Introduction
Saturday marks a fundamental transition in federal civil litigation. The complaint and answer establish what the parties allege. Discovery determines what evidence actually exists. Summary judgment then asks whether that evidence reveals a genuine dispute requiring trial.
This progression is essential because the legal standards change as the lawsuit moves forward. At the pleading stage, a plaintiff may survive by alleging sufficient facts to state a plausible claim. The court ordinarily does not require the plaintiff to prove the allegations immediately.
Once the case reaches summary judgment, however, allegations alone are ordinarily insufficient. The parties must identify evidence in the developed record. Depositions, documents, admissions, declarations, interrogatory answers, electronically stored information, and other materials become central.
Discovery occupies the critical space between pleading and trial. It allows parties to investigate the facts, obtain information from opponents and nonparties, identify witnesses, examine documents, test theories, quantify damages, evaluate expert opinions, and determine whether factual disputes actually exist.
Federal discovery is deliberately broad, but it is not limitless. Discoverable information ordinarily must be relevant to a claim or defense, nonprivileged, and proportional to the needs of the case.
I Scope of Discovery & Proportionality
Parties may generally obtain discovery concerning nonprivileged matter that is: (1) Relevant to a claim or defense, and (2) Proportional to the needs of the case.
Relevance and Admissibility
Discovery relevance is tied to the claims and defenses in the lawsuit. One of the most important distinctions is that information does not necessarily need to be independently admissible at trial in order to be discoverable.
Common Trap: Hearsay
Students should not write: "The statement is hearsay, so it cannot be discovered." That reasoning confuses discovery with evidence law. A hearsay statement might lead to an admissible witness, identify a relevant document, or supply a factual lead.
Proportionality
Relevant information may still be outside the proper scope of discovery when obtaining it would impose burdens or costs disproportionate to its likely value in the litigation.
- Importance of the Issues: The amount of money involved is not the only consideration. A lawsuit involving important public or constitutional interests may justify substantial discovery even if the monetary value is modest.
- Access to Information: Relative access is important when one party controls most of the relevant evidence (e.g., a manufacturer concealing internal testing from a consumer).
- Burden and Expense: A party resisting discovery should explain the actual burden (e.g., cost of retrieval, need for restoration of obsolete media, number of custodians) rather than relying on vague assertions.
Initial Disclosures
Parties ordinarily must provide certain core information without waiting for a formal discovery request. This includes:
- Potential witnesses.
- Documents and electronically stored information (ESI) used to support claims or defenses.
- Damages calculations.
- Relevant insurance information.
II Discovery Devices
Depositions
Permits sworn questioning before trial. Powerful because questioning occurs in real time. Can discover facts, lock in testimony, evaluate credibility, and preserve testimony if a witness may become unavailable. Organizations may be required to designate representatives to testify on specific topics.
Interrogatories
Written questions directed to parties. Useful for identifying witnesses, explaining factual positions, locating documents, and calculating damages. They are not ordinarily used to obtain information directly from an unrelated nonparty.
Requests for Production
Seek documents, ESI (emails, texts, databases), physical objects, or access for inspection. Extremely significant in modern litigation due to the volume of electronic evidence.
Requests for Admission
Used to narrow disputed issues (e.g., asking a party to admit a contract's authenticity). A properly admitted matter does not need to be proved at trial. Failure to respond properly can result in matters being deemed admitted.
Physical and Mental Examinations
Differs from ordinary requests because judicial involvement is required. The court may order an examination when a party's physical/mental condition is genuinely in controversy, good cause exists, and the court specifies limits.
Subpoenas
Subpoenas are especially important when discovery is sought from nonparties. A subpoena may compel testimony, document production, ESI, or tangible evidence.
III Privilege, Work Product & Experts
Attorney-Client Privilege
Ordinarily protects qualifying confidential communications between lawyer and client made for the purpose of obtaining or providing legal advice.
- Communications vs. Facts: Protects communications, not the underlying facts themselves. A witness can be asked "What did you see?" but not "What did you tell your lawyer you saw?"
- Preexisting Documents: A preexisting document does not become privileged merely because a client sends it to a lawyer.
- Crime-Fraud Exception: Communications made to obtain assistance in committing or furthering a crime or fraud do not receive protection.
Work-Product Protection
Protects litigation preparation. It generally covers qualifying materials prepared in anticipation of litigation or for trial by or for a party or their representative (attorneys, investigators, insurers).
- Ordinary Work Product: Factual material (e.g., witness interview memo). May sometimes be discoverable if the requesting party demonstrates substantial need and difficulty obtaining the equivalent.
- Opinion Work Product: Attorney mental impressions, legal theories, strategies. Receives much stronger protection.
The distinction should be automatic: Attorney-client privilege → confidential legal communications. Work product → litigation preparation.
Experts
Testifying Experts: An expert who will testify faces disclosure obligations (opinions, bases, qualifications, deposition) to prevent trial by ambush.
Consulting Experts: Retained only to assist counsel and not expected to testify. They receive greater protection and discovery is permitted only in exceptional circumstances.
IV ESI, Spoliation, & Sanctions
Electronically Stored Information (ESI) includes emails, texts, metadata, and backup systems.
Preservation & Litigation Holds
Once litigation is reasonably anticipated, parties may have obligations to preserve relevant information, even before a complaint is filed. A party may need to implement a litigation hold to prevent routine or automatic deletion of relevant data.
Spoliation and Lost ESI
Failure to preserve relevant information may lead to sanctions. However, loss does not automatically mean maximum sanctions. Courts consider whether preservation was required, if reasonable steps were taken, if data can be restored/replaced, prejudice to the opponent, and whether the data was intentionally destroyed to deprive its use. More severe sanctions require more serious culpability.
Protective Orders & Motions to Compel
A court may issue a protective order to prevent annoyance, embarrassment, or undue burden/expense (e.g., allowing discovery of confidential business info but restricting its dissemination).
When a party improperly refuses discovery, the requesting party may seek a motion to compel. Ordinarily, parties must first attempt in good faith to resolve the dispute without judicial involvement. Discovery misconduct is subject to separate sanction mechanisms, not Rule 11.
V Summary Judgment
Summary judgment asks whether the evidentiary record contains a genuine dispute of material fact requiring trial. The basic standard is:
- No genuine dispute exists as to a material fact; and
- The moving party is entitled to judgment as a matter of law.
Rule 12(b)(6) vs. Summary Judgment
Rule 12(b)(6) primarily tests the sufficiency of ALLEGATIONS. Summary judgment evaluates EVIDENCE. Pleading asks what the party alleges. Summary judgment asks what evidence the party has.
Material Facts
A fact is material when it could affect the outcome under the governing substantive law. Not every disagreement matters. (e.g., A dispute over the color of a car in a negligence case is factual, but not material unless it relates to a legal element like breach or identity).
Genuine Disputes & Credibility
A dispute is genuine when a reasonable factfinder could resolve the material issue in favor of the nonmoving party. The court does NOT weigh competing evidence or decide which witness is more credible. Credibility resolution generally belongs to the factfinder at trial.
However, mere speculation is not a genuine dispute. The nonmoving party must identify actual evidence (depositions, documents, admissions), not merely repeat the allegations in the complaint.
Burdens at Summary Judgment
The moving party may establish entitlement to summary judgment by:
- Producing evidence disproving an essential element.
- Demonstrating an absence of evidence supporting an element for which the opposing party bears the ultimate trial burden.
Chapter Summary
Saturday focuses on the period between pleading and trial. Discovery develops the evidentiary record. Summary judgment then asks whether that record contains a genuine dispute of material fact requiring trial.
The basic scope of discovery includes nonprivileged matter relevant to a claim or defense and proportional to the needs of the case. Discovery is broader than trial admissibility; information doesn't necessarily need to be independently admissible to be discoverable.
Major discovery devices include depositions, interrogatories, requests for production, requests for admission, physical/mental examinations, and subpoenas. Interrogatories are directed to parties, while subpoenas are used for nonparties.
Attorney-client privilege protects confidential legal communications. Work-product protects litigation preparation. Opinion work product receives substantially stronger protection than ordinary fact work product. Testifying experts face disclosure; consulting experts receive greater protection.
Electronically Stored Information (ESI) triggers preservation duties when litigation is reasonably anticipated. When relevant ESI is lost, courts examine reasonableness, prejudice, and intent to deprive before applying severe sanctions.
Summary judgment requires no genuine dispute of material fact and entitlement to judgment as a matter of law. A fact is material if it affects the outcome under substantive law. A dispute is genuine if a reasonable factfinder could decide for the nonmoving party. Judges do not weigh credibility at summary judgment. Nonmoving parties must produce actual evidence, not just repeat pleadings.
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