Planning Discovery

AuthorWilliam M. Audet/Kimberly A. Fanady
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
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
Determine Discovery Goals
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
ultimate goals in a case. Common discovery goals are
1. Learn more about the case.
2. Determine what is better for your client:
pursuing 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
discovery 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 damages or a single determinative fact.
2. If you intend to litigate through judgment,
propound comprehensive discovery designed
to learn every aspect of the case and elicit
admissible 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 Apache Tribe of
Oklahoma v. Brown, 966 F. Supp. 2d 1188 (W.D.
Okla. 2013) (party not entitled to discovery to enable
it to plead fraud with particularity, where alleged
fraud was committed by plaintiff’s own agents
and representatives); 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; granting 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 discovery after
dismissal without prejudice for failure to comply
with heightened pleading requirements under
Securities Litigation Reform Act).
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
circumstances change and new information
emerges. Under some circumstances, a court may
even permit 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).
A. Review the pleadings. Analyze the claims,
damages prayers, defenses and possible
indemnification or contribution sources to
determine your client’s potential exposure or
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
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.
1450, 1461 (C.D. Cal. 1996); Blizzard v. Dalton,
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 appropriate
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
inadequate 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 recognized 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 413, 416 (6th Cir. 1996);
Ricotta v. California, 4 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) (defamation 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 jurisdictional 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 additional
discovery under FRCP 56(f)). A court may
limit discovery to that necessary to test 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
“commercial activity” exception to Foreign
Sovereign Immunities Act applies and confers
jurisdiction on court), Webb v. United States,
24 F. Supp. 2d 608, 613 (W.D. Va. 1998); P.F.
v. Mendres, 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 defendant’s immunity to attachment
of property).
5. A court may stay merits-related discovery
pending 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
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); Hernandez v. Asset Acceptance, LLC,
970 F. Supp. 2d 1194 (D. Colo. 2013) (motion
to dismiss based on claim preclusion by earlier
litigation; discovery intentional attempt to
drive up costs); 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 guaranteed outcome on motions);
In re First Energy Shareholder Derivative
Litigation, 219 F.R.D. 584 (N.D. Ohio 2004)
(motion to stay discovery in shareholder
derivative litigation pending outcome of
motion to dismiss in related securities fraud
litigation denied: defendant’s claim that
discovery in shareholder derivative suit would
be impermissibly “leaked” to plaintiffs in
securities fraud suit speculative and factually
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
discovery 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) (information
regarding manufacturer’s marketing and
labeling decisions before statute of limitations
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 discoverable; requests for unrelated
information denied); Vallabharpurapu v.
Burger King Corp., 80 Fed. Rules Serv.
3d 1506 (N.D. Cal. 2011) (defendant
required to produce architectural surveys
regarding disabled access to restaurants and

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