Once the parties make it through the pleading stage, there is the discovery stage. Discovery is the ability of parties to obtain information from the opposition to prepare legal arguments and make defenses.

It is important to note that there is a difference between an overview and the scope of discovery. An overview is designed to outline each stage of discovery. The scope of discovery focuses on what materials are allowed to be included.

Overview of Discovery

Discovery is about developing the facts. It is important to note the difference between who determines facts and who determines the law. The judge determines what the law is while the jury is considered the fact finder. The jury will consider the discovered facts that pass the evidentiary bar into trial.

Most cases are won or lost in discovery. This is the time when the defendant has the highest probability of prevailing before trial. This is because the plaintiff has the high burden of proving the case before it gets to trial.

The key rules to discovery is 16 (hearings) and Rules 26-37. Our main focus is going to be on 16, 26, and 37.

Below are the important things to know about discovery.

Step 1: Schedule

16 Hearings. There is a requirement for both parties to meet together with the judge to come up with a discovery schedule. This determines when discovery starts and ends, usually lasting about 6-9 months.

Step 2: Knowing the Scope

26 Scope. A very quick summary is that the material needs to be relevant. (See the section on the scope below).

Step 3: Gather

There are three main ways to discover evidence:

  • Rule 28 Depositions (up to ten without leave. Each one up to 7 hours long). These are interviews conducted to witnesses to gather factual testimony. The testimony here is typically recorded in video and transcribed by a court reporter. The attorney who is interviewing is described as “taking the deposition.” The opposing lawyer will “defend the deposition.”
  • Rule 34 Producing Documents. These can be paper, email, videos, etc.
  • Rule 33 Interrogatories. These are questions (25) written and served to the other party. Although always done, they do not always produce results.
Step 4: Disclosure

Once discovery starts, parties are automatically required to disclose certain information.

  1. The name and addresses of the “good” witnesses.
  2. Any documents that support your claim or defense.
  3. Damage information.
  4. Insurance.

All other document gathering must be done by the means through step 3 above.

Step 5: Handling Disputes

Rule 37 Motion for an order to compel. The only time the judges get involved in discovery is if there is a dispute. This will be on the exam. Judges do not like being involved in these disputes. As such, the party bringing the motion must include a certification in good faith. The purpose is to meet and confer with opposing counsel in an attempt to resolve the issue without court action. The judge may also issue sanctions for failing to comply with discovery standards. Think of Rule 37 as the sword of handling disputes.

Rule 26(c) is a motion for a protective order. This is to protect certain information from discovery. Think of this rule as a shield against disputes.

Before either of these motions are made, the parties must meet to discuss in an attempt to resolve the issue.


  1. Discovery fight
  2. Attempt to resolve
  3. Include in motion a certification of an attempt to resolve.

Scope of Discovery

The scope is outlined in Rule 26(b)(1). In summary, this rule states that discovery applies to documents, emails, property access, pictures, etc. regardless of whether this is admissible evidence at trial. The only limitations to discovery is that one party may be privileged to maintain sole possession of information, the requested information needs to be relevant, and the evidence needs to factor in discovery costs to the needs of the case.

Key words:

  • Relevant
  • Claim or defense
  • Non-privilege
  • Proportional

Discoverable “Matter”

When referencing discoverable “matter” this refers to all form of information from physical documents, to electronic documents. The only substantive difference is that the procedure for obtaining matter differs depending on what kind of document it is.


If information is privileged, it is not discoverable. Information is generally privileged if it was gathered during the formation of protected relationships such as lawyer-client confidentiality.

Some forms of privileges include:

  1. Relationship confidentiality (mentioned above)
    1. Attorney-client privilege
    2. Clergy-penitent privilege
    3. Psychotherapist-patient privilege
  2. Privilege against self-incriminating information
  3. Irrelevant information

However, the person exerting a right of privilege must follow the guidelines in rule 26(b)(5) to describe the nature of the communication (why it is privileged) with enough information for the court to determine admissibility.

Attorney Client Privilege

Restatement (3d) of the Law Governing Lawyers § 38

The Attorney-Client privilege may be invoked with respect to:

  1. A communication (written or oral)
  2. Made between privileged persons (client, attorney)
  3. In confidence (no third parties present, even trusted parties! Nondisclosure agreements could allow attorney coworkers to participate)
  4. For the purpose of obtaining or providing legal assistance for the client.

If any of this information is shared outside of this relationship (with a third party), the privilege is waived and the communication is discoverable.


Rule 26(b)(1) says that discovery applies to the relevance of the claim or defense. This was designed to be a more narrow approach. However, most courts treat relevancy pretty broad. As long as the requested information is related to the facts, claims, or defenses, most of the time it is permissible. The only times relevancy does not really seem to apply are when the requested documents are so remote, it is more expensive to produce the documents than the actual use of having those documents (See proportionality section).

This is our test to determine if the material gathered is discoverable.

Rengifo v. Erevos Enters.

2007 WL 894376 (S.D.N.Y. 2007).

Rengifo is the employee plaintiff while Erevos is the employer defendant.


Does the plaintiff have a good cause to obtain a protective order against discovery of his immigration status, social security and tax id numbers?


The person seeking a protective order has the burden to show good cause to obtain it. Lack of relevance is a good cause.


Yes, there is good cause. Thus, discovery of the proposed information is barred.


This case was filed by a plaintiff who sought compensation for overtime work he had provided. He is also suing for discrimination and civil rights violations.

At the present filing, the plaintiff requested a protective order against discovery of his immigration and other identification numbers. The defendant resisted, arguing that the information is relevant for the case at hand and tests the credibility of the plaintiff.


There is no relevance as to his immigration status because it is a material claim that presents a danger of intimidation. That is, if his status was discovered, he may be deported. As a result, there is a danger that the case is withdrawn rather than produce documents.

Additionally information regarding his social and tax id numbers because the company already has that information and there is no reason to assume that the plaintiff has any other information different than that held by the company.

Additional Notes

This claim arises out of the plaintiff’s attempt to recover overtime pay that was denied.

During discovery, the defendant’s requested the plaintiff to produce documents for his social security number, his citizenship status, and his work visa. So, the plaintiff moves for a protective order because the request was unrelated. The defendant’s argument for these documents are

Here, the court believes the defendant is attempting to intimidate the plaintiff. How so? The judge believes the defendant is attempting to either convince the person to withdraw the case or have a potential of deportation.

So, the issue here is that the request was not relevant to the case. It is not relevant because it does not bear on the claim or defense regarding his overtime case. For example, requesting the citizenship status is not a defense against an overtime recovery claim.

Proportional to Case Needs

Oxbow Carbon & Minerls LLC v. Union Pacific Railroad Co.

332 F.R.D. 1 (D.D.C. 2017).

Oxbow is the plaintiff but this is a situation where the defendant is requesting discovery documents from the plaintiff.


Is the request for discovery proportional between cost and case needs?


The person resisting the discovery request has the burden of showing why it would not be proportional. To determine the proportionality, the courts consider (Proportionality analysis):

  1. The importance of the issues at stake
  2. The amount in controversy
  3. Parties’ relative access to relevant information
  4. Parties’ resources
  5. The importance of discovery in resolving issues
  6. Weighing the burden of the proposed discovery against the likely benefit.

The proportionality test weighs in favor of the defendant. Documents are discoverable and costs are assigned to the plaintiff.


This is an antitrust case where the plaintiffs accused the defendants of conspiring together to not compete in the railroad industry. Both these companies are multibillion dollar entities.

During discovery, the defendant’s wanted to access documents from the plaintiff’s CEO to show that market variance led to price increases, not noncompete antitrust violations.

The plaintiff’s disagreed with this discovery option citing that the cost was too great. To prove it, they allowed the defendants to run a search based on agreed terms for a sample of the documents. The cost was nearly 60,000 resulting in about 12% relevant hits. Based on these results, the plaintiffs argued saying that the cost to go through the remainder of documents would be an addition 80,000 for a total of $140,000.

  1. The importance of the issues at stake
    • Benefits social policy. This weighs in favor of defendants.
  2. The amount in controversy
    • Plaintiff’s amount in controversy is over 150,000,000. Here, 140,000 is not considered excessive. This weighs in favor of defendants.
  3. Parties’ relative access to relevant information
    • Any information asymmetry would benefit the plaintiffs because the defendant’s have no other way of accessing the information. So, this weighs in favor of granting the defendant’s request.
  4. Parties’ resources
    • The plaintiff has the resources to pay for the discovery request. This weighs in favor of the defendants.
  5. The importance of discovery in resolving issues
    • The court considers how involved the documents are. Here, that would be the 12%. However, since there were about 1,300 documents produced, it has a substantial effect on the issue. This weighs in favor of the defendants.
  6. Weighing the burden of the proposed discovery against the likely benefit.
    • The cost being only 140,000 total and having already completed about a third of that is costly. However, when the suit is for multimillions, that total is not significant (despite spending 1.4 million already). This too, weighs in favor of the defendants.

Consequently, all the factors benefit the defendant’s and the plaintiff should produce the documents. Additionally, because this cost does not unduly burden the plaintiffs, they are going to pay for the costs.

Additional Notes


  • Defendant’s can make discovery requests just like plaintiffs.
  • Discovery costs can be extremely high and still proportional. Here, the cost of this was 140,000 extraction and had already expended $1.391 million. What we need to compare it to is several factors. One of those factors is the amount in controversy, considering this case is for over $150 million.
  • The six factors of proportionality:
    • The importance of the issues at stake
    • The amount in controversy
    • Parties’ relative access to the 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.


Even if the discoverable evidence would not meet evidentiary requirements at trial, that does not bar it from being discoverable.

Work Product

This is a limitation on the discovery rule that the attorney’s work product is protected from discovery. This will be addressed more in the article addressing limitations of discovery.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.