Civil procedure: Federal Rules of Civil Procedure (Part Two)

Title V – Discovery.

Rules 26 to 37.

Title V covers the rules of discovery. Modern civil litigation is based upon the idea that the parties should not be subject to surprises at trial. Discovery is the process whereby civil litigants seek to obtain information both from other parties and from non parties (or third parties). Parties have a series of tools with which they can obtain information:

1. Document requests (Rule 34): a party can seek documents and other real objects from parties and non parties.

2. Interrogatories (Rule 33): a party can require other parties to answer 25 questions.

3. Requests for admissions (Rule 36): A party can require other parties to admit or deny the truth of certain statements.

4. Depositions (Rule 30): A party can require at most 10 individuals or representatives of organizations to make themselves available for questioning for a maximum of one day of 7 hours, without obtaining leave of court.

FRCP Rule 37 oversees the possible sanctions that someone may seek if a failure to preserve data takes place and outlines how courts may apply sanctions or remedial measures. Updates to FRCP Rule 37 went into effect on December 1, 2015, and have led to a significant decline in spoliation rulings in subsequent years.

Federal procedure also requires parties to divulge certain information without a formal discovery request, in contrast to many state courts where most discovery can only be had by request. Information covered by this initial disclosure is found in Rule 26a section 1 subsection A, includes information about potential witnesses, information/copies about all documents that may be used in the party's claim (excluding impeachment material), computations of damages, and insurance information. Information about any expert witness testimony is also required.

Notable exceptions to the discovery rules include impeachment evidence/witnesses, "work product" (materials an attorney uses to prepare for the trial, especially documents containing mental impressions, legal conclusions, or opinions of counsel), and experts who are used exclusively for trial prep and will not testify.

FRCP Rule 26 provides general guidelines to the discovery process, it requires the plaintiff to initiate a conference between the parties to plan the discovery process. The parties must confer as soon as practicable after the complaint was served to the defendants—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16b. The parties should attempt to agree on the proposed discovery plan, and submit it to the court within 14 days after the conference. The Discovery Plan must state the parties' proposals on subject of the discovery, limitations on discovery, case management schedule and timing deadlines for each stage of the discovery process, including:

End-date of the discovery. This should be at least 60 days before the trial. The trial target date is usually 6 months to 2 years after the conference.

Amendments to the deadlines for filing pleadings under FRCP 7 & 15, if any.

Deadline for amending pleadings. Normally it is at least 30 days before the discovery ends.

Deadline for joining claims, remedies and parties (FRCP 18 & 19). Normally it is at least 30 days before the discovery ends.

Deadline for initial expert disclosures and rebuttal expert disclosures. Normally it is at least 30 days before the discovery ends.

Deadline for dispositive motions. Usually it is at least 30 days after the discovery end-date.

Deadline for Pre-trial order. If any dispositive motions are filed, the Joint Pretrial Order can be filed at least 30 days after the last decision on the merits.