Discovery — Civil Procedure

Priya sues Orion Freight for $40,000 after one of Orion's vans clips her car. In discovery she asks for every maintenance record Orion holds, for its entire national fleet, going back ten years. Orion objects. The records exist, they are not privileged, and some of them do bear on how Orion looks after its vans. Does Priya get them?

Not all of them. A court will likely narrow that demand to the van involved, over a short and relevant window. The reason is one word a 2015 amendment made part of the scope test. Proportional. Relevance opens the door. Proportionality decides how wide. By the end of this episode you will run any fact pattern through the same checklist.

Here is the route. The scope of discovery. Then the two shields, privilege and work product, and where experts sit inside them. Then the disclosures you make without being asked, and the conference that starts the clock. Then the five devices and who each reaches. Then electronic evidence, and the motions that keep everyone honest.

Everything runs through one question. Is this within the scope? Rule 26(b)(1) gives a three part answer. The material must be nonprivileged. It must be relevant to a claim or defense. And it must be proportional to the needs of the case. But since 2015, relevance alone is not enough.

Proportional to what? Six factors. The importance of the issues at stake. The amount in controversy. The parties' relative access to the information. The parties' resources. How important this discovery is to resolving the issues. And whether the burden or expense outweighs the likely benefit. That last one does most of the work.

Back to Priya. A modest amount in controversy. An enormous, expensive request. Records for vans in other states that had nothing to do with her crash. Burden outweighs benefit, so the court trims the demand to the van that hit her.

Now the trap that costs candidates points. Discoverable and admissible are not the same word. A neighbor tells a manufacturer's investigator he has seen that heater model throw sparks before. Pure hearsay, inadmissible at trial. Discoverable, or not? Discoverable. Rule 26 says information need not be admissible to be discoverable. And the old reasonably calculated phrase went in 2015.

Now material that is relevant and proportional and still off limits. Two shields, and the exam loves that candidates blur them. Privilege, usually the attorney client privilege, protects confidential communications between lawyer and client made to get or give legal advice. Unless waived, the other side simply cannot have it. Waived how? Meridian Labs gets candid advice from counsel, then forwards the exchange to an investor. Privilege gone.

The second shield is work product. Rule 26(b)(3) protects documents and tangible things prepared in anticipation of litigation, by or for a party or its representative. Where privilege is near absolute, work product is only qualified. Pierce it by showing substantial need, and no substantial equivalent without undue hardship.

Work that in. A warehouse collapses, and the company's lawyer interviews three maintenance workers and writes their accounts into memos. Two of those workers have moved abroad and cannot be found. The third still works there. Which memos does the plaintiff get? The two. She cannot depose the ones who vanished.

Split work product in two. Ordinary work product is the facts gathered for litigation, and those memos are the classic example. Opinion work product is the lawyer's own mental impressions, strategy and legal theories. A memo on which of your opponent's witnesses look vulnerable. Ordinary, or opinion? Opinion, and near absolute. Substantial need unlocks the facts, never the strategy.

Experts split into two camps. A testifying expert must be disclosed, usually with a written report, and can be deposed, but her drafts and most of her communications with your lawyers stay protected. A consulting expert who will not testify is reachable only on exceptional circumstances. Say, she examined a machine later destroyed.

Testifying experts are exposed. Consulting experts are hidden.

Some things you hand over without anyone asking. Rule 26(a) requires three automatic waves. Wave one, initial disclosures, has four categories. Each person likely to have discoverable information you may use. Documents and electronically stored information you may use. A computation of your damages. And any insurance agreement covering a judgment.

Notice the words you may use. That limit is the most tested idea in this segment. A delivery driver sued for negligence has a dashcam clip showing the other driver ran the light, emails admitting he was rushing, and an insurance policy. He discloses the clip. He discloses the policy. Nothing about the emails.

Insurance is its own required category, whether or not it is admissible to prove fault. Volunteer your sword. You do not volunteer your opponent's ammunition.

Wave two is expert disclosures under Rule 26(a)(2), at least 90 days before trial, or within 30 days after the other side for a rebuttal expert. Wave three is pretrial disclosures under Rule 26(a)(3), at least 30 days before trial. Rule 26(e) then makes the duty continuing.

Before any of that, the parties sit down together. The Rule 26(f) conference is traffic control for the whole discovery phase. They consider claims, defenses and settlement, they arrange the initial disclosures, and above all they build a proposed discovery plan.

Three numbers hang off that meeting, and this topic is starred, so you recall them cold. Confer at least 21 days before the scheduling conference is held or a scheduling order is due. File the written report within 14 days after the conference. Initial disclosures land within 14 days after it too.

The conference is also a starting gun. Under Rule 26(d), a party generally may not seek discovery from any source before it happens. So the lawyer who files a complaint and serves interrogatories the day after has jumped the gun. Not the filing. The conference.

One piece is brand new, so state it as live law. Effective December 1, 2025, the discovery plan must also set out the parties' proposed method and timing for meeting the privilege withholding requirement of Rule 26(b)(5). Settle privilege logging early, instead of fighting later.

Five devices, and the first question is always who each one reaches. Depositions under Rule 30. Interrogatories under Rule 33. Requests for production under Rule 34. Examinations under Rule 35. Requests for admission under Rule 36. Four of those five run only between parties.

The deposition is the exception. It is the one routine device that reaches an outsider, and even then a nonparty must be commanded by a subpoena under Rule 45. A former engineer who witnessed the theft and works for neither side. Interrogatories, or subpoena? Subpoena.

Depositions are live, sworn, transcribed questioning, and their strength is spontaneity. They are also expensive, so each side gets 10 without leave of court, and any single deposition is capped at one day of seven hours. A lawyer may object, but the witness still answers. Instructing her not to answer is limited to privilege, a court ordered limit, or a bad faith deposition.

To depose a company, use Rule 30(b)(6). Name the organization, describe the topics with reasonable particularity, and it designates someone whose testimony binds the entity. Since a 2020 amendment, both sides confer about the topics first.

Interrogatories are written questions that only another party answers, in writing and under oath, within 30 days. Each side gets 25, counting discrete subparts. Under Rule 33(d), if the answer sits in business records that burden each side equally, produce the records instead.

Requests for production get you documents, electronically stored information and tangible things, and entry onto land. No numerical cap, and you get 30 days to produce or object. Since a 2015 amendment, an objection must state whether anything responsive is being withheld under it.

The examination is the odd one out. It is the only device needing a court order or the parties' stipulation, never a mere notice. And the court orders one only when a person's condition is genuinely in controversy and the movant shows good cause.

Two defendants, two answers. The plaintiff claiming a permanently disabling back injury has put his physical condition squarely in controversy, so an orthopedic exam is available. The defendant in a plain contract dispute who wants a psychiatric exam gets nothing.

Requests for admission are the quiet killer. They ask another party to admit that a fact is true, that a legal proposition applies, or that a document is genuine. The purpose is not discovery. It is narrowing what has to be proved. And silence is fatal.

Delta Corp. serves a request to admit that a contract dated March 3 was signed. The lawyer calendars it wrong and never responds. Thirty days later the fact is admitted, conclusively, and forgery is no longer arguable unless the court permits a withdrawal. Only in that case, never in another.

Electronically stored information is discovered through Rule 34, exactly like paper. But scale and format create problems paper never had. The requesting party may specify the form of production, and if nobody does, the producing party uses the form the data is ordinarily kept in. Relevant metadata is discoverable too.

Accessibility is the other limit. You need not produce from sources that are not reasonably accessible because of undue burden or cost, like obsolete backup tapes. Unless the requester moves to compel and shows good cause.

Then preservation. The moment litigation is reasonably anticipated you must preserve relevant evidence, which means a litigation hold stopping routine deletion. Lose information you should have kept, and Rule 37(e) responds in steps. Prejudice buys measures no greater than necessary to cure it. But an adverse inference, a dismissal, a default, those need intent to deprive.

Last section, and this one is recognition level. A protective order under Rule 26(c) is the producing party's shield, and for good cause the court can forbid, limit, seal or condition the discovery. Rule 26(b)(5) makes you log what you withhold as privileged. And a motion to compel under Rule 37(a) forces an answer, where an evasive answer counts as none.

Certify that you conferred in good faith before any of those. Sanctions then run on two tracks. Usually you must win a motion to compel first, and only disobeying that order brings the real ones. But miss your own noticed deposition, and the court can sanction you at once.

A word on authorities, because this episode named no cases at all, and that was not an oversight. Discovery is pure rulebook. There is no famous decision to hang it on, and the exam will not ask you for a case name. It asks whether the material is discoverable, and whether you used the right tool.

If you keep only three, keep these. Rule 26(b)(1), relevant plus proportional, the gate every request passes through. Rule 26(f), both the starting gun and the source of your deadlines. And Rule 45, the only way to reach anyone who is not a party.

Now the traps, straight from the examiners' favorites. One. Reasonably calculated to lead to admissible evidence is not the scope test. It went in 2015. Two. Privilege can be absolute. Work product is only qualified, and substantial need pierces it. Three. The Rule 35 exam is the only device needing a court order, good cause, and a condition in controversy.

Four. Interrogatories, requests for admission and requests for production run only against parties. A nonparty takes a Rule 45 subpoena. Five. No timely response to a request for admission, and the matter is deemed admitted. Six. A consulting expert is shielded absent exceptional circumstances, unlike a testifying expert. Seven. Severe spoliation sanctions need intent to deprive.

And one piece of exam craft. This topic is starred, so those numbers come from memory. But you will not be asked to match a sanction to a misstep.

Time for the quick check, and this one comes straight from the BARGO question bank. A retailer sued for breach of a supply contract is preparing its initial disclosures. Its files hold two sets of documents. Internal emails praising the supplier's on time performance, which would undercut the retailer's own claim. And complaint logs documenting late shipments, which support it.

Which documents must the retailer disclose? Option one. Both categories, because initial disclosures require a party to produce all relevant documents it possesses. Option two. Neither category, because documents are exchanged only in response to a formal request for production. Option three. Only the complaint logs, because a party discloses only what it may use to support itself. Pause here if you want a moment.

The answer is option three. Rule 26(a) makes a party disclose, without waiting for a request, the documents it may use to support its claims or defenses. That duty runs only to helpful material, so the retailer lists the complaint logs and says nothing about the emails. Option one overstates it, the single most tested misconception here.

Option two understates it. Initial disclosures are automatic and come near the outset, not in response to a request. There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. Discovery reaches what is nonprivileged, relevant to a claim or defense, and proportional to the needs of the case. Admissibility has nothing to do with it. Two. Privilege is near absolute, ordinary work product only qualified, opinion work product near absolute again. Three. Initial disclosures cover only what helps you.

Four. The Rule 26(f) conference starts discovery and sets the clock. 21 days before the scheduling conference, 14 days after it for the plan and for your disclosures. Five. Match the tool to the target. 25 interrogatories to parties only, 10 depositions of one day and seven hours, an exam only by court order, and a Rule 45 subpoena for the rest.

Which is why Priya gets the maintenance records for the van that hit her, and not ten years of a national fleet. Relevance opened the door. Proportionality decided how wide. Next time, Jury Trial and Dispositive Motions.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.