10.1 Discovery Tools and Document Control

The Paralegal CORE Competency Exam (PCCE) treats discovery as a tools-and-control skill. Domain 1 asks you to name the Federal Rule of Civil Procedure, name the device, and know what a paralegal may draft versus what only counsel may sign. Chapter 9 started the case. This chapter moves the file from the Rule 26(f) conference through production, trial, judgment, and appeal.

Scope: relevant, proportional, and nonprivileged

FRCP 26(b)(1) is the master sentence. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. Proportionality weighs the importance of the issues at stake, the amount in controversy, the parties’ relative access to information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information need not be admissible in evidence to be discoverable.

Privilege and work-product still cut off production. 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. Rule 26(b)(5) requires a party that withholds information as privileged or work-product to describe the withheld items in a way that, without revealing privileged content, lets other parties assess the claim — the privilege log. Inadvertent production is handled under Rule 26(b)(5)(B) (the clawback procedure) and, for waiver analysis, FRE 502.

A protective order (Rule 26(c)) is how the court, for good cause, forbids or limits discovery to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense — including Attorneys’ Eyes Only designations for trade secrets. Protective orders are not a substitute for a privilege log. They manage who may see produced material; the log explains what was not produced and why.

Initial disclosures — Rule 26(a)(1)

Initial disclosures are automatic. A party must disclose them without awaiting a discovery request. Conceptually they are due early — in federal court, ordinarily within 14 days after the Rule 26(f) conference, unless a stipulation, court order, or a Rule 26(a)(1)(C) objection changes the clock. Do not memorize a local standing-order date as if it were national.

What must be disclosed (unless the use is solely for impeachment):

1. The name and, if known, address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses.
2. A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.
3. A computation of each category of damages claimed, and the documents or other evidentiary material on which each computation is based.
4. Any insurance agreement under which an insurer may be liable to satisfy all or part of a possible judgment.

Rule 26(a)(2) is expert disclosure (identity, and for retained experts a written report). Rule 26(a)(3) is pretrial disclosure of trial witnesses and exhibits. Rule 26(e) requires a party to supplement a disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect. Rule 26(g) requires an attorney of record to sign disclosures and discovery papers, certifying that they are complete and correct (disclosures) or consistent with the rules and not interposed for an improper purpose (requests, responses, and objections).

Exam trap: initial disclosures are not “everything in the warehouse.” They are the people, documents, damage numbers, and insurance the disclosing party may use to support its own claims or defenses. The rest is reached with interrogatories, RFPs, depositions, and subpoenas.

The five party devices and the nonparty subpoena

Interrogatories — Rule 33

Interrogatories are written questions served on another party. In federal court a party may serve no more than 25 written interrogatories, including all discrete subparts, unless the parties stipulate or the court orders a different number (Rule 33(a)(1)). A compound question that hides two independent inquiries counts as two. The responding party must answer under oath, and the attorney must sign any objections (Rule 33(b)(5)). The default response time is 30 days after service (Rule 33(b)(2)). Answers may be used to the extent allowed by the Federal Rules of Evidence. A party may answer by producing business records when the burden of deriving the answer is substantially the same for either party (Rule 33(d)).

Paralegals draft interrogatories and draft answers and objections for attorney review. They do not sign objections as counsel.

Depositions — Rule 30

A deposition is sworn oral testimony taken before an officer authorized to administer oaths — almost always a court reporter. Rule 30(b)(1) requires reasonable written notice of the time and place and, if known, the deponent’s name and address. A Rule 30(b)(6) notice to an organization must describe the matters for examination with reasonable particularity; the organization then designates the person or persons who will testify on its behalf.

Unless the parties stipulate or the court orders otherwise, a deposition is limited to one day of 7 hours (Rule 30(d)(1)). A party generally needs leave to take more than 10 depositions, to depose a person a second time, or to take a deposition before the Rule 26(f) conference (Rule 30(a)(2)). The witness may be examined as at trial. A party may instruct a deponent not to answer only to preserve a privilege, to enforce a court-ordered limitation, or to present a Rule 30(d)(3) motion. Nonparties are not commanded by a Rule 30 notice alone. You need a Rule 45 subpoena.

Requests for production — Rule 34

Rule 34 lets a party request that another party produce and permit inspection, copying, testing, or sampling of designated documents, ESI, or tangible things, or permit entry onto land. The request must describe each item or category with reasonable particularity and may specify the form of ESI production. The responding party generally has 30 days to serve a written response stating that inspection will be permitted or stating an objection with specificity, including the reasons (Rule 34(b)(2)). An objection must state whether any responsive materials are being withheld on the basis of that objection. Rule 34 reaches a party’s possession, custody, or control — including files a vendor holds for the client.

Requests for admission — Rule 36

Requests for admission (RFAs) ask a party to admit the truth of facts, the application of law to fact, or the genuineness of described documents. A matter is admitted unless, within 30 days after being served, the party serves a written answer or objection (Rule 36(a)(3)). An admission under Rule 36 is conclusively established unless the court permits withdrawal or amendment, and it may be used only in the pending action (Rule 36(b)). RFAs pin down what is no longer in dispute; they are not a back-door set of unlimited interrogatories.

Third-party discovery — Rule 45

Rule 45 is the subpoena rule. It is how you obtain testimony, documents, ESI, or inspection from a nonparty. A subpoena must issue from the court where the action is pending, command attendance or production within the geographic limits the rule sets, and avoid imposing an undue burden. The serving party must take reasonable steps to avoid undue burden or expense on the nonparty. A nonparty may serve objections to a document subpoena, and the serving party then needs a court order to compel. Do not serve interrogatories or RFAs on a nonparty — those devices run only against parties.

E-discovery, litigation holds, and production control

Electronically stored information (ESI) is within Rule 34 and Rule 26. Chapter 8 taught the EDRM spine and metadata hygiene. Here the exam wants the rule hooks. Rule 26(f) requires the parties to discuss preserving discoverable information and any issues about disclosure, discovery, or preservation of ESI, including the form of production. Rule 26(b)(2)(B) lets a party resist ESI that is not reasonably accessible because of undue burden or cost, subject to good-cause production. Rule 37(e) is the ESI-preservation sanction rule: if ESI that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced, the court may order measures no greater than necessary to cure prejudice — and, on a finding of intent to deprive, may presume the information was unfavorable, instruct the jury accordingly, or dismiss or enter default judgment.

A litigation hold (also called a preservation notice) is the instruction to custodians and IT to suspend routine destruction once litigation is pending or reasonably anticipated. The paralegal often drafts the hold, tracks acknowledgments, and reminds custodians; the attorney decides the legal scope.

Bates numbering, formats, and chain of custody

Bates numbering (or Bates stamping) assigns each produced page or image a unique sequential identifier — typically a party prefix plus a padded number (ACME_000123). It is how the trial team cites “what we produced” and how the privilege log points to withheld ranges.

Production formats are a Rule 34 / Rule 26(f) negotiation:

Document control means the firm can say what was collected, from whom, when, how it was processed, what was withheld, and what was produced. Chain of custody is the log that shows an item stayed identifiable and unaltered from collection through production and, later, through marking as a trial exhibit. Break the chain and authenticity (FRE 901) becomes a fight.

Rule 37 sanctions — conceptual

Rule 37 is the enforcement chapter. A party may move to compel after conferring in good faith (Rule 37(a)). Failure to comply with an order can produce issue sanctions, evidence preclusion, striking pleadings, stay, dismissal, default, and contempt (Rule 37(b)). Failure to disclose, to supplement, or to admit can bar the party from using the undisclosed information on a motion, at a hearing, or at trial, unless the failure was substantially justified or harmless (Rule 37(c)). Failure to attend a deposition, serve answers, or respond to inspection can produce similar sanctions (Rule 37(d)). The PCCE wants the concept: discovery duties are court-enforceable, and spoliation of ESI has its own Rule 37(e) track.

The paralegal’s lane

A litigation paralegal identifies custodians, drafts the hold, builds the privilege log, Bates-stamps and indexes the production, calendars the 30-day response clocks, and drafts interrogatories, RFPs, RFAs, deposition notices, and Rule 45 subpoenas for attorney review. The attorney signs objections, signs Rule 26(g) certifications, and takes the deposition. Signing discovery objections “as counsel” is unauthorized practice.

Worked path. A partner says: “Serve the vendor that hosted the client’s email. I want their server logs and a 30(b)(6) on retention. Also send the defendant 40 interrogatories and a request that they admit the contract is authentic.” Translate before you type. The vendor is a nonparty — use a Rule 45 subpoena, not Rule 33 or Rule 34. The 30(b)(6) form is for a party organization; if the vendor is the deponent, use a deposition subpoena that describes the topics. Forty interrogatories exceed the 25-including-discrete-subparts default unless you have a stipulation or an order. The authenticity request is a proper Rule 36 RFA. Calendar the 30-day response dates, start the privilege-log template, and do not put your own signature on the objections.