l.l x DTSCOVERY cH" 1()

rrl)oi"ts or' "diary sheets" prepaned by the insurer's claims adjusters" The court.allowed discovery of the diary sheets prepared by the initial claims adjuster'during the first two rnonths after the fire. It reasoned that such reports are noiprimarily prepared for the contingency of litigation but rather for the routint'business purpose of deciding whether to pay or resist the claim.

However, the court denied discovery of the diary sheets of a second claimsadjuster to whom the claim was assigired after the first claims adjustei'determined that the ciaim would be substantial and that the origins of the flrcwere suspicious. At that point, all the circumstances indicated that tht'insurer's activities shifted from "mere claims evaluation to a stronganticipation of litigation."l2l The court acknowledged that although an insurelalways works in anticipation of litigation, at some point the probabitity ol"litigation becomes substantial and irnminent, triggering the qualifled immunit.yfor materials prepared thereafter.

lcl By a Farty or F{is Representative,Although Hickmsn dealt just with materials prepared by an attorney,

preparation of materiais in anticipation of litigation or for trial routinely anrnecessarily requires the assistance of non-attorneys, as well the partiesthemseives. Rule 26(b)(3) thus expressly extends the qualified immunity tomaterials prepared by a party or a party's representative, "including [his Iattorney, consultant, surety, indemnitor, insurer, or agent."t22 Thisenlargement of the literal original common law rule accounts in part for Rulcr26(bX3)'s abandonment of the phrase "attorney work product" in favor of "trialpreparation materials."

t3l Asserting the Qualified Immunity'While the burden rests on the discoverer to overcome a properly assertet

qualified immunity for work product,r23 the discoveree must first lay a propet.foundation for the immunity. As previously noted in connection with claims ofprivilege,l2a this requirement is codifled in Rule 26(bX5). Disregarding therequirement risks sanctions as well as waiver of the immunity. The rule doesnot specify what information must be provided. "Details concerning time,persons, general subject matter, etc., may be appropriate if only a few itemsare withheld, but may be unduly burdensome when voluminous documents areclaimed to be privileged or protected, particularly if the items can be describedby categoriss."rzs This advice of the Advisory Committee must be takencautiously because the case law is hostile to blanket claims of privilege.r2o

12r 94 F.R.D. at 184.r22 Materials prepared by a party's expert are covered by Rule 26(a)(2) (testimonial expert's

written report) or Rule 26(b)(4) (other experts). See 10.06, infra.723 See S 10.05[4], infra.rza See $ 10.04 (non-discoverability of privileged matters), supra.r25 Rule 26(b)(5) advisory committee's note (1993).126 See, e.g., Eureln Fin. Cotp. a. Ha,t"tford Accid,ent & Ind,em. Co.,1g6 F.R.D. 129, 182 (8.D.

$ 10.05 WQRK PRODUCT

[4] vercomimg.theQuratriffiedlmrmumityonce qualified work product immunity has been properly assertecr, tht,

burden of overcoming it shifts to the cliscoverer and deplnos uion whether thework product consists af uitness statetnents requesb by th witness, other.factual usork product, or opinion uork product"

lal Witness Statements Requested by the W.itnessAlthough witness statements qualify as work product, Rule 26(bXBXC)

expressiy provides that a party or witness may on demand obtain a copy of hisown substantially verbatim statementrzT concerning the subject matter of theaction. The 1970 Advisory committee gave a partial explanation of thisexception to qualified immunity in terms of the importance of a person,sstatement, which is admissible against him at trial as an admission. since aperson who gives a statement without insisting on a copy often does so withoutbenefit of counsel, in ignorance of its legal consequences, and ,,at a time whenhe functions at a disadvantage," the committee reasoned that itsdiscoverability would increase firness.rzs

tbl Factual lVork ProductThe immunity for factual work product can be overcome only upon a

showing by the discoverer of "substantiar need for the materials to prepare[its] case" and that it "cannot without undue hardship, obtain their substantialequivalent by other ss."rzs Although the cases do not always sharplydistinguish these requirements, they are logically discrete.

substantial need, refers to the importance of the materials to thediscoverer's case. Hickman itself demonstrates that substantial need meansmore than that the materials will help the discoverer make sure that he hasoverlooked nothing, because the court rejected that showing. such need, the"natural desire to learn the details of his adversary,s prepa"uion* for triai,', ispresent in every case and cannot be the substantial ned required to overcomethe immunity.l3o Nor, obviously, will mere relevance to a claim or defensesuffice, or else substantial need would be redundant with the generic scope ofdiscovery.l3r But the stronger the relevance and impdance to the

Cal' 199r). A court may also-disregard an untimely establishment of foundation for the immunity.Peat, Manni'ck Mitchell & co. u. west,74} F.2d 540, E4r4z (l}th ci. 1984), cert d,i,smi.ssed,, 469u.s. 1199 (1985).

127 See Kathleen Wails, Worlc Prod,uct Protection, for Witness Statements: Time J'or Abotition,1985 WIs. L. Rnv. 305 (criticizing applicability of this provision only to a witness,s om statement).r28 Rule 26(b)(3) advisory committee's notes (19?0). see generally s 10.03t3ltbl (discoverability

of impeachment material), s,upra.r2e Rule 26(bxg).r3o Autmont u. Llnited, states, 177 F.2d g7r, g7g (Bd cir. 1949), ce,rt. d,enied,, BB9 u.s. 967 (1950)(pre-rule decision).t31 See $ 10.03t11 (relevancy), supra.

\ 10.06 EXPtrRTSDISCOVERY CH" 10

rliscoverer's claim or defense-in-chief, the more likely a court is to find thisrequirement satisfied.132

Hickman also demonstrates that utt'due h,ardshiyt from denial of discoverycannot exist when a party has other reasonable access to the information'There the discoverer ad aecess to contemporaneous sworn testimony and tothe witnesses themselves. When matter is unavailable to the discovererbecause the witnesses have died, moved beyond the reach of cornpulsoryprocess, lost their memories, deviated from their prior testimoly' or refused toooperate, undue hardship can be established.r:s Similarly, the physicaldisppearance or alteration of evidence reflected in work product' such asphotographs of skid marks or conditions at the scene of an accident, maystatish- undue hardship

-

indeed, impossibility -

in obtaining thesubstantial equivalent by other means.134 More generally, any time thatimportant facis are exclusively in the control of the discoveree' the unduehardship requirement should be satisfied'r35

lcl 0pinion Work Fnoductn36Hickman implied that special protection was due an attorney's mental

impressions anlegal theories -

what might be termed opini'on uorlr prod'uct'Rule 26(bX3)(B) gave expression to this implication by providing that inordering discovery of work product after the required showing has been made,the court "must protect against disclosure of the mental impressions,conclusions, opinions, or legal theories of a party's attorney or otherrepresentative concerning the litigation."

Many courts and commentators have read this clause to confer an absoluteprotection on opinion work product, eiting the mandatory verb "shall" in theriginal rule (now "must").ra7 When factual and opinion work producL areintrmixed, a court can often protect the latter by inspecting the mater\als inccl?yLera, (out of the presence of counsel seeking discovery) and ordering

rlisclosure only of segi:egable factual materials.

Arguably, however, Rule 26(bX3) does not expressly prohibit clisclosur"o rl',rpinir wrk product; it only commands the courts to "pnotect agai'sl,rlsclosure." Tn-[JpSottn Co" u. United, States,l3' the Supreme Court suggestetllhat opinion mutrials rnerit "special protection" and cited Rule 26(bXB) anclHickman for the proposition tht such materiels cannot be disclosed "simpiy"on the usual showing of substantial need and undue hardship'l3e The Court didnot reach the queston of what further showing might suffice. Lower federalcourts have on rare occasions allowed discovery of even opinion work productwhen attorneys or other representatives are charged with coercion,malpractice, fraud, or crime, or when their opinions and impressions arepivoal to bad faittr, limitations, laches, or estoppel issues in the lawsuit.r4o Thendditional showing that these cases apparently have in common is that theattorney's or other repr"esentative's opinions are themselves an issue in thelawsuit, for which evidence is unavailable by other means'

$ 10.06 EXPETTSl4X

[1] In GeneralIn Hicmsn, Justice Jackson observed that "ld]iscovery was hardly

intended to enable a learned profession to perform its functions . . on witsborrowed from the adversary."ta2 Nor was discovery intended to enableattorneys to prepare for trial with experts borrowed from their adversaries'Indeed, the concern about freeloading discovery is especially acute in the caseof experts retained in anticipation of litigation because of the substantial fees

""p"rt. often demand. on the other hand, the complexity and importance of

exert testimony at trial also presents a very real risk of surprise to opposingparties who have not had discovery of the expert'

The rules balance these concerns by differentiating between, on one hand,experts expected to testify atLrial (testifying enperts) and, on the other hand,thse merly retained or specially employed in anticipation of trial who are

138 449 u.s. 383 (1981).t3e 449 u.s. at 401.too Sn", e.g., Holmgrenu. State Fa,rm Mut. Auto. Ins. Co.,976 F.2d 5?3 (9th Cir. 1992) (bad faith

denial of insura nce claim); In re Sealed, Case,6?6 F.zd ?93, 80? (D'C' Cir"' 1982) (crimelfuaud); BAersu. Burleson,100 F.R.D. 436,43g (D.D.C. 1983) (limitations); Donouon a. Fitzsimmons, 90 F'R'D'bg3 (N.D. ti. tggt) (reliance on advice-of-counsel defense); Bzrdu. PennCent. Co.,61 F.R.D' 43,4T (b.D. pa. 19?B) (laches). See genera11y G. Michael Halfenger, Comment, The AttorneyMi,scond,uct Emceptton to the work Prod,uct Doctrne,58 u. cu. L. Rnv. 1079 (1991).

L4L SeegenerallyKathleen[.Btennan,Musttlt'eShowGoOn?Defini'nglVlt'enOnePat'tyMaycau or compel an O,pposr,ng Patty',s consultatitte Erpert to Testi'fg' ?8 MIN'. L. Rv. 1191 (1994);Michael H. Graham, nxpn t wtnets Testzmony and, the Fed,eral Rules of Euid,ence: InsuringAd,equate Assurance of Trustwot"thr,ness, 1986 U. Irr. L. Rrv. 43; Michael H. Graham, Di'scouetyof Enpetts (lnd,er RuI g6)Qr) of the Fed,eral Rules of Cai'l Procedure: Pat'ts I & II,1976 U' Iu"L.F. 895, 1977 U.Irr. L.F. 169.

t42 329 U.S. at 516 (Jackson, J., concurring).

t32 See, e.g., Wheeli,ng-Pittsburgh Steel Cotp. u. Und"erwriters Labortores, Inc., 8L F.R.D. 8(N.D. In. 19i8) (statistical data ondamages could notbe properly analyzed without discovery ofwork product consisting of methodology used in computing damages). see generally watcur &Mr,ra I2025.

133 Rule 26(bXB) advisory committee's note (19?0). See In re Int'I Sys. & Controls Corp. Sec.Liti,g., 698 F.zd I2g5 (5th Ci. 1982) (noting memory loss and cost of obtaining informationelsewhere as appropriate particularized showings to make out undue hardship). See generallyMissy K. Atwo, Comment, Rule t66b: The Di,scouery of Work Prod'uct Bas-ed'_ on Substanti'alNeed, and, und,ue Hwd,ship,42B1||1ron L. Rrv. 5?3, 5?9--S? (1990) (surweying federal cases).

,t4 See,e.g.,Rackersa.Si,egfried,,54F.R.D.24W.D.Mo. 1971)(orderingdiscoveryofinsuranceadjuster's measurements of skid marks)'

135 See Moon 926.70151.136 Waits, note I27 , supra;W arren H. Smith, Comment, Ttrc Potential for Dr'scoaety of Opinion

work Prod.uct und,er Rule 26(b)(3),64 Iowa L. Rnv. 103 (1978); Note, Protecti'on of opini'onworkProd,uct und,er the Fed.eral Rules of Ciui.I Procedwe,64 V. L. Rrv. 333 (19?8).

rs7 See, e.g., Duptan Corp. a. Moulnage et Retord,ene d'e Chauanoz,50g F.2d 730 (4th Cir.1974), cet"t d,nied,,'420 U.S. 99? (1975); United, States a. Cttatham City Corp.,72 F.R'D. 640, 643n.3 (S.D. Ga. 1976). See generally Wntcar 582.

152 DISCOVERY CH. 10

not, ho\Mever, expected to testify (non-testifying etcytetts). Rule 26(a)(2)requires disclosure of the ident and expected testimony of the testifyingexperts and Rule 26(bX4XA) permits their depositions.l43 Rule 26(bX4)conditionally protects the non-testifying experts from discovery absent aspecial showing.

Neither part of the rule, however, protects against discovery of an expertwho acquires his information as an actor or viewer in the transactions oroccurrences that give rise to the lawsuit.ua Thus, the police officer whoresponds to the accident scene, the doctor who attends in the emergency room,and the mechanic who services the car whose brakes failed, are all justordinary fact witnesses, subject to orthodox discovery under the rules, eventhough they may also be experts.las

Rule 26 does not address per se the issue of discovery of experts who havebeen consulted in anticipation of litigation but not retained or speciallyemployed.laG The 1970 Advisory Committee's notes suggest that the omissionwas intentional, and that discovery ofsuch experts, or even oftheir identity, isprecluded.laz The omission of any provision for discovery of generallyemployed non-testifying experts arguably creates the same inference. Somecourts, however, have rejected that inference for such a "party-expert" on thegrounds that he is more partisan than professionally objective.las If such anexpert learned facts and acquired opinions in anticipation of litigation,however, any materials that he has generated reflecting those facts andopinions would presumably be independently protected from discovery byordinary work product immunity.rae

ra3 Discovery of reports of physical or mental examinations conducted pursuant to Rule 35 isgoverned separately by its provisions. ,S $ 10.11 (procedure for taking physical and mentalexaminations), infra.

raa Rule 26(bX4) advisory committee's note (19?0).r45 See, e.g., Nelco Cotp. u. Slater Elec., Inc.,80 F.R.D. 411 (E.D.N.Y. 19?8) (expert may be

deposed as an "actor" in the events that are the subject of the litigation). Of course, the rule shieldsonly the facts and opinions held by the expeit. " 'It does not . excuse the party from disgorgingwhat facts he may have in his possession"' or allow him to insulate those facts from discoverv bygiving them to an expert. Marine Petroleum Co. u. Champlin Petroleun Co.,64I F.zd 984, 994(D.C. Cir. 1980) (quoting J. Moone, Moon's FpuR;, Pncrrcn n26.66[2] (2d ed.)).

!46 See Brennan, note I4I, supra.147 1" 1970 Advisory Committee said that the i"ule "precludes discovery against experts who

were informally consulted in preparation for trial, but not retained or specially employed. As anancillary procedure, a pay may on a proper showing require the other party to name expertsretained or specially empioyed, but not those formally consulted."

raa See, e.g., Kansas-Nebraska Naturl Gas Co. u. Mwatlton Oit Co.,109 F.R.D. 12, 15-16 (D.Neb. 1985). For an especially thoughtful discussion of the issue, see also Vi,rgi,ni,a EIec. &, Power Co.a. Sun Shbuild,i.ng & Dry Dock Co., 68 F.R.D. 397, 406-10 (E.D. Va. 1975). See generally JamesR. Pielemeier, Discoaery of Non-Testifying "In-House" Euperts Und,er Fed,era| RuIe of CiuilProced,ur 96, 58 INn. L.J. 597 , 625 (1983) (arguing that "discovery of in-house experts should betreated in the sme manner as discovery of'retained or specially employed' experts" under Rule26(bX4).

'ot See $ 10.05 (work product), supra.

A 1991 amendment to Rule 45may have modified this law by acknowietlgirruthe possibility of discovery of "unretained experts,"1so subject to motions trrqush or

^odlfy discovery or trial subpoenas. Frior to the amendment, some

courts treated unretained and unconsulted experts s ordinary witnesses whore not exempt from the citizen's duty to give evidence. But the problem offreeloading noted above applies to such experts with special force',,[c]ompulsion to give evidence may threaten the intellectual property of lsuch]

"rpL"t. denied the opportunity to bargain for the value of their services,"

noied the 19g1 Advisory Committee. Rule 45(c), therefore, now allows formotions to quash or modify any subpoena that requires "disclosing anunretained expert's opinion or information that does not describe specificoccu1^rences in dispute nd results from the expert's study that was notrequested by a party" unless the requesting parw can show substantial needfor such teslimony and undue hardship nd assures that she will reasonablycompensate the exPert.

l2l Testifying ExPertsThe 1970 Advisory committee concluded that any prohibition of discovery

from the testifying expert "produces in acute form the very evils thatdiscovery has ben cr"ted to prevent." The complexity of expert testimonyand freqent prior experience of the testifying expert with the rigors of cross-examination rquire particularly careful preparation by the,cross-examiner.r5rIf a discovery 5u" hndicaps Lhat preparation, the careful lawyer will oftencompensate ty going slow, over-preparing expert rebuttal testimony, orseekng a continuncJto p".pu"" in mid-trial, all in derogation of Rule 1's goalof a ;just, speedy und itt""p"nsive determination of every action andproceeding."

Rule 26 originally accommodated these concerns by allowing limiteddiscovery of the testirng expert by interrogatories, with a possibility ofdiscovery by deposition o coutt order. Because lawyers usually draft theanswers to interrogatories, however,rs2 this mode of discovery was ofteninsufficient to prepare for the examination of expert witnesses. on the otherhand, partie* ort.n overcme this problem by agreeing to reciprocal depositiondiscovery of their expert witnesses.

The 1993 amendment solved the problem by rule, and the solution has beenpreserved in subsequent amendments. Rule 26(a)(2) requires parties at least,rinety days before trial (or at times directed by the court) to disclose theidentity and report the expected testimony of their testifying experts. Therequird reportmust include a complete statement of the expert's opinion' as-"il u. th basis and reasons for the opinion, any underlying data and

r5o Rule 45(c).151 These characteristics of expert testimony are aggravated in federal court by Federal Rule

of Evidence ?02, which permits an expert to give his opinion without prior disclosure of theunderlying facts, contrary to the commn law procedure. The opposing party may therefore haveto bring oit the factual predicate on cross-examination, a procedure with traps for the unprepared'

r52 See Rule 26(a)(2) advisory committee's note (1993); 5 .09[2], infra.

$ 10.06 EXPERTS

54 DISCOVtrRY CH. 10

tu3 See, e.g., Delcastor, Inc. a. Vail Assocs., lnc.,108 F.R.D. 405 (D. Colo. 1985) (experfs opinionconeerning cose of mudslide is discoverable where he was the only expert to have examinedmudslide area immediately folowing the slide).

rsa Marine petroleum Co.,64I F.2d at 996 (the rule's reference to the "same subject" is not tothe particular expert's testimony itself, but rather to its subject matter).

155 Rule 26(bX4XC).

10.07 REQUIRtrD DISCLOSURES

tll Mandatory Discovery Conference and DiscoveryFlans

Rule 29 has long permitted the parties to stipulate to the mechanics of mostdiscovery, partly in the (often forlorn) hope that discovery could proceedcooperatively without a need for judicial interveirtion. In 1993, Rule 26( wasamended to require the parties to confer as soon as practicablel5G to discussthe case and possibilities for settlement, to arrange for required disclosures, todiscuss E-discovery issues (including "litigation holds" on data storage), and todevelop a discovery plan incorporating these and other agreements forsubsequent discovery. Rule 26(d) forbids them from taking any discovery priorto this conference.lsT

'Within fourteen days after the conference, the parties must submit a reportof their plan to the court. The rules anticipate that the plan will beincorporated into the scheduling order that the court is required by Rule 16(b)to issue within 120 days after the complaint has been served.

The mandatory conference requirement is clearly intended to requirecooperative discovery and thereby reduce the need for subsequent judicialintervention into the discovery process. But in many cases the parties will haveto confer while Rule 12 motions to dismiss the complaint are still pending andbefore any ansu/ers have been filed. It is unclear how much a conference insuch cases can accomplish toward identifying disputed facts, promotingsettlement, or even determining the amount and timing of discovery.

l2l Required DisclosureslssThe 1993 rule amendments adopted provisions for self-executing discovery

of three kinds: initial disclosures of basic information, disclosures of experttestimony (discussed above in section 10.06[2]), and pretrial disclosures oftrial

156 Tracing the amended rule's circumlocutory statement of timing requirements suggests thatparties will ordinarily have to meet within 69 days of the appernce of a defendant or 99 days afterthe complaint has been sewed. ,9 Rules 16(b) (mandating issuance of discovery scheduling orderwithin ninety days after the appearance of"a" defendant or 120 days after the complaintwas servedon "a" defendant) and 26( (mandating planning conference at least 21 days before a schedulingorder is due).

t57 Rule 27, however, permits discovery by deposition even before litigation commences in orderto perpetuate (preserve) testimony regarding "any matter cognizable in" (within the subject matterjurisdiction o a United States court. A person seeking such pre-complaint discovery mustestablish that the matter would be within the subject matter jurisdiction of a federal court, that heis presently unable for good cause to bring an action in any court, and that there is a substantialdanger that the testimony sought would become unavailable before a complaint can be filed. ,Sqe.9., In re Boland, 79 F.R.D. 665 (D.D.C. 1978). Generally it is not sufficient reason that he does notknow whether a claim exists; pre-action discovery is not intended to be a fishing expedition for aclaim. Id,. at 668 n.3. Rule 27(a) also requires the discoverer to describe the subject matter of theintended action, the facts he seeks to establish and why, and the identities of prospective adverseparties who are entitled to notice of pre-action depositions.

tsa See generlly Griffin B. Bell et al., Automati,c Disclosure in Discouery -

The Rush toReform,27 Gr. L. Rnv. 1 (1992); Kuo-Chang Huang, Mand,atoty Di,sclosure: A Controuersi,u,l,Deuice uith No Effects,2I Plrr, L. Rnv. 203 (2000); Samuel Issacharof & George Loewenstein,

supporting exhibits, the expert's qualifications and publications within thepredinglen years, the experL's compenstion, nd a listing of other cases in*frl.tt tn exprt has testified in the preceding four years. The report, then, i.sintended 9 e the functional equivalent of the expert witness' testimony. Italso includes precisely the kinds of information needed to cross-examine thewitness effecfively aL trial. Rule 26(bX4) also allows a party to depose atestifying expert without leave of court after the report is provided' These twodiscovery dvices are expected to work together; a complete rep.rt mayobviate r at least shorten the deposition of the expert witness.

t3l Retained or Specialty Employed Non-Testifyingxperts

There is less need for discovering facts known and opinions held by anexpert who is not expected to testify at trial, at least when a party canresonably consult or retain a comparable expert. Rule 26(bX4) thereforepermits discovery by interrogatories or deposition of "retained or speciallymployed" non-tstifying experts only "on showing exceptional circumstaneesunder which it is impracti.ul. fot the party to obtain facts or opinions on thesame subject by oiher means." The discoverer can meet this burden byshowing tLat the expert had a unique and irreplicable opportunity to view thescene or to conduct tests relevant to the subject matter,ls3 or7 more rarely'that the expert is one of a kind. The mere faclthat no other expert will holdprecisely the same opinion is insuffrcient, if comparable experts are practicallyvailabl to the discoverer.lsa Any court-ordered discovery of such a non-testifying expert is ordinarily conditioned on fee-sharing'lss

PART B.Mechanics of Discovery

$ 10.07 REQUIRED DISCLOSURES AND OTHERGENERAL MECHANICS

Each of the federal modes of discovery has distinctive characteristics,explored in the succeeding sections. But most discovery also shares severalcommon features, unless exempted by local rule, court order, or partystipulation under Rule 29. The paities (1) must begin the discovery process witha mandatory planning conference, (2) make certain disclosures thereafterwithout being sked in most cses, and (3) supplement the required disclosuresand specifred di*coue"y responses at appropriate intervals'

I56 DISCOVERY CH. 10

evidence. The provisions for required disclosures have teeth: a party whowithout substantial justification fails to disciose material subject to requireddisclosure is precluded under Rule 37(cX1) from using that materiai asevidence at trial"

lal Initial isclosuresRuie 26(a)(1) requires initial disclosure (within fourteen days after the Rule

26( discovery conference) of the basic information needed in most cases toprepare for trial or to assess settlement, except in eight categories of caseswhich historically invoive little or no discovery.rse This basic information isusually targeted any\,vay by discovery requests (if discovery is taken at all).The requirement is iniended merely to "accelerate the exchange of basicinformation" and "eliminate the paper work involved in requesting" it'according to the 1993 Advisory Committee.

Basic information covered by Rule 26(aX1) includes the identity of possiblefact witnesses, and identification of documents and reasonably accessibleelectronically stored informationtGo in the possession, custody or control of aparty, "that the disclosing party may use to support its elaim or defenses,uniess the use would be soiely for impeachment." Parties need not actuallyproduce these documents; the purpose of initial disclosure is only to identifythem to help the parties reflne subsequent discovery requests. Moreover,voluminous documents may be identifled by category. In short, initialdisclosures under Rule 26(a)(1)(AXI) and (ii) are the functional equivalent ofresponses to interrogatories asking a party to identify witnesses anddocuments or other tangible things relevant to allegations in the pleadings.l61Rule 26(a)(1)(A)(ii and (iv) require parties also to disclose computations ofdamages and to produce underlying documents and other evidence, as well asinsurance agreements that may be used to satisfy all or part of a judgmentwhich may be entered in the action.

The "use-to-support" relevancy standard for initial disclosures was addedby amendment in 2000 to replace the more problematical original standard:"relevant to disputed facts alleged with particularity in the pleadings." Theoriginal standard was always somewhat at odds with the liberal "notice

Uni,ntended Consequences of Mand"atory Di,sclosure, 73 Tx. L. Rov. 753 (1995); Thomas M'Mengler, Eliminati,ng Abusiue Discouery Tlzrouglt' Disclosure: Is It Again Ti,me for Rewn?,138F.R.D. 155 (1991); Linda S. Mullenix, Hope Oaer Erperience: Mond'atory Infonnal Di'scouery andthe Poli.tics of Rulemalnng, 69 N.C. L. Rov. 795 (1991); lVilliam W. Schwarzer, The Federal Rules,the Ad,aersa;r'y Process, and Discoaery Refonn,50 U. PIrt. L. Rnv. 703, 72I-23 (L989); Ralph K.Winter, Foreword,: In Defense of Dzscouery Refonn,58 Bnoox. L. Rv. 263 (1992).

rss Ruie 26(aXlXB) (including, for example, petitions for habeas corpus, actions to quashadministrative subpoenas, and actions by the United States to recover beneflt pa,rnents or collectstudent loans).

reo 1. 2006 E-discovery amendments expressly provide that a party need not providediscovery of electronically data "from sources the party identifies as not reasonably accessiblebecause of undue burden or cost." Rule 26(bX2XB). S $ 10.03[e] (using pre-amendment decisionin Zubulake as an example).

ror Rule 26(a)(l) advisory committee's note (1993).

$ 10.07 REQUIRtrD DISCLOSURES

pleading" requir"ements of Rule 8,162 and also with the usual chronology of'iitigation, in which it is the ns\ 7er (often coming after initial disclosures aredue) which places pleaded facts in dispute. Moreover, the original standardws also criticized for placing lawyers in an awkward conflict by forcing themto disclose unfavorable information to their adversaries.lo3 The new standardalleviates these concerns. The amended rule speciflcally addresses the timingproblem by providing that a party may object that initial disclosures re "notappropriate in [the] action" and then wait the court's ruling before makingthe disclosures. A party is no longer required to disclose to an adversaryunfavorable information that it does not intend to use.r64 Ths not only reducesany alleged conflict for the disclosing lawyer, it also substantially narrows thescope165

-

and therefore burden -

of the initial disclosures.

tbl Fretnial DisclosuresIn addition to the required disclosure of expert witness testimony

(discussed in section 10.06[2]), the parties must exchange lists of trialwitnesses and trial exhibits at least thirty days before triai. This disclosureincludes not only witnesses and exhibits that a party expects to present at trial,trut also those that the party may use if the need arises (other than any held inreserue solely for impeachment purposes). Fourteen days after the requiredexchange, the parties must serve and fiIe any evidentiary objections they haveto the materials that have been listed by the opposing parties. Objections notmade (other than objections under Federal Rules of Evidence 402 (relevancy)and 403 (prejudice)) are waived.

These exchanges are not really discovery al all; they are more accuratelyviewed as part of the trial process. Indeed, before the 1993 amendment, manycourts required such exchanges in connection with the final pretrialconference.rGG Such exchanges not only facilitate trial preparation, but alsopermit in limine (at the threshold of trial) rulings on the evidence that helpstreamline trial.

tcl An Assessment of Required DisclosureThe promulgation in 1993 of provisions for required disclosures of expert

witness testimony and of trial witnesses and trial evidence in essence justcodified what many federal courts were already doing. These provisions weregenerally uncontroversial. The requirement for initial disclosures of basicinformation, however, .was new and very controversial. Indeed, Justice Scalia

162 Rule 9 identifies only a few categories of allegations which must be pled with particularity.S $ 8.04[4] (discussing special pleading requirements).

163 See, e.g.,BeLl, note 158, supra, at 46 n.175.r6a Rule 26(a)(l) advisory committee notes (2000). "Use" is not limited to trial; it includes any

use at pretrial conferences or to support a motion. Beil, note I58, supra, at 46 n.175.r6s Carl Tobias, Congress and the 2000 Fed,eral Ciuzl Rules Amend,ments,22 Crrnnozo L. Rov.

75, 79 (2000).166 See $ 12.03t21 (procedures for pretrial conferences), i'nfra.

l5x DISCOVERY CH. 10

objected to it as "potentially disastrous and certainly premature."l67 Criticsargued that it was potentially disastrous for several reasons.

First, they raised the specter of satellite litigation.lG8 This objection chieflyreflected the rule's original requirement of disclosure of information "relevantto disputed facts alleged with particularity in the pleadings," and the fear thatthis peculiar wording would encourage a return to discredited fact pleading.The subsequent amendment of the rule in 2000 to tie the disciosurerequirement instead to information a party "may use to support its claims ordefenses" substantially met this objection.

Another critique was that the burden of required disclosure fell unfairly onone side. Some early critics alleged that required disclosure unfairly burdenedthe plaintiff to the advantage of product liability defendants and otherdefendants.leg But many product liability, toxic tort, and securities fraudplaintiffs start litigation on relatively little information beyond the facts oftheir own injury. The burden of initial disclosure on them may be slight, while"the potential scope of document disclosure that may be required lof acorporate defendantl under such n amorphous standard is virtuallyunlimited."uo

Third, critics argued that the initial disclosure rule would increase discoverycosts, by imposing initial disclosures in cases that would otherwise have littleor no discovery, and by adding another costly layer of discovery to cases inwhich well-heeled parties would pursue specific discovery anyway after suchdisclosures.rTl But the 2000 rule amendments, however, categoricallyexempted certain kinds of cases in which discovery is usually slight, and theparties are always free to stipulate to forgo initial disclosures.

Empirical studies of experience with initial disclosures through 1997 refutemuch of what remains of the first critique. The rule generated surprisinglylittle satellite litigation.rT2 A majority of defendants' and plaintiffs' lawyers

t67 Amendments to tlte Fed,eral Rules of Ciuil Proced,ure,113 S. Ct. CCC, CCCIX (dissentingstatement of J. Scalia), 146 F.R.D. 401, 410 (1993).

r6a See generallg Pa R. Sugarman & Marc G.Perlin, Proposed, Chonges to Di,scouety Rules i,nAi.d of "Tor"t Rerm": Has the Cas Been Mad,e?,42 AM.rJ. L. Rnv. 1465 (1993); 8e11, note 158,supra, al 4345.

r6e Sugarman & Perlin, note 168, sryrcL,t 1495; Mengler, note 158, swra,,L159, 162.r7o 8e11, note 158, supra, al 39; Collnnr McMroN & Joni. G. ScHw-mrz, Ar,ysrs or

Arr,mNo,{er,rrs ro rr Fnoonl Rur-s op Cwrr, Pnocounp s Arpnol'o sy rH JunrcrAr Corrpnrc errFonwenopn to rn Supnora Counr 15 (ALI-ABA 1993).

r7r See, e.g., BeIl, note 158, sryrcL, t 40, 45; II3 S. Ct. at CCCIX (dissenting statement of J.Scalia). Some critics add that the frontloading of discovery costs may actua impede settlement bygiving the parties too great an investment in continuing the litigation. S Issacharoff &Loewenstein, note 158, supra, al ?86; Carol C. Cure, Pt'acti,cal Issues Concenting Arizona's NewRules of Ciail Proced,ure: A Defense Perspectiue,2S Antz. Sr. L.J. 55, 57 (1993).

172 James S. Kakalik et ai., Rand Institute for Civit Justice, Di,scouery Management: Fw"therAnalysis of the Ci.ui.I Justi,ce Rerm Act Eaaluation Dat, 39 B.C. L. Rav. 613, 658 (1998)(hereinafter "Rand Report"); Thomas E. Willging et al., Federal Judicial Center, An Empi,rcalStud,y of Di,scoaery and, Di,sclosure Practice Under the 1993 Fed,eral Rule Amendments, S9 B.C.L. Rnv. 525, 535 (1998) (hereinafter "FJC Sur"ueA").

$ 10.07 REQUIRED DISCLOSURtrS

alike also reported that the rule had no perceived effect on the length rf'r'rscs,fairness of outcome, or prospects for settlement.lT3 Their shared percelrtionsdo not support the critique that initial disclosures would favor one side or theother. Moreover, the empirical evidence suggests that initial disclosures hadlittle or no effect on costs or time spent in litigation.lTa On the other hand, onestudy did report that in 897a of the cases in which initial disclosure was made,further discovery took place

-

"disclosure infrequently replace[d] discoveryntirely."rzs Thus, although initial disclosure appar'ently did not increasediscovery costs, it did not reduce them either or avoid later, discretionarydiscovery.

If these flndings are accuyaLe, they raise the question why the rulemakersdid not just drop initial disclosures in 2000, instead of refining them. Onecommentator has suggested that the Advisory Committee acknowledged therule's minimal effect, "but evinced reiuctance to abandon the mechanismaltogether and attempted to maintain a vestige of the notion."176 A betteranswer may be that even if only a minority of lawyers (39Vo) reported thatinitial disclosures decreased overall expenses,uT this result was enough tojustify retaining the rule, especially if its costs are reduced by categoricallyexempting certain proceedings which usually lack discovery, and by narrowingthe scope of disclosure to materials which will be used to support a claim ordefense. unless the latter change fosters satellite litigation, in short, theamended Rule 26(aX1) may reduce discovery costs in a minority of cases whiledoing no harm in most of the rest.

t3l Supplementation of DiscoveryThe tpical litigator has several cases pending at the same time. In each

there may be substantial discovery. The burden of continuously reviewing olddiscovery responses for acctJracy and updating them whenever newinformation becomes available would be great. On the other hand, a failure tosupplement an incorrect, misleading or obsolete discovery response may giverise to the very surprise attrial that discovery was intended partly to avoid.

Rule 26(e) originally struck a compromise betrreen these two concerns byimposing a quite limited duty of supplementation on party-discoverees. Thatcompromise was partly undone by the 1993 rule amendments, which require aparty to correct or complete its required disclosures (as well as any depositiongiven by its expert witness), if the additional or corrective information has notalready been made known to other parties. This expanded duty to supplement

t73 pyc Sm"uey, note 172, supra, at 563.r7a RandReport,noheLT2,supra,at6SS-61;FJCSur"uey,noheL72,supra,at563;Hrang,supra,

note 158, at 263. The FJC Sumeg did find that of the minority of lawyers who reported that initialdisclosures had affected litigation, most thought the effects were positive. See FJC Sur"uey, nole172, at 237 (explaining FJC data).

175 ptJC Sutr"uey, note 172, supra, at 559.176 Tobias, note 165, supra, at82.177 tJC Sw"uey, note 172, supra at 563.

DNSOOVEFY CH" 10

rs rrs lrrtad as the scope of nequired disclosures. It obligates a lawyer to keeptr'rck of all inforination that might make previous disclosures incomplete orinct-il'rect in any nespect.

Rule 26(e) extencls the same duty to prior nesponses to an interrogatory,request for production, or request for admission. The lawyer must thereforealso monitor the completeness and correctness of such responses throughoutthe lawsuit. Only responses given in deposition (except depositions by expertwitnesses) are exempted, presumably on the theory that these are often givenby non-party witnesses and that monitoring them would be extremelyburdensome, if not impossible.

Ordinarily, only incurably prejudicial breaches of the rule will supportsanctions or constitute grounds for relief from judgment"178 A commonsanction for breach of the duty to supplement is exclusion at trial of evidencewithheld by the discovenee.xze T'his sanction is inappropriate, however, if acontinuance and opportunity for mid-trial discovery can enable the discovererto overcome his surprise and prepare effective eross-examination andrebuttal"rso

$ 1.08 EPSTTONStll Procedure for TakingA deposition is the recorded examination of a live witness under oath by oral

or written questions before a qualified oath administrator,l8l who is usually acourt reporter.rs2 The deposition may be recorded by sound, sound-and-visual,or stenographic means at the expense of the taker. In a Rule 30 depositionupon oral questions, an attorney asks the questions and the deponent answersspontaneously, like an examination of a witness at trial. In a Rule 31(a)deposition upon written questions, the discoverer serves his direct questions

174 See,e.g.,Johnsona.H.KWebstef Inc.,775F.2d1,?-8(1stCir. 1985).Fordiscussionoftherule of prejudicial error, see $ 13.09[1], lra.

t7? See, e.g., Scott & Fetzer Co. a. Dile,643 F.zd 670 (gth Cir. 1981) (failure to list 20 of 23 trialwitnesses and 26 of 51 exhibits in response to interrogatories prejudicially denied the discoverer theright to prepre effective cross-examination and rebuttal and requires their exclusion, especialiywhere the undisclosed witnesses included an expert witness and were used to support a previouslyundisclosed theory of the case).

rao See, e.g., Moore a. Boati,ng Ind,us. Ass'ns, 754 F .2d 698 (?th Cir. 1985); Lewis RefrigerationCo. a. Satwyer Fruit, Vegetable & Cold Storage Co.,709 F.zd 427 (6th Ctu. 1983); Gebhard, a.Nied,zwiecki, 122 N.W.2d 110, 115 (Minn. 1963) (suggesting that preclusion is proper when theviolation is willful and the discoveree seeks to benefit from it "at a time when the harm cannot beundone").

rar See Rule 28 (persons before whom depositions may be taken).182 Depositions traditionally have been recorded by a court reporter. Rule amendments

eventually liberalized the requirements for taking of depositions by non-stenographic means. SRules 30(bX3)-(4). The parties no longer need to agree to non-stenographic means or obtain a courtorder; such means are available unless Lhe court orders otherwise. Parties must still stipulate to orobtain a court order for taking depositions by telephone or other remote electronic means. S Ruie30(bX4).

$ 10.08 DEFOSITiONS

on the deponent and the other parties in advancel after which any cross,redirect or recross Qustionsres re served. The oath administrator reads thewritten questions to the deponent, who ansrvers them live, if not quitespontaneously (given the prior opportunity to rehearse the answers).Interrogatories differ from the deposition upon written questions partly in thatnswers to interrogatories are written and often prepared by a party'sattorney.l84

A party does not ordinarily need leave of court to take a deposition unlessthe deposition would exceed the seven-hour durational limit set by Rule30(d)(1) or the ten-deposition numerical limit established by Rule30(a)(2)(A)(I). The procedure for orally deposing a party under Rule 30 issimply to serve the deponent and parties with reasonable written notice of thetime and place of the deposition and identity of the deponent,l85 as \Mell as Rule 34 request for production of documents when documents are sought inconnection with the deposition.rs6 A party must comply with the notice or seeka protective orderl87 because, by the initial service of process on her, she hasalready been subjected to the personal jurisdiction of the court and thereforebrought within the reach of properly invoked procedural rules.

This is not true of a non-party witness, however. To compel the attendanceat deposition of a non-party witness, the discoverer must first procure theissuance of a subpoenorss from the court for the district in which the depositionwill be taken.l8e The non-party witness may ask the court to quash or modifythe subpoena if it allows insufficient time for compliance, necessitates excessivetravel, requires disclosure ofprotected or confldential information, or subjectsthe witness to undue burden.reo

IJnder Rule 30(b)(6), a party may name as a deponent in his notice andsubpoena a corporation, agency, partnership or other legal entity and describethe matters on which examination is requested. The entity must thendesignate one or more officers, directors, managing agents, or other personswith relevant knowledge to testify on its behalf. As noted belowler the

r8s Direct examination is a party's questioning of his own witness. Cross-examination isquestioning of a witness called by an opposing party. Redirect is direct examination of a witnessafter cross-examination. Recross is cross-examination of a witness after redirect. See generallgMcOonurcx or Er,rnxc; $ 4 (J. Strong, 4th ed. 1992).

tan Se" $ 10.09 (interroga1ories), infra.18s Rule 30(b)(1). The notice must be accompanied by the direct questions in the case of a

deposition upon written questions. Rule 31(a).186 Rule Bo(b)(z).!47 See $ 10.13t31 (protective o.rd,ers), infra,.lae See Rule 45. A subpoena d,uces tecum must be used if document production is sought in

connection with the deposition.18e Rules 30(a) & 45. Many states provide for the issuance of subpoenas for depositions to be

used in proceedings pending in other states. S e.9., Anrz. R. Cw. Pnoc. 30(h) (2001); Mn. R. Crv.Pnoc. 30(h) (2001).

leo Rule ab(cX3).ttt See S 10.08t21 (use and value of depositions), zy'.

r.

ril!

,l

=:

DISCVtrRY CH. l,f)

t lclrosition of a pet:son so designted may be offered at Lrial as direct evidencr,aginst the designating entity. Rule 30(bX6)'s legislative history suggests thalit was intended simply as a device to facilitate the discovery of appropriatcwitnesses who could provide further discovery regarding an institutionaliitigant, in order "to defeat a shield of obfuscation and inefficiency that coul