Welcome to the deep dive. If you're gearing up for a law
school final, or maybe you're in the thick of bar prep, you know
the feeling. Oh, absolutely.
It's that moment you hit Chapter 5 of the Federal Rules of Civil
Procedure Discovery. It's a lot.
It is. It's not just a lot of rules,
it's where the entire case can be won or lost long before you
ever see a courtroom. Exactly.
And that's our goal today. We're going to take this huge
stack of rules, cases and all the policy behind them and
distill it. Right.
Turn it into something you can actually remember and more
importantly, use strategically on an exam.
We're talking about the core framework rules 2633 through 37,
the essential Shields like attorney-client privilege and
work product. And you know how the judge keeps
it all under control with Rule 16.
Our mission here is really to go beyond just memorizing the rule
numbers. We want to focus on those
critical, distinct the specific language that an examiner's
looking forward to see if you really get it.
The kind of stuff that separates a good answer from a great one.
We want you to walk away from this with knowledge you can use
immediately. OK, let's unpack this.
And the only place to start really is with the absolute
foundation of the whole system. What can you actually ask for
the scope of discovery under Rule 26B1?
So historically, the whole idea behind discovery was, you know,
to get rid of trial by ambush. Right, no more surprise
witnesses popping out at the last minute.
Exactly. The goal was Full disclosure,
let the case be decide on the merits and the standard was just
unbelievably broad. It was anything relevant to the
subject matter. Which sounds good in theory, but
in practice? In practice, it led to what
everyone calls the fishing expedition.
Just asking for everything under the sun, hoping you'll catch
something. Right.
It was often used to harass the other side or just bury them in
so many requests they couldn't possibly keep up.
And that tension, that problem, it just exploded with the rise
of ESI. Electronically stored
information, emails, databases, everything.
Suddenly the volume of potentially relevant stuff went
from thousands of pages to millions of files.
The system was at a breaking point.
And that's what brought about the big change in 2015, a real
paradigm shift. A complete paradigm shift.
The rule fundamentally changed. The focus moved from being
almost all about relevance to this new gatekeeper
proportionality. OK, So what does that mean now?
What's the new three-part test? So now for something to be
discoverable it has to be 1 non privileged, 2 relevant to a
party's claimer defense and three, and this is the big one,
it has to be proportional to the needs of the case.
Now when we say relevant, that's still a pretty low bar, isn't
it? It is the rule is clear on that
for discovery relevant is way broader than what's admissible
at trial. You just have to show that what
you're asking for seems reasonably calculated to lead to
evidence you could actually use in court.
Precisely so. Relevance is kind of like the
open door to discovery, but proportionality.
Proportionality is the bouncer standing right inside that door.
I like that so it's not just some argument you can make later
on if you feel overwhelmed. No, and that's a critical point
for any exam. Proportionality is now baked
into the scope itself. It's not just a reason to ask
for a protective order under 26C.
If a request isn't proportional, the information is simply not
discoverable. Period.
And the rule doesn't just throw the word proportionality out
there. It gives courts a checklist,
right? Six specific factors to weigh.
It does. And if you're studying for the
bar, you absolutely have to know these six factors.
They come up in almost every discovery dispute.
So let's walk through them. What's the first pair?
OK, so the first two really look at the size and seriousness of
the case. Factor 1 is the importance of
the issues at stake. Like is this a simple contract
dispute or a massive civil rights case?
Exactly, and factor 2 is the amount in controversy.
You know $100 million lawsuit is going to justify a lot more
discovery expense than a $50,000 one.
That makes sense. What's the next pair of factors?
The next two are about the practical side of things, access
and resources. So factor 3 is the party's
relative access to the information.
This gets at that idea of information asymmetry.
Right. If you're suing a huge
corporation, they have all the documents, all the emails, so
naturally their burden to produce that information is
going to be higher. And factor 4 is the party's
resources. This one seems like it could be
tricky. It's a classic exam trap.
People think, well the company is a multibillion dollar
corporation so they can afford it.
But that's not the whole story. Not at all.
Resources are a factor, but they don't give the other side a
blank check. You always have to tie it back
to the benefit. Even a wealthy party doesn't
have to spend $1,000,000 to produce documents that are only
marginally relevant. So just because you can afford
to produce it doesn't mean you have to.
Exactly. Which leads us to the final and
maybe most important pair of factors #5 is the importance of
the discovery in actually resolving the issues.
Is this the potential smoking gun?
Or is it just another piece of paper and a mountain of?
Oh, that's the question. And then factor 6 is the
ultimate balancing test. Does the burden or expense of
this discovery outweigh its likely benefit?
That's where the court puts it all on the scale.
So when this rule changed, there was a real fear, wasn't there?
That big corporations would just use this as a new weapon to
fight off discovery. Absolutely.
The fear was they just yelled disproportionate at every
request and bury the smaller plaintiff in motions and
affidavits about cost. So how does the rule guard
against that? Who has the burden of proof
here? The rule is very clear.
The burden is squarely on the party resisting discovery to
show that it's disproportionate and.
What does that look like in practice?
You can't just say it's too expensive.
No. The rule specifically warns
against what it calls stereotyped and conclusory
statements. So no boilerplate objections.
Absolutely not. You have to come with facts,
Specific concrete evidence, affidavits, documentation,
vendor quotes. This is where the Ashmore V
Allied Energy case is so helpful to understand.
Refresh my memory on that one. O In Ashmore, the defendant
objected to producing some ESI. They said it would cost
$400,000, but the plaintiffs claim was only worth about
250,000. On its face, that sounds like a
slam dunk proportionality argument.
It does does, but the court shot it down completely.
Why? Because the defendant didn't
provide a single shred of evidence to back up that
$400,000 number, it was just a number they threw out there.
So what should they have done? What was the court looking for?
They needed affidavits from their IT people explaining why
it was so hard to search the data.
They needed bids from E discovery vendors to show what
the review would actually cost per hour.
They needed to show their work. They needed to show their work.
Without that factual foundation, the court basically said your
objection is just speculation. So the lesson for an exam or for
practice is you must connect the specific burden, the volume, the
cost, the technical difficulty directly back to those six
factors. OK, so once we understand the
scope of what we can get, we need to talk about the tools we
use to get it. And in the modern rules, the
process doesn't start with you asking for things.
No, it starts with a mandate, the required disclosures under
Rule 26. A.
Things you have to hand over automatically without even being
asked. Exactly.
It's meant to get the key information on the table early
and, you know, encourage transparency right from the
start. So let's break down the first
wave initial disclosures under 26 AR.
What's on that mandatory list? There are four key categories.
First, you have to identify anyone you may use to support
your claims or defenses. Their name, address, phone
number. And that phrase may use is
important. It's broader than your final
trial witness list. Much broader.
Second, you have to provide copies or at least a description
of all the documents in ESI. You may use for support.
Same may use standard right? 3rd you have to provide a
computation of your damages and hand over the documents the back
it up. And 4th this is a big one on
exams. Any insurance agreement that
might cover the judgment. And timing is key.
When are these due? They're typically due within 14
days after the lawyers have their initial discovery Planning
conference, the Rule 26 conference.
But not every single case requires these, right?
There are exemptions. That's another favorite exam
topic. The rules list several types of
cases that are exempt. Usually they're cases that need
to move very quickly or where this kind of formal discovery
just doesn't make sense. What things like habeas corpus
petitions, lawsuits filed by prisoners without a lawyer,
actions to enforce an arbitration award, things like
that? Got it.
OK, now for the really expensive part of Discovery Experts rule
26A2. It seems like there are two very
different tracks here. There are.
The rules create a major distinction based on the type of
expert. The first category, the one with
the highest burden, is for experts who are specifically
retained or hired to testify. Or an employee of the party
whose regular job involves giving expert testimony.
Right, for those experts, you have to provide a full, detailed
written report under Rule 26 A 2B.
And that report is no joke. It's incredibly detailed.
It's exhaustive, it's designed to be a complete road map for
the other side's cross examination.
It needs all of the experts opinions, the data they
considered, any exhibits they'll use.
Their qualifications including a list of publications from the
last 10 years. A list of other cases they've
testified in for the last four years.
And how much you're paying them. It's all in there.
It really is designed so there are no surprises, but then you
have this other lighter category.
Right under 26A to C This is for witnesses who aren't formally
retained as an expert, but might still offer some expert
opinions. The classic example being the
treating physician. The perfect example, A treating
doctor is, at the core, a fact witness.
They can testify about what they saw, what they did, their
diagnosis. But if they start going beyond.
That if they start offering opinions on, say, the complex
cause of a rare condition or who was at fault in an accident,
they're stepping into expert territory.
So what do you have to disclose for them?
No huge report. No, thankfully for these non
retained experts you just have to disclose the subject matter
they'll testify about and a summary of the facts and
opinions. It's much, much less burdensome.
And there's one more mandatory piece here, which is the duty to
supplement your answers. Rule 26 E.
And this is an ongoing duty. It's not a one and done thing if
you find out later that something you disclosed or said
in a discovery response was incomplete or wrong.
You have to fix. It you have to fix it and in a
timely manner. This is especially true for
expert reports. If your expert gets new data and
changes their opinion, you have to update that report
immediately. And if you don't?
If you don't, you face some of the harshest sanctions in the
rule book under Rule 37 C, which usually means your evidence or
your witness gets excluded. It's a massive risk.
OK, with the mandatory stuff done, we can finally get to the
tools we actively use, the core discovery devices.
Let's start with interrogatories Rule 33.
Interrogatories. These are written questions sent
to the other side. They're great for nailing down
basic facts and contentions. And a key limitation here, you
can only send them to parties in the lawsuit.
Correct. Not to third party witnesses.
And there's a hard limit, 25 questions including subparts,
unless you get the court's permission or the other side
agrees to more. The discrete subparts.
Rule examiners love that one. How do you tell if one question
is actually, say, 3 questions? The general test is whether the
sub questions are asking about separate subjects.
So if you ask identify all employees involved in the
incident, state their job titles, and describe their
duties, a court is almost certainly going to count that as
three separate interrogatories. So you have to be careful how
you phrase them. Very careful.
A big advantage of interrogatories though, is that
you can ask for opinions or contentions.
You can ask things like state all facts that support your
claim of negligence. Exactly.
You can use them to force your opponent to lay their cards on
the table and commit to their legal theories.
And what if the answer is buried in a mountain of business
records? That's where Rule 33 D comes in.
It's a kind of escape hatch. If the work required to find the
answer is basically the same for both sides, the responding party
can just say here you can have access to our records, you find
it. It's just the burden of digging
through the data back to the person who asked the question.
A very powerful tool, especially with ESI.
OK, Next up is the real workhorse Requests for
Production Rule 34. This is how you get the stuff
documents, tangible things, and of course ESI.
The key here is that your request has to describe what you
want with reasonable particularity.
Meaning the other side has to be able to read it and know what
they're supposed to look for. Exactly.
And with ESI, the rules now get very technical about the format
of the production. You can't just print out a
million emails and dump them on someone's desk.
Now the responding party has to be very specific.
They do. They have to state what format
they're going to use. Usually it's either the format
the other side requested, the native format you know, the way
the file was normally kept, or some other reasonably usable
form. What does reasonably usable
really mean, and why is the format so critical?
It's all about the metadata. The data about the data.
Right. Who created the document?
When was it last modified? Were there hidden comments?
If you just produce a simple PDF, all that valuable
information can be lost. So reasonably usable means you
have to preserve that metadata. You have to produce it in a way
that allows the other side to search and analyze it
effectively. OK, moving to the most invasive
tool, the one that requires a court order upfront physical and
mental examinations under Rule 35.
Right, because this gets into someone's personal privacy.
The bar is extremely high. You can't just demand it, you
have to file a motion and convince a judge.
And you have to satisfy A2 part test.
A strict 2 part test. First, the person's physical or
mental condition has to be in controversy and 2nd, you have to
show good cause for the exam. So what does it in controversy
mean? It has to be more than just
relevant. Much more.
It has to be a central part of the case.
So if a plaintiff is suing for a broken leg, their physical
condition is obviously in controversy.
But if they just make a routine claim for emotional distress,
courts often say that's not enough to put their mental
health in controversy to force an exam.
They have to be actively using their mental condition as a core
part of their claim. Exactly, and good 'cause means
you have to show you can't get the information any other way.
If their medical records are enough, the court will likely
deny the exam. Finally, we have requests for
admission under Rule 36. These aren't really for finding
new facts, are they? No, they're for narrowing the
issues for trial. You're asking the other side to
admit that certain facts are true, or that certain documents
are genuine. So you don't have to waste time
proving those things in court. Right.
And the real power of Rule 36 is the deadline.
The other side has 30 days to respond.
And if they don't? If they don't respond, the
matter is automatically and conclusively admitted.
Conclusively, that sounds pretty final.
It means it's treated as a settled fact for the rest of the
case. You can't challenge it at trial.
It's an incredibly powerful tool.
If the other side is asleep at the switch, getting out of that
admission is extremely difficult.
Let's focus now on something that's a huge challenge in
litigation, getting information from big companies, and that
starts with the corporate deposition Rule 30B6.
The 30B6 deposition. This rule was created to solve a
very specific, very frustrating problem that lawyers call
bandying. What's bandying?
It's when you try to depose a corporation and they'd send you
a witness and you'd ask a question.
They'd say, oh, I don't know about that.
You need to talk to Susan in accounting.
So you'd depose Susan and she'd say that's not me.
You need to talk to Bob in engineering.
The corporate runaround. The ultimate runaround, Rule
30B6 puts a stop to that. You, the deposing attorney, send
a notice that lists the topics you want to ask about.
And then the burden shifts to the corporation.
Completely, the corporation has a duty to designate and, more
importantly, prepare one or more people to testify on its behalf
about those topics. And the witness isn't just
testifying from their own memory.
No, and this is the key. They're testifying to the
corporate knowledge, the collective knowledge of the
entire organization. This means the corporation has
to educate them. They have to review documents,
interview other employees, whatever it takes.
The witness speaks for the company even if they have no
personal knowledge of the events.
That preparation sounds intense. It has to be the witness needs
to be able to clearly explain the company's position on the
notice topics. They also have to be trained to
distinguish between what they know personally an what they
know on behalf of the company. So if the witness gives a bad
answer, is the company stuck with it?
Is it a binding judicial admission?
Generally, no. The testimony is considered an
evidentiary admission, which means it's powerful evidence,
but the company can try to explain it or contradict it at
trial. But the damage to their
credibility could be huge. Devastating.
And in some cases, the sanctions can be even worse.
There's the First Mariner Bank case, which is just a perfect
example of what not to do. What happened there?
The defendant produced A30B6 witness who was just completely
unprepared, couldn't answer the most basic questions about the
company's own records. It was that bad.
It was worse. The witness then invoked the 5th
Amendment over and over again on questions that had nothing to do
with personal liability. The court found that the
company's failure to prepare a knowledgeable witness was so
total that it was the same as not showing up at all.
And the result. It was a major factor in the
court entering a default judgement against them, a
catastrophic failure. Wow.
OK, so one practical question. What happens if the lawyer
asking questions goes outside the topics listed in the notice?
Great question. The lawyer defending the
deposition has to object immediately.
State on the record that the question is outside the scope of
the 30B6 notice and that the answer is not being given on
behalf of the corporation. And then the witness can answer
from personal knowledge if they have any.
Right. Or they can say they don't know,
but that objection is crucial to prevent the answer from being
treated as a corporate admission.
OK, now let's tackle the elephant in the room for all
modern discovery ESI and the risk exploitation, specifically
Rule 37 E. ESI has just transformed
litigation. We're talking about everything
from emails and Word documents to complex databases and social
media data. And the duty to preserve all of
that kicks in. As the famous Zubalake case
taught us, at the moment litigation is reasonably
anticipated. As soon as that duty arises, a
company has to take active steps.
They have to issue a litigation hold, tell employees not to
delete things, and make sure their automatic dilution systems
are suspended for key people. And if they fail, if data gets
lost, that should have been saved.
Then you're looking at exploitation sanctions under
rule 37 E, and the rule sets up A2 tier system for punishment.
OK, what's tier one? This is for when the loss wasn't
on purpose, right? Right.
Rule 37 E covers situations where ESI was lost because a
party failed to take reasonable steps to preserve it.
It's a negligence standard if the loss prejudices the other
side. Then the court can step in.
Yes, but the remedy is limited. The court can order measures no
greater than necessary to cure the prejudice.
So things like letting the jury know that evidence was lost or
maybe letting a party re depose a witness.
Exactly. The punishment has to fit the
crime, and the rule also has a safe harbor.
If the party took reasonable steps to preserve, they might
escape sanctions even if data was still lost.
Perfection isn't required. But then there's Tier 2.
This is the big one. This is the nuclear option.
Rule 37 E 2 applies only if the court finds the party acted with
the intent to deprive the other side of the information.
This is more than just being sloppy.
This is active, willful destruction.
Absolutely. And if the court makes that
finding of intent, the available sanctions become much, much more
severe. What are you talking about?
The court can presume the lost information was unfavorable to
the party that destroyed it. It can give an adverse inference
instruction to the jury telling them they may or even must
assume the evidence was bad. Or, in the most extreme cases,
it can order case terminating sanctions, dismissal, or default
judgment. The bar for proving that intent
to deprive must be incredibly high.
It is. It takes truly egregious
behavior. The Wang case is a perfect
illustration. Tell us what happened there.
The defendant in Wang didn't just accidentally delete things.
He engaged in a systematic campaign of destruction.
He deleted thousands of emails, blocked access to his accounts.
And then he did something truly unbelievable.
He literally took a desktop computer that he knew had
relevant files on it and donated it to Goodwill after the court
had already ordered him to preserve everything.
You can't get much more intentional than that.
Exactly. That was the kind of smoking gun
of intent that justified the court taking the ultimate step
and ending his case. The take away is clear.
You have to have a documented defensible preservation process.
It's the only way to prove you took those reasonable steps.
All right, now we have to talk about the two biggest Shields in
discovery, the doctrines that allow you to say yes, this is
relevant and proportional, but you still can't have it.
Attorney-client privilege and the work product doctrine.
The two most frequently tested discovery topics on any law
exam. And they get confused all the
time, but they're really very different in how they work, what
they protect, and especially how you can lose them.
Fundamentally different. Let's start with the big one,
attorney-client privilege. It's the oldest.
It's purpose is grand and simple to encourage clients to be
completely honest with their lawyers.
To get the best possible legal advice.
Right. And because of that grand
purpose, the protection it offers is absolute.
If it applies, it's an unbreakable shield.
But, and this is a huge but, it is incredibly fragile.
It's easy to break, easy to wave.
Very easy and what it protects is narrow.
It only protects confidential communications between a lawyer
and client made for the purpose of getting legal advice.
OK, so compare that to the work product doctrine.
Work product is much newer. It came out of the Hickman V
Taylor case and its purpose is much more practical and narrow.
It's about protecting the adversarial system.
Letting lawyers prepare for a case without the other side
looking over their shoulder. Exactly.
So. It protects documents and other
tangible things that are prepared in anticipation of
litigation. And unlike privilege, its
protection is not absolute. It's qualified.
It can be overcome. It can be, but on the other
hand, it's much more robust. It's harder to wave than the
attorney-client privilege. OK, let's dig into the
privilege. In the corporate world, this
gets really complicated because you have emails flying around
that are part business advice, part legal advice.
It's a minefield and for a long time courts struggled with who
in the corporation was even covered by the privilege.
Some courts used a very narrow control group test.
Meaning only communications with top executives were protected.
Right. The problem was the top
executives are almost never the people who actually know the
facts on the ground. So the lawyers couldn't actually
investigate the case without risking that their interviews
weren't privileged. It was an impossible situation,
which is why the Supreme Court in the Upjohn case rejected that
test. And what did the Upjohn standard
establish? Upjohn said that the privilege
can protect communications between the company's lawyer and
employees at any level of the company, as long as the
communication is about matters within the employees duties and
it's for the purpose of helping the lawyer give legal advice to
the corporation. It's much more practical.
It allows the lawyer to actually find out what happened.
Exactly. But the challenge is still
proving that the primary purpose of the communication was legal
advice. This is what I call the
pernicious e-mail effect. An e-mail chain with 10 people
on it talking about marketing sales figures, and then one
little question to the lawyer at the bottom.
And that's where you lose the privilege.
A court will look at that and say the primary purpose was
business, not law. So what's the practical advice?
How do you train clients to protect the privilege?
You have to be disciplined. Just typing attorney-client
privilege at the top of an e-mail is not enough.
The content has to match the label.
Right. The e-mail itself should say
something like we are seeking legal advice on the following
issue and just as importantly you have to limit who gets the
e-mail. It should only go to people with
a strict need to know. The more people you add, the
harder it is to argue it was a confidential legal
communication. OK, let's talk about waiver.
This is the privileges Achilles heel.
What happens if a third party's in the room?
Generally, the privilege is gone.
The presence of an outsider breaks the confidentiality.
Now there are exceptions for agents.
An interpreter. An interpreter is a perfect
example of a client agent who is nearly indispensable for the
communication to even happen. But if the client just brings
their business partner along to the meeting, the privilege is
almost certainly waived. What about agents of the lawyer,
like a consultant or an expert? The protection is a little
stronger there. If the lawyer hires, say, an
accountant to help them understand complex financial
documents so they can give legal advice, that accountant is
likely within the privilege bubble.
It's about whether the agent is helping the lawyer provide legal
services. So what about?
Mistakes in E discovery. You're producing a million
documents. What if one privileged e-mail
slips through? Is the privilege on that e-mail
and maybe that whole topic gone forever?
It used to be a huge risk, but now we have Federal Rule of
Evidence 5O2, which acts as a critical safety net.
How does 5O2 help? Rule 5 O 2B says that an
inadvertent disclosure does not act as a waiver if the party
took reasonable steps to prevent it, and once they realized the
mistake, they took prompt steps to get it back.
The claw back. The claw back and whether your
steps were reasonable often depends on what courts call the
lowest sportswear factors. What are they looking for?
Did you have a good review process?
Did you use search terms? How many documents slip through
compared to the total? And how fast did you act once
you found out? Having a solid, documented
review plan is your best defense.
OK. Last point on privilege waivers,
Yeah, implied waiver or the at issue doctrine?
This is when you waive the privilege without actually
disclosing the communication. It happens when you make the
legal advice a part of your claim or defense.
The classic example is saying I didn't break the because my
lawyer told me what I was doing was legal.
Exactly. You can't use the advice as a
sword in the case and then use the privilege as a shield to
hide what that advice actually was.
You've put it at issue, so you have to disclose it.
OK, let's pivot to work product. We said it can be overcome.
How? Right.
So we have to distinguish between fact work product and
opinion work product. Fact work product is just the
raw information the lawyer gathered.
Notes from a witness interview, photos of an accident scene.
To get that stuff, the other side has to meet a tough
three-part test. They have to show a substantial
need for it, that they're unable to get the substantial
equivalent of it on their own, and that they can't get it
without undue hardship. So a witness who has since died
or a scene that has changed. Those are the classic examples
where a court might order you to turn over fact work product, but
opinion work product is a different story.
This is the lawyers thoughts, right?
Their mental impressions, legal theories, Strategy notes.
Yes, and that gets nearly absolute protection under the
rules. It is almost impossible for the
other side to get their hands on a lawyer's memo analyzing the
weaknesses of their own case. And finally, let's nail down the
single biggest exam distinction between these two on waivers.
This is crucial because attorney-client privilege is all
about confidentiality. Sharing the privileged document
with almost any third party waives it.
But work product isn't about confidentiality in the same way.
Right. It's about protecting the
adversarial process so you can share your work product with a
friendly third party, someone on your side, without waiving the
protection. Like sharing an internal
investigation report with a Co defendant or even a government
agency you're cooperating with. Exactly.
The waiver for work product only happens when you disclose it to
an adversary or in a way that makes it likely your adversary
will get it. That robustness makes it an
incredibly important tool. OK, so we've talked about the
rules of engagement for the lawyers.
Now let's talk about the referee, the judge and the tool
they used to control the game, which is Rule 16.
Rule 16 is all about case management.
It reflects this modern idea that a judge shouldn't just be a
passive umpire, they need to actively manage the case.
For sure, the goals of Rule 16 are all about efficiency,
speeding things up, establishing early control, cutting down on
wasteful fights, and just generally making the whole
process work better. And the very first thing that
comes out of Rule 16 is the single most important document
in the pretrial phase, the scheduling order.
The scheduling order under Rule 16 B is the road map for the
entire case. The judge has to issue one.
It sets all the key deadlines. Deadlines for adding new parties
for filing motions. And most importantly, a deadline
for when all discovery must be completed.
It also often includes specific rules for the case, like how to
handle ESI or agreements on how to handle privileged documents
that get produced by mistake. The clawback agreements we just
talked about. Exactly.
Now here is a massive point for exams, the standard for changing
that scheduling order. Right.
The rule recognizes that things can change early in a case, so
the standard is flexible. A scheduling order can be
modified for good cause with the judge's consent.
So if you've been diligent, but a key deposition reveals a whole
new line of inquiry, you can probably show a good cause to
get more time. Probably it's a forgiving
standard, but you have to contrast that with the order
that comes at the very end of the process, the final pretrial
order under Rule 16 E. This is a document created right
before trial that lists all the witnesses, all the exhibits, all
the agreed upon facts. It basically becomes the script
for the trial. It completely supersedes the
pleadings. If an issue isn't in that final
order, you've probably waived your right to bring it up at
trial. And because it's so final, the
standard to change it is much, much tougher.
Incredibly tough. The final pretrial order can
only be modified to prevent manifest injustice.
That's a huge hurdle. It's one of the highest
standards in Civil Procedure. You can't just change your mind
about a witness a week before trial.
You have to show that something truly unjust will happen if the
order isn't changed. OK, finally, let's talk about
what happens when people break the rules.
The sanctions, the teeth, the system.
The whole system is policed by sanctions, mostly found in Rule
37, but also in a couple of other key places.
Let's start with the most common one.
What happens if you fail to make your mandatory disclosures under
Rule 26A or you fail to supplement an answer?
That's Rule 37 C and the sanction is almost automatic.
It's exclusion you are not allowed to use that information
or that witness at trial. Unless you can prove the failure
was harmless or you had a really good reason for.
It right, but the default is you didn't disclose it, you don't
get to use it. It's a powerful incentive to be
thorough. OK, but what if you don't just
fail to disclose, you actively disobey a direct court order to
produce something? Now you're in a much more
dangerous territory. That's Rule 37 B, and it gives
the judge a whole menu of much more severe sanctions.
Like what? The judge can order that certain
facts be taken as established against you.
They can prohibit you from introducing other evidence.
They can strike your pleadings and in the worst cases, they can
enter default judgement or dismiss your case entirely.
So defying a court order is the fastest way to lose your case.
Without a doubt, and we have to mention one more key rule here,
which is Rule 26 G It's the lawyer's ethical certification.
This is the signature requirement.
It's the Rule 11 of discovery. Every time a lawyer signs a
discovery request or a response, they are certifying to the court
that it's legally warranted, that it's not for an improper
purpose like harassment. That's not unduly burdensome or
expensive. It ties directly back to
proportionality. Exactly.
It makes proportionality an ethical obligation for the
lawyer, and if you violate 26G without a good reason, the court
must impose sanctions, usually making you pay the other side's
attorneys fees for dealing with your improper filing.
And Rule 16 basically just says that all those Rule 37 sanctions
can also apply if you blow off a court conference or aren't
prepared. The message from the rules is
clear. This is a managed, cooperative
process and there are serious consequences for failing to play
by the rules. That feels like a really
comprehensive tour of chapter 5, so let's try to synthesize this.
If you're walking into an exam, what are the three absolute must
know distinctions? OK #1 the scope of discovery is
now governed by proportionality under Rule 26B1.
It's not just relevance. And remember, the burden is on
the person resisting discover to prove it's disproportionate with
actual facts and evidence. #2 privilege waiver attorney-client
privilege is fragile. Share with almost any outsider
and it's gone. Work product is robust, you can
share it with friendly third parties and the protection
survives. And #3 modifying court orders to
change the early scheduling order.
Under 16B, you only need good cause to change the final
pretrial order. Under 16 E on the eve of trial,
you need to show it's necessary to prevent manifest injustice to
very different standards for two very different stages of the
case. Knowing those three points cold
will get you a very long way. It's clear that the real battle
in most lawsuits today happens right here in Discovery.
It really does, and it raises an important question, I think, for
anyone about to enter this world.
Given how complex ESI is and how severe the sanctions for
squalation can be, what does a company actually need to do
internally to survive that duty to preserve?
What are the specific concrete steps a brand new junior lawyer
should be thinking about on day one of a case to make sure
they've taken those reasonable steps and avoid a career
defining mistake? Because hoping for the best is
not a strategy. A proactive plan is the only
real defense. That's a powerful thought to
leave you with as you go from studying these rules to actually
living them. All right, let's talk about
discovery. If you're getting ready for your
Sieve Pro final, you already know this topic can feel like a
whole separate course. It's just so dense, so full of
rules, and you can bet it's going to be a huge chunk of your
exam. But don't sweat it.
And we're going to break it down step by step with a clear, exam
focused game plan. You know the feeling, right?
You turn the page in the exam booklet and there it is, this
massive fact pattern about deleted emails, document
requests, angry lawyers, and your heart just plummets.
When you're under that kind of pressure, all those rules can
feel totally paralyzing. So where do you even start to
make sure you're getting all the points you can?
OK, First things first, don't panic.
The key here isn't memorizing every single rule.
It's having a solid analytical framework ready to go.
Think of it as a mental checklist, a road map you can
apply to any discovery problem your professor throws at you.
It's going to let you work through the issues methodically,
spot all the traps, and build an answer that scores big.
And here's that very road map. Our attack plan has 6 parts.
First, we're going to get the big picture.
Then we'll dive into the absolute heart of discovery,
scope, and proportionality. After that, we'll look at the
specific tools you used to get information, the Shields that
can block those tools, and what happens when people break the
rules. And we'll wrap it all up with a
final checklist to make sure you don't fall for any common exam
tricks. So let's just remember what this
is all about. The whole point of discovery is
to get rid of surprises at trial.
It's about making sure cases are decided on the facts, not
because one side was better at hiding the ball.
But, and this is key, it is not a free for all.
This whole process is governed by a strict set of rules and
we're about to unpack them, right?
So this is the absolute most important starting point.
Before you even think about how you're going to get a piece of
information, you have to answer the threshold question.
Is this information even discoverable in the 1st place?
This is always, always restart your exam answer.
And it all comes down to one rule, Federal Rule of Civil
Procedure 26B1. OK, you really need to get this
modern definition down cold. Notice the two big parts. 1st,
the information has to be relevant to a party's claim or
defense. You see that?
That old super broad language about being relevant to the
subject matter of the case, it's gone.
And that is a huge change. Second, the request has to be
proportional. You need both.
If something's relevant but not proportional, it's out.
This slide right here. This is the money slide for your
scope analysis. When you get an exam question
with a discovery dispute, you need to go through these six
factors one by one. I'm serious.
This isn't optional. The rule requires the court to
consider them on your exam. You should literally list them
out and apply the facts from the hypo to each one.
That's how you prove you know what you're talking about, and
this is perfect for spotting common traps.
First off, if you write the phrase reasonably calculated to
lead to the discovery of admissible evidence on your exam
as the standard, you're going to lose points.
That language was taken out of the rule for a reason. 2nd, just
cause the other party is a huge corporation doesn't mean you get
a blank check. The resources are just one
factor out of six. And finally, you can't just
object by saying this is too expensive.
You have to prove it with specific facts.
OK, so now we know what we can ask for.
So how do we actually ask for it?
Once you've figured out that the information is in scope, you've
got to pick the right tool from the Discovery Tool kit.
The federal rules give us a very specific set of options, and
choosing the right one is crucial.
This chart is a lifesaver. Seriously, the biggest thing to
remember for your exam is who you can use these on.
See, you can depose pretty much anyone, party or not.
You just need a subpoena for the non parties.
Same goes for requests for production.
But, and here's the trap, interrogatories and requests for
admission, you can only send those to other parties in the
lawsuit. Mixing that up is such a common
mistake, and let's just stop and look at this number for a
second. 25 that's your limit for written in terror gadatories
under Rule 33. This is one of those hard
numbers that professors just love to test because it's a
simple gotcha. And remember, that number
includes all the little subparts, so you can't get
clever by asking question 25A25B25C.
It doesn't work. So you've done everything right.
You figured out something is in scope, you've used the right
tool, but the other side still refuses to hand it over.
What now? Well, that brings us to the
great Shields of discovery privilege and the work product
doctrine. These are the main reasons a
party can legally say, Nope, you can't have that.
It is so, so important not to mix these two up.
attorney-client privilege protects the communication
itself, the conversation, and it's the client who holds that
privilege. Work product is different.
It protects materials, you know, notes, memos, spreadsheets that
were prepared because of the litigation.
The attorney holds this one. And while you can sometimes get
access to fact work product, like a witness statement, if you
can show a major need for it, opinion work product, which is
the lawyer's thoughts and strategies, that stuff gets
nearly absolute protection. Courts will bend over backwards
to protect a lawyer's mental impressions.
This quote from the famous case Hickman V.
Taylor really gets to the core of why work product is so
protected. The whole idea is that if
lawyers knew their opponents could just demand to see their
notes and strategy memos, they'd stop writing anything down.
It would completely mess up our adversarial system.
The doctrine is there to protect the attorneys private thought
process so they can prepare their case without having the
other side constantly reading over their shoulder.
So what happens if you screw up? You're producing thousands of
documents and whoops, you accidentally send over a super
privileged e-mail? This is a classic exam question.
The procedure, which we call the clawback rule, is really
straightforward. First you notify the other side
immediately. They have to stop reading it and
they have to return it or destroy it.
They can't use it. Then if they think you're wrong
and it isn't privileged, they can take it to the judge to sort
it out. And that leads us to the dark
side of discovery. What happens when things go
really wrong, not by accident, but because someone failed to
follow the rules? This is the world of sanctions,
and on any modern exam, this is almost certainly going to
involve the destruction of electronically stored
information, or ESI. We're talking emails, texts,
word docs, you name it. So first, what even is
spoliation? It's really just a fancy lawyer
word for destroying evidence. Now, the single most important
part of this definition for your exam is figuring out when the
duty to preserve that evidence starts.
Hint, it's not when the lawsuit is filed.
It's actually earlier than that. The rule coming out of the
famous Zubalake case is that the duty kicks in as soon as
litigation is reasonably foreseeable.
OK, so the fact pattern says emails were deleted after this
duty to preserve kicked in. You've spotted the spoliation
issue. Awesome.
Now to figure out what happens next.
There is one single question that should guide your entire
analysis under Rule 37 E. What was the person's state of
mind when they deleted the evidence?
Were they just being careless, or were they actively trying to
hide the ball? And this breaks it down
perfectly. There are two paths, and your
analysis has to follow one of them.
If the party was just negligent, maybe a little careless, you're
on the Rule 37 E 1 path. The court can only order
sanctions that are just enough to fix the harm to cure the
prejudice. But if the court finds the party
acted with the intent to deprive the other side of that evidence,
well, now you're on the much scarier path of Rule 37 E 2.
This is where the court can bring out the big guns, like
telling the jury to assume the lost evidence was bad news or
even throwing the entire case out.
OK, we have covered a ton of ground, so let's boil it all
down into a final rapid fire checklist.
These are the most common mistakes I see students make and
the key things you absolutely need to remember walking into
that exam room. OK, let's nail these down.
Scope always, always run through all six proportionality factors
and remember, what's discoverable is way broader than
what's admissible at trial. Don't mix those up Shields
privilege is not work product know the difference supplements.
Remember, there's an ongoing duty to update your answers.
And finally, sanctions. Not every lost e-mail is a
catastrophe. To get those really harsh
sanctions, you have to find intent to deprive.
Getting these things right is what separates AB plus answer
from an A. And I'll just leave you with
this final thought. After going through all these
rules about scope and burden and proportionality, it kind of
makes you wonder, is our justice system really trying to find the
absolute capital T truth, no matter what it costs?
Or have we made a choice that for justice to be just speedy
and inexpensive, we have to settle for a version of the
truth that's been filtered and shaped by what's proportional to
the case? It's something to think about.
Good luck on your finals.