VII. Discovery

LibrarySword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

VII. DISCOVERY

A. Federal Discovery Basics

In general, discovery in federal court is broad. The rules should be interpreted in light of "the basic premise 'that the deposition-discovery rules are to be accorded a broad and liberal treatment,' to effectuate their purpose that 'civil trials in the federal courts no longer need be carried on in the dark.'"120 To that end, unless otherwise limited by the court, Rule 26 permits discovery for "any nonprivileged matter that is relevant to any claim or defense."121 The information sought need not itself be admissible at trial, so long as it "appears reasonably calculated to lead to the discovery of admissible evidence."122 Unlike in state court, discovery may easily be sought anywhere in the country. And at least some courts have found these principles apply with special force in § 1983 suits: "The great weight of the policy in favor of discovery in civil rights actions supplements the normal presumption in favor of broad discovery."123

Recently, there has been pressure to impose more limits on the scope of permitted discovery, out of a fear of rising litigation costs. Drastic changes in the presumptive limits on depositions and other discovery tools were proposed. However, after significant uproar, those proposals have thus far been largely scrapped; the only significant enacted change to the rules is to give new prominence to the concept of "proportionality" in defining the scope of allowable discovery.124 It remains to be seen how much difference that might make. In any event, individual judges retain significant discretion to limit discovery, either on a party's motion or on their own, if the discovery sought is considered unreasonably cumulative or duplicative, or if the burden or expense of the discovery outweighs its likely benefits.125

Some courts are particularly eager to take an active role in limiting discovery, especially in § 1983 suits against individual government defendants. The Court in Harlow v. Fitzgerald expressed its abiding concern that governmental officers sued personally for damages would be substantially impaired in the performance of their job duties by the litigation process itself, whatever the outcome.126 Of course, one of the major burdens of the litigation process is the obligation to respond to discovery. This obligation was described by the Harlow Court as potentially "wide-ranging, time-consuming, and not without considerable cost."127 The Court has specifically instructed lower courts to "rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later."128 And the Court has emphasized the "many options" district judges have to control the discovery process through Rule 26(b), (c), and (d).129 For example, narrowing initial discovery and dictating the sequence of discovery in appropriate cases may facilitate early resolution of immunity claims.

1. Rule 16(b) Scheduling Order

Once the answers have been filed or motions to dismiss denied, the next event in the case is usually the discovery conference between the parties under Rule 26(f) and entry of a scheduling order under Rule 16(b). Under Rule 16(b), the court must enter a scheduling order "as soon as practicable, but in any event within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared." The scheduling order must set deadlines for joining other parties, amending the pleadings, completing discovery, and filing dispositive motions; other elements of the scheduling order vary by jurisdiction and individual judge's practice but often include additional deadlines for certain types of discovery such as initial disclosures, requests for production, and expert discovery, as well as limits to the amount of discovery permitted, such as the number of depositions. Many also set a time for alternate dispute resolution, such as a mediation by the magistrate judge. Local practice also varies on whether a hearing is held before this order is issued.

Before the Rule 16(b) scheduling order issues—at least 21 days before, if no other deadline is set by the court—the parties must have their discovery conference under Rule 26(f) to confer about the discovery plan. The exact contents of the discovery plan are often set by local or individual rule and correspond to the elements of the court's scheduling order. Within 14 days after this conference, the parties must submit to the court their discovery plan, which conveys their positions on what the scope and timing of discovery should be. The court then consults this proposal before entering its Rule 16(b) order. The parties' Rule 26(f) conference also serves as the opening of discovery, including subpoena power; before the conference, parties "may not seek discovery from any source."130

After the Rule 16(b) scheduling order has issued, it may only be modified "for good cause and with the judge's consent."131 Individual judges' tolerances for extension requests or violations of discovery orders vary, but parties should be aware that they flout the scheduling order at their own risk. The trial court is empowered to enforce sanctions for violations of the scheduling order—either sua sponte or on the opposing party's motion—up to and including dismissal of the claim or the entry of a default judgment.132

2. Rule 26(a) Disclosures

Shortly after the Rule 26(f) conference (within 14 days, unless another time is agreed to or ordered by the court), parties must make a set of required initial disclosures to the other side. These include (1) the names and addresses of witnesses "likely to have discoverable information . . . that the disclosing party may...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT