VOLUME 14: FEDERAL RULES OF CIVIL PROCEDURE II โ DISCOVERY, SUMMARY JUDGMENT, AND PRETRIAL CONFERENCES
Exchanging Information, Testing Claims, and Preparing for Trial
Introduction to Volume 14
The Federal Rules of Civil Procedure were designed to eliminate trial by surprise. Before the Rules, parties could withhold evidence until trial. The other side would not know what hit them. Discovery changed that. Discovery is the process by which parties obtain information from each other and from nonโparties before trial. It is broad. It is liberal. It is also expensive and subject to abuse.
Discovery is followed by summary judgment. A party who believes there is no genuine dispute of material fact may ask the court to decide the case without a trial. Summary judgment disposes of cases that do not need to go to a jury.
Pretrial conferences give the court an opportunity to manage the case, narrow the issues, and encourage settlement. The court may issue a scheduling order, a discovery plan, and a final pretrial order.
This volume covers the second half of the Federal Rules. Part One covers the scope of discovery, the discovery devices (depositions, interrogatories, requests for production, physical and mental examinations, requests for admission), and the limits on discovery (privilege, work product, protective orders). Part Two covers summary judgment: the standard, the burden of proof, and the relationship between summary judgment and the jury trial right. Part Three covers pretrial conferences, scheduling orders, and final pretrial conferences.
PART ONE: DISCOVERY
Chapter 1: The Scope of Discovery
Rule 26(b)(1) defines the scope. Parties may obtain discovery of any nonโprivileged matter that is relevant to any partyโs claim or defense and proportional to the needs of the case. Proportionality factors include: the importance of the issues, the amount in controversy, the partiesโ relative access to information, the partiesโ resources, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs the likely benefit.
The rule was amended in 2015 to add proportionality explicitly. Before the amendment, discovery was limited to matters โreasonably calculated to lead to the discovery of admissible evidence.โ That standard was too broad. The proportionality requirement narrows discovery.
Information need not be admissible in evidence to be discoverable. It must be relevant. Relevance for discovery is broader than relevance at trial. At trial, evidence must be probative of a fact of consequence. For discovery, information is relevant if it could lead to the discovery of admissible evidence.
The court may limit discovery if it is unreasonably cumulative or duplicative, if the party seeking discovery has had ample opportunity to obtain the information, or if the burden or expense outweighs the likely benefit.
Chapter 2: The Discovery Devices
Five principal discovery devices.
Depositions (Rule 30, Rule 31). A deposition is sworn testimony taken out of court. A party may depose any person, including another party, a witness, or an expert. The deposition is transcribed. It may also be videotaped. The deponent is under oath. A lawyer may crossโexamine. Depositions are expensive but effective. They allow the examining party to assess the witnessโs demeanor and credibility.
A party may depose any person without the courtโs permission. A nonโparty may be compelled to attend a deposition by subpoena. A party may take up to ten depositions without leave of court. More than ten requires permission.
Interrogatories (Rule 33). Interrogatories are written questions answered in writing under oath. A party may serve interrogatories on another party. Nonโparties are not subject to interrogatories. A party may serve up to 25 interrogatories without leave of court. More than 25 requires permission. Interrogatories are cheaper than depositions. But the responding party may answer through counsel. The answers are not spontaneous.
Requests for production (Rule 34). A party may request another party to produce documents, electronically stored information, or tangible things. The request may also permit entry onto land for inspection. The responding party must produce the requested materials within 30 days. Nonโparties are not subject to requests for production. A nonโparty must be served with a subpoena.
Requests for admission (Rule 36). A party may request another party to admit the truth of any matter within the scope of discovery. The request may ask the party to admit facts, the application of law to fact, or the genuineness of documents. If the party does not respond within 30 days, the matter is deemed admitted. An admission is conclusive for the litigation. It cannot be withdrawn except with the courtโs permission.
Physical and mental examinations (Rule 35). A party may request a physical or mental examination of another party when the partyโs physical or mental condition is in controversy. The court must order the examination. The moving party must show good cause. The examination is conducted by a neutral examiner. The examiner prepares a report. The report is discoverable.
Chapter 3: Electronically Stored Information (ESI)
The Rules were amended in 2006 to address electronically stored information. Discovery of ESI is different from discovery of paper documents. ESI is voluminous, dynamic, and often stored in multiple locations. Metadata (information about the document, such as when it was created, who created it, and who has accessed it) is often discoverable.
Rule 26(b)(2)(B) provides that a party need not produce ESI from sources that are not reasonably accessible because of undue burden or cost. The producing party bears the burden of showing that the source is not reasonably accessible. If the party makes that showing, the requesting party may still obtain discovery by showing good cause.
Rule 37(e) addresses the loss of ESI. If ESI that should have been preserved is lost, the court may take measures only if the loss resulted from a partyโs failure to take reasonable steps to preserve it. If the loss is found, the court may order measures no greater than necessary to cure the prejudice. Severe sanctions (such as an adverse inference instruction) are available only if the party acted with intent to deprive the other party of the information.
Chapter 4: Privilege and Work Product
Two limitations on discovery are central.
Privilege. The attorneyโclient privilege protects communications between a lawyer and a client made for the purpose of seeking legal advice. The privilege belongs to the client. The lawyer may not waive it. The privilege does not protect underlying facts. A client may be asked about facts, even if the client learned those facts from a lawyer.
The attorneyโclient privilege applies only to communications. It does not protect the fact of representation, the fee arrangement, or the identity of the client. There are exceptions for crimeโfraud (communications made to further a crime or fraud are not privileged) and for joint clients.
Other privileges may also apply: the marital privilege, the physicianโpatient privilege, the psychotherapistโpatient privilege, the clergyโcommunicant privilege, and the reporterโs privilege (the last is statutory, not constitutional).
Work product doctrine. Rule 26(b)(3) protects documents and tangible things prepared in anticipation of litigation or for trial. The work product doctrine was recognized in Hickman v. Taylor (1947) . The Court held that the mental impressions, conclusions, and legal theories of an attorney are not discoverable.
Work product has two tiers. Ordinary work product (facts, witness statements) is discoverable if the requesting party shows substantial need and cannot obtain the substantial equivalent without undue hardship. Opinion work product (the lawyerโs mental impressions, conclusions, opinions, legal theories) is not discoverable. Opinions work product is protected absolutely.
Work product belongs to the lawyer, not the client. The protection may be waived. A party who discloses work product to an adversary waives the protection.
Chapter 5: Protective Orders
Rule 26(c) allows a party to seek a protective order. The court may order that discovery not be had, that it be had only on specified terms, that a trade secret not be disclosed, that the parties use a nonโdisclosure agreement, that the deposition be sealed, or that the parties use other measures.
The moving party must show good cause. The court must balance the need for discovery against the harm to the party seeking protection.
Protective orders are often used to protect confidential information. A party may designate documents as โconfidentialโ or โattorneyโs eyes only.โ The protective order prevents the receiving party from disclosing the information outside the litigation.
Chapter 6: Supplementing Discovery
A party who has responded to a discovery request must supplement the response if the party learns that the response is incomplete or incorrect and if the additional information has not been otherwise made known to the other party. Rule 26(e).
The duty to supplement is ongoing. If a party fails to supplement, the court may exclude the lateโdisclosed information at trial.
PART TWO: SUMMARY JUDGMENT
Chapter 7: The Standard โ Rule 56
Summary judgment is a device for disposing of cases that do not require a trial. Rule 56 provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Material fact. A fact is material if it could affect the outcome of the case under the governing law. A dispute about an irrelevant fact does not matter.
Genuine dispute. A dispute is genuine if a reasonable jury could return a verdict for the nonโmoving party. If the evidence is so oneโsided that one party must prevail as a matter of law, there is no genuine dispute.
The moving party bears the initial burden. The moving party must identify the absence of evidence supporting the nonโmoving partyโs claim. If the moving party does not have the burden of proof at trial, the moving party may simply point out that the nonโmoving party has no evidence.
Once the moving party meets its burden, the burden shifts. The nonโmoving party must set forth specific facts showing a genuine issue for trial. The nonโmoving party may not rely on the allegations in the pleadings. The nonโmoving party must produce evidence (affidavits, depositions, documents) that would be admissible at trial.
The court views the evidence in the light most favorable to the nonโmoving party. The court draws all reasonable inferences in the nonโmoving partyโs favor. The court does not weigh credibility. The court does not resolve disputed facts. The courtโs only role is to determine whether a trial is necessary.
Chapter 8: The Celotex Trilogy
Three Supreme Court cases from 1986 define modern summary judgment practice.
Celotex Corp. v. Catrett (1986) . The plaintiff claimed that her husband died from exposure to the defendantโs asbestos products. The defendant moved for summary judgment, arguing that the plaintiff had no evidence that the defendantโs products caused the exposure. The plaintiff responded with documents showing that the defendant had manufactured asbestos products. The Court held that the defendant could not simply point to the plaintiffโs failure to produce evidence. The moving party must make a showing that the plaintiff cannot produce evidence. In this case, the defendant had met its burden. The burden then shifted to the plaintiff to produce evidence.
Anderson v. Liberty Lobby, Inc. (1986) . The plaintiff sued for defamation. The defendant moved for summary judgment. The Court held that the standard for summary judgment mirrors the standard for directed verdict. If the nonโmoving partyโs evidence is insufficient to survive a directed verdict, the moving party is entitled to summary judgment. The court must consider the substantive evidentiary standard. In a defamation case involving a public figure, the plaintiff must show actual malice by clear and convincing evidence. The court must consider that heightened standard when evaluating the summary judgment motion.
Matsushita Electric Industrial Co. v. Zenith Radio Corp. (1986) . The plaintiffs alleged that the defendants had conspired to fix prices. The evidence was ambiguous. The Court held that summary judgment is proper when the nonโmoving partyโs evidence is โmerely colorableโ or โnot significantly probative.โ The Court also held that courts must consider whether a rational jury could find for the nonโmoving party. If the inference the nonโmoving party asks the jury to draw is not reasonable, summary judgment is proper.
Chapter 9: Partial Summary Judgment
Rule 56 allows the court to grant summary judgment on part of a claim or defense. The court may enter judgment for the plaintiff on liability, leaving damages for trial. The court may enter judgment for the defendant on one claim, leaving other claims for trial. The court may enter judgment on an affirmative defense.
Partial summary judgment is not a final judgment. It is interlocutory. The court must certify that there is no just reason for delay before an appeal can be taken from a partial summary judgment.
Chapter 10: Summary Judgment and Credibility
The court may not weigh credibility on summary judgment. If the evidence is conflicting, the court must deny summary judgment. But if the nonโmoving party relies on an affidavit that is contradicted by the partyโs own deposition, the court may disregard the affidavit. The sham affidavit rule prevents a party from creating a genuine issue of fact by submitting an affidavit that contradicts prior sworn testimony.
In Scott v. Harris (2007) , the Court held that summary judgment is proper when the nonโmoving partyโs version of events is blatantly contradicted by video evidence. The plaintiff claimed that the police officer used excessive force. The officerโs dashโcam video showed the plaintiff driving recklessly. The Court held that the video contradicted the plaintiffโs account. No reasonable jury could believe the plaintiff. Summary judgment for the officer was proper.
PART THREE: PRETRIAL CONFERENCES AND CASE MANAGEMENT
Chapter 11: The Purpose of Pretrial Conferences
Rule 16 authorizes the court to hold pretrial conferences. The purpose is to โexpedite disposition of the action, to establish early and continuing control so that the case will not be protracted because of lack of management, to discourage wasteful pretrial activities, to improve the quality of the trial through more thorough preparation, and to facilitate settlement.โ
The court may order the attorneys to appear for a conference. The court may also require that a party be present.
Chapter 12: Scheduling Orders
Rule 16(b) requires the court to issue a scheduling order. The order must limit the time to join parties, amend the pleadings, complete discovery, and file motions.
The scheduling order is entered early in the case. The parties must submit a proposed discovery plan. The rule provides that a scheduling order may be modified only for good cause and with the judgeโs consent.
A scheduling order is a powerful case management tool. It forces the parties to move the case forward. It also prevents surprise. A party that misses a deadline may be barred from taking the action that the deadline covered.
Chapter 13: The Final Pretrial Conference
The court may hold a final pretrial conference before trial. The court may require that a party or a partyโs representative be present. The purpose is to formulate a plan for trial, to narrow the issues, to identify witnesses, and to resolve evidentiary issues.
The final pretrial conference results in a pretrial order. Rule 16(e). The pretrial order controls the course of the trial. A party may not raise an issue or call a witness not listed in the pretrial order except for good cause.
Chapter 14: Settlement
Rule 16 encourages settlement. The court may require the parties to attend a settlement conference. The court may act as a mediator. The court may not try to force a settlement. The court may not coerce a party.
The Federal Rules also provide for offers of judgment under Rule 68. A defendant may offer to allow judgment to be taken against it. If the plaintiff rejects the offer and later recovers less than the offer, the plaintiff must pay the costs incurred after the offer. Rule 68 shifts the risk of not settling.
APPENDIX 1: GLOSSARY
Discovery โ The process of obtaining information from other parties and from nonโparties before trial.
Deposition โ Sworn testimony taken out of court, transcribed, and preserved for trial.
Electronically stored information (ESI) โ Documents, emails, databases, metadata, and other digital information subject to discovery.
Interrogatories โ Written questions answered in writing under oath. May be served only on parties.
Material fact โ A fact that could affect the outcome of the case under the governing law.
Opinion work product โ The mental impressions, conclusions, and legal theories of an attorney. Absolutely protected from discovery.
Pretrial conference โ A meeting between the judge and the attorneys to manage the case and prepare for trial.
Protective order โ An order limiting discovery to protect a party from annoyance, embarrassment, oppression, or undue burden.
Proportionality โ The principle that discovery must be proportional to the needs of the case.
Requests for admission โ A request that a party admit the truth of a fact or the genuineness of a document. Failure to respond results in admission.
Requests for production โ A request that a party produce documents, ESI, or tangible things for inspection.
Scheduling order โ An order setting deadlines for joinder, amendment, discovery, and motions.
Summary judgment โ Judgment entered without a trial when there is no genuine dispute of material fact.
Work product doctrine โ The protection for documents and tangible things prepared in anticipation of litigation.
APPENDIX 2: SELECT BIBLIOGRAPHY
Clermont, Kevin M. Civil Procedure. 11th ed. West Academic, 2021.
Friedenthal, Jack H., Mary Kay Kane, and Arthur R. Miller. Civil Procedure. 5th ed. West Academic, 2015.
Glannon, Joseph W. Civil Procedure: Examples and Explanations. 8th ed. Wolters Kluwer, 2018.
Issacharoff, Samuel. Civil Procedure. 4th ed. Foundation Press, 2019.
Marcus, Richard L., Martin H. Redish, and Edward F. Sherman. Civil Procedure: A Modern Approach. 7th ed. West Academic, 2017.
Mullenix, Linda S., Martin H. Redish, and Georgene M. Vairo. Understanding Civil Procedure. 6th ed. LexisNexis, 2017.
Rowe, Thomas D., Jr., Suzanna Sherry, and Jay Tidmarsh. Civil Procedure. 4th ed. Foundation Press, 2020.
Schwarzer, William W. โSummary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact.โ California Law Review 99 (2011): 1.
Spencer, A. Benjamin. Civil Procedure: A Contemporary Approach. 5th ed. West Academic, 2020.
Subrin, Stephen N., Martha L. Minow, Mark S. Brodin, and Thomas O. Main. Civil Procedure: Doctrine, Practice, and Context. 6th ed. Wolters Kluwer, 2020.
Yeazell, Stephen C., and Joanna C. Schwartz. Civil Procedure. 10th ed. Wolters Kluwer, 2019.
Next Volume 15: Federal Rules of Civil Procedure III โ Trial, Judgments, and Appeals
