Planning discovery
| Author | William M. Audet/Kimberly A. Fanady |
| Pages | 35-78 |
HANDLING FEDERAL DISCOVERY
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 ultimate goals in a case. Common discovery goals are to:
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TASK 1 PLANNING DISCOVERY
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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).
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 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).
III. HOW
A. Review the pleadings. Analyze the claims, damages prayers, defenses and possible indemnification 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 P T F C (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 Dowdy v. VA Dep’t of Veterans Affairs Reg’l
Office, 2015 U.S. Dist. LEXIS 176324, *2 (D. Idaho Nov. 10, 2015) (“FRCP 12(e) motions are not
favored by the courts since pleadings in federal courts are only required to fairly notify the opposing
party of the nature of the claim.”); Griffin v. Cedar Fair, L.P., 817 F. Supp. 2d 1152, 1154 (N.D. Cal.
2011) (same); see also, 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). 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).
DETERMINE DISCOVERY GOALS TASK 1
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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)); Williams v.
WMX Techs., 112 F.3d 175 (5th Cir. 1997) (FRCP 9(b) applied to securities fraud and RICO claims);
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 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). 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,
(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 granted).
6. A court may stay merits-related discovery pending a decision on a motion to dismiss. Wenger v. Monroe,
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
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
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