Chapter 5

DISCOVERY AND PRETRIAL CONFERENCE

Introductory Note: The main emphasis of this chapter is on the discovery procedures set forth in the Federal Rules. More states have adopted the Federal Rules for discovery than have adopted any other set of provisions of the Federal Rules, and these provisions give a good indication of the trends of modern discovery. The federal procedures for conducting pretrial conferences are also discussed.

ChapterScope

This Chapter covers discovery, the process by which each party to a litigation reveals to her adversaries facts, documents, and other aspects of her claims or defenses. The emphasis in this chapter, as noted, is on the discovery provisions of the Federal Rules. The most important concepts in this Chapter are:

• Forms of discovery: Discovery under the Federal Rules includes six main types:
  • Automatic disclosure, in which each party must disclose in writing the names of occurrence witnesses, facts about documents, etc., early on in the litigation without a request from the other side.
  • Depositions, in which a lawyer asks questions to a party or to a non-party witness. (Usually depositions are oral, i.e., both questions and answers are spoken and recorded.)
  • Interrogatories addressed to a party. An interrogatory is a set of written questions, which is also answered in writing.
  • Requests to inspect documents or property;
  • Requests for admission of facts;
  • Requests for physical or mental examination.
• Scope generally: FRCP 26(b), which applies to all forms of discovery, provides that the parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[.]” So the two principal requirements for discoverability of material are that it is: (1) not privileged; and (2) relevant to the subject matter of the suit.
• Relevant but inadmissible: To be discoverable, it is not required that the information necessarily be admissible.
• Privilege: Only material which is not privileged may be discovered.