parte application for an order authorizing discovery. . parties to meet and confer pursuant to Federal Rule of Civil Procedure 26(f) .. to shorten the deadline for meeting and conferring pursuant to Rule 26(f).3 Semitool, Inc. v. prepare for a set of conferences: a conference with opposing counsel The deadline to meet and confer is set forth in Rule 26(f)(1), re-. Exceptions: for import gov interest, if prompt action is nec DISCOVERY! Rule 26; (26f3 First – meet and confer with opposing counsel). Rule 26b1.
This is a new subdivision listing all of the discovery devices provided in the discovery rules and establishing the relationship between the general provisions of Rule 26 and the specific rules for particular discovery devices. The provision that the frequency of use of these methods is not limited confirms existing law. It incorporates in general form a provision now found in Rule Subdivision b —Scope of Discovery. This subdivision is recast to cover the scope of discovery generally.
It regulates the discovery obtainable through any of the discovery devices listed in Rule 26 a. All provisions as to scope of discovery are subject to the initial qualification that the court may limit discovery in accordance with these rules. Rule 26 c transferred from 30 b confers broad powers on the courts to regulate or prevent discovery even though the materials sought are within the scope of 26 band these powers have always been freely exercised.
Similarly, the courts have in appropriate circumstances protected materials that are primarily of an impeaching character. These two types of materials merely illustrate the many situations, not capable of governance by precise rule, in which courts must exercise judgment. The new subsections in Rule 26 d do not change existing law with respect to such situations. Subdivision b 1 —In General. The language is changed to provide for the scope of discovery in general terms.
The existing subdivision, although in terms applicable only to depositions, is incorporated by reference in existing Rules 33 and Since decisions as to relevance to the subject matter of the action are made for discovery purposes well in advance of trial, a flexible treatment of relevance is required and the making of discovery, whether voluntary or under court order, is not a concession or determination of relevance for purposes of trial.
Subdivision b 2 —Insurance Policies. Both cases and commentators are sharply in conflict on the question whether defendant's liability insurance coverage is subject to discovery in the usual situation when the insurance coverage is not itself admissible and does not bear on another issue on the case. Examples of Federal cases requiring disclosure and supporting comments: Examples of Federal cases refusing disclosure and supporting comments: The division in reported cases is close.
State decisions based on provisions similar to the federal rules are similarly divided. It appears to be difficult if not impossible to obtain appellate review of the issue. Resolution by rule amendment is indicated. The question is essentially procedural in that it bears upon preparation for trial and settlement before trial, and courts confronting the question, however, they have decided it, have generally treated it as procedural and governed by the rules.
The amendment resolves this issue in favor of disclosure. Most of the decisions denying discovery, some explicitly, reason from the text of Rule 26 b that it permits discovery only of matters which will be admissible in evidence or appear reasonably calculated to lead to such evidence; they avoid considerations of policy, regarding them as foreclosed.
Some note also that facts about a defendant's financial status are not discoverable as such, prior to judgment with execution unsatisfied, and fear that, if courts hold insurance coverage discoverable, they must extend the principle to other aspects of the defendant's financial status.
The cases favoring disclosure rely heavily on the practical significance of insurance in the decisions lawyers make about settlement and trial preparation. Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.
It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect. The amendment is limited to insurance coverage, which should be distinguished from any other facts concerning defendant's financial status 1 because insurance is an asset created specifically to satisfy the claim; 2 because the insurance company ordinarily controls the litigation; 3 because information about coverage is available only from defendant or his insurer; and 4 because disclosure does not involve a significant invasion of privacy.
Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment. Thus, the provision makes no change in existing law on discovery of indemnity agreements other than insurance agreements by persons carrying on an insurance business.
Rule Duty to Disclose; General Provisions Governing Discovery | FRCP
Similarly, the provision does not cover the business concern that creates a reserve fund for purposes of self-insurance. For some purposes other than discovery, an application for insurance is treated as a part of the insurance agreement. The provision makes clear that, for discovery purposes, the application is not to be so treated. The insurance application may contain personal and financial information concerning the insured, discovery of which is beyond the purpose of this provision.
In no instance does disclosure make the facts concerning insurance coverage admissible in evidence. Subdivision b 3 —Trial Preparation: Some of the most controversial and vexing problems to emerge from the discovery rules have arisen out of requests for the production of documents or things prepared in anticipation of litigation or for trial. The existing rules make no explicit provision for such materials. In deciding the Hickman case, the Supreme Court appears to have expressed a preference in for an approach to the problem of trial preparation materials by judicial decision rather than by rule.
Sufficient experience has accumulated, however, with lower court applications of the Hickman decision to warrant a reappraisal. When the facts of the cases are studied, however, a distinction emerges based upon the type of materials. Commonwealth Oil Refining Co. When lawyers have prepared or obtained the materials for trial, all courts require more than relevance; so much is clearly commanded by Hickman.
In Guilford Nat'l Bank v. See also Mitchell v. United States, 32 F.
Conferences and Scheduling | Federal Practice Manual for Legal Aid Attorneys
These changes conform to the holdings of the cases, when viewed in light of their facts. Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege. The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy as with respect to income tax returns or grand jury minutes or points to evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order.
On the other hand, the requirement of a special showing for discovery of trial preparation materials reflects the view that each side's informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side.
Moreover, the language of the subdivision suggests the factors which the courts should consider in determining whether the requisite showing has been made. The importance of the materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by other means are factors noted in the Hickman case.
The courts should also consider the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents the production of which he seeks.
Consideration of these factors may well lead the court to distinguish between witness statements taken by an investigator, on the one hand, and other parts of the investigative file, on the other.
The court in Southern Ry. The analysis of the court suggests circumstances under which witness statements will be discoverable. The witness may have given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter.
Lanham, supra at —; Guilford, supra at Or he may be reluctant or hostile. Lanham, supra at —; Brookshire v. Ohio ; Diamond v. Or he may have a lapse of memory. Or he may probably be deviating from his prior statement.
On the other hand, a much stronger showing is needed to obtain evaluative materials in an investigator's reports.
Lanham, supra at —; Pickett v. Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision.
No change is made in the existing doctrine, noted in the Hickman case, that one party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable.
The Hickman case left this issue open since the statements in that case were taken by a lawyer. As to courts of appeals, compare Alltmont v. United States, F. Similarly, the district courts are divided on statements obtained by claim agents, compare, e. United States, 20 F. See 4 Moore's Federal Practice Guilford Nat'l Bank v.
Subdivision b 3 reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf. The subdivision then goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a party.
The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted. Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions relating not only to fact but also to the application of law to fact.
Under those rules, a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions.
But documents or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use. Party's Right to Own Statement. The cases are divided. Wilson Freight Forwarding Co. Courts which treat a party's statement as though it were that of any witness overlook the fact that the party's statement is, without more, admissible in evidence.
Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve.
In appropriate cases the court may order a party to be deposed before his statement is produced. Central Linen Service Co. Commentators strongly support the view that a party be able to secure his statement without a showing. The following states have by statute or rule taken the same position: The definition is adapted from 18 U.Lawyers at a Rule 26(f) conference discuss e-discovery.
The statement of a party may of course be that of plaintiff or defendant, and it may be that of an individual or of a corporation or other organization. Many, though not all, of the considerations supporting a party's right to obtain his statement apply also to the non-party witness. Insurance companies are increasingly recognizing that a witness is entitled to a copy of his statement and are modifying their regular practice accordingly.
Subdivision b 4 —Trial Preparation: This is a new provision dealing with discovery of information including facts and opinions obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party.
The subdivision deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party but who are not expected to be witnesses. It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.
Such an expert should be treated as an ordinary witness. Subsection b 4 A deals with discovery of information obtained by or through experts who will be called as witnesses at trial. The provision is responsive to problems suggested by a relatively recent line of authorities. Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent, and condemnation cases.
Ohioaff'd. In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent.
Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand. Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side.
If the latter is foreclosed by a rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally produces are frustrated. These considerations appear to account for the broadening of discovery against experts in the cases cited where expert testimony was central to the case.
In some instances, the opinions are explicit in relating expanded discovery to improved cross-examination and rebuttal at trial. National Dairy Products Corp. On the other hand, the need for a new provision is shown by the many cases in which discovery of expert trial witnesses is needed for effective cross-examination and rebuttal, and yet courts apply the traditional doctrine and refuse disclosure.
Certain Parcels of Land, 25 F. Certain Acres, 18 F. Although the trial problems flowing from lack of discovery of expert witnesses are most acute and noteworthy when the case turns largely on experts, the same problems are encountered when a single expert testifies. Thus, subdivision b 4 A draws no line between complex and simple cases, or between cases with many experts and those with but one. It establishes by rule substantially the procedure adopted by decision of the court in Knighton v.
For a full analysis of the problem and strong recommendations to the same effect, see Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan.
Past judicial restrictions on discovery of an adversary's expert, particularly as to his opinions, reflect the fear that one side will benefit unduly from the other's better preparation. The procedure established in subsection b 4 A holds the risk to a minimum.
Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be.
A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent's experts. Subdivision b 4 A provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give.
The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse. Ordinarily, the order for further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to discourage abusive practices. Subdivision b 4 B deals with an expert who has been retained or specially employed by the party in anticipation of litigation or preparation for trial thus excluding an expert who is simply a general employee of the party not specially employed on the casebut who is not expected to be called as a witness.
Under its provisions, a party may discover facts known or opinions held by such an expert only on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Subdivision b 4 B is concerned only with experts retained or specially consulted in relation to trial preparation. Thus the subdivision precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specially employed.
As an ancillary procedure, a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted.
These new provisions of subdivision b 4 repudiate the few decisions that have held an expert's information privileged simply because of his status as an expert, e. Pennsylvania Petroleum Products Co. See Louisell, Modern California Discovery — They also reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine. See United States v. Under subdivision b 4 Cthe court is directed or authorized to issue protective orders, including an order that the expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from the expert.
The court may issue the latter order as a condition of discovery, or it may delay the order until after discovery is completed. These provisions for fees and expenses meet the objection that it is unfair to permit one side to obtain without cost the benefit of an expert's work for which the other side has paid, often a substantial sum.
United Air Lines Transp. On the other hand, a party may not obtain discovery simply by offering to pay fees and expenses. In instances of discovery under subdivision b 4 Bthe court is directed to award fees and expenses to the other party, since the information is of direct value to the discovering party's preparation of his case. In ordering discovery under b 4 A iithe court has discretion whether to award fees and expenses to the other party; its decision should depend upon whether the discovering party is simply learning about the other party's case or is going beyond this to develop his own case.
Even in cases where the court is directed to issue a protective order, it may decline to do so if it finds that manifest injustice would result. Thus, the court can protect, when necessary and appropriate, the interests of an indigent party.
Subdivision c —Protective Orders. The provisions of existing Rule 30 b are transferred to this subdivision cas part of the rearrangement of Rule The language has been changed to give it application to discovery generally.
The subdivision recognizes the power of the court in the district where a deposition is being taken to make protective orders. Such power is needed when the deposition is being taken far from the court where the action is pending.
The court in the district where the deposition is being taken may, and frequently will, remit the deponent or party to the court where the action is pending. In addition, drafting changes are made to carry out and clarify the sense of the rule. The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection.
The subdivision contains new matter relating to sanctions. When a motion for a protective order is made and the court is disposed to deny it, the court may go a step further and issue an order to provide or permit discovery. This will bring the sanctions of Rule 37 b directly into play. Since the court has heard the contentions of all interested persons, an affirmative order is justified.
In addition, the court may require the payment of expenses incurred in relation to the motion. Subdivision d —Sequence and Priority. This new provision is concerned with the sequence in which parties may proceed with discovery and with related problems of timing. The principal effects of the new provision are first, to eliminate any fixed priority in the sequence of discovery, and second, to make clear and explicit the court's power to establish priority by an order issued in a particular case.
A priority rule developed by some courts, which confers priority on the party who first serves notice of taking a deposition, is unsatisfactory in several important respects: First, this priority rule permits a party to establish a priority running to all depositions as to which he has given earlier notice. Since he can on a given day serve notice of taking many depositions he is in a position to delay his adversary's taking of depositions for an inordinate time.
Some courts have ruled that deposition priority also permits a party to delay his answers to interrogatories and production of documents. Second, since notice is the key to priority, if both parties wish to take depositions first a race results. But the existing rules on notice of deposition create a race with runners starting from different positions.
Rule 26. Duty to Disclose; General Provisions Governing Discovery
The plaintiff may not give notice without leave of court until 20 days after commencement of the action, whereas the defendant may serve notice at any time after commencement.
Thus, a careful and prompt defendant can almost always secure priority. The purpose of the discovery conference is to develop a mutually acceptable discovery plan which anticipates and attempts to resolves potential discovery issues. Conference of Parties, the Joint Discovery Plan, and Discovery Planning As soon as practicable, and at least 21 days prior to the Rule 16 b scheduling conference or filing of a scheduling order, the parties must confer.
At a minimum, the parties will be required to develop a discovery plan that addresses the subjects listed in Fed. In addition, many courts require the parties to discuss and agree on a variety of case management issues such as discovery and motion deadlines limits on certain types of discovery, 4 expert witness disclosures, 5 depositions, discovery of electronically stored information 6and the trial date.
A joint written report of the conference must be submitted to the court within 14 days of the conference. The court will rely on the report to set case management deadlines that may not be easily altered later without a showing of good cause. Successful discovery requires that you identify what you must prove as early as possible. The plan should identify the facts that you must prove, the discovery tools most likely to assist in proving those facts, and a sequence for using the various discovery tools.
As you accumulate information, you must maintain a carefully organized file that shows both the content and the source of every document. As the case develops, continue to identify the facts that you can prove and how you will prove them. In more complex litigation, you may find it useful to create a computerized database of documents and potential testimony.
The discovery plan should set forth the sequence of discovery. If you anticipate protracted discovery, you should begin it promptly and proceed in stages. Some basic information should be given automatically under the Rule 26 a 1 initial disclosures. You can then use carefully drafted interrogatories to identify other documents and their respective custodians, potential witnesses, objective facts and the contentions of the opposing parties.
Next, request production of documents and, when appropriate, request admissions. Last, depose important witnesses and again consider requests for admission. In a class action, early discovery should also establish the existence of a class and, when feasible, the identity and addresses of class members. As you complete each stage in your discovery plan, you should review and modify it to reflect what you have learned.
The amount, order, and type of discovery needed varies from case to case. In many instances, however, recurring issues make it possible to borrow liberally from discovery requests used in similar cases.
National support centers may have forms available. In an appropriate case, form books on discovery, particularly American Jurisprudence Proof of Facts, may be helpful. Miller, and Edward H.