The Rules direct a number of items be discussed at this conference. ” (Rule 26(d)(1).) This Rule 26(f) conference must occur 21 days prior to the district court’s scheduling conference. Unless there is a stipulation, court order, or the case falls within a limited exception, the Rules do not permit discovery from parties or nonparties “before the parties have conferred as required by Rule 26(f). However, it is important to be prepared to address these proportionality factors when you draft discovery and especially if you need to compel responses.
The Advisory Committee Notes state that a party may not “refuse discovery simply by making a boilerplate objection that it is not proportional.” Moreover, the fact that discovery oftentimes flows mostly in one direction does not mean that it is disproportional - that is not one of the factors to be considered. The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The Advisory Committee states:Ī party claiming undue burden or expense ordinarily has far better information - perhaps the only information - with respect to that part of the determination. But this is not a burden that solely falls on the party seeking the discovery. Second, the 2015 Amendments require that a number of “proportionality” factors must also be considered. However, this Rule explicitly states that matter does not have to be admissible to be discoverable. The 2015 Amendments deleted the phrase “appears reasonably calculated to lead to the discovery of admissible evidence” from the scope of discovery. In other words, in order for evidence to be discoverable, it must not only be non-privileged and relevant to the claims or defenses, but also must be proportional to the needs of the case.įirst, the discovery must be relevant to the claims or defenses. A “relevancy” requirement for “any non-privileged matter that is relevant to any party’s claim or defense” and a “proportionality” requirement that the discovery be “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 benefits.” (Fed. This article will provide a general overview of federal discovery and deposition procedure, with particular attention to important changes made to the Rules effective December 1, 2015, and important differences with California practice.Įffective December 1, 2015, Rule 26(b) was amended to read that the scope of discovery had two requirements. Each federal district also has its own civil local rules that may govern certain procedures and most federal district judges have standing orders specific to civil cases.
#Motion to compel deposition sample trial#
The Federal Rules of Civil Procedure (“Rules”) govern civil pretrial and trial practice in the federal courts.
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