Tools and Techniques for Discovery

• Pages: 11-49

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CHAPTER II

TOOLS AND TECHNIQUES FOR DISCOVERY

Interrogatories, document requests, and requests for admissions

continue to be important in antitrust lawsuits even though Rule 26

mandates certain disclosures of information and documents. This

chapter discusses the mandatory disclosures required by Rule 26 and

discusses strategies related to document requests, interrogatories, and

requests for admissions. Sample document requests, interrogatories, and

requests for admission are included in chapter 8. The sample discovery

contained in chapter 8 is categorized according to the type of antitrust

claims being asserted.

A. Required Disclosures under Rule 26

Under Federal Rule of Civil Procedure 26, a party must make

certain disclosures even if no document requests or interrogatories have

been served by the opposing party. A party’s Rule 26 disclosures must

be made in writing, served on the opposing party and, in the case of

26(a)(3) pretrial disclosures, filed with the court.

Aparty’s initial disclosures must include the identification of

persons with discoverable information, copies or descriptions of relevant

documents, a computation of damages, and applicable insurance

agreements. The initial disclosures ordinarily are not due until ten

business days after the parties’ Rule 26(f) conference, but they are often

made at a time agreed to by the parties and approved by the court.

Pursuant to Rule 26(f), at least twenty-one calendar days before the

court holds a scheduling conference, the parties must meet to discuss the

case, including their claims and defenses, any possible settlement, the

scheduling of the parties’ initial disclosures, and a discovery plan. Many

courts issue a general order after a complaint is filed setting a scheduling

conference and prescribing what needs to be included in a “case

management plan” covering these subjects that must be submitted in

advance of the scheduling conference.

The Rule 26 disclosure obligations present some hard questions.

The lawyers and parties must determine what must be disclosed. They

must determine whether an individual is “likely to have discoverable

information.” The lawyer must determine how much detail must be

disclosed about the individual’s “information.” If a party is not sure

whether someone has discoverable information, then the lawyer must

determine whether a disclosure should or should not be made pending

12 Antitrust Discovery Handbook

further inquiry, an interview of the individual, or after further

developments in the case.

The discovery plan will include the parties’ views on (1) the timing

and form of initial disclosures; (2) subject areas, completion dates, and

whether discovery will be conducted in phases; and (3) whether and how

the limitations on discovery imposed by the Rules should be modified.

The discovery plan is due fourteen calendar days after the Rule 26

conference (and therefore at least seven business days before the court’s

scheduling conference).

Under Rule 26(a)(2), a party’s expert must be disclosed along with

awritten report prepared and signed by the witness if the expert witness

is retained as an expert or if the expert witness’ employment regularly

involves the giving of expert testimony. Among other items, the expert

report “shall contain a complete statement of all opinions to be expressed

and the basis and reasons therefor. . . .”1The expert report is due ninety

days before trial unless otherwise prescribed. Ordinarily a schedule

adopted by the court will give the date required for the expert report.

Expert reports are discussed in chapter 5.

In addition to the parties’ initial disclosures, the parties must make

further pretrial disclosures thirty days before trial unless a different

schedule has been adopted by the court. The parties must identify the

witnesses who will testify in person and by deposition, and identify the

exhibits the parties expect to use and those which they may use if

necessary.

Pretrial disclosures, discovery requests, responses and objections

are to be signed by lawyers and are subject to standards consistent with

those established by Rule 11. In other words, the signer certifies that to

the best of his or her knowledge, information, and belief, formed after a

reasonable inquiry, the disclosure, request, response, or objection is

complete and correct and otherwise proper as more specifically

prescribed by the rule.

B. The Amendments to the Federal Rules of Civil Procedure

On September 15, 1999, the Judicial Conference of the United

States adopted, with some modifications, proposed Amendments to the

Federal Rules of Civil Procedure previously approved by the Committee

on Rules of Practice and Procedure (Standing Committee) and the

Advisory Committee on Civil Rules. The Amendments were adopted by

the Supreme Court and became effective on December 1, 2000. The

discussion below focuses on the impact of the changes on pretrial

1. FED.R. CIV.P. 26(a)(2)(B).

Tools and Techniques for Discovery 13

discovery in federal litigation and is in two parts: (1) a description of the

Amendments; and (2) the likely impact of the Amendments on antitrust

litigation.

1. Description of the Amendments

a. Background

To understand the Amendments as they affect pretrial discovery, it

is necessary to understand the context in which the changes were

proposed, debated, and adopted. Two developments in the early 1990s

set the stage for the Amendments: the 1993 Amendments to the Federal

Rules and the Civil Justice Reform Act of 1990 (CJRA). Both the 1993

Amendments and the CJRA were designed to address the problems of

excessive cost and delay in pretrial discovery in the federal courts. The

CJRA directed each of the ninety-four district courts to adopt an Expense

and Delay Reduction Plan. The CJRA required each district to shape its

plan to address the specific causes of excessive delay and expense in its

district. Experimentation was encouraged. The CJRA plans, which were

the functional equivalent of local rules, varied significantly from district

to district.2

Three years after the enactment of the CJRA, the 1993

Amendments took effect. The Amendments provided for presumptive

limits on depositions (ten per side) and on interrogatories (twenty-five

per party). Mandatory sanctions under Rule 11 were eliminated. By far

the most controversial aspect of the 1993 Amendments, however, was

the provision for mandatory automatic disclosure of certain information

prior to the commencement of discovery. Nevertheless, because many

districts in their CJRA plans had adopted differing versions of mandatory

automatic disclosure, or expressly rejected the concept, the 1993

Amendments permitted districts by local rule to “opt out” of the 1993

Amendments to Rule 26. About half of the districts chose to opt out.

Districts also were permitted to opt out of limitations on depositions and

interrogatories, and many did so.

As a result, any concept of uniformity in discovery practices in

federal court fell by the wayside and confusion reigned. However, the

Advisory Committee persevered and sought to address concerns

expressed by the bench about the adverse impact of the CJRA and the

1993 Amendments. In the fall of 1997, the Advisory Committee

2.See generally Edward D. Cavanagh, The Civil Justice Reform Act of

1990: Requiescat in Pace,173 F.R.D. 565 (1997).