Both parties exchange basic information including witness lists, document inventories, and damage calculations within 14 days of the discovery conference.
Parties serve interrogatories (written questions), requests for production of documents, and requests for admissions to the opposing side.
Attorneys conduct sworn oral examinations of witnesses and parties, creating a transcript that can be used at trial.
Parties disclose expert witnesses, exchange expert reports, and conduct expert depositions.
If parties disagree about discovery obligations, they file motions to compel or motions for protective orders with the court.
All discovery must be completed by the court-ordered deadline, typically 30 days before the pretrial conference.
Discovery is the backbone of American litigation and typically consumes the majority of time and expense in a case. The scope of discovery is broad: parties may obtain any non-privileged matter relevant to a party's claims or defenses, proportional to the needs of the case. Discovery begins after the parties' Rule 26(f) conference and the issuance of a scheduling order. Disputes about discovery — over relevance, privilege, proportionality, or compliance — are resolved through motions to compel or motions for protective orders. Sanctions for discovery abuse can range from monetary penalties to adverse inference instructions to default judgment in extreme cases.
Attorney: "We serve these interrogatories requiring the defendant to identify all persons with knowledge of the contract negotiations, all documents related to the transaction, and the factual basis for each affirmative defense." — Standard written discovery.
Judge: "The motion to compel is granted. The defendant shall produce all responsive documents within 14 days. The defendant's objections based on relevance are overruled — compensation data is relevant to the plaintiff's disparate pay claim and proportional to the needs of this case."
Attorney: "We request a Rule 30(b)(6) deposition of the corporation on the topic of its document retention policies. The corporation must designate a witness prepared to testify on its behalf regarding this subject."
Students often assume that relevance in discovery is the same as relevance for admissibility at trial. Discovery relevance is broader — information need not be admissible to be discoverable, so long as it appears reasonably calculated to lead to the discovery of admissible evidence and is proportional to the case needs.
Federal discovery under FRCP 26 requires mandatory initial disclosures without a request, which many state courts do not require. Federal courts also impose proportionality limits and presumptive caps on depositions (10 per side) and interrogatories (25).
Hickman v. Taylor, 329 U.S. 495 (1947)
Established the work-product doctrine, holding that materials prepared by an attorney in anticipation of litigation are generally protected from discovery, particularly opinion work product reflecting mental impressions and legal theories.
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
Created a landmark cost-shifting framework for electronic discovery and established the duty to preserve electronically stored information once litigation is reasonably anticipated.
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)
Held that protective orders restricting dissemination of information obtained through discovery do not offend the First Amendment, because discovery is a matter of legislative grace rather than constitutional right.
| Civil Discovery | Criminal Investigation |
|---|---|
| Governed by Rules 26-37 of Federal Rules of Civil Procedure | Governed by the Fourth, Fifth, and Sixth Amendments and statutory authority |
| Parties have mutual obligations to disclose | Government bears the burden; defendant has limited disclosure duties |
| Scope is broad: any relevant, non-privileged, proportional matter | Scope limited by probable cause and warrant requirements |
| Non-compliance results in civil sanctions | Non-compliance may result in criminal contempt or obstruction charges |
| Both parties may initiate discovery requests | Primarily government-initiated with grand jury and law enforcement tools |
What types of discovery methods are available in federal court?
Federal Rule 26 authorizes six discovery methods: interrogatories (written questions), requests for production of documents and electronically stored information, depositions (oral or written), requests for admissions, physical and mental examinations, and subpoenas to non-parties. Each method serves different strategic purposes and has distinct procedural requirements.
What is the duty to preserve evidence during discovery?
Once litigation is reasonably anticipated, parties have a duty to preserve relevant evidence, including electronically stored information. Failure to preserve can result in spoliation sanctions under Rule 37(e), ranging from adverse inference instructions to case-dismissing sanctions. A litigation hold notice should be issued to all custodians of potentially relevant documents.
What privileges protect information from discovery?
The attorney-client privilege protects confidential communications between attorney and client for legal advice. The work-product doctrine protects materials prepared in anticipation of litigation. Other privileges include spousal privilege, physician-patient privilege, and the Fifth Amendment privilege against self-incrimination. Privileges must be asserted through a privilege log under Rule 26(b)(5).
A deposition is a form of discovery in which a witness gives sworn testimony outside of court, typic...
A subpoena is a court-issued command requiring a person to attend a proceeding to testify (subpoena ...
Privilege is a rule of evidence that protects certain communications from compelled disclosure in le...
The work product doctrine protects materials prepared by or for an attorney in anticipation of litig...
