Understanding the Impact of Changes to Rule 26 - Meet and Confer helps focus on what's changed and what you need to know by Adam. Required Disclosures; Discovery Scope and Limits; Timing and Sequence of Discovery; Conference of the Parties; Planning for Discovery. The Rule 26 proportionality standard imposes an affirmative duty on the parties to litigation to focus discovery requests to streamline the.
Such a standard unnecessarily curtails the utility of discovery practice. Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible. United Air Lines Transportation Corp.
Thus hearsay, while inadmissible itself, may suggest testimony which properly may be proved. Thus it has been said that inquiry might not be made into statements or other matters which, when disclosed, amounted only to hearsay. See Maryland for use of Montvila v. Pan-American Bus Lines, Inc. The contrary and better view, however, has often been stated.
United Air Lines Transport Corp. Case 2; DeSeversky v. Republic Aviation Corp E. See also discussion as to the broad scope of discovery in Hoffman v. See the next-to-last paragraph of the Advisory Committee's Note to that amendment. Notes of Advisory Committee on Rules— Amendment The requirement that the plaintiff obtain leave of court in order to serve notice of taking of a deposition within 20 days after commencement of the action gives rises to difficulties when the prospective deponent is about to become unavailable for examination.
The problem is not confined to admiralty, but has been of special concern in that context because of the mobility of vessels and their personnel. When Rule 26 was adopted as Admiralty Rule 30A inthe problem was alleviated by permitting depositions de bene esse, for which leave of court is not required. A continuing study is being made in the effort to devise a modification of the day rule appropriate to both the civil and admiralty practice to the end that Rule 26 a shall state a uniform rule applicable alike to what are now civil actions and suits in admiralty.
Meanwhile, the exigencies of maritime litigation require preservation, for the time being at least, of the traditional de bene esse procedure for the post-unification counterpart of the present suit in admiralty.
Accordingly, the amendment provides for continued availability of that procedure in admiralty and maritime claims within the meaning of Rule 9 h. Notes of Advisory Committee on Rules— Amendment A limited rearrangement of the discovery rules is made, whereby certain rule provisions are transferred, as follows: Existing Rule 26 a is transferred to Rules 30 a and 31 a. Existing Rule 26 c is transferred to Rule 30 c. Existing Rules 26 deand f are transferred to Rule Revisions of the transferred provisions, if any, are discussed in the notes appended to Rules 30, 31, and In addition, Rule 30 b is transferred to Rule 26 c.
The purpose of this rearrangement is to establish Rule 26 as a rule governing discovery in general.
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The reasons are set out in the Advisory Committee's explanatory statement. Subdivision a —Discovery Devices. 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.Civil Procedure tutorial: Mandatory Pre-Trial Disclosures - santemontreal.info
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.
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. 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.
- Rule 26. Duty to Disclose; General Provisions Governing Discovery
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. 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.
Rule Duty to Disclose; General Provisions Governing Discovery | FRCP
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. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.
If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26 b 2 C. The court may specify conditions for the discovery. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: A Documents and Tangible Things. But, subject to Rule 26 b 4those materials may be discovered if: B Protection Against Disclosure.
If the request is refused, the person may move for a court order, and Rule 37 a 5 applies to the award of expenses. A previous statement is either: A party may depose any person who has been identified as an expert whose opinions may be presented at trial.
If Rule 26 a 2 B requires a report from the expert, the deposition may be conducted only after the report is provided. Rules 26 b 3 A and B protect drafts of any report or disclosure required under Rule 26 a 2regardless of the form in which the draft is recorded. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.
But a party may do so only: Unless manifest injustice would result, the court must require that the party seeking discovery: When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.
The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.
The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: A forbidding the disclosure or discovery; B specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; C prescribing a discovery method other than the one selected by the party seeking discovery; D forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; E designating the persons who may be present while the discovery is conducted; F requiring that a deposition be sealed and opened only on court order; G requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and H requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. Rule 37 a 5 applies to the award of expenses. A party may not seek discovery from any source before the parties have conferred as required by Rule 26 fexcept in a proceeding exempted from initial disclosure under Rule 26 a 1 Bor when authorized by these rules, by stipulation, or by court order.
A Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: B When Considered Served. The request is considered to have been served at the first Rule 26 f conference.
A methods of discovery may be used in any sequence; and B discovery by one party does not require any other party to delay its discovery.
A party who has made a disclosure under Rule 26 a —or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: A in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or B as ordered by the court.