Scope of FRCP 26(b): Is it discoverable?

FRCP 26(b)(1): FRCP 26(b)(2)(C): FRCP 26(b)(5) FRCP 26(b)(3): FRCP 26(c):
Parties may obtain
discovery regarding
any nonprivileged
matter that is
relevant to any
party's claim or
defense.

For good cause, the
court may order
discovery of any
matter relevant to
the subject matter
involved in the
action.

Relevant
information need
not be admissible at
the trial if the
discovery appears
reasonably
calculated to lead to
the discovery of
admissible evidence.
Discovery can be
limited by the court
if:
Discovery sought
is unreasonably
cumulative or
duplicative;

Discovery sought
is obtainable from
some other source
that is more
convenient, less
burdensome, or
less expensive;

The burden or
expense of the
proposed
discovery
outweighs its
likely benefits.

For policy reasons,
protection applies
even if information
sought is relevant to
litigation.

Common privileges:
Attorney-client,
Physician-patient,
5
th
Amendment

General requirements:
Communication must
have been made with
an expectation of
confidentiality;
Confidentiality is
essential to a socially
approved
relationship; and
Confidentiality has
not been waived by
disclosure to persons
outside of the
relationship.

Privileges can be
waived:
Only by the holder of
the privilege (or his
agent)

By disclosure to third
parties.

Intentional,
inadvertent and
implied waiver.
Trial Prep. & Work Product:
Are protected from discovery and need
not be produced EXCEPT:
o When the information contained in such
materials is not reasonably available
from any other source.
o NOT A PRIVILIGE.

To come within the qualified immunity
from discovery, three tests must be
satisfied. The material must be:
o Documents and tangible things prepared
in anticipation of litigation.
o To be protected, documents must be
primarily concerned with legal
assistance.
Subjective belief/objectively
reasonable.
o Doctrine applies to parties and their
agents.

To avoid application of the doctrine, a
party must show:
o That there is no reasonable alternative
source for the same or substantially
equivalent information and
o That the party has a substantial need for
the information.

If protection is overcome, attorneys
mental impressions and legal evaluations
need not be disclosed.
Party and witness statements are
discoverable by person making the
statement.
Waiver of protection occurs if protected
document is disclosed to another party
prior to trial.
Protective Orders:
Upon a showing of
good cause, court
may enter an order
to protect a person
from annoyance,
embarrassment,
oppression or
undue burden or
expense.

Good cause is
established by
factual evidence,
not conclusory
statements.

Party requesting
the protective
order has the
burden of showing
good cause for
same.

Court has to
balance
importance of the
information sought
to be discovered
against its
propensity for
annoyance,
embarrassment,
oppression or
undue burden or
expense.

Testifying Experts FRCP 26(a)(2) Non-Testifying Experts Fact Witnesses
90 days before trial must disclose identity and expected testimony and FRCP 26(a)(2)(A) list.
FRCP 26(a)(2)(C): Witnesses Who Do Not Provide a Written Report
o Unless otherwise stipulated or ordered by the court, if the witness is not required to
provide a written report, this disclosure must state:
The subject matter on which the witness is expected to present evidence under FRE 702,
703, or 705; and
A summary of the facts and opinions to which the witness is expected to testify.

Trial-Preparation Protection for Draft Reports or Disclosures:
o FRCP 26(b)(3)(A) and FRCP 26(b)(3)(B) protect drafts of any report or disclosure required
under Rule 26(a)(2), regardless of the form in which the draft is recorded.

Trial-Preparation Protection for Communications Between a Party's Attorney and Expert
Witnesses:
o FRCP 26(b)(3)(A) and FRCP 26(b)(3)(B) protect communications between the party's
attorney and any witness required to provide a report under FRCP 26(a)(2)(B), regardless
of the form of the communications, except to the extent that the communications:
Relate to compensation for the expert's study or testimony;
Identify facts or data that the party's attorney provided and that the expert considered in
forming the opinions to be expressed; or
Identify assumptions that the party's attorney provided and that the expert relied on in
forming the opinions to be expressed.
Limited discovery only
upon a showing of
exceptional
circumstances or

FRCP 35(b):
o Party upon whom a
FRCP 35 exam was
conducted waives
nondisclosure of its
non-testifying experts
because it requested a
copy of the examiners
report.
Mandatory
disclosures
FRCP
26(a)(3)(A)