine the most convenient and least
expensive source of the evidence you need.
5. Prevent surprise at trial.
6. Commit your opponent to certain legal and
factual positions.
7. Keep harmful evidence from your opponent, if
you can do so ethically.
C. Your discovery goals are often connected to your
settlement goals.
1. To encourage early settlement, propound dis-
covery designed to expose your case’s strength
and your opponent’s weakness. In some cases,
you may increase settlement prospects by
focusing discovery on one issue, such as dam-
ages or a single determinative fact.
2. If you intend to litigate through judgment, pro-
pound comprehensive discovery designed to
learn every aspect of the case and elicit admis-
sible evidence for trial.
D. The purpose of discovery is to find out additional
facts about a well-pleaded claim, not to find out
whether such a claim exists. See Ross v. Mitsui
Fudosan, Inc., 2 F. Supp. 2d 522, 528 (S.D.N.Y.
1998) (denying discovery in sexual harassment
action to determine whether individual defendants
were plaintiff’s employers; granting motion to
dismiss Title VII claims with leave to replead);
Abrahams v. Young & Rubicam, 979 F. Supp. 122,
128-29 (D. Conn. 1997) (denying discovery in
defamation action to ascertain when, where, and to
whom defamatory statements were repeated; grant-
ing motion to dismiss on pleadings); SG Cowen Secs.
Corp. v. United States Dist. Court, 189 F.3d 909 (9th
Cir. 1999) (denying plaintiffs’ request for limited
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task 1 PlanninG Discovery
discovery after dismissal without prejudice for
failure to comply with heightened pleading require-
ments under Securities Litigation Reform Act).
II. WHEN
A. Establish your discovery goals as early as possible
so each task leads you closer to your goals rather
than wasting time and resources.
B. Reassess and modify your discovery goals as cir-
cumstances change and new information emerges.
Under some circumstances, a court may even per-
mit you to take discovery concerning events which
occurred after the filing of the complaint. Adams v.
Allstate Ins. Co., 189 F.R.D. 331 (E.D. Pa. 1999).
III. HOW
A. Review the pleadings. Analyze the claims, dam-
ages prayers, defenses and possible indemnifica-
tion or contribution sources to determine your
client’s potential exposure or recovery.
1. If the pleadings are too vague or conclusory
for you to assess, consider making a FRCP 12
motion to force more specific pleadings. See
Preparing for Trial in Federal Court (James
Publishing 1998). Note that courts generally
disfavor such motions and grant them only if the
complaint is so unintelligible that the defendant
cannot draft a responsive pleading. See Cumis
Ins. Soc’y v. Peters, 983 F. Supp. 787, 798 (N.D.
Ill. 1997); In re Health Mgmt. Inc. Sec. Litig.,
970 F. Supp. 192, 207 (E.D.N.Y. 1997); Classic
Communications v. Rural Tel. Serv. Co., 956
F. Supp. 910, 922-23 (D. Kan. 1997); Irvin v.
Borough of Darby, 937 F. Supp. 446, 452 (E.D.
Pa. 1996); Bureerong v. Uvawas, 922 F. Supp.
876 F. Supp. 95, 100 (E.D. Va. 1995). Do not
use a motion for a more definite statement as
a substitute for discovery. See Pucci v. USAir,
940 F. Supp. 305, 310 (M.D. Fla. 1996); Amoco
Chem. Co. v. Tex Tin Corp. , 925 F. Supp.
1192, 1212 (S.D. Tex. 1996). With appropri-
ate notice to the parties, a court may compel
clarification of ambiguous claims in the interest
of managing cases, reducing litigation costs, and
avoiding delay. See Feliciano v. Dubois, 846 F.
Supp. 1033, 1043 (D. Mass. 1994).
2. For guidance on pleading specificity, review
FRCP 8 and 9 cases. See, e.g., Stevelman v.
Alias Research Inc., 174 F.3d 79 (2d Cir. 1999)
(securities fraud complaint sufficient under
FRCP 9(b)); Goren v. New Vision Int’l, 156
F.3d 721 (7th Cir. 1998) (RICO complaint inad-
equate under FRCP 9(b)); Rolo v. City Investing
Co. Liquidating Trust, 155 F.3d 644, 657-59 (3d
Cir. 1998) (RICO complaint inadequate under
FRCP 9(b)); Schwartz v. Celestial Seasonings,
124 F.3d 1246 (10th Cir. 1997) (FRCP 9(b) and
securities fraud); Williams v. WMX Techs., 112
F.3d 175 (5th Cir. 1997) (FRCP 9(b) applied to
securities fraud and RICO claims); S.Q.K.F.C.,
Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d
629, 634 (2d Cir. 1996) (FRCP 9(b) and RICO);
McHenry v. Renne, 84 F.3d 1172 (9th Cir.
1996) (FRCP 8 and “heightened standard” in
civil rights cases).
3. A pro se party’s pleadings are construed liberally
and held to a less stringent standard than pleadings
drafted by a lawyer, but they still must meet the
burden of alleging specific facts on which a recog-
nized claim or defense could be based. See Mapp
v. Dovala, 138 F.3d 1335, 1337 (10th Cir. 1998);
Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st
Cir. 1996); Hamlin v. Vaudenberg, 95 F.3d 580,
583 (7th Cir. 1996); Pilgrim v. Littlefield, 92 F.3d
F. Supp. 2d 961, 971-72 (S.D. Cal. 1998); Toms v.
Pizzo, 4 F. Supp. 2d 178, 183 (W.D.N.Y. 1998);
Slaby v. Fairbridge, 3 F. Supp. 2d 22, 27 (D.D.C.
1998); House v. Aiken County Nat’l Bank, 956 F.
Supp. 1284, 1290 (D.S.C. 1996).
4. If a qualified immunity defense is available
to the defendant, discovery may not proceed
unless the court first finds that the plaintiff
meets the heightened pleading requirement of
asserting particular facts that, if true, would
overcome qualified immunity. See Stokes v.
Cross, 327 F.3d 1210 (D.C. Cir. 2003) (defa-
mation plaintiff permitted to take discovery
regarding whether government employees
acting within scope of employment); Kelly v.
Syria Shell Petroleum Dev. B.V., 213 F.3d 841
(5th Cir. 2000) (plaintiffs’ motion for jurisdic-
tional discovery denied where plaintiffs did not
allege specific facts showing that defendant
was not entitled to sovereign immunity or
exception to immunity applied); Heitschmidt v.
City of Houston, 161 F.3d 834, 840 (5th Cir.
1998); Sova v. City of Mt. Pleasant, 142 F.3d
898, 902 (6th Cir. 1998); see also Harbert
Int’l, Inc. v. James, 157 F.3d 1271, 1280-81
(11th Cir. 1998) (affirming denial of addi-
tional discovery under FRCP 56(f)). A court
may limit discovery to that necessary to test
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Determine Discovery Goals task 1
the qualified immunity defense. See Schultea
v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995);
Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1387
(10th Cir. 1994); Reiss v. Societe Centrale du
Groupe des Assurances Nationales, 185 F.
Supp. 2d 335 (S.D.N.Y. 2002) (parties entitled
to discovery to determine whether “commer-
cial activity” exception to Foreign Sovereign
Immunities Act applies and confers jurisdiction
on court), Webb v. United States, 24 F. Supp.
21 F. Supp. 2d 476, 484 (D.N.J. 1998); Delph
v. Trent, 86 F. Supp. 2d 572 (E.D. Va. 2000).
See generally Crawford-El v. Britton, 118
S. Ct. 1584, 1596-98 (1998) (discussing trial
court’s options respecting discovery when
immunity defense is raised); Rubin v. Islamic
Republic of Iran, 349 F. Supp. 2d 1108 (N.D.
Ill. 2004) (information in possession of third
party irrelevant to question of foreign defen-
dant’s immunity to attachment of property).
5. A court may stay merits-related discovery pend-
ing a decision on a motion to change venue. See
Emplanar, Inc. v. Marsh, 11 F.3d 1284, 1291
(5th Cir. 1994); compare Willowbrook Found.,
Inc. v. Visiting Nurse Ass’n, 87 F. Supp. 2d 629
(N.D. Miss. 2000) (discovery not stayed where
motions to dismiss on jurisdictional and venue
grounds pending; motions did not go to merits
of case and case could be refiled in appropriate
forum if motions granted).
6. A court may stay merits-related discovery
pending a decision on a motion to dismiss.
Wenger v. Monroe, 282 F.3d 1068 (9th Cir.
2002); Geiser v. Simplicity, Inc., 78 Fed. Rules
Serv. 3d 647 (N.D. W. Va. 2011) (motion to
stay discovery to party pending decision on
party’s dispositive motions denied; no guaran-
teed outcome on motions); In re First Energy
Shareholder Derivative Litigation, 219 F.R.D.
584 (N.D. Ohio 2004) (motion to stay discov-
ery in shareholder derivative litigation pending
outcome of motion to dismiss in related securi-
ties fraud litigation denied: defendant’s claim
that discovery in shareholder derivative suit
would be impermissibly “leaked” to plaintiffs
in securities fraud suit speculative and factu-
ally unsupported).;
7. A court may stay merits-related discovery
on one issue in the case until another issue is
resolved if doing so would advance the fair
and efficient resolution of the litigation as a
whole. Mirbeau of Geneva Lake LLC v. City
of Lake Geneva, 74 Fed. Rules Serv. 3d 1141
(E.D. Wis. 2009) (motion to stay discovery
denied where one issue not dispositive of the
other, court could resolve both legal issues
simultaneously, and delaying discovery would
prevent ultimate resolution of case).
8. A court may stay merits-related discovery
pending class certification, but allow class-
related discovery. Chen-Oster v. Goldman,
Sachs & Co., 293 F.R.D. 557 (S.D.N.Y. 2013)
(putative class entitled to precertification dis-
covery of specific employer practices which
contributed to employees’ discrimination
claims); Ogden v. Bumble Bee Foods, LLC,
292 F.R.D. 620 (N.D.Cal. 2013) (informa-
tion regarding manufacturer’s marketing and
labeling decisions before statute of limita-
tions period relevant in consumer class action
for misbranding food products); Taylor v.
Screening Reports, Inc., 289 F.R.D. 370 (N.D.
Ga. 2013) (in class action for violations of
Fair Credit Reporting Act, only information
relevant to class certification issues held dis-
coverable; requests for unrelated information
denied); Vallabharpurapu v. Burger King
Corp., 80 Fed. Rules Serv. 3d 1506 (N.D. Cal.
2011) (defendant required to produce archi-
tectural surveys regarding disabled access to
restaurants and remediation measures taken
where surveys relevant to commonality deter-
minations in certifying class); In re Skelaxin
Antitrust Litigation, 292 F.R.D. 444 (E.D.
Tenn. 2013) (protective order entered prevent-
ing irrelevant discovery requests to absent
putative class members);Kirsch v. Delta Dental
of New Jersey, Inc., 69 Fed. Rules Serv. 3d
1589 (D.N.J. 2008) (in class action alleging
that defendant engaged in improper claims
handling procedures by using same claims
processing computer software and logic for all
claims regardless of specialty, representative
plaintiff was permitted to take broad discovery
into handling of specialty claims other than his
own in order to permit certification of as large
a plaintiff class as possible).
9. A court may order expedited discovery on a
showing of reasonableness and good cause.
Both parties and nonparties may be ordered
to make discovery on an expedited basis. In
an individual depositor’s RICO action against
foreign banks and individual defendants, the
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