Scope of discovery and discovery planning

The Scope Gate: Relevance Before Reach

Rule 26(b)(1) permits discovery of any nonprivileged matter that is relevant to a party’s claim or defense and proportional to the needs of the case. Relevance is narrower than the general subject matter of the lawsuit: the information must bear on an actual claim or defense, not merely on something interesting about the dispute.

Proportionality requires consideration of six factors:

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.
Whether the burden or expense of the proposed discovery outweighs its likely benefit.

The information need not itself be admissible at trial. Rule 26(b)(1) permits discovery of relevant, proportional information even when an evidentiary rule may later exclude it. The discovery standard is not the obsolete phrase “reasonably calculated to lead to admissible evidence.” Relevance and proportionality do the work.

Privilege remains a threshold barrier: proportional relevance does not defeat a valid privilege.

This is closed-book-you must be able to state Rule 26(b)(1)’s relevance, nonprivilege, and six proportionality requirements without legal resources.

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The Protective Edges: Work Product, Experts, and Mandatory Limits

Even relevant and nonprivileged information may be restricted by Rule 26(b)(2)(C). The court must limit the frequency or extent of discovery when any one of three conditions exists:

The discovery is unreasonably cumulative or duplicative, or the information can be obtained from another source that is more convenient, less burdensome, or less expensive.
The party seeking discovery has already had ample opportunity to obtain the information through discovery in the action.
The proposed discovery falls outside Rule 26(b)(1)’s relevance-and-proportionality scope.

The consequence is a required limitation, not merely a suggestion that the parties negotiate. A request can begin within the subject-matter scope and still be cut back because it repeats testimony, targets a cheaper source, arrives after ample prior opportunity, or exceeds proportionality.

Work product is a separate near-miss. Rule 26(b)(3) protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or the party’s representative, including an attorney, consultant, surety, indemnitor, insurer, or agent. The fact that a lawyer created a document does not automatically make it work product; a routine business record prepared in the ordinary course remains ordinary business material unless litigation preparation was the reason for its creation.

Qualified work-product protection can be overcome only when the requesting party shows both:

A substantial need for the materials to prepare the case; and
An inability, without undue hardship, to obtain their substantial equivalent by other means.

Even then, the court must protect against disclosure of the lawyer’s mental impressions, conclusions, opinions, or legal theories. Thus, a witness interview may sometimes be discoverable while the attorney’s handwritten evaluation of the witness is protected.

Expert materials create another distinction. Under Rule 26(b)(4), drafts of a testifying expert’s report and drafts of disclosures are protected. Communications between a party’s attorney and a testifying expert are protected, except to the extent they relate to compensation, identify facts or data that the attorney provided and the expert considered in forming opinions, or identify assumptions that the attorney provided and the expert relied on in forming opinions. A non-testifying expert retained in anticipation of litigation is generally protected from discovery, but exceptional circumstances may permit discovery when it is impracticable to obtain equivalent information by other means.

Category	Protection trigger	Default result	Possible path to discovery
Ordinary relevant material	Relevant to claim or defense, nonprivileged, and proportional	Discoverable within Rule 26(b)(1)	Still subject to Rule 26(b)(2)(C) limits
Trial-preparation material	Prepared for litigation or trial by or for a party or representative	Protected work product	Substantial need plus undue hardship; mental impressions remain protected
Testifying expert draft or protected communication	Draft report or protected attorney-expert communication	Protected under Rule 26(b)(4)	Only the specified exceptions, such as compensation, considered facts or data, or relied-on assumptions
Non-testifying expert material	Expert retained for litigation but not expected to testify	Generally protected	Exceptional circumstances and equivalent-information unavailability

The decisive distinctions are easy to blur. “Relevant” does not mean “discoverable without limit.” “Prepared by a lawyer” does not mean “work product.” “Prepared by an expert” does not answer whether the expert will testify. And work-product protection is not absolute immunity: the substantial-need and undue-hardship showing may reach factual material, but not the attorney’s opinion work.

The Rule 26(f) Conference: Timing, Attendees, and the Plan

Rule 26(f)(1) generally requires the parties to confer as soon as practicable and at least 21 days before the scheduling conference is held or the scheduling order is due under Rule 16(b). The requirement does not apply when the action is exempt from initial disclosures under Rule 26(a)(1)(B), unless the court orders otherwise.

The conference must be attended by at least one attorney responsible for the party’s case and by any unrepresented party. If the court authorizes it, a representative with authority to make stipulations and admissions may attend. The lawyers must confer in good faith; merely exchanging unilateral demands is not the required conference.

The parties must address:

The nature and basis of their claims and defenses.
The possibilities for promptly settling or resolving the case.
The timing and content of initial disclosures.
Preservation of discoverable information.
A proposed discovery plan.

The plan under Rule 26(f)(3) must state the parties’ views and proposals concerning six areas:

Changes to the timing, form, or requirements of Rule 26(a) disclosures, including when initial disclosures were or will be made.
The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should occur in phases or focus on particular issues.
Issues concerning disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.
Claims of privilege or protection as trial-preparation material, including, if the parties agree, whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502.
Changes to discovery limitations imposed by the Federal Rules or local rules, and any additional limitations the parties propose.
Any other orders that should be entered under Rule 16(b) or Rule 16(c).

The parties must submit the report to the court within 14 days after the conference unless the court orders otherwise. The report is a proposal; it is not itself a discovery order and does not automatically enlarge or reduce the Rules’ limits.

Rule 26(d)(1) supplies the important consequence of timing: a party generally may not seek discovery from any source before the Rule 26(f) conference, except when an applicable rule, stipulation, or court order authorizes it or the proceeding falls within the stated exemption. Thus, filing an answer does not by itself open ordinary discovery.

There is a narrow early-request rule. Under Rule 26(d)(2), more than 21 days after the summons and complaint are served on a party, that party may deliver a Rule 34 request to another party before the conference. The request is treated as served at the first Rule 26(f) conference. Its response ordinarily is due 30 days after that conference. If the conference occurs within 21 days after the request was delivered, the response is due 30 days after delivery. This rule permits early delivery of a Rule 34 request; it does not generally permit early interrogatories, depositions, admissions, or other discovery tools.

The Integrated Discovery Call: Two Rules Decide the Record

Plaintiff sues Manufacturer for breach of a supply contract and seeks damages for lost sales. Manufacturer was served with the summons and complaint on March 1. On March 10, before the parties had conferred, Plaintiff delivered Manufacturer a request for production seeking sales spreadsheets relevant to the claimed damages.

The parties held their Rule 26(f) conference on March 20, exactly 21 days before the scheduled scheduling conference. Plaintiff proposed that the discovery plan specify the form for producing electronically stored information and ask the court to include the parties’ privilege-clawback agreement in an order under Federal Rule of Evidence 502. Manufacturer objected that those subjects could not appear in a Rule 26(f) plan. Plaintiff also sought the draft report of Manufacturer’s testifying damages expert. The sales spreadsheets are relevant to the damages claim but might be inadmissible at trial.

Practice

Which two statements are correct?

	(A) Plaintiff’s March 10 request for production was proper because Manufacturer had already been served with the complaint.	(B) The proposed Rule 26(f) plan may address the form of ESI production and whether to request a Rule 502 order.	(C) The draft report must be produced because it concerns a testifying expert and is relevant to damages.	(D) The sales spreadsheets may be discoverable even if they are inadmissible at trial, provided they are relevant, nonprivileged, and proportional.	(E) The Rule 26(f) report is due on the date of the scheduling conference because the conference occurred exactly 21 days beforehand.	(F) The Rule 26(f) conference was unnecessary because the parties had already exchanged a discovery request.
Your answers

Three Fast Decisions: Relevance, Conference, and Protection

Practice

A plaintiff in a negligence action requests the defendant’s internal safety reports concerning the accident, although the plaintiff expects some reports may be excluded at trial as hearsay. The reports concern the same machine and accident alleged in the complaint, and the request is limited to the relevant six-month period. Are the reports within the ordinary discovery scope?

Defendant was served on June 1, and the parties’ Rule 26(f) conference occurred on June 18. The conference report was filed on June 25. The court did not order a different deadline. When was the report due?

An attorney interviews a former employee after receiving a complaint and writes factual notes plus a paragraph analyzing the employee’s credibility and likely trial testimony. The opposing party shows substantial need for the factual account but can interview the former employee independently. What is the best result?

High-Yield Points - ⚡ Biggest Takeaways

Apply Rule 26(b)(1) to claims or defenses, nonprivilege, and all six proportionality factors. Treat work product and expert drafts as special protections, not ordinary relevant material. Hold Rule 26(f) before ordinary discovery, then file the detailed plan within 14 days.

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Practice Questions: Scope of discovery and discovery planning

1. Using only the supplied file and legal resources, prepare a persuasive opposition outline addressing Titan Manufacturing's renewed motion for judgment as a matter of law and alternative motion for a new trial. Analyze preservation, the distinct standards for each motion, the evidentiary record, the proper scope of any new trial, and the steps counsel should take to protect Bell's position on appeal.

2. Using only the supplied file and legal resources, prepare a persuasive motion and supporting memorandum requesting the most appropriate route to a final appealable judgment on Rowan's resolved claim. Address finality, separability, reasons for and against certification, preservation, and any separate relief needed to protect Summit during appellate proceedings.

3. Using only the supplied file and legal resources, prepare an objective memorandum assessing the preclusive effect of the prior judgment on Metro Workspace's new action and recommending Harbor's most appropriate procedural response.

7. A pedestrian sued a delivery company in federal court for negligence after one of the company's vans struck her in a crosswalk. After discovery, the company moved for summary judgment and submitted an affidavit from the driver stating that the traffic signal was green for the van. The pedestrian submitted deposition testimony from an eyewitness who stated that the signal was red and that the driver was looking at a phone. Both witnesses had a clear view of the intersection, and the governing negligence law is undisputed. The company argues that its driver gave a more detailed account and has a stronger memory than the eyewitness. Is the court likely to grant the motion?

A. Yes, because a court may credit the more detailed testimony when both witnesses claim firsthand knowledge.
B. No, because the conflicting firsthand accounts create a genuine dispute that a factfinder must resolve.
C. Yes, because testimony from a party's employee is entitled to greater weight than testimony from an uninvolved observer.
D. No, because summary judgment is unavailable whenever a negligence claim turns partly on witness testimony.

Show answer

Answer: B. No, because the conflicting firsthand accounts create a genuine dispute that a factfinder must resolve.

No, because the conflicting firsthand accounts create a genuine dispute that a factfinder must resolve. - The driver said the signal was green, while the eyewitness said it was red and the driver was looking at a phone, creating a genuine dispute of material fact about negligence. - Because both witnesses had a clear view, the court cannot decide whose account is more credible on summary judgment. Yes, because a court may credit the more detailed testimony when both witnesses claim firsthand knowledge. - The driver’s greater detail and asserted stronger memory do not let the court weigh competing testimony on summary judgment. - Those arguments belong to the factfinder, which must resolve the conflicting accounts. Yes, because testimony from a party's employee is entitled to greater weight than testimony from an uninvolved observer. - The driver’s status as a company employee gives his affidavit no special weight over the eyewitness’s deposition testimony. - Both accounts concern what happened at the intersection, so the court cannot prefer one merely because of the witness’s relationship to the company. No, because summary judgment is unavailable whenever a negligence claim turns partly on witness testimony. - Negligence claims can be resolved by summary judgment when the evidence presents no genuine dispute of material fact. - Denial is warranted here because the witnesses conflict about the signal and the driver’s conduct, not because the claim involves witness testimony.

8. A customer sued a grocery store in federal court after slipping and falling on a wet floor near the produce section. The customer testified at her deposition that no warning sign was posted and that a nearby employee was texting on his phone instead of watching the area. The employee submitted a declaration stating that a warning sign was in place, that the customer was jogging through the aisle, and that he was not using his phone. The store's security video shows the fall but does not clearly show whether a sign was present or what the employee was doing with his hands. After discovery closed, the store moved for summary judgment and argued that the employee's detailed declaration was more reliable than the customer's testimony. Neither side objected to the admissibility of the cited evidence. Is the court likely to grant the motion?

A. Grant summary judgment because the employee's sworn testimony is more credible than the customer's deposition testimony.
B. Grant summary judgment because the customer bears the burden of proving negligence at trial.
C. Deny summary judgment only if the customer submits evidence conclusively proving that no warning sign was posted.
D. Deny summary judgment because the conflicting testimony creates a genuine dispute of material fact for the jury.

Show answer

Answer: D. Deny summary judgment because the conflicting testimony creates a genuine dispute of material fact for the jury.

Deny summary judgment because the conflicting testimony creates a genuine dispute of material fact for the jury. - The customer and employee give conflicting accounts of the warning sign and the employee’s conduct, facts relevant to whether the store acted negligently. - Because the video does not resolve those conflicts, the court must view the evidence in the customer’s favor rather than decide whose account is more credible. Grant summary judgment because the employee's sworn testimony is more credible than the customer's deposition testimony. - The employee’s declaration and the customer’s deposition are both evidence the court may consider; a declaration is not inherently more credible. - Deciding which witness to believe would improperly resolve a credibility dispute at summary judgment. Grant summary judgment because the customer bears the burden of proving negligence at trial. - The customer does bear the trial burden, but her deposition testimony supplies evidence supporting her account. - That burden does not allow the court to disregard her testimony in favor of the employee’s conflicting declaration. Deny summary judgment only if the customer submits evidence conclusively proving that no warning sign was posted. - The customer need not conclusively prove the absence of a sign to defeat summary judgment. - Her testimony that no sign was posted conflicts with the employee’s declaration, and the video does not settle the issue.

9. A consumer filed a products-liability action in federal court based solely on diversity jurisdiction. The consumer demanded a jury trial. State substantive law supplies the elements of the claim and recognizes assumption of risk as a defense. A state statute directs judges to decide disputed facts concerning assumption of risk before trial and bars submission of that defense to a jury. Federal practice, implementing the federal jury-trial right, assigns genuinely disputed factual issues on legal claims to the jury. The manufacturer asks the federal judge to follow the state statute and decide the disputed defense facts. The consumer argues that the federal allocation applies. Which of the following best states how the court should resolve the issue?

A. Apply the state rule because state law governs every issue closely connected to the elements of a state-law claim.
B. Apply the state rule because federal courts must use state procedures whenever they could affect litigation outcomes.
C. Apply the federal practice only if the manufacturer proves that the state rule was designed to discriminate against federal litigation.
D. Apply the federal practice because federal jury-trial law governs the allocation of functions between judge and jury in federal court.

Show answer

Answer: D. Apply the federal practice because federal jury-trial law governs the allocation of functions between judge and jury in federal court.

Apply the federal practice because federal jury-trial law governs the allocation of functions between judge and jury in federal court. - State law defines assumption of risk as a defense to the consumer’s claim. - Federal jury-trial law governs who decides genuinely disputed facts on a legal claim in federal court, so the jury decides those defense facts. Apply the state rule because state law governs every issue closely connected to the elements of a state-law claim. - The state-law source of the defense does not make its judge–jury allocation rule substantive. - The court applies state law to the defense’s elements, but federal law to the allocation of factfinding. Apply the state rule because federal courts must use state procedures whenever they could affect litigation outcomes. - Having the judge rather than the jury decide disputed defense facts could affect the outcome, but outcome effect alone does not control. - The federal interest in preserving the jury’s factfinding role on legal claims supports applying federal practice. Apply the federal practice only if the manufacturer proves that the state rule was designed to discriminate against federal litigation. - Federal jury-trial practice does not depend on proof that the state statute was intended to discriminate against federal litigation. - The disputed question is who decides the defense facts, not why the state adopted its rule.

Flashcards: Scope of discovery and discovery planning

1. Under what conditions can qualified work-product protection be overcome?

Show answer

Qualified work-product protection can be overcome when the requesting party shows both a substantial need for the materials to prepare the case and an inability, without undue hardship, to obtain their substantial equivalent by other means.

2. When must parties generally hold the Rule 26(f) conference?

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Parties must generally confer as soon as practicable and at least 21 days before the scheduling conference is held or the scheduling order is due under Rule 16(b).

3. What is the required basis for factual contentions under Rule 11(b)?

Show answer

Factual contentions must have evidentiary support, or, if specifically identified, be likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

4. What is the heightened pleading standard for allegations of fraud or mistake under federal rules?

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Under Rule 9(b), a party alleging fraud or mistake must state with particularity the circumstances constituting fraud or mistake (the who, what, when, where, and how). However, malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

5. Under what circumstances may a party amend its pleading once as a matter of course?

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A party may amend its pleading once as a matter of course within 21 days after serving it, or if a responsive pleading is required, within 21 days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f), whichever is earlier. (Rule 15(a)(1))

6. What is the primary purpose of a Rule 11 sanction, and what is its key limitation?

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The primary purpose of a Rule 11 sanction is to deter repetition of the conduct or comparable conduct. It is limited to what suffices for deterrence and is not automatically compensatory or punitive.

7. What is the 'safe harbor' provision under Rule 11 for a motion for sanctions?

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A party moving for Rule 11 sanctions must serve the motion on the opposing party but not file it with the court for 21 days. This allows the offending party to withdraw or correct the challenged paper, avoiding sanctions.

8. What are the two requirements for permissive joinder of parties under Rule 20?

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The claims must arise out of the same transaction, occurrence, or series of transactions or occurrences; and the claims must present at least one common question of law or fact.

9. What are the four practical elements required for intervention of right under Rule 24(a)?

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Timeliness, a qualifying interest, possible impairment of that interest, and inadequate representation by existing parties.

10. What specific conditions must be met for a federal court to issue a temporary restraining order (TRO) without notice to the adverse party?

Show answer

A court may issue an ex parte TRO only if: 1) specific facts in an affidavit or verified complaint clearly show immediate and irreparable injury before the adverse party can be heard; AND 2) the movant’s attorney certifies in writing efforts made to give notice and reasons why it should not be required.