Breaking and associated brands will be offline for scheduled maintenance Saturday May 8 3 AM US EST to 12 PM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
It might be easier to ask the leopard to change its spots, but we need to change the way we think about discovery. We take too much discovery. Fed. R. Civ. P. 26(a) has been given unto us — a gift from the gods — but is too often overlooked. Too much discovery is conducted to delay, annoy, inflict pain or extort. We have actually had opposing counsel argue “whether our claim has merit or not, our settlement demand is less than it would cost you to respond to discovery.” But even with good intentions, too much discovery is conducted without thought, out of sheer rote. We feel obliged to construct the most onerous possible document requests and interrogatories, designed to unearth every conceivable piece of paper and detail, without any thought to whether we will use any of it at trial. We cast the widest possible net on the assumption that, like chicken soup, it cannot hurt. Ah, but it can. Put aside for a moment how much it costs to review a million pages of trivia that will never see the courtroom. In “Expert Approaches,” A.B.A. Litig. Mag. Summer 2002, Gregory Joseph makes the compelling case that it is often better not to take the deposition of your opponent’s expert witness in federal cases. Rule 26 requires an expert report; Rule 37 locks the witness into that report, prohibiting testimony to any undisclosed opinions or bases. If you depose the witness, the latter may learn more about how to withstand your cross-examination than you will learn about him or her. More critical, you give the witness the opportunity to supplement orally and therefore expand the scope of the trial testimony beyond the report. Joseph does not suggest you should never take an expert deposition; but you should never take it without carefully thinking through the pluses and minuses. Joseph’s advice is too good to be limited to experts. There really are only two legitimate reasons to take discovery. First, we take discovery to learn something we do not yet know. Second, we use discovery to protect — to box out against the possibility of surprise at trial, pinning down what our adversary knows and does not know. (There is a third reason — to preserve trial testimony for an unavailable witness — but that isn’t discovery, so let’s not dwell on that.) So, if we agree those are the reasons to take discovery, then Rule 26 eliminates most of the need to do it! Without lifting a finger, without drafting a single document request or interrogatory, Rule 26 gives you pretty much all of the document discovery you will ever need. With the 1993 amendments, Rule 26 introduced the startling concept of requiring initial disclosure of “all documents, data compilations, and tangible things in the possession, custody or control of the party relevant to disputed facts alleged with particularity in the pleadings.” All relevant documents — both good and bad. But perhaps because the concept of early, mandatory, all-inclusive disclosure was a huge pill to swallow, the rule allowed individual courts to opt out of the requirements, and the exceptions soon overwhelmed the rule. The 2000 amendments took away the opt-out right to establish a uniform national practice. But mandatory disclosure was still a very big pill, so the requirement to produce all relevant documents was narrowed to require production only of anything that might be used in support of the party’s claims or defenses. So you get the good (that is, good for your opponent) documents automatically. If you want the bad documents (bad for your opponent, good for you), you have to ask. Rule 26(a) requires that your opponent give you copies of (or describe) all documents that he or she may use to support any claims or defenses. If your opponent finds additional documents after the initial disclosures, Rule 26(e) requires that the document production be supplemented. Without lifting a finger, you have the reasonable certainty that you have received everything your opponent can offer at trial to support any claims and defenses. That is because, in its simple elegance, Rule 37(c) provides “A party that without substantial justification fails to disclose information required by Rule 26(a) … is not, unless such failure is harmless, permitted to use as evidence at trial … any witness or information not so disclosed.” Rule 37 is self-executing. No motion to compel is necessary. No further action on your part is necessary. If the document should have been produced under Rule 26, and was not, it must be excluded unless your opponent meets the burden of showing that the failure to produce under Rule 26 was justified or harmless. Continental Lab. Prods. Inc. v. Medax International Inc., 195 F.R.D. 675 (S.D. Calif. 2000). SMOKING GUNS You do have to ask for the smoking guns. Do that. But you don’t have to ask for anything else. Well, says the leopard, how can you be sure there isn’t something else to spot? Isn’t it safer to ask for every possible document so that nothing is missed? Not necessarily. Overbroad discovery is not chicken soup; it can hurt. If you ask for and receive every possible document, you will have lost the box-out advantage bestowed upon you by rules 26 and 37, because your opponent will no longer be limited to the Rule 26 disclosures; he or she will be able to introduce at trial anything in the larger universe. Rule 26 largely does away with any real need for interrogatories as well. We have all seen them. The bone-crushing interrogatories. Six pages of instructions, with two pages alone on what it means to “identify” something, preceding questions so open-ended they defy any possible answer: “Identify each individual with knowledge of the transaction and, as to each such person, state in detail their knowledge and involvement, describing each and every fact known to that person.” You may really want an answer to that question, but you aren’t likely to get it. No self-respecting lawyer will answer without objecting. And while there may be a judge somewhere who would compel an answer, mainstream response is more likely to be that “the burden to answer … outweighs the benefit to be gained.” IBP Inc. v. Mercantile Bank of Topeka, 41 F.R.D. 316 (D. Kan. 1998). When you come right down to it, interrogatories are only genuinely useful in limited circumstances. They are useful to identify people with relevant knowledge. And they are useful to get answers to simple questions that have simple answers that cannot easily be avoided such as “yes,” “no” or “1996.” If you have such simple questions, by all means serve interrogatories. But you really don’t need to ask for the identity of people with relevant knowledge because Rule 26 already does most of that for you. Without so much as asking for it, Rule 26(a)(1)(A) requires disclosure of the name, address and telephone number of “every individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.” FILLING IN THE GAPS All you have to do in your interrogatories is plug a little gap by serving an interrogatory asking for the identity of individuals with discoverable information relevant to support your own claims and defenses. Which brings us to depositions. We take too many of them and we make them too long. But the people who make the rules want to change that. In 1993, the rules were amended to limit each side (each side, not each party) to 10 depositions. In 2000, each deposition was limited to seven hours. Of course, courts have the discretion to extend those limits and, inertia and rote being the powerful forces they are, extensions seem almost routine. For example, in Miller v. Waseca Medical Ctr., 205 F.R.D. 537 (D. Minn. 2002), the court observed that (1) it did not understand why the rule had been amended to presume a seven-hour limit, yet (2) having been amended, it was required to follow the rule, but (3) in it’s view, surprise, surprise, good cause existed to ignore the rule. Courts may be slow to apply the rule literally, but it is just a matter of time. It is now the presumption that there ought to be a limit on the number and length of depositions. Eventually, courts are truly going to impose those presumptions on us, so we need to start getting accustomed to making good decisions about how to stay within the limits. In the vast majority of cases, depositions really are useful. Certainly, they give us a comfort level about what a particular witness is going to say at trial. But useful and essential are different things. We often hear lawyers say “I damn sure want to know what the witness is going to say before I hear it for the first time at trial.” OK, but why exactly is that? The witness is going to say what the witness is going to say. And unless we admit that we are dullards who need six months to think of a clever retort, what difference does it make when the witness says it? Well, say our well-prepared friends, we need the deposition for its impeachment value — the witness is bound to say different things at deposition and at trial. Probably so, but the authors have, between us, been trying cases for more than 75 years now, and we can only think of one time when an impeachment by deposition actually had some impact on a jury (and we aren’t really sure how much impact). Maybe that one time justifies the zillion depositions we have sat through, but probably not. It is not enough that discovery might be helpful — we need to make thoughtful decisions about whether taking discovery can actually be harmful. And for the same reasons that Joseph suggests thinking twice about taking an expert deposition, you need to analyze whether you might hurt your case by deposing any individual. Rule 26(a)(1)(A) requires disclosure of the subjects of information each witness has. So, assume you get a disclosure that John Doe is likely to have information about the negotiation of the contract that is the subject of your lawsuit. You are pretty sure that your judge heard about the Parole Evidence Rule at law school, so you are comfortable that there won’t be any trial testimony about the negotiation of the contract. If you depose Doe, and Doe testifies about the performance of the contract after its execution, Doe can and probably will show up as a trial witness on the subject; if you don’t depose Doe, you can probably have that testimony excluded under Rule 37. So why do you want to open that door? Maybe, just maybe, you don’t. Of course, Rule 26 only applies to parties. Discovery from nonparties must be initiated. And even as to parties, Rule 26 has some obvious gaps that need to be filled with formal discovery. You need to take some discovery. Just not too much discovery. Rule 26 does an awful lot of the work automatically if you simply let it work for you. This is not a true/false examination. There is no right or wrong answer to the question “should I take a particular form of discovery?” Well, actually, there is a wrong answer. It is wrong simply to take discovery without thinking through carefully whether or not it is helpful. The authors are fellows of the American College of Trial Lawyers and are partners at Jenner & Block of Chicago. If you are interested in submitting an article to, please click here for our submission guidelines.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.