USA Law and Practice Contributed by: Courtney Scobie, Jack Edwards and Andrea Whitley, Ajamie LLP
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 documents, ESI or testimony. The principles of relevance, propor- tionality and fairness apply to third-party discov- ery, 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 – compliance, objecting through motion practice before the court, or negotiating a response with the party seeking the discovery. 5.3 Discovery in This Jurisdiction FRCP 26 lays out the general provisions govern- ing discovery in US federal courts. The rule con- templates broad discovery that allows litigants to obtain relevant documents and information from parties and non-parties to assist them in preparing for trial. Discovery should be relevant to the claims and defences in the case. Parties are entitled to discover any information that is not privileged and is relevant to any party’s claim or defence. Relevance for discovery is typically broader than the relevance standard for admis- sible 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 gener- ally entitled 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 information without a discovery request, as required by FRCP 26(a). This includes the fol- lowing.
• Initial disclosures – parties must provide the names of individuals who may have discover- able information, a description of the docu- ments or categories of documents that sup- port their claims or defences, a computation of damages, and any insurance agreements that may be applicable to 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 Comprehensive discovery is a hallmark of the US litigation system, so this question is not applica- ble 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. 5.5 Legal Privilege their trial witnesses and exhibits. 5.4 Alternatives to Discovery Mechanisms American federal courts recognise both the attorney–client privilege and the attorney work product doctrine. The attorney–client privilege protects confidential communications between an attorney and their client made for the purpose of obtaining legal advice or representation. To invoke the privilege, the communication must have been intended to be confidential, intended to seek legal advice, and not waived. In most cases, the client holds the privilege, and it can only be waived by the client. Communications with in-house counsel are generally protected by attorney–client privilege, as long as they meet the criteria for invoking the privilege.
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