l.

l x

DTSCOVERY

cH"

1()

$ 10.05

WQRK PRODUCT

rrl)oi"ts or' "diary sheets" prepaned by the insurer's claims adjusters" The court. allowed discovery of the diary sheets prepared by the initial claims adjuster' during the first two rnonths after the fire. It reasoned that such reports are noi primarily prepared for the contingency of litigation but rather for the routint' business purpose of deciding whether to pay or resist the claim.

[4]

vercomimg.theQuratriffiedlmrmumity

However, the court denied discovery of the diary sheets of a second claims adjuster to whom the claim was assigired after the first claims adjustei' determined that the ciaim would be substantial and that the origins of the flrc were suspicious. At that point, all the circumstances indicated that tht' insurer's activities shifted from "mere claims evaluation to a strong anticipation of litigation."l2l The court acknowledged that although an insurel always works in anticipation of litigation, at some point the probabitity ol" litigation becomes substantial and irnminent, triggering the qualifled immunit.y for materials prepared thereafter.

once qualified work product immunity has been properly assertecr, tht, burden of overcoming it shifts to the cliscoverer and deplnos uion whether the work product consists af uitness statetnents requesb by th witness, other .factual usork product, or opinion uork product"

lal

Witness Statements Requested by the W.itness

expressiy provides that a party or witness may on demand obtain a copy of his own substantially verbatim statementrzT concerning the subject matter of the action. The 1970 Advisory committee gave a partial explanation of this

Although witness statements qualify as work product, Rule 26(bXBXC)

exception

lcl

By a Farty or F{is Representative

or agent."t22 This enlargement of the literal original common law rule accounts in part for Rulcr 26(bX3)'s abandonment of the phrase "attorney work product" in favor of "trial
attorney, consultant, surety, indemnitor, insurer,
preparation materials."

,Although Hickmsn dealt just with materials prepared by an attorney, preparation of materiais in anticipation of litigation or for trial routinely anr necessarily requires the assistance of non-attorneys, as well the parties themseives. Rule 26(b)(3) thus expressly extends the qualified immunity to materials prepared by a party or a party's representative, "including [his

statement, which is admissible against him at trial as an admission. since a person who gives a statement without insisting on a copy often does so without benefit of counsel, in ignorance of its legal consequences, and ,,at a time when

to qualified immunity in terms of the importance of a person,s

he functions at a

disadvantage,"

discoverability would increase firness.rzs

the committee reasoned that

its

tbl

Factual lVork Product

The immunity for factual work product can be overcome only upon a showing by the discoverer of "substantiar need for the materials to prepare [its] case" and that it "cannot without undue hardship, obtain their substantial equivalent by other ss."rzs Although the cases do not always sharply
distinguish these requirements, they are logically discrete.

t3l
'While

Asserting the Qualified Immunity

the burden rests on the discoverer to overcome a properly assertet qualified immunity for work product,r23 the discoveree must first lay a propet. foundation for the immunity. As previously noted in connection with claims of privilege,l2a this requirement is codifled in Rule 26(bX5). Disregarding the requirement risks sanctions as well as waiver of the immunity. The rule does not specify what information must be provided. "Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categoriss."rzs This advice of the Advisory Committee must be taken cautiously because the case law is hostile to blanket claims of privilege.r2o
12r 94 F.R.D. at 184. r22 Materials prepared by a party's expert are covered by Rule 26(a)(2) (testimonial expert's written report) or Rule 26(b)(4) (other experts). See 10.06, infra.
723 See 10.05[4], infra. S

substantial need, refers to the importance of the materials to the discoverer's case. Hickman itself demonstrates that substantial need means more than that the materials will help the discoverer make sure that he has overlooked nothing, because the court rejected that showing. such need, the "natural desire to learn the details of his adversary,s prepa"uion* for triai,', is present in every case and cannot be the substantial ned required to overcome the immunity.l3o Nor, obviously, will mere relevance to a claim or defense suffice, or else substantial need would be redundant with the generic scope of discovery.l3r But the stronger the relevance and impdance to the
Cal' 199r). A court may also-disregard an untimely establishment of foundation for the immunity. Peat, Manni'ck Mitchell & co. u. west,74} F.2d 540, E4r4z (l}th ci.

u.s.

1199 (1985).

1984),

cert

d,i,smi.ssed,, 469

See Kathleen Wails, Worlc Prod,uct Protection, for Witness Statements: Time J'or Abotition, 1985 WIs. L. Rnv. 305 (criticizing applicability of this provision only to a witness,s om statement).

127

Rule 26(b)(3) advisory committee's notes (19?0). of impeachment material), s,upra.

r28

see

generally s 10.03t3ltbl (discoverability

rza See 10.04 (non-discoverability of privileged matters), $ supra. r25 Rule 26(b)(5) advisory committee's note (1993).
126 See, e.g.,

r2e Rule 26(bxg).

(pre-rule decision). r3o Autmont u. Llnited, states, 177 F.2d g7r, g7g (Bd
$ 10.03t11 (relevancy),

cir.

1949), ce,rt. d,enied,, BB9

u.s. 967 (1950)

Eureln Fin. Cotp.

a. Ha,t"tford Accid,ent

& Ind,em. Co.,1g6 F.R.D. 129, 182 (8.D.

t31 See

supra.

DISCOVERY

CH"

10

10.06

EXPtrRTS

rliscoverer's claim

or defense-in-chief, the more likely a court is to find this

rlisclosure only of segi:egable factual materials.

requirement satisfied.132

Hickman also demonstrates that utt'due h,ardshiyt from denial of discovery cannot exist when a party has other reasonable access to the information' There the discoverer ad aecess to contemporaneous sworn testimony and to the witnesses themselves. When matter is unavailable to the discoverer because the witnesses have died, moved beyond the reach of cornpulsory process, lost their memories, deviated from their prior testimoly' or refused to ooperate, undue hardship can be established.r:s Similarly, the physical disppearance or alteration of evidence reflected in work product' such as photographs of skid marks or conditions at the scene of an accident, may in obtaining the indeed, impossibility statish- undue hardship generally, any time that substantial equivalent by other means.134 More the undue discoveree' of the important facis are exclusively in the control hardship requirement should be satisfied'r35

Arguably, however, Rule 26(bX3) does not expressly prohibit clisclosur"o rl' ,rpinir wrk product; it only commands the courts to "pnotect agai'sl, rlsclosure." Tn-[JpSottn Co" u. United, States,l3' the Supreme Court suggestetl lhat opinion mutrials rnerit "special protection" and cited Rule 26(bXB) ancl Hickman for the proposition tht such materiels cannot be disclosed "simpiy" did on the usual showing of substantial need and undue hardship'l3e The Court federal Lower suffice. not reach the queston of what further showing might courts have on rare occasions allowed discovery of even opinion work product

when attorneys or other representatives are charged with coercion, malpractice, fraud, or crime, or when their opinions and impressions are

pivoal to bad faittr, limitations, laches, or estoppel issues in the lawsuit.r4o The ndditional showing that these cases apparently have in common is that the attorney's or other repr"esentative's opinions are themselves an issue in the lawsuit, for which evidence is unavailable by other means'

lcl

0pinion Work

Fnoductn36

10.06 EXPETTSl4X

Hickman implied that special protection was due an attorney's mental what might be termed opini'on uorlr prod'uct' impressions anlegal theories Rule 26(bX3)(B) gave expression to this implication by providing that in ordering discovery of work product after the required showing has been made, the court "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation."
Many courts and commentators have read this clause to confer an absolute protection on opinion work product, eiting the mandatory verb "shall" in the riginal rule (now "must").ra7 When factual and opinion work producL are intrmixed, a court can often protect the latter by inspecting the mater\als in ccl?yLera, (out of the presence of counsel seeking discovery) and ordering

[1]
In

In General

Hicmsn, Justice Jackson observed that "ld]iscovery was hardly intended to enable a learned profession to perform its functions . . on wits borrowed from the adversary."ta2 Nor was discovery intended to enable attorneys to prepare for trial with experts borrowed from their adversaries'

Indeed, the concern about freeloading discovery is especially acute in the case of experts retained in anticipation of litigation because of the substantial fees often demand. on the other hand, the complexity and importance of ""p"rt. exert testimony at trial also presents a very real risk of surprise to opposing parties who have not had discovery of the expert'

t32 See, e.g., Wheeli,ng-Pittsburgh Steel Cotp. u. Und"erwriters Labortores, Inc., 8L F.R.D. 8 (N.D. In. 19i8) (statistical data ondamages could notbe properly analyzed without discovery of work product consisting of methodology used in computing damages). see generally watcur &
Mr,ra I2025.
133 Rule 26(bXB) advisory committee's note (19?0). See In re Int'I Sys. & Controls Corp. Sec. Liti,g., 698 F.zd I2g5 (5th Ci. 1982) (noting memory loss and cost of obtaining information generally elsewhere as appropriate particularized showings to make out undue hardship). See

The rules balance these concerns by differentiating between, on one hand, experts expected to testify atLrial (testifying enperts) and, on the other hand, thse merly retained or specially employed in anticipation of trial who are

138 449 u.s. 383 (1981). Mut. Auto. Ins. Co.,976 F.2d 5?3 (9th Cir. 1992) (bad faith (D'C' Cir"' 1982) (crimelfuaud); BAers denial of insura nce claim); In re Sealed, Case,6?6 F.zd ?93, 80? a. Fitzsimmons, 90 F'R'D' (limitations); Donouon (D.D.C. 1983) 436,43g F.R.D. u. Burleson,100 Co.,61 F.R.D' 43, bg3 (N.D. ti. tggt) (reliance on advice-of-counsel defense); Bzrdu. PennCent. The Attorney Comment, Halfenger, pa. Michael genera11y (laches). G. See (b.D. 19?B) 4T 1079 (1991). Mi,scond,uct Emceptton to the work Prod,uct Doctrne,58 u. cu. L. Rnv. L4L SeegenerallyKathleen[.Btennan,Musttlt'eShowGoOn?Defini'nglVlt'enOnePat'tyMay 1191 (1994); cau or compel an O,pposr,ng Patty',s consultatitte Erpert to Testi'fg' ?8 MIN'. L. Rv. Insuring Michael H. Graham, nxpn t wtnets Testzmony and, the Fed,eral Rules of Euid,ence: Di'scouety H. Graham, Michael 43; Rrv. L. Irr. 1986 U. Ad,equate Assurance of Trustwot"thr,ness, Pat'ts I & II,1976 U' Iu" of Enpetts (lnd,er RuI g6)Qr) of the Fed,eral Rules of Cai'l Procedure:
State Fa,rm

t3e 449 u.s. at 401. too Sn", e.g., Holmgrenu.

Missy K. Atwo, Comment, Rule t66b: The Di,scouery of Work Prod'uct Bas-ed'_ on Substanti'al (1990) (surweying federal cases). Need, and, und,ue Hwd,ship,42B1||1ron L. Rrv. 5?3, 5?9--S? ,t4 See,e.g.,Rackersa.Si,egfried,,54F.R.D.24W.D.Mo. 1971)(orderingdiscoveryofinsurance adjuster's measurements of skid marks)'
135 See Moon 926.70151. 136 Waits, note I27 supra;W arren H. Smith, Comment, Ttrc Potential for Dr'scoaety of Opinion , work Prod.uct und,er Rule 26(b)(3),64 Iowa L. Rnv. 103 (1978); Note, Protecti'on of opini'onwork (19?8). Prod,uct und,er the Fed.eral Rules of Ciui.I Procedwe,64 V. L. Rrv. 333 rs7 See, e.g., Duptan Corp. a. Moulnage et Retord,ene d'e Chauanoz,50g F.2d 730 (4th Cir.
1974), cet"t d,nied,,'420 U.S. 99? (1975); United, States a. n.3 (S.D. Ga. 1976). See generally Wntcar 582.

Cttatham City Corp.,72 F.R'D. 640, 643

L.F. 895, 1977 U.Irr. L.F.

169.

t42

329 U.S. at 516 (Jackson, J., concurring).

152

DISCOVERY

CH. 10

$ 10.06

EXPERTS

not, ho\Mever, expected to testify (non-testifying etcytetts). Rule 26(a)(2) requires disclosure of the ident and expected testimony of the testifying experts and Rule 26(bX4XA) permits their depositions.l43 Rule 26(bX4) conditionally protects the non-testifying experts from discovery absent a
special showing.

Neither part of the rule, however, protects against discovery of an expert who acquires his information as an actor or viewer in the transactions or occurrences that give rise to the lawsuit.ua Thus, the police officer who responds to the accident scene, the doctor who attends in the emergency room, and the mechanic who services the car whose brakes failed, are all just ordinary fact witnesses, subject to orthodox discovery under the rules, even though they may also be experts.las
Rule 26 does not address per se the issue of discovery of experts who have been consulted in anticipation of litigation but not retained or specially employed.laG The 1970 Advisory Committee's notes suggest that the omission was intentional, and that discovery ofsuch experts, or even oftheir identity, is

A 1991 amendment to Rule 45may have modified this law by acknowietlgirru the possibility of discovery of "unretained experts,"1so subject to motions trr discovery or trial subpoenas. Frior to the amendment, some qush or ^odlfy and unconsulted experts s ordinary witnesses who unretained courts treated duty to give evidence. But the problem of citizen's the from re not exempt freeloading noted above applies to such experts with special force' ,,[c]ompulsion to give evidence may threaten the intellectual property of lsuch] denied the opportunity to bargain for the value of their services," "rpL"t. 19g1 Advisory Committee. Rule 45(c), therefore, now allows for the noied motions to quash or modify any subpoena that requires "disclosing an unretained expert's opinion or information that does not describe specific was not occu1^rences in dispute nd results from the expert's study that requested by a party" unless the requesting parw can show substantial need for such teslimony and undue hardship nd assures that she will reasonably compensate the exPert.

l2l

Testifying ExPerts

precluded.laz The omission of any provision for discovery of generally employed non-testifying experts arguably creates the same inference. Some courts, however, have rejected that inference for such a "party-expert" on the grounds that he is more partisan than professionally objective.las If such an expert learned facts and acquired opinions in anticipation of litigation, however, any materials that he has generated reflecting those facts and opinions would presumably be independently protected from discovery by ordinary work product immunity.rae

The 1970 Advisory committee concluded that any prohibition of discovery from the testifying expert "produces in acute form the very evils that discovery has ben cr"ted to prevent." The complexity of expert testimony crossand freqent prior experience of the testifying expert with the rigors of by the,cross-examiner.r5r preparation examination rquire particularly careful If a discovery 5u" hndicaps Lhat preparation, the careful lawyer will often or compensate ty going slow, over-preparing expert rebuttal testimony, goal 1's Rule of in derogation all in mid-trial, p".pu"" seekng a continuncJto

of a ;just,

speedy und itt""p"nsive determination

of every action and

proceeding."
ra3 Discovery of reports of physical or mental examinations conducted pursuant to Rule 35 is governed separately by its provisions. ,S $ 10.11 (procedure for taking physical and mental examinations), infra. raa Rule 26(bX4) advisory committee's note (19?0).
r45 See, e.g., Nelco Cotp. u. Slater Elec., Inc.,80 F.R.D. 411 (E.D.N.Y. 19?8) (expert may be deposed as an "actor" in the events that are the subject of the litigation). Of course, the rule shields only the facts and opinions held by the expeit. " 'It does not excuse the party from disgorging

Rule 26 originally accommodated these concerns by allowing limited discovery of the testirng expert by interrogatories, with a possibility of discovery by deposition o coutt order. Because lawyers usually draft the answers to interrogatories, however,rs2 this mode of discovery was often insufficient to prepare for the examination of expert witnesses. on the other
hand, partie* ort.n overcme this problem by agreeing to reciprocal deposition

what facts he may have in his possession"' or allow him to insulate those facts from discoverv by giving them to an expert. Marine Petroleum Co. u. Champlin Petroleun Co.,64I F.zd 984, 994 (D.C. Cir. 1980) (quoting J. Moone, Moon's FpuR;, Pncrrcn n26.66[2] (2d ed.)).

discovery of their expert witnesses.

!46
147

See

Brennan, note I4I, supra.

1970 Advisory Committee said that the i"ule "precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specially employed. As an ancillary procedure, a pay may on a proper showing require the other party to name experts retained or specially empioyed, but not those formally consulted." raa See, e.g., Kansas-Nebraska Naturl Gas Co. u. Mwatlton Oit Co.,109 F.R.D. 12, 15-16 (D. Neb. 1985). For an especially thoughtful discussion of the issue, see also Vi,rgi,ni,a EIec. &, Power Co. a. Sun Shbuild,i.ng & Dry Dock Co., 68 F.R.D. 397, 406-10 (E.D. Va. 1975). See generally James R. Pielemeier, Discoaery of Non-Testifying "In-House" Euperts Und,er Fed,era| RuIe of Ciuil Proced,ur 96, 58 INn. L.J. 597 , 625 (1983) (arguing that "discovery of in-house experts should be treated in the sme manner as discovery of'retained or specially employed' experts" under Rule 26(bX4).

1"

The 1993 amendment solved the problem by rule, and the solution has been preserved in subsequent amendments. Rule 26(a)(2) requires parties at least ,rinety days before trial (or at times directed by the court) to disclose the identity and report the expected testimony of their testifying experts. The requird reportmust include a complete statement of the expert's opinion' as -"il u. th basis and reasons for the opinion, any underlying data and
r5o Rule 45(c).
151 These characteristics of expert testimony are aggravated in federal court by Federal Rule of the of Evidence ?02, which permits an expert to give his opinion without prior disclosure have therefore party may The opposing procedure. underlying facts, contrary to the commn law unprepared' for the traps procedure with a predicate on cross-examination, factual to bring oit the r52 See Rule 26(a)(2) advisory committee's note (1993); 5 .09[2], infra.

'ot

See $ 10.05

(work product), supra.

54

DISCOVtrRY

CH.

10

10.07

REQUIRtrD DISCLOSURES

supporting exhibits, the expert's qualifications and publications within the predinglen years, the experL's compenstion, nd a listing of other cases in *frl.tt tn exprt has testified in the preceding four years. The report, then, i.s intended 9 e the functional equivalent of the expert witness' testimony. It also includes precisely the kinds of information needed to cross-examine the witness effecfively aL trial. Rule 26(bX4) also allows a party to depose a testifying expert without leave of court after the report is provided' These two discovery dvices are expected to work together; a complete rep.rt may obviate r at least shorten the deposition of the expert witness.

tll

Mandatory Discovery Conference and Discovery Flans in the (often forlorn)

hope that discovery could proceed

Rule 29 has long permitted the parties to stipulate to the mechanics of most

discovery, partly

cooperatively without a need for judicial interveirtion. In 1993, Rule 26( was amended to require the parties to confer as soon as practicablel5G to discuss the case and possibilities for settlement, to arrange for required disclosures, to discuss E-discovery issues (including "litigation holds" on data storage), and to

develop

discovery plan incorporating these and other agreements for

t3l

Retained or Specialty Employed Non-Testifying xperts

subsequent discovery. Rule 26(d) forbids them from taking any discovery prior

to this conference.lsT
'Within

There is less need for discovering facts known and opinions held by an expert who is not expected to testify at trial, at least when a party can resonably consult or retain a comparable expert. Rule 26(bX4) therefore permits discovery by interrogatories or deposition of "retained or specially
mployed" non-tstifying experts only "on showing exceptional circumstanees under which it is impracti.ul. fot the party to obtain facts or opinions on the

of their plan to the court. The rules anticipate that the plan will

fourteen days after the conference, the parties must submit a report
be

incorporated into the scheduling order that the court is required by Rule 16(b) to issue within 120 days after the complaint has been served.

The mandatory conference requirement is clearly intended to require

cooperative discovery and thereby reduce the need for subsequent judicial intervention into the discovery process. But in many cases the parties will have to confer while Rule 12 motions to dismiss the complaint are still pending and before any ansu/ers have been filed. It is unclear how much a conference in

same subject by oiher means." The discoverer can meet this burden by showing tLat the expert had a unique and irreplicable opportunity to view the rarely' scene or to conduct tests relevant to the subject matter,ls3 or7 more hold will expert no other faclthat mere The kind. a of is one that the expert practically are experts if comparable insuffrcient, is opinion precisely the same vailabl to the discoverer.lsa Any court-ordered discovery of such a nontestifying expert is ordinarily conditioned on fee-sharing'lss

such cases can accomplish toward identifying disputed facts, promoting settlement, or even determining the amount and timing of discovery.

l2l

Required Disclosureslss

PART B. Mechanics of Discovery

$

The 1993 rule amendments adopted provisions for self-executing discovery of three kinds: initial disclosures of basic information, disclosures of expert testimony (discussed above in section 10.06[2]), and pretrial disclosures oftrial
156 Tracing the amended rule's circumlocutory statement of timing requirements suggests that parties will ordinarily have to meet within 69 days of the appernce of a defendant or 99 days after the complaint has been sewed. ,9 Rules 16(b) (mandating issuance of discovery scheduling order within ninety days after the appearance of"a" defendant or 120 days after the complaintwas served on "a" defendant) and 26( (mandating planning conference at least 21 days before a scheduling

10.07 REQUIRED DISCLOSURES AND OTHER GENERAL MECHANICS

Each of the federal modes of discovery has distinctive characteristics, explored in the succeeding sections. But most discovery also shares several party common features, unless exempted by local rule, court order, or stipulation under Rule 29. The paities (1) must begin the discovery process with a mandatory planning conference, (2) make certain disclosures thereafter without being sked in most cses, and (3) supplement the required disclosures and specifred di*coue"y responses at appropriate intervals'
(experfs opinion e.g., Delcastor, Inc. a. Vail Assocs., lnc.,108 F.R.D. 405 (D. Colo. 1985) have examined to expert only the he was where is discoverable mudslide of coneerning cose mudslide area immediately folowing the slide). rsa Marine petroleum Co.,64I F.2d at 996 (the rule's reference to the "same subject" is not to the particular expert's testimony itself, but rather to its subject matter).

order is due).
even before litigation commences in order to perpetuate (preserve) testimony regarding "any matter cognizable in" (within the subject matter

t57 Rule 27, however, permits discovery by deposition

jurisdiction o a United States court.

person seeking such pre-complaint discovery must

tu3

See,

establish that the matter would be within the subject matter jurisdiction of a federal court, that he is presently unable for good cause to bring an action in any court, and that there is a substantial danger that the testimony sought would become unavailable before a complaint can be filed. ,Sq e.9., In re Boland, 79 F.R.D. 665 (D.D.C. 1978). Generally it is not sufficient reason that he does not know whether a claim exists; pre-action discovery is not intended to be a fishing expedition for a claim. Id,. at 668 n.3. Rule 27(a) also requires the discoverer to describe the subject matter of the intended action, the facts he seeks to establish and why, and the identities of prospective adverse parties who are entitled to notice of pre-action depositions.

155 Rule 26(bX4XC).

tsa See generlly Griffin B. Bell et al., Automati,c Disclosure in Discouery The Rush to - Controuersi,u,l, Reform,27 Gr. L. Rnv. 1 (1992); Kuo-Chang Huang, Mand,atoty Di,sclosure: A Deuice uith No Effects,2I Plrr, L. Rnv. 203 (2000); Samuel Issacharof & George Loewenstein,

56

DISCOVERY

CH. 10

$ 10.07

REQUIRtrD DISCLOSURES

evidence. The provisions for required disclosures have teeth: a party who without substantial justification fails to disciose material subject to required

precluded under Rule 37(cX1) from using evidence at trial" disclosure

is

that materiai

as

lal

Initial isclosures

Ruie 26(a)(1) requires initial disclosure (within fourteen days after the Rule 26( discovery conference) of the basic information needed in most cases to prepare for trial or to assess settlement, except in eight categories of cases which historically invoive little or no discovery.rse This basic information is usually targeted any\,vay by discovery requests (if discovery is taken at all). The requirement is iniended merely to "accelerate the exchange of basic

pleading" requir"ements of Rule 8,162 and also with the usual chronology of' iitigation, in which it is the ns\ 7er (often coming after initial disclosures are due) which places pleaded facts in dispute. Moreover, the original standard ws also criticized for placing lawyers in an awkward conflict by forcing them to disclose unfavorable information to their adversaries.lo3 The new standard alleviates these concerns. The amended rule speciflcally addresses the timing problem by providing that a party may object that initial disclosures re "not appropriate in [the] action" and then wait the court's ruling before making

the disclosures. A party is no longer required to disclose to an adversary unfavorable information that it does not intend to use.r64 Ths not only reduces any alleged conflict for the disclosing lawyer, it also substantially narrows the of the initial disclosures. and therefore burden scope165

information" and "eliminate the paper work involved according to the 1993 Advisory Committee.

in

requesting" it'

Basic information covered by Rule 26(aX1) includes the identity of possible fact witnesses, and identification of documents and reasonably accessible electronically stored informationtGo in the possession, custody or control of a party, "that the disclosing party may use to support its elaim or defenses, uniess the use would be soiely for impeachment." Parties need not actually produce these documents; the purpose of initial disclosure is only to identify them to help the parties reflne subsequent discovery requests. Moreover, voluminous documents may be identifled by category. In short, initial disclosures under Rule 26(a)(1)(AXI) and (ii) are the functional equivalent of responses to interrogatories asking a party to identify witnesses and documents or other tangible things relevant to allegations in the pleadings.l61 Rule 26(a)(1)(A)(ii and (iv) require parties also to disclose computations of
damages and to produce underlying documents and other evidence, as well as insurance agreements that may be used to satisfy all or part of a judgment which may be entered in the action.

Fretnial Disclosures In addition to the required disclosure of expert witness testimony (discussed in section 10.06[2]), the parties must exchange lists of trial
witnesses and trial exhibits at least thirty days before triai. This disclosure includes not only witnesses and exhibits that a party expects to present at trial, trut also those that the party may use if the need arises (other than any held in reserue solely for impeachment purposes). Fourteen days after the required exchange, the parties must serve and fiIe any evidentiary objections they have to the materials that have been listed by the opposing parties. Objections not made (other than objections under Federal Rules of Evidence 402 (relevancy) and 403 (prejudice)) are waived. These exchanges are not really discovery al all; they are more accurately viewed as part of the trial process. Indeed, before the 1993 amendment, many

tbl

courts required such exchanges in connection with the final pretrial conference.rGG Such exchanges not only facilitate trial preparation, but also permit in limine (at the threshold of trial) rulings on the evidence that help
streamline trial.

The "use-to-support" relevancy standard for initial disclosures was added by amendment in 2000 to replace the more problematical original standard: "relevant to disputed facts alleged with particularity in the pleadings." The original standard was always somewhat at odds with the liberal "notice
Uni,ntended Consequences of Mand"atory Di,sclosure, 73 Tx. L. Rov. 753 (1995); Thomas M' Mengler, Eliminati,ng Abusiue Discouery Tlzrouglt' Disclosure: Is It Again Ti,me for Rewn?,138 F.R.D. 155 (1991); Linda S. Mullenix, Hope Oaer Erperience: Mond'atory Infonnal Di'scouery and the Poli.tics of Rulemalnng, 69 N.C. L. Rov. 795 (1991); lVilliam W. Schwarzer, The Federal Rules, the Ad,aersa;r'y Process, and Discoaery Refonn,50 U. PIrt. L. Rnv. 703, 72I-23 (L989); Ralph K. Winter, Foreword,: In Defense of Dzscouery Refonn,58 Bnoox. L. Rv. 263 (1992).

tcl

An Assessment of Required Disclosure

The promulgation in 1993 of provisions for required disclosures of expert witness testimony and of trial witnesses and trial evidence in essence just codified what many federal courts were already doing. These provisions were generally uncontroversial. The requirement for initial disclosures of basic information, however, .was new and very controversial. Indeed, Justice Scalia

rss Ruie 26(aXlXB) (including, for example, petitions for habeas corpus, actions to
student loans).

quash

administrative subpoenas, and actions by the United States to recover beneflt pa,rnents or collect 2006 E-discovery amendments expressly provide that a party need not provide discovery of electronically data "from sources the party identifies as not reasonably accessible because of undue burden or cost." Rule 26(bX2XB). S $ 10.03[e] (using pre-amendment decision in Zubulake as an example).

162 Rule 9 identifies only a few categories of allegations which S $ 8.04[4] (discussing special pleading requirements). 163 See, e.g.,BeLl, note 158, supra, at 46 n.175.
use at

must be pled with particularity.

reo

1.

r6a Rule 26(a)(l) advisory committee notes (2000). "Use" is not limited to trial; it includes any pretrial conferences or to support a motion. Beil, note I58, supra, at 46 n.175. r6s Carl Tobias, Congress and the 2000 Fed,eral Ciuzl Rules Amend,ments,22 Crrnnozo L. Rov.
166 See 12.03t21 (procedures for pretrial conferences), i'nfra. $

75, 79 (2000).

ror

Rule 26(a)(l) advisory committee's note (1993).

l5x

DISCOVERY

CH. 10

$ 10.07

REQUIRED DISCLOSURtrS

objected to it as "potentially disastrous and certainly premature."l67 Critics argued that it was potentially disastrous for several reasons.

First, they raised the specter of satellite litigation.lG8 This objection chiefly reflected the rule's original requirement of disclosure of information "relevant to disputed facts alleged with particularity in the pleadings," and the fear that this peculiar wording would encourage a return to discredited fact pleading. The subsequent amendment of the rule in 2000 to tie the disciosure requirement instead to information a party "may use to support its claims or defenses" substantially met this objection.
Another critique was that the burden of required disclosure fell unfairly on one side. Some early critics alleged that required disclosure unfairly burdened the plaintiff to the advantage of product liability defendants and other defendants.leg But many product liability, toxic tort, and securities fraud plaintiffs start litigation on relatively little information beyond the facts of their own injury. The burden of initial disclosure on them may be slight, while "the potential scope of document disclosure that may be required lof a

alike also reported that the rule had no perceived effect on the length rf'r'rscs, fairness of outcome, or prospects for settlement.lT3 Their shared percelrtions do not support the critique that initial disclosures would favor one side or the other. Moreover, the empirical evidence suggests that initial disclosures had little or no effect on costs or time spent in litigation.lTa On the other hand, one study did report that in 897a of the cases in which initial disclosure was made, further discovery took place "disclosure infrequently replace[d] discovery

ntirely."rzs Thus, although initial disclosure appar'ently did not increase discovery costs, it did not reduce them either or avoid later, discretionary
discovery.

corporate defendantl under such n amorphous standard

is

virtually

unlimited."uo Third, critics argued that the initial disclosure rule would increase discovery initial disclosures in cases that would otherwise have little or no discovery, and by adding another costly layer of discovery to cases in which well-heeled parties would pursue specific discovery anyway after such disclosures.rTl But the 2000 rule amendments, however, categorically exempted certain kinds of cases in which discovery is usually slight, and the parties are always free to stipulate to forgo initial disclosures.
costs, by imposing

rule's minimal effect, "but evinced reiuctance to abandon the mechanism altogether and attempted to maintain a vestige of the notion."176 A better answer may be that even if only a minority of lawyers (39Vo) reported that initial disclosures decreased overall expenses,uT this result was enough to justify retaining the rule, especially if its costs are reduced by categorically exempting certain proceedings which usually lack discovery, and by narrowing the scope of disclosure to materials which will be used to support a claim or defense. unless the latter change fosters satellite litigation, in short, the amended Rule 26(aX1) may reduce discovery costs in a minority of cases while doing no harm in most of the rest.

If these flndings are accuyaLe, they raise the question why the rulemakers did not just drop initial disclosures in 2000, instead of refining them. One commentator has suggested that the Advisory Committee acknowledged the

t3l

Supplementation of Discovery

Empirical studies of experience with initial disclosures through 1997 refute much of what remains of the first critique. The rule generated surprisingly little satellite litigation.rT2 A majority of defendants' and plaintiffs' lawyers
t67 Amendments to tlte Fed,eral Rules of Ciuil Proced,ure,113 S. Ct. CCC, CCCIX (dissenting statement of J. Scalia), 146 F.R.D. 401, 410 (1993). r6a See generallg Pa R. Sugarman & Marc G.Perlin, Proposed, Chonges to Di,scouety Rules i,n Ai.d of "Tor"t Rerm": Has the Cas Been Mad,e?,42 AM.rJ. L. Rnv. 1465 (1993); 8e11, note 158, supra, al 4345.

The tpical litigator has several cases pending at the same time. In each there may be substantial discovery. The burden of continuously reviewing old discovery responses for acctJracy and updating them whenever new information becomes available would be great. On the other hand, a failure to supplement an incorrect, misleading or obsolete discovery response may give rise to the very surprise attrial that discovery was intended partly to avoid. Rule 26(e) originally struck a compromise betrreen these two concerns by imposing a quite limited duty of supplementation on party-discoverees. That compromise was partly undone by the 1993 rule amendments, which require a party to correct or complete its required disclosures (as well as any deposition given by its expert witness), if the additional or corrective information has not already been made known to other parties. This expanded duty to supplement

r6e Sugarman & Perlin, note 168, sryrcL,t 1495; Mengler, note 158, swra,,L159, 162. r7o 8e11, note 158, supra, al 39; Collnnr McMroN & Joni. G. ScHw-mrz, Ar,ysrs or Arr,mNo,{er,rrs ro rr Fnoonl Rur-s op Cwrr, Pnocounp s Arpnol'o sy rH JunrcrAr Corrpnrc err Fonwenopn to rn Supnora Counr 15 (ALI-ABA 1993).

r7r See, e.g., BeIl, note 158, sryrcL, t 40, 45; II3 S. Ct. at CCCIX (dissenting statement of J. Scalia). Some critics add that the frontloading of discovery costs may actua impede settlement by
continuing the litigation. S Issacharoff & Loewenstein, note 158, supra, al ?86; Carol C. Cure, Pt'acti,cal Issues Concenting Arizona's New Rules of Ciail Proced,ure: A Defense Perspectiue,2S Antz. Sr. L.J. 55, 57 (1993).
172 James S. Kakalik et ai., Rand Institute for Civit Justice, Di,scouery Management: Fw"ther Analysis of the Ci.ui.I Justi,ce Rerm Act Eaaluation Dat, 39 B.C. L. Rav. 613, 658 (1998) (hereinafter "Rand Report"); Thomas E. Willging et al., Federal Judicial Center, An Empi,rcal Stud,y of Di,scoaery and, Di,sclosure Practice Under the 1993 Fed,eral Rule Amendments, S9 B.C. L. Rnv. 525, 535 (1998) (hereinafter "FJC Sur"ueA").

giving the parties too great an investment

in

t73 pyc Sm"uey, note 172, supra, at 563. r7a RandReport,noheLT2,supra,at6SS-61;FJCSur"uey,noheL72,supra,at563;Hrang,supra,

note 158, at 263. The FJC Sumeg did find that of the minority of lawyers who reported that initial disclosures had affected litigation, most thought the effects were positive. See FJC Sur"uey, nole 172, at 237 (explaining FJC data). 175 ptJC Sutr"uey, note 172, supra, at 559. 176 Tobias, note 165, supra, at82. 177 tJC Sw"uey, note 172, supra at 563.

r.

DNSOOVEFY

CH"

10

$ 10.08

DEFOSITiONS

r il

rs rrs lrrtad as the scope of nequired disclosures. It obligates a lawyer to keep tr'rck of all inforination that might make previous disclosures incomplete or inct-il'rect in any nespect.

Rule 26(e) extencls the same duty to prior nesponses to an interrogatory, request for production, or request for admission. The lawyer must therefore also monitor the completeness and correctness of such responses throughout the lawsuit. Only responses given in deposition (except depositions by expert witnesses) are exempted, presumably on the theory that these are often given by non-party witnesses and that monitoring them would be extremely burdensome, if not impossible.

on the deponent and the other parties in advancel after which any cross, redirect or recross Qustionsres re served. The oath administrator reads the written questions to the deponent, who ansrvers them live, if not quite spontaneously (given the prior opportunity to rehearse the answers). Interrogatories differ from the deposition upon written questions partly in that nswers to interrogatories are written and often prepared by a party's
attorney.l84

,l

A party does not ordinarily need leave of court to take a deposition unless

Ordinarily, only incurably prejudicial breaches of the rule will support or constitute grounds for relief from judgment"178 A common sanction for breach of the duty to supplement is exclusion at trial of evidence withheld by the discovenee.xze T'his sanction is inappropriate, however, if a continuance and opportunity for mid-trial discovery can enable the discoverer to overcome his surprise and prepare effective eross-examination and
sanctions
rebuttal"rso

the deposition would exceed the seven-hour durational limit set by Rule 30(d)(1) or the ten-deposition numerical limit established by Rule 30(a)(2)(A)(I). The procedure for orally deposing a party under Rule 30 is
simply to serve the deponent and parties with reasonable written notice of the time and place of the deposition and identity of the deponent,l85 as \Mell as Rule 34 request for production of documents when documents are sought in connection with the deposition.rs6 A party must comply with the notice or seek a protective orderl87 because, by the initial service of process on her, she has already been subjected to the personal jurisdiction of the court and therefore brought within the reach of properly invoked procedural rules. This is not true of a non-party witness, however. To compel the attendance

1.08 EPSTTONS

at deposition of a non-party witness, the discoverer must first procure the

issuance of a subpoenorss from the court for the district in which the deposition will be taken.l8e The non-party witness may ask the court to quash or modify the subpoena if it allows insufficient time for compliance, necessitates excessive

tll

Procedure for Taking

A deposition is the recorded examination of a live witness under oath by oral or written questions before a qualified oath administrator,l8l who is usually a court reporter.rs2 The deposition may be recorded by sound, sound-and-visual, or stenographic means at the expense of the taker. In a Rule 30 deposition upon oral questions, an attorney asks the questions and the deponent answers spontaneously, like an examination of a witness at trial. In a Rule 31(a) deposition upon written questions, the discoverer serves his direct questions
174 See,e.g.,Johnsona.H.KWebstef Inc.,775F.2d1,?-8(1stCir. 1985).Fordiscussionofthe rule of prejudicial error, see $ 13.09[1], lra. t7? See, e.g., Scott & Fetzer Co. a. Dile,643 F.zd 670 (gth Cir. 1981) (failure to list 20 of 23 trial witnesses and 26 of 51 exhibits in response to interrogatories prejudicially denied the discoverer the right to prepre effective cross-examination and rebuttal and requires their exclusion, especialiy where the undisclosed witnesses included an expert witness and were used to support a previously undisclosed theory of the case).

travel, requires disclosure ofprotected or confldential information, or subjects the witness to undue burden.reo

the matters on which examination is requested. The entity must

IJnder Rule 30(b)(6), a party may name as a deponent in his notice and subpoena a corporation, agency, partnership or other legal entity and describe

then designate one or more officers, directors, managing agents, or other persons with relevant knowledge to testify on its behalf. As noted belowler the

r8s Direct examination is a party's questioning of his own witness. Cross-examination is

questioning of a witness called by an opposing party. Redirect is direct examination of a witness after cross-examination. Recross is cross-examination of a witness after redirect. See generallg McOonurcx or Er,rnxc; $ 4 (J. Strong, 4th ed. 1992).

rao See, e.g., Moore a. Boati,ng Ind,us. Ass'ns, 754 F .2d 698 (?th Cir. 1985); Lewis Refrigeration Co. a. Satwyer Fruit, Vegetable & Cold Storage Co.,709 F.zd 427 (6th Ctu. 1983); Gebhard, a. Nied,zwiecki, 122 N.W.2d 110, 115 (Minn. 1963) (suggesting that preclusion is proper when the violation is willful and the discoveree seeks to benefit from it "at a time when the harm cannot be
undone").
See Rule 28 (persons before whom depositions may be taken). 182 Depositions traditionally have been recorded by a court reporter. Rule amendments eventually liberalized the requirements for taking of depositions by non-stenographic means. S Rules 30(bX3)-(4). The parties no longer need to agree to non-stenographic means or obtain a court order; such means are available unless Lhe court orders otherwise. Parties must still stipulate to or obtain a court order for taking depositions by telephone or other remote electronic means. S Ruie 30(bX4).

tan Se" $ 10.09 (interroga1ories), infra. 18s Rule 30(b)(1). The notice must be accompanied by the direct questions in the case of a
deposition upon written questions. Rule 31(a). 186 Rule Bo(b)(z).

!47 See $ 10.13t31 (protective

o.rd,ers), infra,.

rar

d,uces tecum must be used if document production is sought in connection with the deposition. 18e Rules 30(a) & 45. Many states provide for the issuance of subpoenas for depositions to be used in proceedings pending in other states. S e.9., Anrz. R. Cw. Pnoc. 30(h) (2001); Mn. R. Crv. Pnoc. 30(h) (2001).

lae

See Rule 45.

A subpoena

leo Rule ab(cX3).

ttt

See S 10.08t21 (use and value of depositions), zy'.

DISCVtrRY
t

CH.

l,f)

r{).08

DtrPOSNTTOl'{S

lclrosition of a pet:son so designted may be offered at Lrial as direct evidencr, aginst the designating entity. Rule 30(bX6)'s legislative history suggests thal it was intended simply as a device to facilitate the discovery of appropriatc

witnesses who could provide further discovery regarding an institutional iitigant, in order "to defeat a shield of obfuscation and inefficiency that coul<l be thrown up by " . . lsuch a] litigant."rez Instead, it has sometimes been misused to force such litigants to create a witness who can give a "gram) synthesis" of evidence to bind the itigant.le3 On the other hand, courts have held that the designating party has a duty to prepare its designee to answel questions on the described matters you can't just designate a stone.re4

,,r"terminate the deposition.neT Rule 30(d)(3) authorizes cort to grant such a rrroLion upon showing that the examination is being conducted oppressively ,rr in bad fath.le8

objections to the qualifications of the presiding offlcer; to errors ancl irregularities in the notice; to the manney of taking the deposition; oath or affirmation; to the conduct of the parties; or to the form of the questions. For example, "'when did you stop beating your wife for husband]?" is objectionable as to form, for it assumes a predicate. But the objection could be obviated by reforming the question as several separate questions: "Did you beat your wife [husband]?; [if yes] did you stop?; [if yes] when?"le6 If the objecting party could defer the objection to this question until the deposition is offered at trial, it could deprive the examiner of an opportunity to reform the question. Consequently, if no objection is made to the form of the question, the objection is waived and lost should the resulting testimony be offered at trial.
Despite the preservation of most objections until the proffer of deposition testimony as evidence at trial, some lawyers make them any'way, not only to create a technically unnecessary record, but sometimes also to educate the witness or obstruct the examination. Indeed, some lawyers instruct the witness not to answer questions that do not call for privileged information, in effect

The chief difference between the conduct of a deposition upon oral questions and examination of a witness at Lrial is the absence of the trial judge. Consequently, objections to the competency of the witness or to the competency, relevancy, or materiality of testimony re preserved until trial, when the judge can rule upon them. Rule 32(d)(3)(A) expressly states that they are not waived by a failure to make them at the deposition. trn contrast, objections to errors which "might have been corrected at that time" are waived if not seasonably made before or during the deposition.le5 These include

The amended rule does not deal directly with a similar deposition tactic: rnid-deposition coaching of deponents in private iawyer-client discussions' liome courts, however, are inferring authority from tiie rules to combat this lactic.lee Complaining that "[t]he witness comes to the deposition to testify, not o indulge in a parody of Charlie McCa thy fthe puppet used by famous ventriloquist, Edgar Bergenl, with lawyers coaching or bending the witness's words to mold convenient record," one court has prohibited private lawyerclient discussions during depositions and deposition recesses, except for the limited purpose of deciding whether to assert a privilege.2oo This court's order' like amndd Rule 30(cX2), reflects the proposition that "[i]n general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer."2ol
examination *uy bu prepared by a court reporter or kry any patty, according to Rule 30(e). On request by the deponent or a party' the transcript is sutrmitted to the deponent for correction and signature. The presiding officer is then responsibie for sealing the deposition with her certifrcate and flling it in the court in which the action is pending or sending it to the lawyer who noticed the deposition, along with the originals or copies of any documents marked for identification during the deposition.2o2

At the completion of the deposition, a

transcript

of the recorded

l2l

Use and Value of DePositions

under Rule 32(a) any or all of a deposition may be used at trial, as if the witness were then present and testifying, against any party who had notice of the deposition and reasonable opportunity to obtain counsel or to move for a protec-tive order. The proponent of the deposition testimony may offer it in
1s7 Rule 3o(c)(2).
1e8 Indeed, some courts have held that the Rule 30(d) procedure is the exclusive remedy and censured a lawyer who directed his client not to answer obnoxious questions when that direction (7th cir. was not necessary to preserve any privilege. see Redwood . Dobson,4?6 F.3d 462' 469 for to apply time privilege nor supplied a shielded 200?) (,,instructions not to respond that neither as well as a protective order were unproiessional and violated the Federal Rutes of Civil Procedure the ethical rules that govern lega1 practice."). ree On deposition ethics generally, see A. Darby Dickerson, Tlt'e Law and' Etlt'ics of Ci'ail Deposztions,iZ Uo. 1,. Rov. 2?B (19g8); Janeen Kerper & Gary L. Stua, Rambo Bites the Dust: Cirrent Trend,s in Deposi,tton thics,22 J. Lncr Pnor. 103 (199?-1998); Jean M. Cary, Rambo (1996). Depositions: controlli,ng a,n Ethical cancer in ci,ait Ltttgati'o, 25 Horstu L. Rpv. 561 problems related and this Some jurisdictions have adopted voluntary "civility codes" to deal with of ,,Rmbo', tactics in civil litigation, see, e.g., D.C. B Vorurm.v Sr.qoens non Cnturv IN pRopnssroNer Coxucr (1gg?), bul there is yet little evidence that they have changed the adversarial dmamics which seem to breed such tactics. 2oo HalI u. Cti,fion Precisi'on,150 F.R.D. 525' 528 (E.D. Pa. 1993)' 2o1 Rule 30(d) advisory committee's note (1993).

seek judicial assistance. Amendments to Rule 30 now discourage both tactics by requiring objections to be made concisely and in a "nonargumentative and nonsuggestive mannet," and by forbidding instructions not to answer except when necessary to presen/e a privilege, comply with a court order, or to present a motion to limit

daring the examiner

to halt the deposition to

1e2 Kent Sinclair & Roger P. Fendrich, Discouering Corporate Knowled,ge and, Contenti,ons: Rethinking Ru,Ie 30(b)(6) and, Altetnatiue Meclani,sms, 50 Ar-c L. Rov. 651, 749 (1995).

rs3

Id,.

rea See Intetnati,onal Ass'n of Machinists & Aerospace Worke,rs a. Wetner-Matsud,ct, Corp., 390 F. Supp. 2d 479 (D. Md. 2005); Warcar & Mtu,n 5 2103 (2008 Pocket Part).

re5 Rules 3z(dXgXA) & (B). rs6 See generally McConnrrcx

oN EvrnnNcn, note 183,

supra, at

5-7.

2o2 Rule 3o(.