Preliminary Sections

• Author: William M. Audet/Kimberly A. Fanady/David Ling Y. Kuang
• Pages: 1-14

HANDLING FEDERAL DISCOVERY

BY WILLIAM M. AUDET, KIMBERLY A. FANADY & “DAVID” LING Y. KUANG

HIGHLIGHTS

Revision 25 of Handling Federal Discovery returns to an area of focus in Revisions 21and 22 and hones in

on developments in the realm of e-discovery – an ever-evolving area of law and practice that has only hastened in the

last few years with the pandemic, the associated remote work across all industries, and the continuing trend towards

discovery information being available digitally. Extensive revisions have been made to Chapter 2 (“Preliminary Investi-

gation”) because the importance of early identif‌ication, preservation, and collection of electronically stored information

(“ESI”) in an age when routine electronic maintenance may result in the loss of important (and sanctionable) materials

that need to be safeguarded.

Revision 25 also again adds nearly 100 new (and recently decided) cases, replacing older authorities that no

longer ref‌lect modern federal discovery practice or have since been rendered obsolete (including the impact from the

June 2022 Supreme Court opinion that settled the Circuit split on issues of foreign discovery for tribunal purposes).

This revision further highlights the impact of e-discovery on different aspects of federal practice. Practitioners will f‌ind

a dedicated focus on evolving jurisprudence as well as a guide/template for a modern ESI Protocol that accounts

for needs of both plaintiffs and defendants. New Form 32.1 covers almost all areas of potential negotiation in an ESI

Protocol. It allows practitioners to evaluate what to include (or not) depending on the needs of their case and will help

practitioners anticipate disputes while successfully navigating federal discovery.

Some key developments covered include:

PLANNING DISCOVERY

• Determine Discovery Goals (Task 1)

PRELIMINARY INVESTIGATION

• Reviewing Client’s Documents (Task 8)

• Litigation Hold Preservation Notice (Non-

corporate Client) (New Form 3A)

PRIVILEGE & WORK PRODUCT

• Assert Attorney-Client Privilege (Task 12)

DISCLOSURES

• Make Initial Disclosures (Task 23)

• Supplement Disclosures (Task 28)

INTERROGATORIES

• Propound Interrogatories (Task 30)

REQUESTS FOR PRODUCTION

• Propound Requests to Produce (Task 36)

• Respond to Requests to Produce (Task 37)

• Produce and Inspect Documents and Things

(Task 38)

NON-PARTY DISCOVERY

• Prepare Subpoenas (Task 40)

PHYSICAL AND MENTAL EXAMINATIONS

• Request Examination (Task 47)

REQUEST FOR ADMISSIONS

• Propound and Respond to Request for

Admissions (Tasks 52-53)

DEPOSITIONS

• Noticing Depositions (Tasks 57-58)

EXPERTS

• Make Expert Disclosures (Task 73)

COMPEL, RESIST, & AMEND DISCOVERY

• Stipulated Electronically Stored Information

(“ESI”) Protocol (New Form 32A)

FOREIGN DISCOVERY

• File Petition for Domestic Discovery in Aid of a

Foreign Proceeding (Task 101)