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BY BRIAN J. MALLOY

The Federal Rules of Civil Procedure(“Rules”) govern civil pretrial and trialpractice in the federal courts. Each feder-al district also has its own civil local rulesthat may govern certain procedures andmost federal district judges have stand-ing orders specific to civil cases. Thisarticle will provide a general overview offederal discovery and deposition proce-dure, with particular attention to impor-tant changes made to the Rules effectiveDecember 1, 2015, and important differ-ences with California practice.

Scope of discovery

Effective December 1, 2015, Rule26(b) was amended to read that thescope of discovery had two require-ments. A “relevancy” requirement for“any non-privileged matter that is rele-vant to any party’s claim or defense”and a “proportionality” requirementthat the discovery be “proportional tothe needs of the case, considering theimportance of the issues at stake in theaction, the amount in controversy, theparties’ relative access to relevant infor-mation, the parties’ resources, theimportance of the discovery in resolvingthe issues, and whether the burden orexpense of the proposed discovery out-weighs its likely benefits.” (Fed. RulesCiv. Proc., rule 26(b)(1).) In other words, in order for evidenceto be discoverable, it must not only benon-privileged and relevant to the claimsor defenses, but also must be proportion-al to the needs of the case. First, the discovery must be relevantto the claims or defenses. The 2015

Amendments deleted the phrase“appears reasonably calculated to lead to the discovery of admissible evidence”from the scope of discovery. However,this Rule explicitly states that matterdoes not have to be admissible to be discoverable. Second, the 2015 Amendmentsrequire that a number of “proportionali-ty” factors must also be considered. Butthis is not a burden that solely falls onthe party seeking the discovery. TheAdvisory Committee states:

A party claiming undue burden orexpense ordinarily has far better infor-mation — perhaps the only informa-tion — with respect to that part of thedetermination. A party claiming that a request is important to resolve theissues should be able to explain theways in which the underlying informa-tion bears on the issues as that partyunderstands them. The court’s respon-sibility, using all the information pro-vided by the parties, is to considerthese and all the other factors inreaching a case-specific determinationof the appropriate scope of discovery.

(See Advisory Comm. Notes, 2015Amends.) The Advisory Committee Notesstate that a party may not “refuse dis-covery simply by making a boilerplateobjection that it is not proportional.”Moreover, the fact that discovery often-times flows mostly in one directiondoes not mean that it is disproportion-al — that is not one of the factors to beconsidered. However, it is important tobe prepared to address these propor-tionality factors when you draft discov-ery and especially if you need to com-pel responses.

Initial disclosures

Unless there is a stipulation, courtorder, or the case falls within a limitedexception, the Rules do not permit dis-covery from parties or nonparties “beforethe parties have conferred as required byRule 26(f) . . . .” (Rule 26(d)(1).) ThisRule 26(f) conference must occur 21 daysprior to the district court’s schedulingconference. The Rules direct a number ofitems be discussed at this conference.(Rule 26(f)(2).) The district judge willenter a Scheduling Order pursuant toRule 16 following this conference, whichwill usually set a trial date, a variety ofpretrial deadlines (i.e., close of fact andexpert discovery) and other case manage-ment issues. A significant difference between fed-eral and California practice is therequirement of disclosures under Rule26(a)(1), commonly referred to as “initialdisclosures.” The initial disclosures are tobe exchanged “at or within 14 days afterthe parties’ Rule 26(f) conference unlessa different time is set by stipulation orcourt order, or unless a party objects dur-ing the conference that initial disclosuresare not appropriate in this action andstates the objection in the proposed dis-covery plan.” (Rule 26(a)(1)(C).) Thus, inpractice, these disclosures will be madenear the time of the Rule 26(f) confer-ence and the district court’s schedulingconference. It is important to understand what isrequired to be disclosed and the conse-quences for failing to disclose. Rule26(a)(1)(A) requires the disclosure of thefollowing information concerning witness-es, documents, damage computations,and insurance agreement information:

Trial Practice

Federal court discovery anddeposition practiceAn overview and update of the most important FederalRules, in particular the changes effective December 1, 2015,and important differences with California practice

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(i) the name and, if known, the addressand telephone number of each individ-ual likely to have discoverable informa-tion — along with the subjects of thatinformation — that the disclosing partymay use to support its claims ordefenses, unless the use would be solely for impeachment;(ii) a copy — or a description by cate-gory and location — of all documents,electronically stored information, andtangible things that the disclosingparty has in its possession, custody, orcontrol and may use to support itsclaims or defenses, unless the usewould be solely for impeachment;(iii) a computation of each category ofdamages claimed by the disclosingparty — who must also make availablefor inspection and copying asunder Rule 34 the documents or otherevidentiary material, unless privilegedor protected from disclosure, on whicheach computation is based, includingmaterials bearing on the nature andextent of injuries suffered; and(iv) for inspection and copying asunder Rule 34, any insurance agree-ment under which an insurance busi-

ness may be liable to satisfy all or partof a possible judgment in the action orto indemnify or reimburse for pay-ments made to satisfy the judgment.

At the Rule 26(f) conference withopposing counsel, you may find it benefi-cial to attempt to reach an agreement toproduce the initial disclosure documents(as opposed to simply “describing” them)without the need for a formal discoveryrequest. This will save time and also pro-vide you with the opposing party’s docu-ments sooner. Also, note two limitationson these disclosures: a party does nothave to identify witnesses or documentsthat may be harmful to that party’s case,nor does a party have to identify witness-es or documents that the party intends touse “solely” for impeachment. A party is also under a continuingduty to supplement its initial disclosures(as well as all other discovery responses)“if the party learns that in some materialrespect the disclosure or response isincomplete or incorrect, and if the addi-tional or corrective information has nototherwise been made known to the otherparties during the discovery process or inwriting . . . .” (Rule 26(e)(1)(A).)

Written discovery and electronically stored information Interrogatories are governed by Rule 33. There are no FormInterrogatories (or SpecialInterrogatories) in federal court; theyare simply called Interrogatories. TheRule limits a party to serving no morethan 25 interrogatories “including alldiscrete subparts” on any other party.(Rule 33(a)(1).) Unlike state practice,however, you cannot sign a declarationto propound more than 25; instead, youeither have to stipulate with opposingcounsel to exceed that limit or seekleave of court. (Rule 33(a)(1).) Therefore, if you anticipate need-ing more than 25 interrogatories in aparticular case, you should bring thisup in your Rule 26(f) conference withopposing counsel before the schedul-ing conference and propose anincrease in your joint case manage-ment statement. This will enable thejudge to enter that increase as part ofthe Scheduling Order. This will savetime and hassle later on if you findyourself needing to exceed this num-ber.

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Requests for Production ofDocuments are governed by Rule 34.Rule 34 allows a party to request fromanother party:

(1) to produce and permit the request-ing party or its representative toinspect, copy, test, or sample the fol-lowing items in the responding party’spossession, custody, or control:(A) any designated documents or elec-tronically stored information — includ-ing writings, drawings, graphs, charts,photographs, sound recordings,images, and other data or data compi-lations — stored in any medium fromwhich information can be obtainedeither directly or, if necessary, aftertranslation by the responding partyinto a reasonably usable form; or(B) any designated tangible things; or(2) to permit entry onto designatedland or other property possessed orcontrolled by the responding party, sothat the requesting party may inspect,measure, survey, photograph, test, orsample the property or any designatedobject or operation on it.

(Rule 34(a).) A privilege log is required if theresponding party is withholding docu-ments based on privilege. (Rule26(b)(5)(A).) Unlike responses to inter-rogatories and unlike state practice, the

responses to document requests do nothave to be verified.

Documents and ESI requestsunder Rule 34

The 2015 Amendments make severalrevisions to Rule 34 requests. First, docu-ment requests under Rule 34 can now beserved prior to the Rule 26(f) conference,21 days after the party has been served.(Rule 26(d)(2)(A).) However, the time torespond does not begin until the partieshave the Rule 26(f) conference. (Rule26(d)(2).) The 2015 Amendments also soughtto provide clarity regarding objections toRule 34 requests and productions. Rule34(b)(2)(B) was amended to require thatobjections be stated “with specificity thegrounds for objecting to the request,including the reasons.” This amendmentties to a revision of Rule 34(b)(2)(C),which directs that an objection to arequest under Rule 34 must statewhether anything is being withheld onthe basis of that objection. The AdvisoryCommittee Notes state that “[t]hisamendment should end the confusionthat frequently arises when a producingparty states several objections and stillproduces information, leaving therequesting party uncertain whether anyrelevant and responsive information has

been withheld on the basis of the objec-tions.” (Advisory Comm. Notes, 2015Amends.) Further, the responding party cannotsimply sit on the actual production ofdocuments or take its time with an unde-fined rolling production: “The produc-tion must then be completed no laterthan the time for inspection specified inthe request or another reasonable timespecified in the response.” (Rule34(b)(2)(B).) If you are getting boilerplate objec-tions and ambiguous responses, making itunclear whether documents are beingwithheld, use the newly amended Rule 34to your advantage. For example, in LoopAI Labs, Inc. v. Gatti, No. 15-cv-00798-HSG (DMR), 2016 WL 9132846 (N.D.Cal. May 6, 2016), the court discussed thenew amendments to Rule 34 and foundthat the defendant’s responses did notcomply with them, ordering furtherresponses and ultimately sanctions. Rule 34 allows for discovery of elec-tronically stored information (“ESI”).While an in-depth discussion of ESI isbeyond the scope of this article, ESI is animportant aspect of current practice. ESImust be discussed early in the case andcertainly as part of a Rule 26(f) confer-ence. For example, the Northern Districtof California has an entire section of itswebsite devoted to E-Discovery (ESI)Guidelines, https://www.cand.uscourts.gov/eDiscoveryGuidelines, which includes anESI Checklist to be used in the Rule 26(f)conference and an ESI Guidelines docu-ment, both revised in December 2015.

Requests for Admissions

Requests for Admissions are gov-erned by Rule 36, which operates in a similar manner as Requests forAdmissions under state law. There are no limits under the Rules on the numberof requests that can be propounded.However, be aware of a potential trap.Unlike Form Interrogatory 17.1, whichrequests information supporting a denialof a request to admit, there is no corre-sponding interrogatory in federal court.If you send similar discovery in federalcourt, you have to be mindful of the

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number of interrogatories that you maysend. While the Rules do not addressthis, many federal districts’ local rulesstate that asking for the information thatis contained in Form Interrogatory No.17.1 will be treated a separate interroga-tory subject to those limitations. (See,e.g., N.D. Civ. L. Rule 36-2.) It is criticalto respond to Requests for Admissionsbecause failure to respond results in therequests being deemed admitted withoutthe need for a motion to have theresponses established as admitted. (Rule 36(a)(3).) Finally, Rule 35 governs physical andmental examinations. The Rule statesthat “[t]he court where the action ispending may order a party whose mentalor physical condition – including bloodgroup — is in controversy to submit to aphysical or mental examination by a suit-ably licensed or certified examiner.”(emphasis supplied.) (Rule 35(a)(1).) Thisorder “(A) may be made only on motionfor good cause and on notice to all par-ties and the person to be examined; and(B) must specify the time, place, manner,conditions, and scope of the examina-tion, as well as the person or personswho will perform it.” (Rule 35(a)(2).) A party may request a copy of theexaminer’s report, “together with likereports of all earlier examinations of thesame condition.” (Rule 35(b)(1).) Thereport “must be in writing and must setout in detail the examiner’s findings,including diagnoses, conclusions, andthe results of any tests.” (Rule 35(b)(2).)The party who sought the examination,after delivering the report, may requestand receive from the other party “likereports of all earlier or later examina-tions of the same condition.” (Rule35(b)(3).)

Subpoenas to nonparties

Rule 45 governs subpoenas.Subpoenas may issue for deposition testi-mony and/or document production.There is no specific time limitation fordeposition testimony or, unlike Rule 34,document requests. Instead, the time tocomply must be reasonable. (Rule45(c)(3)(i).)

Depositions Rule 30 governs depositions in fed-eral court. Unlike in state court, wherethe Code of Civil Procedure providestiming requirements, a deposition noticein federal court need only give “reason-able written notice.” (Rule 30(b)(1).)“Reasonable” notice depends on the factsof a particular case and of a particularnotice. For example, some courts haveinterpreted notice periods as short aseight days to be reasonable under thefacts of the case, Jones v. United States, 720F.Supp. 355, 366 (S.D.N.Y. 1989), whilein more complex cases ten days was heldto be unreasonable, In re Sulfuric AcidAntitrust Litigation, 231 F.R.D. 320, 327-

328 (N.D.Ill. 2005). However, time limitsapply if you want the party deponent tobring documents to the deposition, whichare governed by Rule 34’s limitations.(Rule 30(b)(2).) In other words, if youwish to compel the party deponent tobring documents, the deposition cannotbe noticed to occur for at least 30 days. The Northern District local rulesrequire conferring with opposing counselbefore sending out a notice of a party.(N.D. Civ. L. Rule 30-1.) Regarding anon-party witness, “[a] party noticing adeposition of a witness who is not a partyor affiliated with a party must also meetand confer about scheduling, but may doso after serving the nonparty witness with

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a subpoena.” (Ibid.) The local rules alsorequire parties to confer regarding thesequencing of deposition exhibits. (N.D.Civ. L. Rule 30-2.) Rule 30(a)(2)(A)(i) limits the numberof depositions to 10 “by the plaintiffs, orby the defendants, or by the third-partydefendants.” In other words, the limit is10 depositions per each side. The partiescan stipulate to exceed this limitation ora party can seek leave of court. (See Rule30(a)(2)(A).) As with expanding the num-ber of interrogatories, if you believe youwill need more than 10 depositions, thisshould be addressed at the Rule 26(f)conference and with the district judge atthe initial scheduling conference. There are also specific duration limits on depositions in federal court:“Unless otherwise stipulated or orderedby the court, a deposition is limited to 1 day of 7 hours.” (Rule 30(d)(1).) Similar to state practice (Code ofCiv. Proc., § 2025.230), you may direct anotice or subpoena at an organization:

Notice or Subpoena Directed to anOrganization. In its notice or subpoena,a party may name as the deponent apublic or private corporation, a part-nership, an association, a governmen-tal agency, or other entity and mustdescribe with reasonable particularity thematters for examination. The namedorganization must then designate oneor more officers, directors, or manag-ing agents, or designate other personswho consent to testify on its behalf; and itmay set out the matters on which eachperson designated will testify. A sub-poena must advise a nonparty organi-zation of its duty to make this designa-tion. The persons designated must testifyabout information known or reasonablyavailable to the organization. This para-graph (6) does not preclude a deposi-tion by any other procedure allowed bythese rules.

(Rule 30(b)(6) (emphasis supplied).) Although Rule 30(b)(6) does not use the term “most qualified,” the Rule30(b)(6) witness must be knowledgeableof the “matters for examination” and the testimony binds the organization.Importantly, if the entity produces several

individuals to cover various topics, thatwill only count as one deposition towardthe 10 deposition limit.

Expert disclosures

Rule 26(a)(2) governs the disclosureof expert identities and opinions. All wit-nesses who will be providing expert testi-mony must be identified in the disclo-sure. (Rule 26(a)(2)(A).) A key differencefrom state practice is the requirement ofa written expert report “if the witness isone retained or specially employed toprovide expert testimony in the case orone whose duties as the party’s employeeregularly involve giving expert testimo-ny.” (Rule 26(a)(2)(B).) The writtenreport must contain:(i) a complete statement of all opinionsthe witness will express and the basis and reasons for them; (ii) the facts or data considered by thewitness in forming them; (iii) any exhibits that will be used to sum-marize or support them; (iv) the witness’s qualifications, includinga list of all publications authored in theprevious 10 years; (v) a list of all other cases in which, during the previous 4 years, the witnesstestified as an expert at trial or by deposition; and (vi) a statement of the compensation tobe paid for the study and testimony inthe case. (Rule 26(a)(2)(B)(i)-(vi).)

Attorney-expert communications

Under 2010 amendments to theRules, there is a limited protection forattorney-expert communications whichdiffers from California state practice.Unlike California state practice, drafts ofexpert reports are shielded from discov-ery under Rule 26(b)(4)(B): “Rules26(b)(3)(A) and (B) protect drafts of anyreport or disclosure required under Rule26(a)(2), regardless of the form in whichthe draft is recorded.” Additionally, com-munications between an expert andattorney also receive limited protection.Such communications “between theparty’s attorney and any witness requiredto provide a report under Rule

26(a)(2)(B), regardless of the form of thecommunication” are generally1 protectedfrom disclosure except to the extent thecommunications: “(i) relate to compensa-tion for the expert’s study or testimony;(ii) identify facts or data that the party’sattorney provided and that the expertconsidered in forming the opinions to beexpressed; or (iii) identify assumptionsthat the party’s attorney provided andthat the expert relied on in forming theopinions to be expressed.” (Rule26(a)(2)(C)(i)-(iii).) Therefore, email communicationsbetween the expert and attorney are nolonger discoverable, provided the emailcommunication does not fit within one of the three exceptions (compensation,facts or data considered, or relied-uponassumptions). The Advisory CommitteeNotes to these amendments state thatthey were added “to provide work-prod-uct protection against discovery regard-ing draft expert disclosures or reportsand – with three specific exceptions –communications between expert witness-es and counsel.” As to experts who do not have toprovide a written report, you still mustdisclose their subject matter of testimonyand a summary of facts and opinions towhich the witness is expected to testify.(Rule 26(a)(2)(C).) The expert disclosure deadline isusually set in the Scheduling Order but ifnot, 90 days before the trial date. (Rule26(a)(2)(D)(i).) Rebuttal disclosures aredue 30 days after the other party’s disclo-sure. (Rule 26(a)(2)(D)(ii).) Note that“staggered” disclosures (where the plain-tiff discloses first, then the defendant discloses sometime thereafter) are notrequired by the federal rules.

Compelling discovery

The federal rules do not contain anytime limit in which a motion to compeldiscovery must be filed. But you shouldcheck your court’s local rules and eventhe judge’s standing order. For instance,in the Northern District of California youmust move to compel within seven daysof the close of discovery. (See N.D. Civ.L. Rule 37-3.)

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Rule 37 governs motions to compeland sanctions for all discovery matters.The party moving for an order com-pelling disclosures or discovery under Rule 37(a) to “include a certification thatthe movant has in good faith conferredor attempted to confer with the personor party failing to make disclosure or dis-covery in an effort to obtain it withoutcourt action.” (Rule 37(a)(1).) Districtcourts also have local rules requiring agood faith meet and confer effort priorto filing any motion. (See, e.g., N.D. Civ.L. Rule 37-1, “Procedures for ResolvingDisputes.”) Of note, Rule 37(e) was amended toprovide clarity on when sanctions shouldbe imposed for the failure of a party toproduce ESI. Oftentimes in federal court you willbe assigned to a magistrate judge to dealwith discovery disputes. It is very impor-tant to know your district judge andmagistrate judge’s requirements for mov-ing to compel discovery. Many judgeshave requirements that must be followedbefore filing a motion to compel. Forexample, some judges require that themeet and confer sessions be transcribed

or recorded. Other judges require a shortletter brief to be submitted followed by aconference call with the court prior toany motions to compel being permitted.Therefore, because of these particularrequirements that are judge-specific, it isimportant to become familiar with yourassigned judge’s requirements on com-pelling discovery. A federal court has authority underRule 37 to impose sanctions for a varietyof discovery abuses (Rule 37(b)), includ-ing failing to provide or supplement ini-tial disclosures (Rule 37(c)). Regardinginitial disclosures, the rule provides that“[i]f a party fails to provide informationor identify a witness as required by Rule26(a) or (e), the party is not allowed touse that information or witness to supplyevidence on a motion, at a hearing, or ata trial, unless the failure was substantiallyjustified or is harmless.” (Rule 37(c)(1).)Note that these exclusions do not requireviolation of a court order. The require-ment of disclosure and supplementationshould therefore especially be taken toheart. My office has had success in hav-ing key evidence from a defendantexcluded due to noncompliance with

the disclosure and supplementationrequirements as district judges generallydo not take lightly a party’s failure tocomply with Rule 26’s mandates.

Brian J. Malloy is withThe Brandi Law Firm inSan Francisco where he rep-resents plaintiffs in state andfederal courts in product liability, personal injury,wrongful death, elder abuse,mass torts, select employmentmatters and class/collectives.He is admitted to the bars of California,Nevada, Arizona, and Washington, D.C.,along with several federal courts. He has been selected to Best Lawyers andto Super Lawyers. His firm’s website is:http://www.brandilaw.com.

Endnote:1 The materials are “generally” protected because under Rule26(b)(3)(A), a party may obtain “documents and tangiblethings that are prepared in anticipation of litigation or for trial”by another party or party representative if those materials are“otherwise discoverable under Rule 26(b)(1)” and “the partyshows that it has substantial need for the materials to prepareits case and cannot, without undue hardship, obtain their substantial equivalent by other means.”

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