May 2023

Ariana J. Tadler, Gilbert S. Keteltas, Hon. Andrew J. Peck (ret.) & A. J. de Bartolomeo[1]

This paper is the product of practitioners who often find themselves on opposite sides of the “v”—sometimes in the same cases—and a jurist who was called on to identify and address failures by parties to meet their discovery obligations.  Having or establishing a good relationship with your adversary often leads to more effective negotiation about discovery and fewer disputes requiring court intervention.  Although such relationships do not solve all issues, they can pave the way for collaborative discussions that serve to fulfill Rule 1’s mandate that the procedural rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”[2]   

The Permissible Scope of Discovery

Under the Federal Rules of Civil Procedure, the scope of discovery is governed by Rule 26(b)(1):

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.[3]

When this language was finalized in 2015, the Rules Committee stated it even more plainly in their note to the amendment: “Information is discoverable under revised Rule 26(b)(1) if it is relevant to any party’s claim or defense and is proportional to the needs of the case.”[4]

  1. How do counsel for the parties determine the scope of discovery?  

GSK:  Lawsuits are about resolving disputes.  So, when counsel think about matters that are relevant and proportional to the needs of the case, they should start with the dispute.  What claims and defenses are in dispute?  What information is needed to resolve those disputes?  If the parties lose sight of the dispute, they will spend time and money searching for information that may be “related” to the subject matter of the dispute, but that may not advance resolution of the dispute.  And by focusing not just on the claims and defenses, but on which allegations relating to the claims and defenses are in dispute and which are not, counsel can craft a focused discovery plan that prioritizes getting to what matters. 

AJT/AJdB: Determining scope is, of course, case dependent.  Even when faced with a case that is seemingly similar or analogous to another, one must look closely at the claims and defenses in that particular case and drill down to identify the best sources of discovery.  Engaging in focused and clear conversations with your adversary about what you are seeking and where it is located (data mapping) can facilitate pinpointing the scope of the matter, and help the parties to manage expectations.  One should also recognize that as a case evolves from the initial pleading through subsequent pleadings and motion practice, as well as discovery itself, scope may change over time.  Some areas once thought to be priorities may fall to the back of the line or even off of the line completely, whereas other areas may surface, thus warranting prompt attention.  It is critical to be conscious of the iterative nature of litigation and thus discovery as a core component to the process.  Q.  Is there a set roadmap to follow or is each case different?  If different, how do counsel tackle this question?

GSK:  Each case is different, but the key questions are the same.  What is in dispute and what information is needed to resolve disputed matters.  And not only is each case different, but each judge is different.  For judges who take active case management seriously, thinking about these questions can help structure a case for the most efficient resolution.  For example, if resolution of a single, overarching question might drive overall resolution of the matter, or obviate the need for other burdensome discovery in the case, the parties and the court might work together on a discovery and case plan focused on resolution of that issue.

AJT/AJdB:  There is no set roadmap, as each case is different and even in a similar type of case – one size does not fit all.  Without a doubt, the first step is to determine what is in dispute and what information is needed to resolve issues in dispute.  You should do your best to identify, through your own investigation, key individuals, and sources of information so that you can be targeted in your requests for information.  You also must be mindful of the time allotted to complete discovery as this will gauge your steps.  Fast-tracked cases may require you to zone in quickly on key sources of discovery for prioritized production; you also might consider front-loading certain depositions – including 30(b)(6) depositions of a corporate representative, if appropriate – as you negotiate production in response to requests for production. 

In every case, you should consider the following as they will lend to your strategic plan:

  • type of case;
  • other similar cases;
  • parallel litigations, government investigations or relevant congressional hearings;
  • key custodians and likely sources of information, to the extent you can identify them early;
  • business sector/s and traditional courses of conduct internally and externally to guide discovery mapping and third party discovery;
  • past precedent and local rules from the applicable jurisdiction;
  • judge (and magistrate judge, if applicable), and the extent to which she/he is an active case manager;
  • opposing counsel, and the extent to which you have encountered them before (consider whether that was a positive or negative experience and let that guide you); and
  • alternative end results – trial or settlement – and how each should guide your discovery plan.




  1. Are there any tips for practitioners wading through the case law concerning the scope of discovery?

AJT/AJdB: The 2015 amendments to the discovery rules have now passed their 7th year anniversary; although it can take decades for unflinching precedent to take hold, an accumulation of judicial precedent now exists in most jurisdictions (at least, in federal court).  Look to current precedent as your guide; and if your case is unique, be sure to explain why it warrants a different result.  Also, the Committee Notes are key to understanding how the rules should be applied.  For example, discovery requests and objections should be as specific as possible; and the term “proportionality” is not to be carelessly raised as a sword or shield when on unsteady footing.  Rather, raising proportionality proactively or defensively must be firmly grounded on the fulfillment of at least some of the factors in the multi-prong standard set forth in Rule 26(b)(1).  You must arm yourself with information to persuasively demonstrate that you meet that standard.  

GSK: It is important that practitioners focus on case law decided after Rule 26 was amended in 2015, or at least case law that does not rely on phrases that were deleted from the rule.  For example, many practitioners—and even some courts—still state that the scope of discovery broadly includes inadmissible information “reasonably calculated to lead to the discovery of admissible evidence.”  But the 2015 amendments deleted that phrase.  And the Advisory Committee pointedly observed that “[t]he phrase has been used by some, incorrectly, to define the scope of discovery.”[5]


Cooperation of Counsel

Federal Rule of Civil Procedure 1 makes clear that the procedural rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”[6]

The 2015 Advisory Committee notes to Rule 1 provide important context to this language.  There the Rules Committee explained:

Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.

  1. How, in practice, does cooperation work? 

GSK: I would recast this question to how cooperation should work, because there is still a significant gap between practitioners who understand and attempt to implement the obligation to cooperate.  But to start, cooperation is mandated in various portions of the rules.  For example, Rule 26(f) requires the parties to work in good faith on a proposed discovery plan that will be outlined in writing for the court.[7] When done well, this is more than a boilerplate submission and is born of a meaningful discussion among the parties of subjects set forth in Fed. R. Civ. P. 26(f)(3).  Rule 26(f)(3) includes:  the timing and form of initial disclosures, the subjects on which discovery may be needed, the timing of discovery (including whether the case would benefit from phased discovery focused on particular aspects of the case), the myriad of issues that arise out of the search for and production of electronically stored information, assertion of privilege and the claw-back of privileged documents after production.

AJT/AJdB:  Real cooperation results in the streamlining of discovery.  All stakeholders (parties, lawyers, and courts) can and should benefit from the achieved efficiencies – this is distinct from naming the winner or loser of the case.  Rather, the focus is on moving the case apace. The requesting party gains access to information and, potentially, witnesses for deposition, earlier; the responding party has a clear(er) understanding of scope and timing, and thus is likely better able to manage costs and expectations; and the court has fewer, if any, disputes to resolve.  The key is knowing early whether cooperation is real and in action or simply a ruse.  When it is real, cooperation has additional positive consequences, including lawyers comporting themselves not only as professionals, but as respectful human beings.  (Caveat:  in cases where there are multiple lawyers or firms on one or both sides, politics may come into play that derail those who authentically work to cooperate.)


  1. What, if any, changes in lawyer behavior have you seen since the 2015 amendments insofar as cooperation?

AJT/AJdB:       In many complex cases, cooperation has taken a stronger hold – these are the cases where you see the best lawyers rise to the occasion and where judges appreciate and applaud the efforts to streamline matters.  Intuitive lawyers who understood the benefits of cooperation before the amendments now see validation of their strategic thinking and thus feel even more encouraged to engage; now we see lawyers for whom cooperation, historically, was anathema learning that an adjustment in practice is not simply an ideal but rather an expectation.  The amendments themselves have contributed to this development, but even more so, courts that actively manage their dockets have demanded cooperation among counsel and the parties.  Of course, there are some lawyers for whom old habits die hard – i.e. they simply refuse to engage in cooperative dialogue – one must ask who that behavior serves best: the client or the lawyer?

Court dockets are often overloaded. Courts tend to be very receptive to lawyers and parties who work to move their cases along.  It is incumbent upon lawyers to do what they can to ease the burdens on our courts wherever we can – cooperation is one easy step towards achieving this goal.

GSK:    In recent years more lawyers have devoted time and energy early in the life of their cases to discovery.  While this is not a universal shift, fewer lawyers embrace the unfortunate tradition of kicking the discovery can down the road in the hope that it will never happen.  There are, of course, cases where meaningful discovery should await resolution of early dispositive motions.  But even in those cases, early thinking and planning about discovery can reduce the risk, cost, and burden of discovery if and when it happens.

  1. What can gum up the efforts to cooperate?

GSK:    One thing that can gum up the works is reliance on “the way things were always done.”  This can be a client view or a view of counsel.  When a case has just been filed against your client, the client may not immediately be receptive to the notion that counsel intends to cooperate with the person who just sued the client.  This is where it is important to remember the words of the Rules Advisory Committee that effective advocacy and cooperation go hand in hand.  Part of that advocacy may involve explaining to the client that early cooperation can dramatically cut the burden and expense of discovery.  In fact, while many make the case that modern technologies can significantly reduce the cost of discovery, early cooperation and advocacy can be an equally powerful lever in controlling the cost of discovery.

AJT/AJdB:       Lack of clarity and failure to set deadlines can muck things up.  For example, the parties may achieve agreements about discovery production or depositions but fail to resolve issues pertaining to privilege or privilege logging.  This failure will inevitably adversely affect depositions and potentially the schedule set for expert discovery and/or the close of discovery.  Setting a deadline by which unresolved issues will be brought to the court will ensure that the parties stay on track.  Often when such deadlines are set, even if the parties prepare to take an issue to the court, they resolve the issue among themselves before the court must rule on the issue.

Another complexity is when there are multiple lawyers or law firms involved on one side or another or both, and the lawyers on a particular side disagree as to the breadth of cooperation to be applied or when they disagree as to the timing or approach.  This dissonance often results in delay, and that delay undermines or disrupts the cooperative efforts to date.

Q:        What should counsel do when things seem to go sideways despite efforts to cooperate?

GSK:    If efforts to cooperate have been real and sincere, then it may be necessary to get a referee – i.e., the Court – involved.  Guidance from the court on the issues that are roadblocks to effective cooperation can, if focused, put the parties back on track.  But if efforts to cooperate are insincere, expect the court to tell the parties to get back to work and re-read Federal Rule 1.

AJT/ AJdB:  If the parties find themselves in a sideways situation, counsel should examine why things went sideways to identify the problem and then frame a solution to get the litigation back on track.  Consider if the responsibility for the wrong turn(s) is shared, or if it rests with one party.  Is the root cause based on miscues in client or leadership authority?  Is it the result of allowing a dispute to spiral out into derivative litigation which results in distraction, delay and expense?  Or is it the result of specific personality clashes where leadership can step in for détente to bring the temperature down? Depending on the answers to these (and other) questions, counsel may be able to realign its strategies, or may require judicial guidance or decision.  Choosing another member of the legal team to step in for certain conversations often can take the sting out of prior communications that might have derailed any interest to cooperate.


Role of Proportionality in Determining Discovery Obligations

  1. At what point in the discovery process does proportionality come into play?  

GSK: Proportionality considerations are present in all aspects of a case.  While Rule 26 expressly sets forth proportionality factors in the context of determining the scope of discovery, parties may also raise proportionality considerations with their opponents or the court in considering the scope of preservation obligations.  Also, application of proportionality factors typically requires meaningful analysis that benefits from early attention.  What sources are most likely to have information needed to resolve disputes? Are there duplicative or other sources that, as a result, may not need to be searched or preserved? What is at stake in the case?  Are there non-monetary factors that may shape the proportionality analysis?  What information do you need to make or counter burden arguments?  What technology choices, if any, should be considered early in a case that might affect the proportionality analysis?

AJT/AJdB:  In many cases, proportionality is raised as early as the initial 26(f) conference among the parties and the Rule 16 conference with the court.  Parties who really engage in a robust meet and confer to prepare their 26(f) report may find this to be an opportune time to get into a hearty discussion of what discovery will look like for real.  In other cases, particularly where the defendant is optimistic about success on a motion to dismiss, the defendant may be reluctant to engage in a robust discussion about discovery.  Unfortunately, this situation results in a lost opportunity to make progress with opposing counsel both as to an efficient discovery plan and establishing a good rapport that will serve the parties, the case, and the court well.

  1. Which aspects of discovery are most frequently subject to considerations of proportionality?

GSK:    As noted above, proportionality considerations can apply to virtually all aspects of discovery, from preservation to search to production.  For most practitioners, proportionality considerations will not only apply to the general question of the topics that will drive discovery, but on where a party should search for responsive information and in what ways a party can reduce the burdens of identifying relevant information from large populations of information.  This also carries over into the determination of whose data should be collected and searched.  My experience is that, even in larger complex cases, the parties can negotiate a core group of key custodians beyond which there will be diminishing returns of relevant information.  But, as noted above, these conversations require preparation and a reasonable basis to argue for or against the inclusion of custodial and non-custodial sources.  

AJT/AJdB:  Discussions of proportionality tend to revolve around the issues of preservation, scope, custodians, and depositions.  Lawyers who conduct their own investigations and utilize the output to proffer targeted discovery requests are best positioned to engage in an informed discussion with opposing counsel about these topics, as they will have information on hand that will lend to the conversation.  In contrast, if the responding party simply is in full control of the majority of information, good lawyers will ask targeted questions and work to secure information from opposing counsel to facilitate an understanding of the best sources of information, including data repositories (and status of data storage), custodians, and key witnesses. That understanding will be key to addressing, and in some instances challenging, proportionality objections.

  1. What resources should practitioners be aware of in analyzing proportionality considerations?

GSK:    If I could recommend only one resource, it would be The Sedona Conference Commentary on Proportionality.  This commentary suggests principles for analyzing proportionality considerations and a reasonably comprehensive collection of cases relating to those principles.

AJT/AJdB:       First and foremost, lawyers must read the Advisory Committee Notes in conjunction with the corresponding Federal Rules governing discovery.  When it comes to Rule 26(b)(1), the Committee Note is very informative. 

AJP:  I would add The Sedona Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests (March 2018) to the recommended reading list.

  1. Are there recent court decisions on proportionality that are particularly instructive?

AJT/ AJdB:  After the 2015 amendments went into effect, courts around the country (some proactively) incorporated the principle and factors of proportionality from Rule 26(b)(1) into their decisions, often as part of limiting the scope of requested discovery. Important language in the decisions is that “the parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”  Many court decisions are a reminder that judges have an active role to play in managing the proper bounds of discovery, including by incorporating proportionality considerations into their decisions. It is also a notice to parties that judges will expect that they thoughtfully and thoroughly address the proportionality factors of Rule 26(b)(1).

A few proportionality decisions worth considering:

  • Weidman v. Ford Motor Company, No. 18-cv-12719, 2021 WL 2349400 (E.D. Mich. June 9, 2021). Plaintiffs asked defendant Ford to run search terms against three custodians and produce documents relating to an inferred aspect of their product liability claims. In response, Ford argued the production of those documents was beyond plaintiffs’ claims.  Nevertheless, Ford conducted a search for the requested information, identified responsive documents among those it previously produced, and turned over 700 new documents to plaintiffs.  Unsatisfied, plaintiffs sought a court order compelling Ford to run the originally requested searches, arguing the information was “highly relevant” and pointing to the broad scope of discovery as justifying their demand.  In response, Magistrate Judge Elizabeth Stafford held that the searches were not proportional to the needs of the case. Judge Stafford observed that many lawyers “gloss over the operative rules requiring an assessment of proportionality,” preferring instead to focus exclusively on relevance.  Indeed, the court indicated that plaintiffs in Weidman—like many parties—“note[d] the proportionality factors but only briefly address[ed] them.”  While the searches at issue may have yielded relevant information, Judge Stafford was unconvinced they would uncover documents beyond those Ford already produced.  Because the burden on Ford to conduct such a search outweighed any likely benefit plaintiffs might obtain from the requested searches, the court denied plaintiffs’ motion.
  • Lamaute Power, — F.R.D. —, No. 19-cv-3702, 2021 WL 1978971 (D.D.C. May 18, 2021). Employment discrimination case where plaintiff alleged she had been passed over for promotion due to her race, sex, and age, the court held that proportionality factors weighed in favor of granting certain aspects of plaintiff’s requested discovery while also limiting aspects of that discovery.  The court’s order found that many of plaintiff’s requests reached too far in terms of the information requested. And yet, defendants’ proposed responses and corresponding productions would be too limited.  For example, the court held that plaintiff’s requests that sought production of emails were disproportionate.  Some of the individuals whose emails plaintiff sought “had no connection to the decision-making process” and would “add little practical value . . . [where] the key information is that considered by the hiring panel.”  Nevertheless, defendant’s proposed responses were too narrow and would exclude relevant communications between plaintiff and the hiring committee members.  Accordingly, the court struck a balance, ordering production of relevant emails involving plaintiff, hiring committee members, or others involved with the “selection decision” while proscribing discovery of other requested communications.
  • Levesque v. Iberdrola, S.A., No. 19-cv-00389, 2021 WL 149836 (D. Me., Jan. 15, 2021). Plaintiffs moved for leave to take depositions of former employees to support Iberdrola’s challenge to jurisdiction.  The court had previously allowed plaintiffs limited jurisdictional discovery and they obtained information to contest Iberdrola’s challenge.  In its motion for three additional depositions, plaintiffs asserted they learned of “material information” regarding Iberdrola’s role.  The court denied plaintiffs’ motion for leave, determining that while the requested depositions might confirm the information, they were not proportional to the needs of the case since plaintiffs are aware of material information and can presumably present it in response to the jurisdictional challenge.
  • Lakes v. Bath & Body Works, LLC, 16-cv-2989, 2018 WL 533915 (E.D. Cal., Jan. 23, 2018). Plaintiff filed a motion to compel further responses and production seeking information as to all candles sold by defendants, which defendants had shown number in the millions and comprise several different types of candles and several scent variables.  The Court explained that in the “old days,” a party objecting to discovery based on oppressiveness/unduly burdensome had the “heavy burden” to demonstrate oppressiveness.  But after the 2015 amendments to Rule 26 the “old days” “burden requirements in such motions are quasi-obsolete. Proportionality [] seeks in the main to determine whether requested discovery is ‘too much.’  The purpose of the presently codified proportionality principle is to permit discovery of that which is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.  John Roberts, 2015 Year-End Report on the Federal Judiciary (Dec. 31, 2015). Relevancy alone is, therefore, no longer sufficient to obtain discovery in the absence of proportionality.”  The court determined that the better reasoned decisions post-2015 require proportionality input from both sides with the court ultimately responsible for the correct balancing.  See Caballero v. Bodega Latina, No. 17-cv-00236, 2017 WL 3174931 (D. Nev. July 25, 2017); Lopez v. United States, No. 15-CV-180, 2017 WL 1062581 (S.D. Cal. Mar. 21, 2017); In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 564-65 (D. Ariz. 2016).  The court found that with one exception, defendant’s proportionality argument carried the day with regard to its responses.
  • N. Shore-Long Island Jewish Health Sys. v. Multiplan, Inc., 325 F.R.D. 36 (E.D.N.Y., Mar. 28, 2018). The Court finds that requests for (1) data pertaining to claims submitted by providers other than Northwell, and (2) data pertaining to MultiPlan clients for whose members no record of a Northwell charge exists, are not proportional to the needs of the case, and therefore are not discoverable under Fed. R. Civ. P. 26(b)(1).  This conclusion is supported by the fact that Northwell’s primary motivation in seeking this information is to support a claim for punitive damages and Northwell’s Second Amended Complaint alleges multiple causes of action which are not dependent upon the probity of the data Northwell seeks.  “In these circumstances, where the breadth and volume of the data requested is potentially vast, proportionality principles require tailoring production to the subject matter of the litigation and the parties involved.”
  • McCall v. St. Farm Mut. Auto. Ins. Co., No. 16-cv-01058, 2017 WL 3174914 (D. Nev. July 26, 2017). Plaintiff sued State Farm for insurance bad faith arising from a denial and delayed payment in a personal injury action. State Farm filed a motion for protective order and plaintiff filed a countermotion to compel documents regarding defendant’s medical expert.  The court applied the proportionality standard to each request, finding that plaintiff is entitled to the contract between State Farm and Certified Medical Consultants (to which the expert’s medical opinion was obtained), documents provided to and prepared by the expert, and communications exchanged by State Farm, Certified Medical Consultants and the expert relating to the review of plaintiff’s injuries and medical treatment and expenses; 1099s issued to the expert for services for State Farm in the past five years; and five years of the expert’s reports prepared for State Farm in connection with an uninsured/underinsured motorist claims. The court denied plaintiff’s other discovery requests pertaining to Certified Medical Consultants or its relationship with State Farm on the grounds that they were not reasonably proportional to the needs of the case.

GSK:    Practitioners should do their best to track case law developments like these.  Courts regularly wrestle with new technologies and challenges concerning the creation, storage and disposition of electronically stored information.  And, of course, it is worth knowing—if possible—how the jurisdiction you are in approaches disputes concerning requests for information and responses to those requests.  Groups like PLI, The Sedona Conference, and Georgetown Law’s Advanced E-Discovery Institute are good sources for information on how the law in this area is evolving. 

Requests and Objections Under the Federal Rules

The Federal Rules of Civil Procedure, like the rules of the individual states, offer a variety of mechanisms to pursue discovery.  Among the most commonly used are depositions (Rule 30), interrogatories (Rule 33), and requests for production (or, colloquially, document requests) (Rule 34).

  1. How do you articulate targeted discovery requests if you really don’t have information to facilitate your doing so?

AJT/AJdB:       Smart lawyers start with their client’s claims or defenses, breaking them down into their component parts insofar as the respective elements they will need to prove to establish the claim or defense.  They craft their discovery requests accordingly.  Doing so is a reasonable approach.  From there, they engage in early discussions with opposing counsel to refine those requests – in some instances, the requests may be narrowed; in others, they may warrant expansion.  The key is to ask reasonable questions and provide truthful and clear answers.  If you do not know, say so and commit to working to learn more and return to the conversation with more information. Professional candor will also advance the goal of civil relationships built on mutual respect. Certain discovery tools can also facilitate refinement of requests. For example, an early 30(b)(6) deposition may serve the parties well.

GSK:    There is no doubt that this is a challenge.  There is always a fear that a targeted request that does not include a long list of examples, beginning with “including but not limited to,” will exclude something.  But parties should try to balance broader requests with requests for “documents sufficient to show” on topics where the party does not in fact need every document that mentions a subject.

  1. What practical tips can you offer how to best proffer discovery requests and objections?

AJT/AJdB:       As stated earlier, consider the claims alleged in the complaint and the required elements of each to succeed.  Then think strategically as to what information you need to satisfy those elements and where that information might reside:  individual custodians, department files, witnesses?  And, of course, if you have a client that is knowledgeable about sources of information, they are your first go-to resource. Construct your discovery requests accordingly.  Keep them as simple and direct as possible with the intent that you will engage in a meet and confer with opposing counsel to explore whether some are too narrow, some too broad, and some just right.  Another suggestion, if you know your opposing counsel, is to put down the boxing gloves, and have a candid discussion about the case to see if there are specific subjects, data sources, or individuals who should be the focus from the outset.  Having that early conversation may lead you to more than a road to targeted discovery; it may well lead you to a resolution of the case.

GSK:    My biggest practical tip is to resist the urge to rely on your form files and boilerplate.  Form discovery requests and objections can get in the way of focused requests and responses that make clear what is and is not going to be produced, or indeed whether a party even thinks the requested information exists.  Think about how often in your career the boilerplate objections you included “just in case” actually made a difference.  While this is a tip, it is also required under Fed. R. Civ. P. 34, which, for example, states that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.  An objection to part of a request must specify the part and permit inspection of the rest.”[8]

As the Rules Advisory Committee explained about this language:

Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection. This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been “withheld.”[9]

Strategic Considerations – Focusing on What Matters

  • Know what your case is really about.
  • Be mindful of the time allotted/needed to pursue and complete Discovery.
  • Map out a Discovery Plan.
  • Work out the details of who will do what by when at the beginning of the case:
  • Analyzing and negotiating scope.
  • Proffering of Discovery.
  • Objections and Responses.
  • Privilege logging.
  • Productions of certain information before specific depositions.

[1] The views expressed in this paper are the individual panelists’ alone and do not necessarily reflect the views of any organizations or institutions with which the panelists are associated.

[2] Fed. R. Civ. P. 1.

[3] Fed. R. Civ. P. 26(b)(1).

[4] Fed. R. Civ. P. 26 advisory committee’s note.

[5] Fed. R. Civ. P. 26 advisory committee’s note.

[6] Fed. R. Civ. P. 1.

[7] Fed. R. Civ. P. 26(f)(2).

[8] Fed. R. Civ. P. 34(b)(2)(C).

[9] Fed. R. Civ. P. 26 advisory committee’s note.