USA Law and Practice Contributed by: Courtney Scobie and Jack Edwards, Ajamie LLP
5.3 Discovery in This Jurisdiction FRCP 26 lays out the general provisions governing discovery in US federal courts. The rule contem- plates broad discovery that allows litigants to obtain relevant documents and information from parties and non-parties to assist them in preparing for trial. Dis- covery should be relevant to the claims and defences in the case. Parties are entitled to discover any infor- mation that is relevant and not privileged. Relevance for discovery is typically broader than the relevance standard for admissible evidence at trial. The scope of discovery should be proportionate to the needs of the case. Discovery should be conducted in a manner that is fair, efficient, and not overly burdensome for the parties involved. Although parties are generally enti- tled to broad discovery, courts may issue protective orders or limits on discovery in certain situations to prevent harassment, undue burden, or the disclosure of sensitive information. Parties have a duty to disclose certain initial informa- tion without a discovery request, as required by FRCP 26 (a). This includes the following. • Initial disclosures – parties must provide the names of individuals who may have discoverable informa- tion, a description of the documents or categories of documents that support their claims or defenc- es, a computation of damages, and any insurance agreements that may cover the claims at issue. • Expert witness disclosures – parties must disclose the identity of any expert witnesses they plan to call at trial. • Pre-trial disclosures – closer to trial, parties must provide more detailed information about their trial witnesses and exhibits. 5.4 Alternatives to Discovery Mechanisms Comprehensive discovery is a hallmark of the US litigation system, so this question is not applicable to US federal courts. However, certain types of civil proceedings – such as petitions for writs of habeas corpus or in rem proceedings over a particular piece of property – do not require initial disclosures and may not proceed on an ordinary discovery track as per a more traditional lawsuit.
sample the item or land. The request must state the time, place, manner, conditions, and scope of the inspection. The responding party may object to any part of the request that is not reasonable. Per FRCP 26 (b), parties may obtain discovery regard- ing any non-privileged matter that is relevant to any party’s claim or defence and proportional to the needs of the case. When determining proportionality, courts and litigants consider the importance of the issues, the amount in controversy, and the parties’ resources. Information does not need to be admissible in evi- dence to be discoverable. Discovery is administered by the litigants, and each party is responsible for complying with the rules and responding to discovery requests. Parties can stipu- late various aspects of discovery, such as the timing and manner of production, but the court may become involved when disputes arise. To contain the scope and cost of discovery, parties are required to confer over discovery issues at the start of the lawsuit and draft a discovery plan. Discovery plans address, among other things, the schedule for conducting discovery, subjects on which discovery is needed, potential privilege issues, and changes to limitations imposed by the federal or local court rules. 5.2 Discovery and Third Parties Under FRCP 45, a litigant can have a subpoena issued to a third party to obtain discovery (includ- ing documents or ESI) from them for inspection of a third party’s premises or for deposition testimony. Subpoenas can be issued either by a court or by an attorney licensed to practise in that court. Documents or ESI must be produced as they are maintained in the ordinary course of business and non-parties may assert objections and allowable privileges over docu- ments, ESI or testimony. The principles of relevance, proportionality and fairness apply to third-party dis- covery, just as they do to discovery involving named parties in the case. When a third party responds to a subpoena, they generally have three options – com- pliance, objecting through motion practice before the court, or negotiating a response with the party seeking the discovery.
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