Chapter 3: Discovery Motions

Introduction

Once any motion to dismiss or motion for judgment on the pleadings has been decided and the pleadings are complete, the parties must confer and develop a discovery plan under Rule 26(f) and exchange initial disclosures under Rule 26(a). ^[1] The parties then undertake discovery.

Title V of the Federal Rules of Civil Procedure, Rules 26-37, govern discovery, including depositions, interrogatories, document requests, physical and mental examinations, and requests for admission. For a general overview of the discovery rules and processes, see the CALI lessons on these topics. The timing and extent of discovery will be set by the judge in the scheduling order issued pursuant to Rule 16. Most states have similar approaches; see the appendix for links to each state’s rules.

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

“Information is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Relevance is a matter of degree, and the standard is applied more liberally in discovery than it is at trial.” N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 47 (E.D.N.Y. 2018) (citation omitted). In assessing proportionality, courts balance the considerations identified in Rule 26(b)(1) (see above). Thus, be prepared with specific information, including financial figures, to argue about the relative costs and importance of the requested discovery material. Note that information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).

Frequently, conflict will develop during discovery. For example, a party may refuse to answer (or fully answer) an interrogatory or request for admission; refuse to produce certain documents or other discovery materials; or fail to appear at a deposition or refuse to answer certain questions at a deposition. Parties may also fail to timely comply with any of these requests. When these disputes arise and the parties are unable to resolve the conflict themselves, the party seeking discovery may seek an order to compel discovery, which is the subject of Chapter 3A.

A conflict may also develop when one party uses discovery to what the other party perceives as an effort to annoy, embarrass, oppress, or unduly burden. In this event, if the parties are unable to resolve the conflict themselves, the party from whom discovery is sought may seek an order of protection, which is the subject of Chapter 3B.

A discovery dispute can arise with a non-party, such as the sample in Chapter 3B. For example, a non-party may refuse to produce documents in response to a subpoena. Rule 37(a)(2) requires that “[a] motion for an order to a nonparty must be made in the court where the discovery is or will be taken” and Rule 26(c)(1) provides that “any person from whom discovery is sought may move for a protective order in the court where the action is pending” or where a deposition will be taken. See also Fed. R. Civ. P. 24 (governing intervention); Fed. R. Civ. P. 45 (governing subpoenas).

Discovery-related disputes are highly fact- and context-specific, and resolution is subject to the court’s discretion. “A trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion.” In re DG Acquisition Corp, 151 F.3d 75, 79 (2d Cir. 1998) (citation omitted).