Discovery: Scope, Devices, Privilege, and Sanctions
Key Takeaways
- Discovery reaches any nonprivileged matter relevant to a claim or defense and proportional to the needs of the case (Rule 26(b)(1)); information need not be admissible to be discoverable.
- Work product (Rule 26(b)(3)) protects materials prepared in anticipation of litigation; ordinary work product yields on substantial need plus undue hardship, but opinion work product (attorney mental impressions) is nearly absolute.
- The required Rule 26(a) initial disclosures, Rule 26(f) conference, and proportionality limits aim to curb discovery abuse without a discovery request.
- Devices include depositions (Rule 30, limited to 10 per side and one 7-hour day each), interrogatories (Rule 33, limited to 25), requests for production (Rule 34), and requests for admission (Rule 36).
- A party must first move to compel under Rule 37(a); only after violating a court order do the harsher Rule 37(b) sanctions apply, while California uniquely allows discovery sanctions for misuse without a prior order.
Scope of Discovery: Relevance and Proportionality
Under Rule 26(b)(1), parties may obtain discovery of any nonprivileged matter that is (1) relevant to any party's claim or defense and (2) proportional to the needs of the case. Proportionality weighs: the importance of the issues, the amount in controversy, the parties' relative access to information, resources, the importance of the discovery, and whether the burden outweighs the benefit.
- Trap: Discoverable information need not be admissible at trial — it is enough that it is relevant and proportional, and the old phrase 'reasonably calculated to lead to admissible evidence' was deleted in the 2015 amendments.
Required disclosures and the discovery plan
- Rule 26(a)(1) initial disclosures: without any request, each party must disclose witnesses, documents it may use to support its claims/defenses, a damages computation, and insurance agreements.
- Rule 26(f) conference: the parties must confer early to develop a discovery plan; Rule 26(a)(2) governs expert disclosures, and 26(a)(3) governs pretrial disclosures.
- Duty to supplement (26(e)): parties must update disclosures and responses when they learn they were incomplete.
Privilege and the Work-Product Doctrine
Two distinct protections shield material from discovery:
Attorney-client privilege
Protects confidential communications between attorney and client made to obtain or provide legal advice. It is absolute (no need-based override) but is waived by disclosure to third parties. It protects the communication, not the underlying facts.
Work-product doctrine (Rule 26(b)(3))
Protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative (originating in Hickman v. Taylor). Work product is qualified, and the protection has two tiers:
| Tier | Definition | Protection |
|---|---|---|
| Ordinary work product | Facts, witness statements, gathered materials | Discoverable on a showing of substantial need + inability to obtain the substantial equivalent without undue hardship |
| Opinion work product | The attorney's mental impressions, conclusions, opinions, or legal theories | Near-absolute — rarely if ever discoverable |
Inadvertent disclosure / clawback: Under Rule 26(b)(5)(B) and Federal Rule of Evidence 502, an inadvertent production of privileged material does not waive privilege if the holder took reasonable steps to prevent and to rectify the disclosure.
Discovery Devices and Sanctions
The core devices
| Device | Rule | Numeric limit | Notes |
|---|---|---|---|
| Depositions | 30/31 | 10 per side; each ≤ 1 day of 7 hours | Only device usable on non-parties (by subpoena, Rule 45) |
| Interrogatories | 33 | 25 including subparts | Written questions to parties only; answered under oath |
| Requests for production | 34 | No numeric limit | Documents and ESI from parties (non-parties via Rule 45 subpoena) |
| Physical/mental exam | 35 | — | Requires court order and 'good cause'; condition must be in controversy |
| Requests for admission | 36 | No numeric limit | Failure to respond in 30 days = deemed admitted |
Sanctions (Rule 37)
- Motion to compel (37(a)): when a party fails to answer, the requesting party first moves to compel; the loser usually pays expenses.
- Failure to obey an order (37(b)): only after a party violates a court order may the court impose harsher sanctions — designating facts as established, striking pleadings, prohibiting evidence, dismissal, or default.
- Spoliation of ESI (37(e)): if electronically stored information that should have been preserved is lost because a party failed to take reasonable steps, the court may impose curative measures, and on a finding of intent to deprive, an adverse-inference instruction or dismissal.
California Civil Discovery Act distinctions
California's discovery (CCP 2016 et seq.) parallels federal practice but with key differences:
- Form and special interrogatories, with a presumptive limit of 35 specially prepared interrogatories (declaration allows more).
- A responding party has 30 days to respond, and California uniquely authorizes monetary sanctions for the misuse of the discovery process even without a prior order being violated — sanctions are 'mandatory' against the losing party on a motion to compel absent substantial justification.
- California protects 'qualified' work product by statute (CCP 2018.030), with absolute protection for writings reflecting an attorney's impressions and legal theories.
- California permits a defendant to serve discovery immediately but bars a plaintiff from serving most discovery until a set period after service of the complaint (e.g., depositions generally cannot be noticed until 20 days after service), and it does not require federal-style automatic initial disclosures.
Experts and the discovery conference
Testifying experts (Rule 26(a)(2)) must be disclosed with a written report, and they are deposable; their opinions are fully discoverable. Non-testifying / consulting experts (Rule 26(b)(4)(D)) are protected — their opinions are discoverable only on a showing of exceptional circumstances making it impracticable to obtain the information otherwise. Trap: parties often confuse the two — facts known to a consulting expert are shielded, while a testifying expert's basis is open.
The Rule 26(f) conference and resulting scheduling order (Rule 16(b)) set discovery deadlines; a court may impose Rule 16 sanctions for failing to obey scheduling or pretrial orders. California uses a parallel expert-witness exchange triggered by demand (CCP 2034), with strict deadlines tied to the trial date, and excludes undisclosed experts at trial.
After a bus accident, an attorney interviews witnesses and records their statements in a memo reflecting her legal theories of liability. Opposing counsel seeks the memo. What protects it?
A party serves interrogatories that the opposing party simply ignores. What must the requesting party do before seeking harsh sanctions like dismissal?