The Federal Rules of Civil Procedure (FRCP), which provide the framework for how civil actions such as claims of personal injury and wrongful death are handled, explains the detailed scope and limits of the discovery process. Discovery is essentially the exchange of relevant information pertaining to the case between the parties.
Your attorney may have access to non-privileged materials that are necessary to proving a claim or preparing a defense. The court may evaluate their availability for discovery based on the need for the information, relevance of the information, the resources of the party, and if the cost or burden of obtaining it is worth the likely benefit it provides.
Information in Electronic Format
Courts may establish the general conditions for discovery. If electronically stored information is considered to be inaccessible due to cost or difficulty, a party may not need to provide that discovery. Court conditions also apply in a motion to compel discovery or for protective orders if information cannot be reasonably accessed. A court may still order discovery if the party needing access can show good cause within the Rule 26 limits.
Court Imposed Limitations
Courts may limit the number of discovery requests or magnitude of discovery despite federal or local rules when:
- The request is deemed unreasonable, unnecessary or available through a less burdensome (alternate) source
- The requesting party had sufficient time for obtaining the information already
- If the request is deemed to exceed the established Rule 26 limitations
Work Product Doctrine
Documents that are composed specifically for litigation in a case, such as by an attorney, are shielded from discovery in most cases. Exceptions exist in situations where Rule 26 specifically states that they are discoverable, or the requesting party demonstrates a critical need for the information to present their case and alternatives do not exist. In the rare cases where the court does order these materials available for discovery by opposing counsel, certain “mental impressions, opinions, assumptions and legal theories” are protected (work product doctrine) from being disclosed.
When a party retains an expert, who may be offering testimony at a trial, a party may depose (question) them. Rule 26 has a requirement for certain experts to prepare a written report; therefore, the party wishing to depose the expert must do so after the report is entered. Rule 26 protects information discussed between a witness and attorney.
Exceptions apply here for communications that relate to financial compensation for the expert’s services and facts, information and assumptions provided by the attorney. Experts retained for preparation who will not be providing actual testimony during the proceedings are not subject to deposition. This applies to experts that generally serve a consultative role in trial preparation such as reviewing facts, providing insight, and assisting with preparing witnesses etc.
About the Author